GENERAL TERMS AND CONDITIONS OF APRIL IN PARIS B.V.
1.1 In these general terms and conditions (‘General Terms’) capitalized terms shall have the meaning set forth below:
April in Paris B.V., a limited liability company under Dutch law (in Dutch: besloten vennootschap met beperkte aansprakelijkheid), with its corporate seat in Bloemendaal, the Netherlands, registered address at (2111AM) Aerdenhout, the Netherlands, at Schulpweg 14 and email address firstname.lastname@example.org, registered in the trade register of the Chamber of Commerce under number 77722612 (also trading under the name ‘April in Paris Fine Arts’, ‘April in Paris Gallery’ and ‘Kunsthandel April in Paris’);
any work of art in any medium, including, for the avoidance of doubt, any paintings, drawings, sculptures, books, design and antique objects;
means any person or entity with which AIP did business with, including a Purchaser or a Consignor;
a Client who consigns an Artwork to AIP;
a Purchaser who is a natural person acting for purposes which are outside his trade, business, craft or profession;
these general terms and conditions;
a Client to whom AIP (i) makes an offer to sell or (ii) sells an Artwork; and
the period starting from the day after the Consumer has received the Artwork and ending fourteen (14) days thereafter.
2.1 These General Terms govern (i) all offers made by AIP and (ii) all contracts between AIP and the Client.
2.2 Any term that deviates from these General Terms is only binding if it is accepted by AIP in writing.
2.3 The applicability of any general terms and conditions of the Client any third party, is hereby expressly rejected by AIP.
3. OFFERS AND CONTRACT FORMATION
3.1 All offers are subject to contract, unless expressly stipulated otherwise by AIP.
3.2 A binding contract comes into existence as soon as AIP has explicitly accepted an offer of the Client to consign an Artwork, or the Client has sent instructions that are accepted by AIP.
3.3 AIP is entitled to require payment in advance of all or part of the contract price and/or costs for the performance of the contract, and is entitled to suspend performance of the contract up to such time as the advance payment is made.
4. SALE OF ARTWORKS BY AIP
4.1 All Artworks are sold as described by AIP in the offer or the contract and in the condition they are in at the time of sale. The Purchaser acknowledges and accepts the qualities of the Artwork ‘as is’. Purchaser accepts that Artworks of a certain age may not be in a perfection condition. All photographs, advertising and specifications provided by AIP are issued for the sole purpose of giving an appropriate idea of the Artwork but do not purport to be an exact or complete reproduction. Due to the (natural) aging process and the nature of the Artworks, it is likely that the Artworks show signs of wear and tear, damage, other imperfections, professional restorations and/or repair. Any statement, whether oral or in writing (including condition reports), as to the physical nature or condition of an Artwork is given with appropriate care and to the best of knowledge and ability, in line with the commonly accepted state of the art at that time, but reasonably cannot amount to a full description of condition or a guarantee or warranty by AIP, for the reasons given above. AIP recommends that the Purchaser seeks advice on all these matters from its own professional advisors before a sale is concluded. In addition, AIP is not responsible for any subsequent deterioration of an Artwork, however occasioned, after the sale.
4.2 Any statement of AIP about any Artwork, whether orally or in writing, concerning for example the authorship of an Artwork, origin, date, age, genuineness, source, provenance, condition and previous descriptions of an Artwork in literature, is prepared to the best of AIP’s knowledge and ability, in line with the commonly accepted state of the art at that time, and is, where possible, based on the generally accepted opinion of scholars or experts and/or the leading authority on the respective artist on the date of the sale. In such case, AIP has based its knowledge on these outside experts and cannot itself be held liable. These statements are statements of opinion only and shall never imply any sort of guarantee or warranty by AIP. In particular, the valuation of an Artwork is a subjective matter, which valuation is based on AIP’s professional knowledge and AIP strongly recommends the Purchaser to seek professional advice and assess the value of the Artwork before purchasing. The nature of the Artworks for sale by AIP is such that they are not always signed and dated or precisely datable. Therefore the mentioning of the (probable) author of the Artwork and/or a (possible) date of creation of the Artwork was created are no guarantees whatsoever, but attributions only and possible dates of the creation of the Artwork.
5. CONSUMER’S RIGHT OF WITHDRAWAL (ONLINE PURCHASE)
5.1 The right of withdrawal as described in this article 5 can solely be invoked by a Purchaser who is a Consumer and applies only in the event that the contract for the purchase of an Artwork between AIP and the Consumer has been concluded at distance, with the exclusive use of one or more means of distance communication (such as internet, telephone or fax).
