BWA MASK

Conditions of sale

I.            In General

The art auction house, Lempertz N.V. (henceforth referred to as ‘Lempertz’) conducts public auctions as commissioning agent in its own name and on behalf of the accounts of the submitter. The identity of the submitter remains in principle unknown.

These conditions of sale are applicable to all contracts concluded by Lempertz. Anyone who makes a commitment with Lempertz or who attends an art auction, viewing day or any other similar event, acknowledges and accepts these conditions of sale.

These conditions of sale are originally drawn up in the Dutch language. In case of conflict or discordance between the Dutch version and the translated version, the Dutch version is conclusive.

The lots are sold in the state in which they are found at the moment of the allocation (‘as is’). The absence of any reference to the state of the lot does not mean that the lot is in a good state or is free from damages, defects or restorations.

The United Nations Convention on Contracts for the International Sale of Goods is not applicable.

II.           The Auction process & the process of bidding

II.1.        Submission of bids

1.           Bids in attendance – The floor bidder receives a bidding number on presentation of his identity card. Lempertz reserves the right to grant entry to the auction. Lempertz reserves the right to deny access to her premises or participation in the auction.

2.           Bidding in one’s own name and on one’s own account – Every bidder is considered to act in his own name and on his own account and is personally liable for making the payment.

3.           Bids in absentia – Bids can also be submitted either in writing, telephonically or via the internet. The placing of bids in absentia must reach Lempertz at least twenty four (24) hours before the beginning of the auction to ensure the proper processing thereof.

The lot must be mentioned in the bid placed by the bidder, together with ticket number and lot description. In the event of ambiguities, the listed ticket number becomes applicable. The instruction to bid must be signed by the bidder.

The buyer does not have a right of withdrawal (art. VII 53,11° and VII 73,11° Belgian economic law code).

Telephonic bids – Lempertz cannot vouch for the establishment and maintenance of a connection. In submitting a bid placement, the bidder declares that he agrees to the recording of the telephone conversation.

Bids via the internet – Lempertz only considers bids via the internet if the bidder has registered himself on the internet website beforehand. Lempertz treats these bids in the same way as placed bids in writing. Lempertz cannot vouch for the establishment and maintenance of a connection.

4.           Bank guarantee and other guarantees – Lempertz has the right to require a bank guarantee or any other guarantee from the bidder to prove his creditworthiness.

5.           Obligation to provide information (anti-money laundering legislation) –

The bidder provides a copy of the identity documents of the bidder and, as the case may be, of the actual buyer on whose account the bidder occurs.

II.2.        Carrying out the auction

6.           Allocation – The hammer will come down when no higher bids are submitted after three calls for a bid. In extenuating circumstances, Lempertz is entitled to refuse the acceptance of a bid or to reserve the allocation.

The bidder, who places the highest bid (the buyer), himself or through a third person, buys the lot at the hammer price. The sales contract is concluded between Lempertz and the buyer.

7.           Bids for an absentee bidder – Bids for absentee bidders are only played to an absolute maximum by Lempertz if this is deemed necessary to out-bid another bid.

8.           Reserve – Lempertz can bid on behalf of the submitter up to the agreed limit without revealing this and irrespective of whether other bids are submitted.

9.           No liability of Lempertz – Even if bids have been placed, Lempertz is not liable if the hammer has not come down, except in the case of wilful intent.

10.         Dispute or error with respect to the allocation – Lempertz decides to whom the lot is allocated in case of error or dispute with respect to the allocation.

If several individuals make the same bid at the same time, and after the third call, no higher bid ensues, then the case is decided by lot/fate.

If a higher bid that was submitted on time, was erroneously overlooked and imme- diately queried by the affected bidder, or if any doubts arise regarding its allocation, Lempertz can cancel the sale and reoffer and resell the lot in dispute.

11.         The refusing of bids – Lempertz reserves the right to refuse certain bids.

12.         Lempertz’s discretion – Lempertz has the right at its absolute and sole discretion to withdraw any catalogue lots from the sale, to offer any lot in an order different from that given in the catalogue, to transfer the catalogue lots to a later auction, and to divide or combine any catalogue lots.

13.         Once a lot has been knocked down, the successful bidder is obliged to buy it – The bidder to whom the lot was allocated, is obliged to buy the lot at the purchase price. If a bid is accepted conditionally, the bidder is bound by his bid until four

(4) weeks after the auction unless he withdraws from the conditionally accepted bid

at the latest one day after the auction.

