> General terms and conditions

DRAFT DATED 17 JUNE 2008

 

 

GENERAL TERMS AND CONDITIONS OF ARTIHOVE REGINA B.V., ALSO TRADING UNDER THE NAME ARTIHOVE ART CENTRE, EMOTIE IN BEELD, AMBER BASED IN BERGSCHENHOEK

 

 

DEFINITIONS

 

Article 1

In these terms and conditions shall be understood by:

A.        Artihove: Artihove Regina B.V., also trading under the name Artihove Art Centre.

B.        G.T.&Cs: these general terms and conditions.

C.        Other party: the entity with which Artihove has concluded a contract, or with which

Artihove is negotiating as to the conclusion of a contract.

 

 

SCOPE OF APPLICATION

 

Article 2

1.         These G.T.&Cs shall apply to all quotations by, inquiry to, communications from and

contracts with Artihove, including the execution thereof, unless agreed otherwise in writing. This shall also specifically include purchase and sale of goods and the provision or assignment of services. 1

2.         Divergent terms and conditions shall be binding on Artihove only when these have been agreed in writing and then only for the specific case agreed.

3.         In the event of conflict between the G.T.&Cs and the corresponding terms and

conditions of the other party, the G.T.&Cs shall prevail exclusively.

 

 

QUOTATIONS

 

Article 3

1.         Quotations tendered without a period for acceptance and also information presented in

Artihove’s publications are entirely without engagement and revocable. Information featured in printed materials issued on the part of Artihove shall be amenable to amendment without Artihove being obligated to make specific announcement hereof. 2

2.         Prices stipulated by Artihove shall not include VAT nor expenses of packaging,

carriage and delivery.

3.         Artihove adopts in all instances the most recent price list; previous price lists

consequently lapse automatically. Price changes will be implemented without prior

notification to the other party.

 

 

DRAWINGS, SPECIMENS AND SIMILAR

 

Article 4

1.         Drawings, illustrations, specimens, wax replicas, templates, hand templates, molds, first casts and the like that have been supplied by Artihove, shall remain Artihove’s property and shall not be binding on Artihove, unless agreed to the contrary, explicitly and in writing.

2.         Drawings, illustrations, specimens, wax replicas, templates, hand templates, molds, first casts and the like that have been supplied by Artihove’s other party, shall remain that other party’s property and shall be binding on that party, unless agreed explicitly to the contrary.

 

COMPOSITION, PROPERTIES AND SIMILAR

 

Article 5

1.         Information on composition, materials employed, dimensions, weather resistance,

chemical resistance and the like that is issued by Artihove is based on information,

figures, specifications or reports obtained by Artihove from reputable manufacturers,

research departments and similar. Artihove undertakes no responsibility for these. 3

            With regard to sizes, colors, weights and other properties of all materials, Artihove

retains the standard tolerances, as are customary for the manufacture assigned the

manufacture.

2.         The patina displayed on specimens, first casts and similar represents no guarantee

whatever for an identical color or coloration for series subsequent to the first model.

3.         Artihove retains the right to introduce product modifications that are in its opinion

beneficial to quality without prior notification.

 

 

BROCHURES, CATALOGUES AND SIMILAR

 

Article 6

1.         Products will be delivered without the installation materials depicted in the brochures,

catalogues and similar.

2.         Products supplied may, due to, among other features, limitations in lithography and

offset technique deviate to some extent in color/form from the illustrations in the

brochure or catalogue.

3.         Silver, silver-plated and gilt articles may in the course of time change color relative to

other illustrations of those same articles. Cleaning of silver, silver-plated or gilt articles shall not be for Artihove’s account. Artihove reserves the right to varnish such articles (or have them varnished).

 

 

DELIVERY PERIODS

 

Article 7

Delivery periods and time limits cited in quotations and contracts shall be without engagement for Artihove, except insofar as the contrary is stipulated in the text, and shall be binding on the other party. 4

 

 

PRICES 5

 

Article 8

1.         Prices quoted and contracted are based on currency exchange rates and costs of

materials, carriage, wages, taxes and levies, customs duties and other price-determining factors, applying on the day of quotation, or the day on which the contract is concluded.

2.         Artihove shall be entitled at all times to adjust without prior notification the price based on the previous paragraph of this article when, prior to delivery, there is any increase to the price-determining factors stipulated in the first paragraph of this article, irrespective of whether such is the result of foreseeable or unforeseeable factors applying upon conclusion of the contract.