5.2 A Consumer may terminate his contract with AIP without giving any reason during a Reflection Period. If the Consumer wishes to exercise his right of withdrawal, he shall notify this to AIP within the Reflection Period either by (i) using the model withdrawal form or (ii) making an unequivocal written statement setting out the decision to withdraw from the contract by registered mail or email.
5.3 Subject to article 5.4, AIP shall reimburse all payments from the Consumer, including any costs charged for the delivery of the returned Artwork at the Consumer’s address (excluding supplementary costs due to the specific choice of the Consumer for a type of delivery other than the least expensive type of standard delivery offered by AIP), within fourteen (14) days following the day on which the Consumer notifies AIP of the withdrawal. AIP may withhold reimbursement until AIP has received the Artwork back or the Consumer has supplied evidence of having sent back the Artwork, whichever is the earliest.
5.4 During the Reflection Period, the Consumer must handle the Artwork with care. In order to establish the quality and the characteristics of the Artwork, the Consumer should only handle and inspect the Artwork in the same manner as he would be allowed to do in a physical gallery space. The Consumer is liable for the depreciation of the Artwork if this is the result of a way of handling of the Artwork that does not comply with this article During the Reflection Period, the Consumer must handle the Artwork with care. In order to establish the quality and the characteristics of the Artwork, the Consumer should only handle and inspect the Artwork in the same manner as he would be allowed to do in a physical gallery space. The Consumer is liable for the depreciation of the Artwork if this is the result of a way of handling of the Artwork that does not comply with this article 5.4.
5.5 As soon as possible, but within fourteen (14) days from the day following the notification referred to in article 5.1, the Consumer shall return the Artwork using a professional and reputable art shipper, or hand it over, to (an authorized representative of) AIP, in accordance with the reasonable instructions provided by AIP. The Consumer is responsible for all costs for return of the Artwork.
6. ARTWORKS CONSIGNED TO AIP
6.1 In the event an Artwork is consigned to AIP, the Consignor agrees that AIP will act as an agent for the Consignor and will – on a best endeavours basis – try to sell the Artwork on behalf of the Consignor. AIP acts in the name of the Consignor, unless otherwise agreed in writing.
6.2 The Consignor warrants that it has full legal title to the Artwork, and that the information it supplies to AIP concerning the Artwork and storage conditions is complete and accurate.
6.3 The Consignor grants AIP the unconditional power to sell the Artwork and to transfer legal title of the Artwork to the buyer.
6.4 AIP is only liable to remit the sales price to the Consignor after AIP has received the sales price from the buyer of the Artwork in full. AIP may deduct from this payment to the Consignor all outstanding fees and costs.
6.5 AIP excludes all liability for claims of third parties, including but not limited to claims of buyers. The Consignor indemnifies AIP against any third-party claim resulting from a consignment agreement.
6.6 The Consignor may terminate the consignment agreement by written notice to AIP, giving reasonable notice. AIP may terminate the consignment agreement at all times.
7. ADVICE, ART HISTORICAL RESEARCH AND PUBLICATIONS
7.1 To any service, advice, statement, reference or publication of AIP, whether orally or in writing, whether or not supported by documentation and/or certification, including but not limited to art historical research, the assistance in the purchase/sale of Artworks and advice regarding the restauration or valuation of Artworks, articles 4.1, 4.2 and 6.2 of these General Terms apply.
7.2 AIP performs the activities listed in article 7.1 to the best of its knowledge and abilities, and on a best endeavours basis.
7.3 Third parties cannot derive any rights from any advice, statement, reference or publication of AIP. Article 6.5 of these General Terms applies.
8. INTELLECTUAL PROPERTY RIGHTS
All intellectual property rights concerning designs, documentation and photographs created by AIP or on the instructions of AIP, belong at all times to AIP. The Client is not permitted to copy and publish these without the written consent of AIP.
9.1 Unless stated otherwise, the prices quoted by AIP are excluding VAT, and excluding any additional costs for insurance, transportation, installation, and packaging.
9.2 Unless agreed otherwise, fees for all services and advice provided by AIP to the Client, including but not limited to services as described in articles 6 and 7 of these General Terms, will be calculated on the basis of the number of hours worked multiplied with the applicable hourly fee.
10. DELIVERY, TRANSPORT AND STORAGE
10.1 Quoted delivery periods by AIP are estimates only and may under no circumstances be treated as a deadline.
10.2 Any costs incurred by AIP for storage of an Artwork due to the Purchaser not taking possession of an Artwork within ten (10) working days after receiving notice of AIP that the Artwork can be collected, shall be charged to the Client.
10.3 Transportation, storage, packing and unpacking of the Artworks that are the subject of a contract or offer are at all times at the expense and risk of the Client, irrespective of the information contained in the shipping documents.