14.         Transfer of ownership and risk – The risk relating the allocated lot is directly transferred to the buyer upon the fall of the hammer. The transfer of ownership to the buyer takes place after the reception of the full purchase price by Lempertz.

III.          The Completion of the auction transaction after the allocation of the lots

15.         Calculation of the purchase price – The purchase price consists of the hammer price, plus the premium, the VAT and the resale right.

16.         Buyers’ premium – The Buyer pays a premium of 24 % calculated on the hammer price up to a hammer price of € 400.000 and 22 % on any amount surpassing € 400.000.

17.         VAT – The Buyer pays 21 % VAT on the premium (margin scheme – article 58 §4 W.BTW). The Buyer pays a VAT of 21% on the net invoice price

(hammer price + premium) for the lots which are characterized in the Catalogue by an asterisk ( * ) (normal VAT regime).

The exports to third countries (i.e. non-EU) are exempted from VAT, and so will be exports made by companies from other EU member states if they state their VAT identification number.

If an auction participant personally exports a lot to a third country (i.e. non-EU), Lempertz refunds the VAT as soon as Lempertz has received the proof of export and import, and provided that it was included in the purchase price.

18.         Reservation for invoices – An invoice issued during the auction or immediately after the auction requires verification. Lempertz cannot be held liable for errors in these invoices.

19.         Payment – Successful bidders attending the auction in person pay the purchase price to Lempertz immediately after the auction. The purchase price is immediately due and payable, also for buyers who did not attend the auction in person.

Bank transfers are to be made exclusively in Euros. Cheques cannot be accepted. When the purchase price amounts to €3.000,00 or more, the buyer cannot pay in cash (anti-money laundering legislation). This also applies when the purchase price of different lots together amounts to €3.000,00 or more.

The payment is not deemed to have been effected before Lempertz has received it in cash or before the bank account of Lempertz has been duly credited.

The payments of the buyer to Lempertz always firstly serve for the settlement of the oldest outstanding debt of the buyer to Lempertz.

20.         An invoice corresponding to another client – The request to issue an auction invoice in the name of a client other than the bidder has to be made immediately after the auction. Lempertz reserves the right to refuse such a request. The bidder and the buyer are jointly and severally bound by all obligations arising from that bid.

21.         Late payment and non-payment – In case of late payment, interests amounting to 1% of the purchase price a month are, automatically and without any prior notice of default, charged from the due date onwards.

In case of non-payment within five (5) working days after the auction, Lempertz is entitled (at its discretion):

o            to insist on performance of the agreement; and/or

o            to dissolve the purchase agreement by simple written notification, without any prior notice of default and without any intervention by the courts. Lempertz can reoffer and resell the lot at an auction; and/or

o            to claim damages for non-performance from the buyer in default, such as – but not limited to – the payment of the difference between the agreed purchase price and the new purchase price of the lot after a new auction, plus the cost of resale Under no circumstances the defaulting buyer is entitled to the possible surplus when the lot is sold at a higher purchase price at the new auction; and/or

o            to retain the lot as well as any lot allocated to the buyer at the same auction or at any other auction. Lempertz has the right to release the lots only when the total amount due for all the lots has been duly paid. Lempertz can transport, store and insure the lots at the expense of the buyer.

Lempertz has the right to reject or not take into account any bids placed by or on the account of the defaulting buyer during future auctions.

22.         Collection of purchased lots – The buyer is obliged to collect the purchased lot immediately after the auction. The lot will not be surrendered to the buyer until the reception of full payment by Lempertz. Lempertz is not liable for the purchased lots, except in the case of wilful intent.

23.         Transport, dispatch or shipping – Every transport, dispatch or shipping of purchased lots is organised by the buyer on his own responsibility. Without any exception the transport, dispatch or shipping takes place at the expense and the risk of the buyer.

24.         Failure to collect purchased lots – In case the buyer does not collect the purchased lots within four (4) weeks after the auction, Lempertz is entitled to store and insure the not-collected lots at the expense of the buyer. In that case, the store and insure costs are 1% of the hammer price a month. Lempertz is not liable in the event of loss or damage, except in case of intentional acts.

IV.          State of the purchased lots

25.         The Buyer’ duty to investigate – All lots put up for sale at the auction can be viewed and inspected prior to the auction. The buyer undertakes to inspect and investigate the lots before the auction. The buyer is considered to be fully and personally informed at its own risk about the state and quality of the lots, as well as about the authenticity of the lots and the conformity of the lots with the descrip- tion in the catalogue. The buyer bears the risk of the identification of the lot.

