General Terms & Conditions of Botterweg Auctions Amsterdam (BAA)

These conditions are applicable to all auctions organised by Botterweg Auctions Amsterdam (hereinafter: BAA). The visitors of the auction site are informed of the applicability of these general terms by means of a publication on the auction site. Any person participating at the auction thus acknowledges that he accepts the applicability of these terms.

In these general auction conditions the following defined terms are used:

  • Auction: The sale by means of increasing bids on the internet, prior viewing being available during the view days as mentioned on the auction site;
  • Auction Master: Botterweg Auctions Amsterdam;
  • Lot The moveable good or collection of moveable goods which are sold as one number;
  • Bid: The amount bid by a bidder for a lot offered at the auction;
  • Sleeping bid: Bidding order to bid up to a maximum amount;
  • Bidder: The person that makes a bid at the auction;
  • Buyer: The bidder to whom a lot has been allotted;
  • Allotment: The declaration by the auction master by which a bid is accepted and which constitutes the sale agreement between the offeror and the buyer;
  • Offeror: The person that offers a lot to BAA for the auction;
  • Hammer price: The amount for which a lot is allotted to the buyer by the auction master;
  • Purchase price: The hammer price increased with an additional amount of 26.4% as surcharge (including VAT over the surplus) and, as the case may be, with resale rights;
  • Aftersale: The sale of unsold lots, during a limited period of time after the auction in which these lots were offered. See article 10 of these general terms and conditions.
  • Resale rights: The amount in addition to the purchase price of a lot, if, in the opinion of BAA, the lot complies with the conditions in accordance to which pursuant to the law (the Dutch Copyright Act 1912, Chapter IV, Special Provisions regarding the resale rights, article 43) a compensation is due to the maker of a work of art. For more information and an explanation please visit the auction site.

Article 1. Condition of the goods offered.

  • All objects offered for sale on the auction site are owned by third parties and are sold as is.
  • The absence of a description of the condition of an object offered for sale on the auction site, implies that it has no damages, faults or restoration, to the extent BAA has been able to assess. It should be mentioned that almost all objects offered for sale are originals, which implies that they are not new and may show signs of use or wear.
  • If an object shows damages, faults or signs of restoration, visible for BAA, such will be mentioned under the heading "Condition".
  • Each object is sold in the same condition as it has at the moment is was allotted.
  • Shortcomings or faults in the description which become known during the auction, will be announced by a correction in the description of the lot concerned with the addition of the words: TEXT REVISED.

Article 2. Making a bid.

  • Each bid is unconditional and irrevocable.
  • A bid can be made by internet, by email, or in the room. Internet bids have priority over room bids. With equal bids a sleeping bid has priority over the bid of an active bidder.
  • The person that makes a bid at the auction is assumed to be the bidder, even if he declares not to have bid for himself.
  • The auction proceeds by means of a fixed ladder of increasing bids. This ladder is mentioned on the auction site. By making a bid, the last bid is automatically increased to the next bidding step. If a bid has been made that is lower or higher than the next bidding step according to the ladder, the auction site will automatically indicate which next bidding step is valid.
  • BAA excludes any and all liability in connection with the failure, for whichever reason, of an electronic bid.

Article 3. Conclusion of the sale agreement.

  • The objects offered for auction are not owned by BAA. The sale of these objects takes place through the intermediary of BAA.
  • The sale agreement is concluded by means of a final allotment. A final allotment exists if and when the auction master has accepted a bid of the buyer as being the highest bid at the time that the auction ends.
  • The buyer owes the purchase price, being the hammer price increased with the surplus of 26.4% thereof, to BAA. Resale rights, to the extent due, will be owed by the buyer by means of an additional amount on top of the purchase price.
  • As of the allotment, the lot will be immediately and in full for the account and for the risk of the buyer.

Article 4. Liability BAA.

  • In case BAA is responsible for direct damage, BAA's liability is limited to, at the most, the amount paid by the insurance company to cover that damage, if that is the case.
  • The insurance company applies as basis for indemnification for damage to goods offered for auction: the minimal auction-value (lower-taxation) if this has been recorded in writing or, if no written record exists, the factual replacement value on the day the damage occurred.
  • BAA is never responsible for indirect damage, such as for example consequential damages or punitive damages, lost savings or damage through business interruptions.
  • The limitations of liability for direct damages, as mentioned in these general conditions, are not valid in cases of malign intent or gross negligence on the part of BAA or its employees.