3.         Should the price negotiated be increased within three months from the conclusion of

the contract, the other party - buyer - shall be entitled in such event to dissolve the contract, provided it so does within ................. from Artihove having notified it of the price increase.

4.         Artihove shall notify the other party as promptly as possible in detail and in writing of

the price increase. The payment of price increases based on this article shall be made simultaneously with payment of the principal sum and with the last installment thereof respectively.

5.         Price-increasing factors entitling Artihove to charge them to the customer shall include

price increases on the part of its suppliers, which these suppliers have charged to

Artihove.

 

 

ESTABLISHMENT AND SUBSTANCE OF THE CONTRACT

 

Article 9

1.         A contract shall be established only after it has been acknowledged in writing by

Artihove. 6

2.         Any agreements reached later or amendments made shall be valid only after Artihove

has acknowledged them in writing and the other party has not lodged written objection

within 8 days. 7

3.         The date of establishment of a contract shall be deemed to be the day of dispatch of the

acknowledgement by Artihove. Dispatch of consignment notes or invoices shall also be deemed to be acknowledgement of the contract referring to the goods stipulated on such consignment note or invoice. 8

4.         The other party shall be held by Artihove and obligated in the event of amendment

and/or cancellation of the contract to reimburse Artihove for damage incurred, irrespective of the reason for such amendment and/or cancellation - force majeure included thereunder - and irrespective of whether Artihove has actually accepted such amendment and/or cancellation.

5.         Under “damage” in the sense of the previous paragraph of this article shall be included

in any event the costs already incurred by Artihove, loss of profits, interest losses and such. The loss of profits shall amount to at least 50% of the contract price. Artihove retains the right to substantiate and claim a greater loss of profits.

 

 

DELIVERY

 

Article 10

1.         Even in the event of Artihove’s exceeding a contracted delivery period the other party

shall be obligated to accept that purchased, Artihove retaining in respect hereof the right to reimbursement for damages, dissolution or conversion of the contract, or failure to fulfil any obligation pursuant to the contract.9

2.         Any explicit contractual penalty arising from exceeding a period of delivery shall not

fall due when such excess is due to force majeure.

3.         A period of delivery shall, without prejudice to that stipulated in paragraph 1 of this

article, take effect for the first time, after the order specified has been accepted by Artihove in writing, all information for its execution are in Artihove’s possession and - should payment in part or in full in advance have been negotiated - after that payment in advance has been remitted to Artihove.

4.         All contracts shall be concluded by Artihove subject to the condition that the other

party proves to be sufficiently creditworthy. Artihove shall be entitled to require that the other party provides adequate securities for meeting its payment obligation to Artihove. Artihove is entitled to suspend execution of the contract until the security required has been provided.

5.         Delivery shall be deemed to be when the goods have left Artihove’s depot or that of its

supplier destined for the address stipulated by the other party.

6.         Artihove shall be entitled to deliver the goods in one or several lots. When the goods

are delivered in several lots the other party shall be obligated to pay the invoices corresponding thereto subject to the provisions of article 13.

7.         When no explicit agreement has been reached for delivery from own inventory,

Artihove shall be entitled to deliver from third parties’ inventories.

 

 

TRANSPORT RISK

 

Article 11

1.         The carriage of goods that Artihove has sold ex-depot/works shall be for account and

risk of the other party.

2.         The carriage of goods that Artihove has sold cash on delivery or free domicile shall be

for account and risk of Artihove. 10

 

 

LIABILITY

 

Article 12

1.         Insofar as Artihove is liable for non-fulfillment or defective fulfillment, such liability

shall be restricted to damage that is the immediate and actual result of such non-fulfillment or defective fulfillment. This shall under no circumstances cover damage to other party’s property, whether movable or immovable and/or damage that is incurred due to the goods ordered being unavailable, not completely available or not available on time. Artihove shall under no circumstances be liable for trading losses, consequential damage, damage incurred in respect of events, openings, award presentations and the like. Neither shall Artihove be liable for damage to buildings, inventory or goods present on site, persons employed or others in attendance.

2.         Delays to projects or activities in which goods supplied by Artihove are employed or

incorporated shall under no circumstances be deemed to be an immediate and actual consequence of non-fulfillment or defective fulfillment on the part of Artihove.