26.         The awareness of the buyer – The buyer acknowledges that it is not possible for Lempertz to examine all lots in detail. The buyer acknowledges that Lempertz is reliant upon the information of the submitter for the description of the lots such as for example in the catalogue.

The buyer acknowledges that every statement in the catalogue, the brochures or any other publicity, as well as in any condition report from Lempertz, in relation to authorship, origin, creation, age, attribution, quality and state of the lot is only

an opinion and not a fact. The buyer acknowledges that Lempertz does not warrant and cannot give any warranty as to the authenticity of the lot.

The buyer acknowledges that the lots submitted are usually from a certain age, so that it is impossible that the lots are in perfect condition.

27.         statements and descriptions of the lots – All statements and descriptions in the catalogue and related specifications on the internet are compiled in good

faith. They are derived from the status of the information available at the time of compiling the catalogue.

Every statement or description in the catalogue, the brochures or any other pub- licity, as well as in any condition report from Lempertz, in relation to authorship, origin, creation, age, attribution, quality and state of the lot is an opinion and not a fact and cannot be considered as a reality. The statements and descriptions in the catalogue are provided for information purposes only, without any warranty. The same applies for illustrations and images in the catalogue, as well as any other oral or written information.

The statements, descriptions and illustrations are no part of the contractual agreed characteristics. The certificates or certifications from artists, their estates or

experts are no part of the agreement, unless if they are explicitly mentioned in the catalogue text.

28.         The state of the lot at the moment of the allocation (‘as is’) – The buyer pur- chases the lots in the state in which they are found at the moment of the allocation, with their defects and imperfections. The state of the lot is not always mentioned in the catalogue. The absence of any reference to the state of the lot does not

imply that the lot is in a good state or that the lot is free from damages, defaults or restorations.

V.           Copyright

29.         Photography and publicity – The submitter and the buyer grant the right to Lempertz to photograph and publish each lot in its possession in relation to the auction and in any other relation. Lempertz acquires and preserves the copyright on all images and can use them at its own discretion, even after the lot has been sold.

VI.          Liability and warranty

30.         The nature of the obligations – The obligation of the buyer and the submitter resulting from the contractual relation are result obligations (‘obligation de résultat’), unless expressely provided otherwise. The obligations of Lempertz arising from the contractuel relation are best efforts obligations (‘obligation de moyen’).

31.         Joint and several liability – The buyer, the bidder and anyone who buys for joint account, are jointly and severally liable for all obligations arising from the sale.

32.         No liability/warranty for the lots – The buyer buys the lots in the state in which they are found at the moment of allocation, with their defaults and imper- fections. Lempertz does not give any warranties in this regard. Lempertz cannot be held liable for the damages resulting from a default, a loss or a damage to the purchased lot, irrespective of the legal basis, except in the case of wilful intent.

33.         No liability for the catalogue or condition report – Lempertz is not liable if the lots differ from the statements, descriptions and illustrations in the catalogue or from any other information (for example online). Lempertz is not liable for a condition report drawn up at the request of bidder.

34.         No liability/warranty for non-authenticity – Lempertz does not warrant the authenticity of the lots and is not liable for non-authenticity of the lots, except in case of wilful intent. The liability for bodily injury or damages caused to health or life remains unaffected.

35.         Limitation of liability – In any case the liability of Lempertz is limited to the total purchase price which was effectively paid by the buyer.

36.         Claims against the submitter – In the event of variances from the catalogue descriptions which result in negation or substantial diminution of value or suitability of the lot, Lempertz is entitled to pursue its rights against the submitter through the courts. In the event of a successful claim against the submitter, Lempertz does only reimburse the buyer the total purchase price paid. Under no circumstances this amount exceeds the amount of the claim against the submitter which was granted and effectively paid.

Lempertz, has the right to transfer its claim for damages against the submitter for any damage arising from the inauthenticity of the auctioned lot to the buyer, without any further liability.

VII.         Miscellaneous

37.         Place of performance – The place of performance of the obligations resulting from the contractual relations is Brussels.

38.         Applicable law – Belgian law is applicable to the contractual relations. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) are not applicable.

39.         Dispute settlement – All disputes resulting from or relating to the contractual relation will be resolved exclusively by the courts and tribunals of Brussels.

40.         waiver of set-off or merger confusion – The buyer and the submitter waive their right to invoke set-off or merger confusion. The buyer is not entitled to invoke article 1653 of the Belgian Civil Code in relation to buyer’s disturbance.

41.         Partial nullity – If one or more provisions of these conditions of sale would be declared completely or partially null and void, then this nullity is limited to this provision and the remaining provisions of these conditions of sale are not affected, unless otherwise provided.