GENERAL CONTRACT CONDITIONS RELATING TO ART ADVISORY SERVICES
These general contract conditions (the “Agreement”) regulate the terms and conditions with which OPEN CARE s.p.a. (“OPEN CARE”) agrees to examine the Work of Art indicated in OPEN CARE’s financial offer (respectively the “Offer” and the “Work of Art”) and to express an opinion on its financial value as well as, if specified in the Offer, on its authenticity and attribution. The Agreement is confirmed by the acceptance of the Offer by the client or their authorized representative (the “Client”).
1. The investigation carried out by OPEN CARE begins with a direct examination of the Work of Art or the photographic reproductions of the Work of Art (as agreed between the Parties) as well as an examination of any other accompanying information and documentation relating to the Work of Art supplied by the Client.
2. Unless otherwise agreed in the Offer, the Client declares and guarantees the following to OPEN CARE, acknowledging that OPEN CARE cannot accept the assignment should the Client fail to issue such declarations and guarantees or where these are incomplete, inexact, false or misleading:
- (a) the Client has full and unchallenged ownership of the Work of Art which (i) is not lodged as collateral, or is subject to guarantees, forfeitures or constraints of any nature in Italy and abroad and (ii) is unencumbered by rights in rem or pledges, or, in other words, by any claims of whatever nature on the part of third parties;
- (b) the Client transfers (or will transfer) to OPEN CARE all (and not less than all) the information in their possession relating to the provenance of the Work of Art and eventual findings advanced by third parties in relation to the ownership, the condition, the authenticity, the attribution, the export or importing of the Work of Art;
- (c) the Work of Art is authentic and its attribution is not in question (except where an opinion on the authenticity or the attribution of the Work of Art has been requested, in which case nothing is considered to be declared or guaranteed by the Client with respect to the authenticity and attribution of the Work of Art);
- (d) all the information provided in writing (including the description of the Work of Art and the other documents, whether original or copies) or verbally by the Client to OPEN CARE relating to the Work of Art (in fact and under law) is: (i) complete, accurate, truthful and not misleading, (ii) where applicable, a true copy and (iii) still valid insomuch as there is nothing (outstanding or superseded) that will render it obsolete, false or misleading;
- (e) any unsigned documents that the Client may provide to OPEN CARE express a content that is entirely correspondent to the appropriately signed documents that are in the Client’s possession or which are easily obtainable by them;
- (f) the photocopies of signed documents that the Client has delivered to OPEN CARE are entirely genuine and, where present, any illegible parts, deletions or omissions do not relate to any information that would be determining or, in any case, useful to OPEN CARE for the completion of the assignment entrusted to them;
- (g) where the information provided by the Client to OPEN CARE includes contracts or other legal documents, such documentation must still be valid and binding, signed by persons duly authorized as provided for by law, consistent with the laws and regulations of the jurisprudence in question and the elements of the contracts conform (or have conformed) to their respective requirements;
- (h) the photographic documents provided by the Client to OPEN CARE that reproduce the Work of Art (or its parts or details) have not undergone any image editing or other interventions (whatever called) that might alter (overtly or surreptitiously) the perception of the Work of Art therein reproduced;
- (i) the Work of Art is not the object of cultural interest pursuant to Art. 13 of the Legislative Decree 42/2004, or, i.e. no declaration of cultural interest has been initiated in relation to it pursuant to Art.14 of the Legislative Decree 42/2004 (or any other law following the same rationale in other jurisprudence other than that of Italy) with the consequent application of any restrictive discipline to the Work of Art provided for in such a law;
- (j) where the Work of Art has entered the area of the European Union from a third country, it has been legally imported to the European Union and legally and conclusively exported from the country of provenance in compliance with the legislation in force therein, the required import and export declarations have been regularly completed and any tax or duty relating to export and import has been paid;
- (k) the Work of Art may be freely exported from the territory of the Italian Republic without any restrictions;
- (l) the labels “authentic”, adhesive and/or plaques (of any whatsoever nature or so called) applied to the Work of Art (or on the back of them) are original, credible and their content is correct and not misleading;
- (m) there are no elements which, if brought to the attention of OPEN CARE, might reasonably induce the latter to doubt the information received from the Client or change their opinion in relation to the Work of Art or to forgo the assignment received or to accept it on a different basis.
Where one or more of the declarations and guarantees ceases to be complete, accurate, truthful and not misleading, the Client must immediately inform OPEN CARE in writing. The Client acknowledges and accepts that OPEN CARE, in its judgement on the financial value of the Work of Art or (if requested) on its authenticity and attribution, will assume without any further verification (unless exercising the powers as set out in subsequent Paragraph 8) that all the declarations and guarantees as set out above are complete, accurate, truthful and not misleading.
3. The assignment that the Client confers on OPEN CARE does not include, even implicitly:
- (a) verification that the documentation received from the Client (including that relating to the authenticity of the Work of Art, where applicable) is complete, accurate, truthful, not misleading, congruent and uncontradictory (except where it is within OPEN CARE’s power to request further documentation and to propose additional investigations, as provided for in subsequent Paragraph 8). Where OPEN CARE directly views the Work of Art, such viewing will not be undertaken for the purposes of verifying the quality of the information provided by the Client to OPEN CARE. OPEN CARE is henceforth authorized to work in good faith on the assumption that eventual contradictions or inconsistencies in the information provided by the Client can be reconciled or justified by other documentation that the Client may not be able or does not intend to provide to OPEN CARE;
- (b) verification of the authenticity or the opinion relating to the attribution of the Work of Art (except where such verification has been explicitly requested in writing within the Offer). Also, where OPEN CARE directly views the Work of Art, such viewing will not be undertaken for the purposes of verifying its authenticity or correct attribution.
