OpenArtExchange B.V. applies the general terms and conditions of the NGA filed with the K.v.K. in Amsterdam nr. 34200300.
Article 1 Definitions
In these conditions:
- “the Artwork”: the work that is specified in the sales receipt.
- “the Artist”: the maker of the Artwork offered for sale.
- “the Gallery”: the gallery that offers the Artwork for the Artist or for itself for sale.
- “the Buyer”: the (legal) person who purchases the Artwork from or through the Gallery.
- Prospective buyers are also considered “Buyer”..
- “the Purchase Agreement”: the agreement, the essentials of which are shown in the sales receipt, whereby the Buyer buys the Artwork from or via the Gallery.
- “the Exposition”: the occasion in which the Artwork is or will be shown.
Article 2 Applicable conditions
- These general conditions apply to all agreements, orders, offers and quotations offered by or concluded with the Gallery. These conditions can only be deviated from by explicit written agreement.
- Unless expressly agreed otherwise in writing, the Buyer’s general terms and conditions shall not apply to the relationship between the Buyer and Gallery or the preceding phase.
Article 3 Establishment of the Purchase Agreement
A Purchase Agreement between the Gallery and the Buyer is only concluded once the Gallery has explicitly accepted an offer from the Buyer.
Article 4 Prices / Costs
- Unless otherwise stated or agreed, all prices quoted by the Gallery include VAT and other government levies.
- Costs of shipping, import and export rights, costs of packaging and insurance shall be borne by the Buyer, unless expressly agreed otherwise.
- A statutory increase or reduction of VAT or other government levies can always be charged to the price.
Article 5 Delivery
- The Artwork will be delivered within 1 month after the end of the Exhibition, unless agreed otherwise. If the Artwork is in stock and is not or will be exhibited, delivery can take place earlier.
- The Buyer owes the full purchase price in advance. The delivery term of article 1 of this article shall not commence until after the payment has been received by the Gallery in the manner indicated by it in the sales receipt.
- Delivery periods can never be regarded as deadlines, unless expressly agreed otherwise.
- Delivery of the Artwork will take place because the Buyer collects the Artwork or takes it from an address indicated by the Gallery. There is a purchase obligation on the Buyer. Delivery also takes place when the Galerie offers the Artwork for transportation to a carrier in the context of the Purchase Agreement.
- The risk of loss, destruction and / or damage to the Artwork will pass to the Buyer at the time of delivery. The same transfer of risk takes place at the moment that the Gallery has completed the Artwork for Delivery and the Buyer does not pick up the Artwork at the agreed time of delivery or takes it with him. In the event of non-acceptance by the Buyer, all costs incurred by the Gallery in connection with the offer and any further costs incurred for transport, custody, insurance and storage shall also be borne by the Buyer. In addition, the Buyer is liable for all damage that the Gallery suffers as a result of non-acceptance.
- If the Artwork has been delivered, while the purchase price has not yet been received in full, the ownership of the Artwork will pass to the Buyer only when he has fully fulfilled his payment obligations, under any agreement with the Gallery, including included the payment of interest and costs as specified in these conditions. The Buyer is deemed to keep the Artwork for the Gallery until full payment has been made.
- If the Buyer pledges or transfers ownership of the Artwork in full or in part to third parties before the full purchase price of the Artwork is paid to the Gallery, the Buyer owes an immediately due and payable fine to the Gallery in the amount of the part of the purchase price not paid to the Gallery, without prejudice to the right of the Gallery to full compensation. Furthermore, the Buyer is obliged to provide the Gallery with details of the aforementioned third parties.
- The risk of loss, destruction and / or damage to Works of Art that the Buyer issues to the Gallery for processing or repair remains with the Buyer, unless otherwise stipulated in a written agreement.
Article 6 Force Majeure
- If the Gallery is unable to comply with any of its obligations towards the Purchaser due to force majeure, this obligation shall be suspended during the period during which the force majeure continues. If the force majeure situation has continued for six months, both parties have the right to dissolve the agreement in whole or in part, without any right to compensation of damage, costs or interest.
- Under “force majeure”, every circumstance of which the gallery owner’s will is independent, even though it was already foreseeable at the time of the conclusion of the agreement, which prevents the fulfillment of the agreement permanently or temporarily. Force majeure should at least be understood in case of: war or similar situations, revolt, sabotage, boycott, strike, occupation, blockade, Gallery owner’s disease, lack of transporters, natural disasters, bad weather, lightning, flood, fire, explosion and outflow of hazardous substances or gases.
Article 7 Payment
- Payment must be received by the Gallery within 14 days of the invoice date, unless otherwise agreed in writing. The Gallery is entitled to make partial deliveries and invoice them separately.
- Complaints about received invoices must be made known to the Gallery in writing within 8 days of the date of dispatch or delivery of the invoice, failing which the relevant invoice will be unconditionally approved by the Buyer.
- All payments by the Buyer must be made without any deduction or set-off, unless the Buyer’s counterclaim to the Gallery has been explicitly acknowledged or established by the Gallery. The Buyer is not entitled to suspend his payment obligation.
- The Gallery has the right to demand prepayment or payment in cash if it sees reason to do so.
- By the mere lapse of a period of 30 days after the invoice date, the Buyer becomes in default without any notice of default or notice being required and is due on the amounts due from the date of default an immediately due and payable interest of 2% per month or by part thereof. The Gallery may also suspend further deliveries until full payment of all amounts due has been received.