Article 5. Supervision of the auction.

  • The auction takes place under the supervision of the court bailiff S. Paulusma of the bailiffs' office Kemper & Paulusma at Amsterdam.
  • The court bailiff Paulusma will make determinations, in respect of anything which may happen during the auction, including possible disputes regarding the interpretation or applicability of these terms.

Article 6. Assessment and initial amount.

  • Next to each lot an assessment and an initial amount will be mentioned. The assessments are indicative prices and serve to direct potential bidders. The initial amount is the minimum amount that may be bid.

Article 7. Rescission of the sale agreement.

  • The lots at the auction may be viewed during the view days. The lots are sold as is. Consequently, notwithstanding the provisions of paragraph 2 below, the buyer will accept all visible and not visible faults and he may not expect that the lots have any specific properties, such as regarding condition, history, age, dimensions, suitability for any specific use, etc. Any entitlement to nullify the sale agreement on the basis of error is explicitely excluded.
  • The buyer will be entitled to rescind the sale agreement and will be entitled to a refund of the purchase price, if, within 14 (fourteen) days after the end of the auction, the buyer provides clear evidence that the lot has faults to such an extent or that the description given is incorrect to such an extent, that, if the buyer would have known these faults or that the description was incorrect at the time of the auction, the buyer would not have concluded the sale agreement or that he would only have bought the lot for a substantial lower amount.
  • The refund will take place only after the auctioneer has received the amount due from the offerer.
  • In the case of a difference in opinion about whether a situation as described above exists, an independent third person (knowledgeable and capable) can be consulted.
  • The buyer will not have the rights mentioned above if the fault or the incorrectness of the description has been made known during the auction or has come into existence after the allotment.

Article 8. Payment and transfer of title.

  • Transfer of title to a lot and release to the buyer or its representative will only take place after BAA has received the purchase price.
  • The purchase price will have to be paid to BAA no later than 3 (three) days after the auction, failing which the costs of transport, storage and insurance will be due by the buyer, together with interest equal to the statutory interest. This interest will be calculated from the day of the auction up to the day of full payment. The 3 day period may only be extended upon explicit agreement by the auction master.
  • The delivery period stated on the invoice shall not be of the essence, unless explicitly agreed otherwise.
  • The buyer will have to identify himself upon the first request of BAA.
  • The buyer will have bought for himself and is liable for payment without being able to invoke any proxy.
  • The rights and obligations under the sale agreement and these general terms apply to the buyer only and may not be transferred to third parties.

Article 9. Separate Clients Account.

  • Payments are handled via a 'derdengeldenrekening'(separate clients account) which is managed by the Foundation Derdengeldenrekening Botterweg Auctions Amsterdam. The capital on this account is therefore strictly separated from BAA's business capital.

Article 10. Buyer in default.

  • If the buyer has not paid the purchase price in full within the abovementioned period of 3 days after the auction, the buyer will be in default and BAA will immediately be entitled to rescind the sale agreement by means of a written declaration. BAA will not be obliged to pay a refund of any kind to the buyer.
  • This same entitlement is valid in case BAA (on behalf of the offerer) has requested the buyer to provide security for te fulfilment of his obligation and that security has not been provided, or is insufficient, or in case the buyer is in any other way in default and does not comply with his obligations  towards BAA on account of the sale agreement. The buyer is obliged to repay all damages caused by his default.

   Article 11. Consequences of non-payment

  • If the buyer has not paid the purchase price in full within the abovementioned period of 3 days after the auction, the buyer will be in default and BAA will immediately be entitled to undertake recovery measures, or to regard the sale agreement as dissolved and to resell the lot or lots concerned either in public or in a private sale.
  • If, after the expiry date, BAA is obliged to undertake recovery measures, the other party that is acting in the exercise of a profession or a business owes extrajudicial (collection) costs  - in accordance with "Rapport Voorwerk II". Recovery costs for buyers will be calculated in accordance with "het Besluit vergoeding voor buitengerechtelijke incassokosten 2012".
  • If the buyer is in default, he will remain liable for the amount of the purchase price of the lot bought.