3.         The other party shall indemnify Artihove for all third-party actions for compensation

addressed to Artihove, whether direct or indirect.

4.         In cases where Artihove provides services, whereunder included the solicited or

unsolicited provision of recommendations, the same shall apply mutatis mutandis.

5.         Artihove shall accept no liability whatever for refraining to provide recommendations.

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PAYMENT

 

Article 13

1.         Payment must be made without discount or set-off within 30 days of invoice date.

2.         Artihove is, irrespective of what has otherwise been agreed, entitled at all times to

require (additional) security from the other party for payment of the price agreed. That is particularly the case when an investigation into the solvability and/or payment performance of the other party reveals demonstrable default in payment, a negative recommendation from a credit insurance company, registration at BKR [Agency for Credit Registration] and/or negative recommendation by a bailiff or other collection agency.

3.         For quotations, goods sent on approval, specimens or orders for EUR 5,000 or more,

Artihove requires a payment deposit or the presentation of security for 50%.

4.         For quotations, goods sent on approval, specimens or orders less than EUR 500

Artihove retains the right to supply cash on delivery.

5.         When it exceeds the payment term the other party shall be due to Artihove from the

due date delay interest at the rate of 2% per month or portion thereof for the unpaid (portion of the) invoice amount.

6.         The other party shall be liable moreover for all court and out-of-court costs associated

with the collection procedure. The out-of-court costs shall be set at 15% of the amount

to be collected plus VAT, with a minimum of EUR 250 and shall be due at that time

when the debt is placed for recovery with a collection agency. 12

7.         Artihove shall be entitled to claim from the other party costs additional to those

described above, insofar as these have been caused by a shortcoming of the other party in fulfillment of the contract.

8.         Artihove provides no discount for cash or early payment.

 

 

SUSPENSION, DISSOLUTION IN WHOLE OR PART

 

Article 14

1.         Artihove shall be entitled without intervention of law and without obligation to any

reimbursement for damages to either dissolve the contract for part not yet executed or

to suspend execution thereof in the following cases:

-          when the other party does not make a payment due;

-          when the other party suspends discharge of a payment due;

-          when the other party petitions for moratorium of payment;

-          when the other party becomes bankrupt;

-          in the event of liquidation of the other party;

-          when an attachment order is made on movable or immovable property

belonging to the other party;

            -          in the case stipulated above in article 13, when the other party does not provide

the security required by Artihove within the period stipulated by Artihove.

2.         When Artihove avails itself of its right as stipulated in the previous paragraph of this

article to (partial) dissolution, it shall be entitled, without being liable for any compensation for damages, to refrain also from executing any work not yet carried out and also to reclaim or recover goods not yet paid for, and this without prejudice to Artihove’s right to compensation for all damage incurred.

3.         In the cases stipulated in the first paragraph of this article every claim by Artihove on

the other party shall be due immediately and in full.

 

 

COMPLAINTS AND CLAIMS

 

Article 15

1.         Visible defects must be reported in writing to Artihove within 48 hours of delivery.

2.         Damage during carriage must, to the extent that it is visible, be noted on the receipt

note and then reported in writing to Artihove within 72 hours.

3.         All remaining complaints must be reported to Artihove in writing, at the latest within 8

days.

4.         All periods stipulated in the foregoing paragraphs are on penalty of loss of right.

5.         When another party has submitted a legitimate complaint, Artihove may at its own

discretion either repair the goods involved or replace them by new ones. Carriage costs

shall in either case be for Artihove’s account.

 

 

INTELLECTUAL PROPERTY

 

Article 16

1.         Artihove retains explicitly the intellectual property rights for design and method of

production of the goods sold by it. These rights consequently do not constitute any  part

of the purchase contract.

2.         Copying by or on behalf of the other party is forbidden, as is placing the goods sold at

the disposal of third-parties, of whom may be reasonably expected that they will copy

the goods (or have them copied).

3.         Breach of this prohibition will result in the other party forfeiting a penalty not amenable to mitigation of 15% of the purchase price with a minimum of EUR 1,000 per incident or per article reproduced.

4.         The other party undertakes to impose the prohibition contained in this article, together

with the penalty clause on its legal successors in the form of a perpetual covenant, such that those legal successors too and their legal successors are also obligated to Artihove herewith.