4. If requested, OPEN CARE’S opinion on the authenticity or the attribution of the Work of Art may not be understood, in any way, as a guarantee of authenticity or attribution of the Work of Art. In particular, it is emphasized that, in expressing an opinion on the authenticity or attribution of a Work of Art, OPEN CARE will take into account the shared opinion of the academic community, of the archives and of the foundations that represent the artists, whose opinion may change over the course of time.
5. Unless differently and explicitly agreed in writing with the Client or with a different, explicit indication in the Offer, the opinion expressed by OPEN CARE is provided solely for informative purposes and on the understanding that it should not be shared with third parties or in all cases not made public without OPEN CARE’S previous written consent. The opinion expressed by OPEN CARE must not in any circumstances be seen as a guarantee for realizing the value of the Work of Art on the market or, in all instances, as a guarantee of value for other specific purposes (e.g. establishing an auction reserve price, or an insurance policy or a guaranteed loan, etc.) it being understood that such feasibilities and values also depend on a multiplicity of different factors that differ from the intrinsic value that can be abstractly attributed to such a Work of Art (e.g. the sale process, the subdivision of auction lots, marketing, market conditions, the urgency of completing the transaction, etc.) and that determinate values (e.g. the so-called sentimental value) may not be indemnifiable or achievable, particularly within a reduced time scale. OPEN CARE’s opinion reflects the perception of the expert who has examined the Work of Art, such expert being a competent professional who has expressed their opinion in good faith and on the basis of their own awareness and experience: nonetheless, there is no guarantee that other professional experts may not express different opinions and assign a different value, authenticity or attribution to the Work of Art.
6. The direct examination of the Work of Art will normally take place in the location where the Work of Art is housed and the Client undertakes to permit OPEN CARE access to such location within normal working hours on the understanding that any request for access must be submitted reasonably in advance and access will be strictly limited to the time necessary for the examination of the Work of Art. Where, it should be necessary or opportune for the purposes of examining the Work of Art directly to move it to the OPEN CARE warehouses, the transport conditions must be separately agreed and, in all cases, will be the responsibility of the Client, except where differently agreed between the parts. Its safekeeping will be regulated by the current general conditions for the supply of warehousing services on the part of OPEN CARE. Safekeeping will be guaranteed up to the 15th (fifteenth) day following that in which OPEN CARE sends the Client the results of their investigations on the Work of Art; after such date the current tariffs for warehousing services will be applied.
7. In view of the art consulting service, the Client must pay the amount indicated in the financial offer received from OPEN CARE, on the understanding that OPEN CARE may refuse to deliver its opinion (and, where necessary, even the Work of Art that may be kept in OPEN CARE’s offices) until such time as the amount in question has been paid.
8. Where the direct examination of the Work of Art, the information relating to its provenance and any other accompanying documentation relating to the Work of Art provided by the Client, is considered, in OPEN CARE’s unquestionable opinion, to be insufficient for the purposes of expressing an opinion, OPEN CARE may (but is not obliged) to suggest additional investigations what will in all cases be the subject of a separate agreement and separate remuneration. Independently from the performance of the above mentioned additional investigations, OPEN CARE will deliver, in all cases, within the terms as set out in the following paragraph, a report on the investigations undertaken and the results achieved, even when inconclusive, except in the case as set out in preceding Paragraph 7).
9. The Client acknowledges that the investigations undertaken by OPEN CARE may require analyses and activities whose duration may not be foreseeable when the Offer is being prepared. As a consequence, except in the case as set out in the previous Paragraph 7, and on the basis of the preceding paragraph 8, the report in which OPEN CARE’s opinion is expressed or, i.e. the results of the investigations undertaken, even when inconclusive, will be delivered within the deadline indicated in the Offer where this was foreseeable and therein indicated; where, on the other hand, the delivery timescales were not foreseeable when the Offer was being prepared, the report will be delivered within an appropriate timescale, notwithstanding the fact that OPEN CARE will make all reasonable efforts to limit the delivery timescale as much as possible and will keep the Client updated.
10. In carrying out its investigations, OPEN CARE will have permission to contact archives, foundations or document centers and the Client henceforth authorizes OPEN CARE to provide such bodies with the eventual accompanying documentation relating to the Work of Art that has been provided to OPEN CARE, as well as the Client’s eventual personal details. Where OPEN CARE, in its unquestionable opinion, considers it necessary to consult an expert, it may attach the opinion expressed by such expert to its report. In all cases, OPEN CARE does not accept any responsibility for the opinions expressed by such experts.
11. Open Care will be responsible for any damages that are the immediate and direct consequence of its own behavior caused by willful misconduct or gross negligence, with the express exclusion therefore of any indirect damage, any damage caused by third parties used by the Client consequent to the services of the same provided in relation to this contract, as well as any damage caused in the absence of willful misconduct or gross negligence. The Client must, at the risk of forfeiture, inform OPEN CARE in writing, by registered post, of any comments or complaints in relation to the service provided within no more than 1 month from the date of the completion of the works. Except where provided for in this Paragraph 11, where OPEN CARE’s responsibility has been established, compensation is henceforth agreed in all cases as an amount that is no greater than the amount paid for the completion of the works undertaken.
12. This agreement is regulated, interpreted and applied on the basis of Italian law.
Un’apposita informativa (ai sensi dell'articolo 13 del Regolamento UE 679/2016) in merito al trattamento dei dati personali, sarà fornita al Cliente al momento della raccolta della documentazione contrattuale necessaria all'instaurazione del rapporto contrattuale.