Article 12. Storage of purchased goods.

  • After the auction has ended BAA keeps the goods of buyers (if paid for) in storage for 8 (eight) weeks free of charge. After these 8 weeks the storage costs will be 25 euros per item per month, unless a different arrangement has been made with the auction master.
  • When the cost of storing exceeds the value of the total price of the goods, then the goods will be included in the next auction to cover these costs. Also, the goods will be included in the next auction if they have not been picked up within a year after the auction has ended and the total of the storage costs will be deducted from the result of the sold goods.

Article 13. Aftersale.

  • A BAA auction may be followed by an aftersale. In this case, lots that were not sold during the auction are put on offer for the opening amount with a mark-up of 26.4 %, to be owed to BAA. An aftersale is held during a limited period of time after the auction on the BAA site.
  • During the aftersale, the rights and obligations of the buyer, the offerer and the auctioneer are as they apply in the case of an object during the auction, and as set out in these general terms and conditions.

Article 14. Value Added Tax (VAT).

  • VAT in accordance with the so-called margin provisions will only be applied over the surplus and possible other costs. VAT over the surplus is included in the purchase price as mentioned in these terms. As a consequence of the aforementioned margin provisions, a reclaim of the VAT over the surplus of these purchase prices is not possible, unless provided for by law in the country of provenance.

Article 15. Applicable law and translations.

  • The legal relationship between the buyer(s) and BAA and the offeror(s) is subject to Dutch law and all disputes will exclusively be submitted to the District Court at Amsterdam.
  • In case of any discrepancy between the Dutch text and any foreign translation of these terms or between the descriptions on the auction site in respect of lots offered at the auction, the Dutch text will prevail.

Article 16. Consequences of a technical malfunction.

  • BAA does everything in their power to prevent failures of the auction site due to technical malfunction in the software and hardware of the auction site or, in case of failure, to fix the problems as quickly as possible.
  • As for the consequences of a failure or delay during the auction, due to a technical malfunction or defect in the hardware or software of the auction site, bidders can derive no rights concerning planned bids or bids made.
  • If, for no fault of BAA, the auction site is not available or only with great difficulty during the last 24 hours of the auction, BAA will be entitled to prolong the auction.

 

General terms for offerors

These terms apply to all offers and each delivery of moveable goods intended to be sold at the auction by Botterweg Auctions Amsterdam (BAA).

By signing the offering form, the offeror acknowledges to know and to accept these terms. Any departure from these terms will only be valid following an explicit acceptance by the auction master, as confirmed on the offer form.

Article 17. Offering a lot for the auction.

  • The offeror authorises BAA to sell the lot at the auction in accordance with these auction terms.
  • BAA will use reasonable endeavours to offer the lot for sale in an appropriate auction and to sell the lot on behalf of the offeror to the party that makes the highest bid for such lot at the auction, unless such bid does not match the reserve price as agreed with the offeror.

Article 18. Liability of the offeror.

  • The offeror represents and warrants that he is entitled to offer the goods at the auction either as owner or otherwise and indemnifies BAA in respect of all claims of third parties in this respect.
  • The offeror is fully liable towards BAA for all costs and damages as a consequence of providing incorrect or incomplete information in respect of the origin, condition or quality of the lot offered for the auction.

Article 19. Liability BAA.

  • In case BAA is responsible for direct damage, BAA's liability is limited to, at the most, the amount paid by the insurance company to cover that damage, if that is the case.
  • The insurance company applies as basis for indemnification for damage to goods offered for auction: the minimal auction-value (lower-taxation) if this has been recorded in writing or, if no written record exists, the factual replacement value on the day the damage occurred.
  • BAA is never responsible for indirect damage, such as for example consequential damages or punitive damages, lost savings or damage through business interruptions.
  • The limitations of liability for direct damages, as mentioned in these general conditions, are not valid in cases of malign intent or gross negligence on the part of BAA or its employees.

Article 20. Examination, assessment and publication.

  • The offeror authorises BAA to have the lot offered, examined and assessed (if necessary by an expert), and sold at the auction.
  • BAA will have full discretion to decide whether or not the lot will be offered for sale, and if so at which auction.
  • BAA will have full discretion to make announcements in respect of the lot to be auctioned and to present images for the public.