5.         Failure to comply with the obligation established in the previous paragraph shall result

in the other party or the legal successor of the other party respectively forfeiting to

Artihove a penalty of  EUR 10,000 per incident, due immediately and not amenable to

mitigation

 

 

JOINT AND SEVERAL LIABILITY

 

Article 17

1.         When the other party consists of more than one (legal) entity, all such (legal) entities

shall be joint and severally liable in their dealings with Artihove. 13

 

 

FORCE MAJEURE

 

Article 18

1.         By force majeure shall be understood every circumstance beyond Artihove’s control,

even when this could have been foreseen at the time of establishment of the contract, the result of which circumstance is to preclude reasonable and fair expectation on the part of the other party of fulfillment and/or timely fulfillment of the contract.

2.         Force majeure shall include:

            -          strikes;

            -          lockouts, fire and/or interruptions to Artihove’s operations or to those of its

suppliers;

            -          delays to delivery of materials ordered on time;

            -          interruption to power supplies and acts of government which lead to stagnation.

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3.         In cases of force majeure Artihove shall be entitled, without concomitant obligation

to any compensation for damages, to declare the contract dissolved in whole or part, without necessity of intervention by law. Such is without prejudice to the obligation of the other party to pay for the goods already supplied and the costs already incurred.           

 

 

PROPERTY

 

Article 19

1.         Goods that Artihove delivers to the other party shall remain property of Artihove until

such time as the other party has met all its obligations to Artihove with respect to the contract involved and all engagements relating thereto.

2.         Artihove shall be irrevocably entitled in the event of non-fulfillment or defective

fulfillment on the part of customer without necessity of any notice of default to recover the goods supplied by Artihove, where necessary after disassembly. 15

 

 

 

RETURN/EXCHANGE

 

Article 20

1.         Return/exchange shall only be permissible for articles featured in Artihove’s most

recent catalogue and only then when those goods have been supplied at the terms, conditions and prices stipulated in that catalogue.

2.         Until at the latest 14 days from delivery of these articles the other party shall be entitled to return these to Artihove provided the other party has raised the matter with Artihove prior to doing so and that Artihove has assented.

3.         Goods returned must be sent in undamaged original packaging and must be free of

markings applied by the other party or relating to its particular purposes.

4.         The condition of the articles returned upon arrival at an address specified by Artihove

shall be decisive for acceptance of the return shipment.

5.         Artihove shall determine whether return shipment is to result in credit or exchange for

other articles.

 

 

APPLICABLE LAW AND DISPUTES

 

Article 21

1.         All contracts concluded by Artihove, and also any engagements relating thereto shall be governed by Dutch law.

2.         All disputes resulting from or relating to these terms and conditions and the legal

relationships established between parties shall in first instance be adjudicated solely by

the competent jurisdiction in Rotterdam, unless Artihove expresses the preference for

the competent jurisdiction in the domicile or business location of the customer or for

another competent jurisdiction. 16

 

SUPPLEMENTARY PROVISIONS FOR INTERNET

 

Privacy

 

“Artihove respects the legal and generally accepted rules for the protection of personal privacy. Artihove processes personal information provided solely for clear, identifiable and proper purposes. This personal information will be accurately recorded and processed and will be released to third-parties only should such be appropriate to the purposes for which such personal information has been supplied and to the extent that it is permitted by law and authorized by the person involved.”

 

Confidentiality

 

“Should Artihove receive information that it knows or could reasonably be expected to know merits treatment as confidential, it shall ensure that adequate measures are adopted within its organization to secure such confidentiality.”

 

Reliability

 

“Artihove shall make every endeavour to ensure that information supplied by it, including information on the organization, products and services, is not misleading or untrue, irrespective of how such information is communicated.”

 

SUPPLEMENTARY PROVISIONS FOR INTERNET

 

Privacy

 

“Artihove respects the legal and generally accepted rules for the protection of personal privacy. Artihove processes personal information provided solely for clear, identifiable and proper purposes. This personal information will be accurately recorded and processed and will be released to third-parties only should such be appropriate to the purposes for which such personal information has been supplied and to the extent that it is permitted by law and authorized by the person involved.”

 

Confidentiality

 

“Should Artihove receive information that it knows or could reasonably be expected to know merits treatment as confidential, it shall ensure that adequate measures are adopted within its organization to secure such confidentiality.”

 

Reliability

 

 

“Artihove shall make every endeavour to ensure that information supplied by it, including information on the organization, products and services, is not misleading or untrue, irrespective of how such information is communicated.”