General Terms and Conditions of Business
ART thamér GALLERY
The following Terms and Conditions of Business are an essential part of all contracts concluded between the company ART thamér GALLERY (hereinafter: ATG) and both users and buyers/clients. Inasmuch as an ongoing business relationship exists between the user, or buyer/client, and the ATG, these General Terms and Conditions of Business shall apply if a special reference is made to their inclusion when individual contracts are concluded in the future.
1. Area of Application
These General Terms and Conditions of Business shall be binding to all commercial correspondence conducted by the gallery. Conditions and terms of purchase to the opposite effect shall not apply. The buyer confirms by his/her signature that he/she is in full knowledge of these terms and conditions.
2. Purchase Prices
The purchase prices are quoted in Euros. They contain the VAT chargeable at the time of purchase. For 20th century artworks, the gallery pays a fee, which is also contained in the purchase price, to compensate for the legal droit de suite (Section 26 German copyright law), as well as the Künstlersozialkasse (the artists’ social fund).
3. Reimbursement of VAT
(3.1) States outside the EU
According to the legal provisions, export deliveries to third countries outside the EU single market are exempt from VAT. If a buyer takes an object of purchase abroad, he/she must pay security to the amount of the VAT he/she will be reimbursed upon presenting the export/acquirer’s certificate of the Art thamér Gallery
(3.2) The EU Single Market
If the buyer is a company in the sense of the laws on VAT, who legitimately uses his VAT ID No. issued to him/her by his/her country of residence in the EU, the delivery shall be exempt from VAT provided that in his/her country the said delivery is subject to the purchase tax. The buyer must, however, pay security equivalent to the amount of the VAT due to him/her as soon as the VAT ID number has been duly received by Art thamér Gallery. Should the VAT ID number subsequently prove to be wrong, Art thamér Gallery shall be entitled to withdraw from the contract of purchase.
4. Terms of Payment
The purchase price is due without any deductions on receipt of the invoice. In the case of non-cash payments (cheque, bank-transfer, etc.), the buyer shall bear the costs of the cheque, etc. and its redemption.
5. Surrender and Retention of Title
(5.1) The buyer can demand the surrender of the object of purchase only upon full payment of the purchase price.
(5.2) Transfer of ownership of the purchased object shall take place under the suspensive condition that the purchase price has been paid in full. The Art thamér Gallery is entitled to withdraw from the contract if the buyer is in arrears in paying the purchase price. If, contrary to arrangement envisaged under item 5.1, the object of purchase is handed over to the buyer before the purchase price has been paid in full, the buyer shall be obliged to treat the object of purchase carefully and with due care until transfer of ownership has taken place, and to protect said object from damage and/or non-delivery.
6. Offsetting and Retention
The buyer is entitled to offset claims only if they are incontestable or legally established. Rights of retention on the part of the buyer cannot be upheld unless they are based on the same contractual agreement.
7. Arrears
7.1. Debtor’s delay
If the buyer defaults in paying the purchase price, or delays in paying an instalment of the purchase price, Art thamér Gallery shall be entitled and, on the demand of the artist, obliged, to inform the artist of the buyer's name and address. Should the buyer default in paying the purchase price, the interest on arrears per year shall amount to five percentage points above the base interest rate, or eight percentage points above the base interest rate if the buyer makes the purchase within the scope of his commercial and/or independent occupational activity. The Art thamér Gallery can assert a claim for more extensive damages. In the case of a delay in payment, the Art thamér Gallery is entitled to make all outstanding instalments payable immediately.
(7.9) Default in acceptance
The buyer is in default if he does not collect the object of purchase within the contractually agreed deadline or within 30 days after a tender service has been offered by the Art thamér Gallery. Upon the onset of a delay in payment, Art thamér Gallery is entitled to insure and warehouse the object of sale at the buyer’s risk and expense (Section 304 BGB [German Civil Code]).
(7.3) Period of grace
Should the buyer find him-/herself in debtor's delay or default in acceptance, the Art thamér Gallery shall be entitled to withdraw from the contract of sale after an appropriate period of grace. In this case, the Art thamér Gallery is entitled to charge not only the legal rights, but also damages, so that the buyer, should he/she attempt to resell the item of sale, has to make up for the loss in proceeds. The buyer has no legal claim to any profit.
8. Shipment of the Object of Purchase
The object of purchase is to be dispatched only upon the written instruction of the buyer. The risk of damage or loss of an item of purchase during shipment is to be borne by the buyer inasmuch as he intends to use the object of purchase within the scope of his commercial or independent professional activity. If the value of the object of purchase exceeds € 150, the Art thamér Gallery shall insure the consignment at the buyer’s expense. The Art thamér Gallery can, at its own careful discretion, determine the mode and means of shipment, without being obliged to choose the fastest or cheapest mode of shipment.