Article 21. Rights of BAA in respect of the manner of sale.

  • BAA is entitled to sell the lot at the auction for an amount below the reserve price, provided that the difference between the accepted amount and the reserve price remains for the account of BAA.
  • BAA is entitled to sell in an aftersale, in a private sale after the auction, or to re-auction at a later moment in time, lots which have remained unsold at the auction, in accordance with the provisions agreed with the offeror.
  • During the aftersale, the rights and obligations of the buyer, the offerer and the auctioneer are as they apply in the case of an object during the auction, and as set out in these general terms and conditions.

Article 22. Conditions for the return of a lot.

  • Contrary to article 21, the offeror will be entitled to take back a lot which has not been sold at the auction against payment of the costs incurred by BAA and the agreed costs.
  • Once a lot has been offered for the auction, the offeror may take back the lot against payment of 30% of the expected proceeds as assessed by BAA, or of the reserve price if such was agreed, to be increased with costs which may have been incurred.

Article 23. Rescission of the sale agreement and its consequences.

  • The offeror irrevocably authorises BAA to allow the buyer of any auctioned lot to rescind the sale agreement and claim a refund of the purchase price, if, within 14 (fourteen) days after the end of the auction, the buyer provides clear evidence that the lot has faults to such an extent or that the description given is incorrect to such an extent, that, if the buyer would have known these faults or that the description was incorrect at the time of the auction, the buyer would not have concluded the sale agreement or that he would only have bought the lot for a substantial lower amount.
  • The offeror irrevocably authorises BAA to rescind a sale agreement and to take back the lot if the buyer of the lot is in default regarding his payment obligations in connection with the sale agreement.
  • If the sale agreement is rescinded pursuant to this article, the lot will be deemed to be unsold and the offeror will be obliged to promptly pay back any amount paid to it.

Article 24. Storage unsold goods.

  • After the auction has ended, BAA keeps the unsold goods of offerers in storage for 8 (eight) weeks free of charge. After these 8 weeks the storage costs will be 25 Euros per month, unless a different arrangement has been made with the auction master.
  • When the cost of storing exceeds the value of the total price of the goods, then the goods will be included in the next auction to cover these costs. Also, the goods will be included in the next auction if they have not been picked up within a year after the auction has ended and the total of the storage costs will be deducted from the result of the sold goods.

Article 25. Payment of proceeds to the offerer.

  • If a lot is sold, BAA will be entitled to a commission, being a percentage of the proceeds of the lot sold, as agreed in advance and mentioned on the offer form.
  • Should resale rights be due in respect of an auctioned lot, the amount will be determined to the best of its knowledge by BAA, which amount will be invoiced to the buyer as part of the purchase price.
  • BAA will pay to the offeror the proceeds of the sale after deduction of all costs which are for the account of the buyer, such as the commission mentioned in this article, which may be increased with the costs of restoration, repair and insurance, provided that BAA has received the purchase price in full from the buyer and that the buyer has not rescinded the sale agreement.
  • Payment will be made to the offeror no sooner than 4 weeks after the auction has ended.

Article 26. Separate Clients Account.

  • Payments are handled via a 'derdengeldenrekening' (separate clients account) which is managed by the Foundation Derdengelden Botterweg Auctions Amsterdam. The capital on this account is therefore strictly separated from BAA's business capital.

Article 27. Consequences of a technical malfunction.

  • BAA does everything in their power to prevent failures of the auction site due to technical malfunction in the software and hardware of the auction site or, in case of failure, to fix the problems as quickly as possible.
  • As for the consequences of a failure or delay during the auction, due to a technical malfunction or defect in the hardware or software of the auction site, offerors can derive no rights concerning planned bids or bids made.
  • If, for no fault of BAA, the auction site is not available or only with great difficulty during the last 24 hours of the auction, BAA will be entitled to prolong the auction.

Article 28. Applicable law and translations.

  • The legal relationship between the offeror(s) and BAA and the buyer(s) is subject to Dutch law and all disputes will exclusively be submitted to the District Court at Amsterdam.
  • In case of any discrepancy between the Dutch text and any foreign translation of these terms or between the descriptions on the auction site in respect of lots offered at the auction, the Dutch text will prevail.

 

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