- All costs, both extrajudicial and judicial costs (including all costs related to legal assistance) that are connected to the Gallery for the enforcement of its rights vis-à-vis the Buyer shall be borne by the Buyer. The extrajudicial costs are calculated in accordance with the rate of the Netherlands Bar Association, namely:
Over the first EUR 2,949.57 15% Over the excess up to EUR 5,899.14 10% Over the excess up to EUR 14,747.86 8% Over the excess up to EUR 58,991.43 5% Over the over EUR 58,991.43 3%
Article 8 Dissolution after non-payment
If payment is not made within the stated other period following a demand for payment, the Galerie is entitled to dissolve the agreement, in its entirety or in part, by means of a written statement to the Purchaser, without prejudice to its right to compensation.
Article 9 Dissolution
- If the Buyer does not, not properly or not timely comply with any obligation that may arise from the Purchase Agreement, and in the event of bankruptcy or (provisional) suspension of payment of the Buyer, the Buyer is in default without notice of default and the Gallery entitled without judicial intervention: a. To suspend the execution of the Purchase Agreement until the fulfillment of this obligation in the opinion of the Galerie is sufficiently certain; and / or b. each of the Purchase Agreements that the Gallery has concluded with the Buyer can be dissolved in whole or in part, without prejudice to the other rights of the Gallery and without the Gallery being obliged to pay any compensation.
- In all cases mentioned in the previous paragraph, all claims of the Gallery on the Buyer are immediately due and payable in full and the Gallery is entitled to reclaim the unpaid Artworks. In that case, the Gallery and its authorized representative (s) shall be entitled to enter the premises of the Buyer in order to take possession of such Works of Art in order to give Gallery the opportunity to effect its rights.
Article 10 Guarantee
- The Buyer buys the Artwork in the condition in which it is at the time of the purchase. The Buyer must inform himself in advance of the state in which the Artwork is located.
- The Gallery guarantees the authenticity of the Artwork, unless the guarantee is expressly or tacitly reserved (for example by the amount of the price paid for the Artwork).
- The Gallery shall guarantee damage to the Artwork to the Buyer, occurring during a warranty period of 30 days, unless the Buyer or a third party is fully or partly liable for the damage pursuant to the law. Such a liability of the Buyer shall in any event be the case in the event of incorrect or improper handling of the Artwork by the Buyer or by third parties. Liability or liability of the Gallery is not covered by or resulting from a lack of the framing.
- Any complaints regarding non-conformity of the Artwork must be made known to the Gallery in writing, on pain of forfeiture of rights within two months of receipt or after the damage has arisen.
- If timely, correct and in accordance with and with due observance of all provisions of Articles 10 and 12 a claim has been issued, the obligations arising for the Gallery are as follows: a. If the Gallery has reasonably demonstrated that the Artwork is damaged and the Gallery is liable for this, the Gallery will have the choice: i. to deliver the damaged Artwork free of charge new upon return of the damaged Artwork; ii. to repair the relevant Artwork; iii. to grant the Buyer a discount on the purchase price to be determined in mutual consultation. By satisfying one of the aforementioned services, the Gallery will be fully discharged in respect of its obligations towards the Buyer; b. If, in the reasonable opinion of the Gallery, it is sufficiently demonstrated that the Artwork is not genuine in violation of a declaration of authenticity in accordance with the provisions of 10 paragraph 2, the Buyer shall only be entitled to a refund of the purchase price paid for the Work of Art – without any compensation for possibly lost interest or otherwise – against simultaneous return of the Artwork to the Gallery, provided the Buyer returns the Artwork in the same condition as at the time of the delivery of the Artwork. By restitution of the purchase price, the Gallery will be fully discharged towards the Buyer in respect of its obligations. If the Buyer can not return the Artwork in the same condition as when it was at the time of the delivery of the Artwork, the claims of the Buyer will lapse and the Gallery will not be liable for a refund.
- In the event that the Gallery performs repair work on an Artwork, this Artwork remains at the risk of the Buyer. Until the time that the Gallery has taken back a Work of Art in accordance with the provisions of paragraph 5 of this article, this Work of Art shall also remain at the risk of the Buyer.
Artikel 11 Copyright
- The copyright on the Artwork belongs to the Artist. The copyright on the catalog, brochures and the like belong to the Gallery. Copyright is expressly reserved by both the Artist and the gallery.
- The Buyer is not permitted to publish and / or reproduce the Artwork purchased by him. The Gallery may mediate between the Artist and the Buyer if the Buyer wishes to publish and / or multiply the Artwork.
Article 12 Expiration period
- Insofar as these terms and conditions do not provide otherwise, rights of claim and other powers of the Buyer with regard to the purchase and sale of the Artwork to the Seller expire at least one year after the purchase agreement has been concluded.
- Rights and powers arising for the Purchaser from the purchase agreement with the Gallery are not transferable.
Article 13 Settlement
Settlement by the Buyer of a claim by the Gallery with a counterclaim to the Gallery is only permitted insofar as the counterclaim is expressly acknowledged by the Gallery or is irrevocably established in court.
Article 14 Applicable law
- Dutch law applies exclusively to agreements and any other legal relationships between the Buyer and the Gallery, with the exclusion of the Vienna Sales Convention.
- In case of disputes between the Buyer and the Gallery, the District Court in Rotterdam will have exclusive knowledge in the first instance.