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General Terms & Conditions ArtWise (“Terms”)
- Words used in these Terms written with a capital first letter have the following meaning:
- Services: the deliveries made or services rendered by or for ArtWise for the benefit of the Client, based on an Agreement. Services may comprise lease, rent (huur), financial lease (huurkoop), sale and delivery or swap (ruil) of Objects (to be defined below).
- ArtWise: the private limited liability company according to the laws of the Netherlands ArtWise.com B.V., registered at the Chamber of Commerce under registration number 39072136.
- Client: the counterparty to ArtWise in an Agreement.
- Agreement: the contractual relationship between the Client and ArtWise.
- Parties: the Client and ArtWise, collectively.
- Terms: these General Terms & Conditions ArtWise.
- Objects: one or more works of art or other object(s) delivered to the Client under any title.
2. The Terms apply to every offer from ArtWise to a Client and every Agreement between ArtWise and the Client. General terms of purchase used by or referred to by the Client are not accepted and excluded, unless agreed otherwise in writing.
3. An offer issued by ArtWise is valid during 14 days, unless indicated otherwise by ArtWise. Every offer is non-binding, can be repealed by ArtWise at any time and expires after expiry of the term of validity indicated by ArtWise. Offering a draft agreement by ArtWise is equal to issuing an offer.
4. The Client represents and warrants towards ArtWise that all information provided to ArtWise with a view to obtaining an offer from ArtWise or to execution of an Agreement is correct and complete, also if this information originates from third parties.
5. An Agreement is concluded in writing only. Oral agreements (by telephone or otherwise) are not valid, unless confirmed in writing by ArtWise. If confirmed in this manner, these agreements become part of the Agreement.
6. Each obligation on ArtWise’s part from or in connection with an Agreement is an obligation of effort (inspanningsverbintenis). Even though ArtWise makes proper efforts regarding to Objects so as to ensure provenance, originality and non-infringement on third-party rights, these cannot be guaranteed. In case of infringement of Objects on third-party rights or in case of any doubt as to originality or provenance of Objects, ArtWise accepts no liability for the consequences of such an event except as set out in this article 6, while the Agreement shall remain in force; in such a case, ArtWise is authorized to annul and/or rescind (ontbinden en/of vernietigen) the Agreement in whole or in part and to claim back the relevant Objects. At first notice from ArtWise the Client shall be obliged to hand over the relevant Objects to ArtWise without any authority to hold back any performance under this obligation. In such particular case, ArtWise shall consult with the client whether and how to replace the work(s) of art or, in ArtWise’a sole discretion, choose to compensate the Client, which compensation shall at all times be maximized to the amounts paid regarding the relevant Objects until the time of (partial) annulment or rescission of the relevant Agreement.
7. Periods of time mentioned in or outside of Agreements as to performances on ArtWise’ part are not fatal or binding and are indicative only.
8. If an Agreement according to which a certain (recurring) performance is made by ArtWise during a certain period of time, is continued after that period of time, the Agreement is deemed to be continued for an indefinite period of time, while each of the Parties may terminate the Agreement in writing, taking into account a notification term of at least one month – all unless agreed otherwise in writing.
9. Prices or fees agreed upon may be adjusted by ArtWise in case of changes in factors determining the ArtWise’ costs. If an Agreement regards performances for a longer or indeterminate period of time (e.g. in the case of lease or rental agreements), the prices or fees shall be indexed yearly according to the Consumer Price Index (known as CPI) as published by the Dutch Statistics Authority (CBS) or any other comparable index that ArtWise reasonably determines, for the first time as per the 1st of January following the date the Agreement has been closed between the Parties.
10. Unless agreed otherwise in case of Agreements for a certain duration, ArtWise may invoice monthly to the Client, or at any other reasonable shorter or longer interval.
11. ArtWise reserves and retains full ownership of any Objects that are the subject of a sale or swap until full payment of all amounts due under the relevant Agreement has been made and/or the counter performance by the Client has been made in full.
12. In case any Agreement comprises financial lease of any Object, the rules of the Dutch Civil Code regarding financial lease (huurkoop) are applicable, unless these Terms deviate from these rules.
13. In case any Agreement comprises lease or rent (huur)of a work of any Object, the rules of the Dutch Civil Code regarding lease of movable objects (huur roerende zaken) are applicable, unless these Terms deviate from these rules.
14. As long as Objects delivered to the Client under any applicable Agreement are owned by ArtWise or a third party, the Client shall treat the Objects properly and in accordance with the nature of the Objects as fragile works of art. The Objects shall at all times be placed in dry conditions, safe from any harmful substances or other harm or deterioration except for the normal ageing process of the material the Objects are made up from. The Client shall take out and maintain sufficient insurance to cover for any damages or loss of these Objects up to the full value including costs for restoration, unless insurance is expressly included in the Agreement and the insurance premium is included in any payment price or swap value agreed in an Agreement.
15. If not agreed otherwise, invoices must be paid within 15 days after the date of issue indicated on the invoice.
16. Any authority on the Client’s part to suspension of performance or to set-off is excluded.
17. Each deadline for payment by the Client is a fatal term (fatale termijn). Upon exceeding a term for payment legal interest becomes due in conformity with article 6:119a (DCC), with a minimum of 8% per annum. Also, extrajudicial collection costs shall be due, which are 15% (excluding VAT) of the payment due and in excess of a term of payment.
18. Extra work coming up when executing an Agreement shall be charged to the Client, based on fee lists used by ArtWise and/or fees that are current and/or reasonable according to ArtWise’s reasonable judgement, apart from the fees mentioned in the Agreement for the performance agreed to. Any extra or unforeseen reasonable expenses shall be charged to the Client as well with no surcharge.
19. In case the Client suspends the performance agreed under the Agreement or should otherwise (make) prevent ArtWise from performing, this does not free the Client from its obligations towards ArtWise, while ArtWise is entitled to compensation for any damages resulting from such suspension or prevention to perform the work agreed.
20. Complaints regarding the Services shall be submitted to ArtWise in writing and with motivation within seven (7) days after discovery of a fault in Services or after the moment this should have reasonably been discovered, failing which each claim regarding non-performance shall expire.
21. ArtWise’s liability under any Agreement is limited to the amount paid out by its liability insurance for the relevant occurrence(s). At any rate, ArtWise shall never be liable for a larger amount than the amount agreed to be paid to ArtWise under the relevant Agreement and if it is a continuous Agreement: the amount agreed to be paid to ArtWise for the period of one year maximum. The period of notification (verjaringstermijn) of any claim on the Client’s part from or in connection with the Agreement is one (1) year.
22. These general conditions exist in English and Dutch language versions. In case of conflict between these versions, the Dutch language version shall prevail.
23. Dutch law applies to any Agreement. Any dispute in relation to an Agreement shall be submitted to the Dutch courts of the place of ArtWise’ registered seat. However, ArtWise is authorized to bring any such dispute before other courts and/or arbitration institutes.