9. Return Consignments
Consignments returned to Art thamér Gallery are shipped at the risk and expense of the sender. If the object of purchase is returned for the purpose of subsequent performance, the Art thamér Gallery shall bear the costs of the return shipment (Section. 439, Para. 2 BGB, unless it is a case of the purchase of a work that has not been newly created and the client intends to use the purchased item within the scope of his/her commercial or independent professional activity. Unjustified return shipments shall not be accepted. The sender shall bear the cost and risk for the following return shipment.
10. Liability
(10.1) Information on the work of art
For the Art thamér Gallery, descriptions of works in catalogues, brochures, etc. do not serve as a guarantee of the quality of the object of purchase. Inasmuch as the customer intends to use the item purchased within the scope of his commercial or independent professional activity, and the object of purchase is not a newly created work, the Art thamér Gallery shall not assume any liability for the completeness and correctness of the information contained in the catalogues, brochures, etc. on the art object, since the incorrectness or incompleteness of such information may not be known to the Art thamér Gallery.
(10.2) Commission business
Should the Art thamér Gallery sell the item as a commission agent, warranties for defects are to be excluded, since the customer intends to use the purchased item within the scope of his commercial or independent professional activity and the object of purchase is not a newly created work. This also applies to forgeries, inasmuch as the Art thamér Gallery need not have been aware of the work’s lack of authenticity. Prior to making the purchase, the buyer had the opportunity to convince him-/herself personally, and, if necessary, by seeking professional help, of the condition and genuineness of the object of purchase. In the case of a contract guarantee, for which the Art thamér Gallery is not liable under the aforementioned provision, the Art thamér Gallery shall, if necessary, cede its existing claims against the consigner to the buyer. In such cases, however, the Art thamér Gallery can also, if it so chooses, take back the object of sale and reimburse the purchase price.
(10.3) Liability
In the case of all damages caused wilfully or through gross negligence by the Art thamér Gallery or its legal representatives or vicarious agents, the Art thamér Gallery shall be liable without limitation. In the case of damage arising from injury to the body, life or health, which are due to negligence or deliberate breach of duty on the part of the Art thamér Gallery, its legal representatives and/or agents, the Art thamér Gallery shall likewise bear unlimited liability irrespective of the level of indebtedness.
The Art thamér Gallery is liable for all damages caused by the Art thamér Gallery, its legal representatives and/or agents due to slight negligence only if the Art thamér Gallery, its organs or its agents violate an essential contractual obligation (obligations whose fulfilment make it possible to duly implement the contract in the first place, and in whose adherence the contractual partner trusts and must be able to trust.) In this case, the liability of the Art thamér Gallery is limited to the foreseeable damages typical for contracts. In all other cases, the Art thamér Gallery is exempt from liability.
(10.4) Guarantee
If the work delivered is unsatisfactory, the buyer can assert claims for damages due to shortcomings only after two supplementary performances have failed and in accordance with the limitation of liability in clause
(10.5) of these terms and conditions of business. If the customer/client intends to use the purchased goods within the scope of his/her commercial and/or independent professional activity, he/she can initially demand no more than a supplementary performance p. 5 / 5; only after two supplementary performances have failed can the customer rescind the contract, or lower the purchase price and demand compensation for damages in accordance with the limitation of liability under item 10.3 of these General Terms and Conditions of Business.
(10.6) Statute of limitations
Compensation for damages based on a work’s imperfections expires by limitation one year at the latest after the statutory beginning of the statute of limitations inasmuch as the claims are not based on intent on the part of the Art thamér Gallery. Should the buyer intend to use the object of sale within the scope of his/her commercial and independent occupational activity, claims for compensation of damages due to imperfections in the delivered work, which are not due to any intention on the part of Art thamér Gallery, shall expire within six months after the statutory beginning of the statute of limitations in the case of an artwork that has not been newly created. Any other claims due to imperfections or defects in the work delivered, which are not due to any intention on the part of Art thamér Gallery, shall expire within one year after the statutory beginning of the statue of limitations in the case of artworks that have not been newly created. If the buyer intends to use the object of purchase within the scope of his commercial or independent professional activities, these claims shall expire, inasmuch as they are not based on intent on the part of Art thamér Gallery, within six months from the statutory beginning of the statute of limitations, provided that the object is not a newly created artwork, and within one year from the statutory beginning of the statute of limitations, if the object of sale is not a newly created artwork. The exclusion of claims for damages does not refer to cases mentioned under Section 309 No. 7 BGB (injuries to life, the body, health and liability for gross culpability).
11. Applicable Law
As far as legal relations between the Art thamér Gallery and the buyer are concerned, only the law of the Federal Republic of Germany shall apply. The regulations in the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
12. Closing Provisions
(12.1) With regard to the interpretation of these General Terms and Conditions of Business the German version is authoritative.
(12.2) The place of performance and competent court for merchants, corporate bodies under international law and special funds under public law is the seat of the Art thamér Gallery. The same shall apply if the customer has no domestic place of general jurisdiction. Should one or more of the clauses in these contractual terms be, or become, ineffective, this shall not impair the effectiveness of the remaining contractual terms.