10.4 Without prejudice to article , an Artwork shall be at the Consumer’s risk from the time of delivery of the Artwork to the Consumer or a third party identified by the Consumer and if the Consumer returns the Artwork to AIP, until the time of delivery back to AIP, in accordance with article Fout: Bron van verwijzing niet gevonden. Where an Artwork is to be collected by the Consumer, or by the Consumer’s carrier the Artwork shall be at the Consumer’s risk from the time of collection of the Artwork. AIP shall not be liable for any loss of any kind to the Consumer arising from any damage to the Artwork occurring after the risk has passed to the Consumer howsoever caused, nor shall any liability of the Consumer to AIP be diminished or extinguished by such loss.
10.5 If applicable, the Client warrants that it has arranged for legal export and import of the Artwork. Import and export duties are for the account of the Client. It is the responsibility of the Client to obtain all necessary (export and import) licenses, and that all applicable regulations and requirements are met. AIP accepts no responsibility or liability in this respect. AIP may at all times request the Client to supply the original export and import documentation.
11. COMPLAINTS AND LIABILITY
11.1 Any complaints or claims of the Client regarding performance of the legal relationship between AIP and the Client must be sent promptly, but in any event waiting three (3) days after delivery of the Artwork, to AIP. Complaints or claims received by AIP after this period will not be considered by AIP, to the extent permitted by law.
11.2 AIP is not liable for damages to and/or loss caused to an Artwork with which it has been entrusted pursuant to an offer or contract, whether during their transportation, performance of the work, or the storage an Artwork, and the Client must ensure proper insurance of the Artworks, if it so requires.
11.3 The liability of AIP in the event of any attributable breach in its performance of a contract is limited to an amount not exceeding the purchase price or fee quoted in the relevant contract, excluding costs.
11.4 AIP is not liable for loss resulting from force majeure or the act or omission of any third party engaged by AIP or of any member of its staff, unless such act or omission is covered by insurance. In such a case the liability of AIP is limited to the amount paid out under the relevant insurance cover.
11.5 In the event of force majeure, AIP, in its sole discretion, shall be entitled either to terminate the contract, or to suspend performance of the contract until such time as the situation of force majeure has ended.
12. PAYMENT, TRANSFER OF TITLE AND RIGHT OF RETENTION
12.1 The Client must pay any amount due to the bank account of AIP. If it has not been agreed that payment is required to be made on delivery, and no other payment term has been agreed, payment must be made within fourteen (14) days of the date of the invoice. The right of set off of the Client is excluded, to the extent permitted by law. Submitted complaints do not suspend the Client’s obligation to pay the amounts due.
12.2 If payment is not made on delivery, within fourteen (14) days of the invoice date, or such other payment term stipulated by AIP, the Client is automatically in breach without the need to first serve a notice of default.
12.3 In the event of a breach by the Client, AIP has the right to exercise a number of legal rights and remedies. These include, but are not limited to, the following: 1. charge an interest at an annual rate of ten per cent (10%); and 2. charge reasonable collection costs, including, but not limited to legal fees.
12.4 In case of a sale by AIP, the Client will not acquire legal title to the Artwork until payment of the full amount is received by AIP in cleared funds.
12.5 AIP is entitled to suspend its own obligations and retain possession of any Artwork of the Client, until the Client has paid all costs and fees to which AIP is entitled under the relevant contract, or other contracts, and complied with all other obligations to AIP.
12.6 In the event of a breach of the contract by the Client, AIP is also entitled to terminate the contract, in which case the Client must compensate AIP for any loss incurred by AIP as a result of the termination, including loss of profits.
12.7 AIP has the right, but not the obligation, to rescind a sale, where a claim is made by a third party, including but not limited to, a third party claiming ownership of the Artwork. Upon notice of AIP’s election to rescind the sale, the Client will promptly return the Artwork to AIP and AIP will then refund the sales price paid by the Client. The refund of the sales price paid will constitute the Client’s sole remedy and recourse against AIP with respect to such claims.
13. APPLICABLE LAW AND JURISDICTION
13.1 The relation between the Client and/or other third parties and AIP shall be exclusively governed by Dutch law, with exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
13.2 All disputes regarding contracts concluded or services provided by or on behalf of AIP will be settled exclusively by the Court of Amsterdam in the Netherlands, without prejudice to the right of appeal or appeal in cassation.
13.3 In deviation of article Fout: Bron van verwijzing niet gevonden, a Consumer can, within one (1) month after article 13.2 is invoked, submit the dispute instead to another competent court.
Version: August 2020