4. Payment and Transfer of Title
11.1 In accordance with the guarantee declaration set forth below in this Clause 11 (“Auctionata Guarantee”), Auctionata guarantees – except of Motor Vehicles - that the descriptions provided in the auction catalogue correspond to the generally recognized state of technical/scientific knowledge publicly available at the time of the item’s purchase with respect to the following agreed characteristics:
a) the identity of the artist or manufacturer; and
b) the time of creation or manufacture of the item.
If any of the above elements of an item’s catalogue description are provided subject to a caveat, or are identified as having been determined by external experts not employed by Auctionata, or are missing from the catalogue description altogether, then the information in question will not be covered by the Auctionata Guarantee. The Auctionata Guarantee applies only to the information referenced above under a) and b), but not to any other information, e.g. regarding the item’s provenance, technique of fabrication, serial classification, numbering or edition.
11.2 If a catalogue description explicitly refers to an item as a “copy” (e.g. as a “museum copy”), then the item in question will be deemed purchased as a copy and not as an original, and will thus not be covered by the Auctionata Guarantee in this respect. Likewise, if the catalogue description explicitly describes or designates an item as being "of doubtful authenticity", then said item will be deemed purchased not as an original but as an “item of doubtful authenticity” and will thus not be covered by the Auctionata Guarantee in this respect.
11.3 The Auctionata Guarantee will apply for a period of 25 years from the time of handover of the purchased item. After this deadline, all claims under the Auctionata Guarantee will lapse. The purchaser must notify Auctionata in writing about any warranty claim within 6 months of the claim’s discovery, while also providing legitimate grounds for the claim along with reliable, supporting documents or a reputable expert opinion. If he fails to comply with the foregoing, the purchaser will lose recourse to the rights granted under the Auctionata Guarantee.
11.4 In the event of a dispute between Auctionata and the purchaser about whether or not a guarantee event has occurred, an expert arbitrator will decide the dispute. Legal action may not be initiated over a dispute – nor any related claims asserted – until after the expert arbitrator has issued his opinion or, in the case of legal proceedings in accordance with Section 319 German Civil Code (BGB) German Civil Code), until after said proceedings have been concluded in a conclusive, non-appealable manner. Either Party will be entitled to make a written request for the appointment of an expert arbitrator, whereupon the Parties will have 4 weeks to agree on who will serve as arbitrator. If the Parties fail to reach agreement within this time, either Party will be free to make a written demand that the expert arbitrator be appointed by the Bundesverband der Kunstsachverständigen e.V (German Federation of Art Experts) or by some comparable organization. The expert arbitrator must be a publicly appointed and sworn expert in the field of fine art. The arbitrator must be independent and impartial. The arbitration opinion must be prepared in writing. The sole decision-making benchmark to be applied by the arbitrator is the generally recognized state of technical/scientific knowledge in the relevant area of expertise that was publicly available at the time the items under dispute were purchased. The Parties will present their arguments in oral hearings before the arbitrator insofar such hearings are ordered by the arbitrator or requested by both Parties. In all other respects, the arbitrator will define the arbitration procedures to be followed at his discretion. The findings and decisions of the expert arbitrator will be binding on both Parties. A judicial review will take place only in the context of Section 319 German Civil Code (BGB). The arbitration opinion must be issued in writing along with supporting reasoning. This supporting reasoning must include the key assumptions upon which the expert based his evaluation. If the arbitration opinion upholds the purchaser’s side in the dispute, Auctionata will bear the costs and expenditures associated with the arbitrator. If the arbitration opinion does not uphold the purchaser’s side in the dispute, the purchaser will bear the costs and expenditures associated with the arbitrator. If the expert arbitrator is unable to reach a decision (or unable to decide with near certainty) as to whether or not a guarantee event has occurred, then the guarantee event will be deemed inexistent. In this case, the costs of the arbitrator will be shared equally between the Parties. In all other respects, each Party will bear any sundry costs that it incurs. Thus, own costs incurred in connection with the arbitration opinion, such as attorney's fees, will be borne by the respective Party.
11.5 If Auctionata acknowledges the warranty event, or if the purchaser prevails in the dispute as a result of the arbitration opinion, Auctionata will be obligated to unwind the purchase transaction in accordance with Section 346 et seqq. German Civil Code (BGB) within a period of 6 months. The Auctionata Guarantee will not entitle the purchaser to assert any further claims, particularly claims for damages or expense reimbursement.
11.6 The Auctionata Guarantee is highly personal in nature; i.e. it is not assignable, either contractually or statutorily, and will not pass to the purchaser’s legal successors (if any) by way of universal succession.
11.7 The Auctionata Guarantee will in no way prejudice the purchaser’s statutory warranty rights in the event of defects. Thus, the rights granted under the Guarantee will exist alongside the warranty rights of the purchaser without in any way limiting the latter. The Auctionata Guarantee will apply to all customers of Auctionata worldwide. The legal guarantor in this context will be Auctionata AG, Kurfürstendamm 212, 10719 Berlin, Germany.