Terms and Conditions
AAA-T&C (2017-05)
Introduction
The Terms and Conditions oversee and govern any interaction with AAA and are designed to uphold a high level of quality of service and transparency. Dutch Civil Law is applicable, if not otherwise stated.
Please ensure that before conducting any form of interaction with AAA, you read these Terms and Conditions carefully. In the case you are in disagreement with any of the Terms and Conditions, feel free inform us in writing prior to any purchase or transaction.
contents & Summary
An overview of the topics and a brief summary of the sections and subsections is stated below.
Definitions - Specific words used in all documents with capital letters.
General Terms and Conditions - The context of this within the law.
Purchase Price and Payment Methods - The Terms AAA accepts currency.
Goods and Services - The Terms that Describe any AAA product or Service.
Product Delivery - Description of packaging and delivery Terms.
Returns - The Condition, timeframe and method of returning goods.
Warranties - Describes the conditions regarding to our customer promise.
Termination by AAA - Describes when AAA can end a contract.
Force Majeure - Conditions beyond all parties reasonable control.
Mediation and Arbitration - The method to resolve any possible disputes.
Indemnity - Describes your accountability in case of breach of contract.
Liability - Describes AAA Accountability in case of breach of contract.
Communication - Forms of accepted, valid and binding communication.
Contract - Describes any Form of agreement related to sales of Goods.
Data Protection - Describes how your personal data will be handled.
Copyright and Confidentiality - Rules regarding our intellectual property.
Artist Royalty - An overview of the Artists intellectual property rights.
Right of First Refusal - Terms for reselling our artwork commercially.
Resale of Goods or Services - Fee when of Reselling AAA Artwork.
Disclaimer - An overview of items AAA can not be held accountable for.
Definitions
Terms and Conditions - (T&C) The general and special arrangements, provisions, requirements, rules, specifications, and standards that form the integral part of an agreement or contract with AAA.
Good - Tangible product, such as artwork, item, material, paraphernalia, produce, things for sale or vendible’s.
Service - Intangible product such as consultancy, expertise or transportation.
AAA - The company selling the Goods being a trading name of “AAAFresh123 V.O.F”, a company registered at the Chamber of Commerce Rotterdam under company number 57520623, fiscal number NL8526.17.562.B.01. and with a registered office at Zaagmolenkade 123/124; 3035 KD; Rotterdam; The Netherlands.
Working Day - Any day (other than Saturday, Sunday or legal holiday) on which business can be conducted.
Working Hours - Any working Day from 09:30am till 16:30pm.
Buyer - The purchaser of the Goods from AAA;
Third Party - Any individual or legal entity who does not have a direct connection with the legal transaction but who might be affected by it.
Artist - The author of an original work of art or Good.
Artist Organization - Associations or legal entity representing the Artist
AMP - Auction house, agent, art dealer or gallery
Contract - An agreement or assignment with specific terms between Buyer, Artist, Artist Organization, Agent and/or AMP with AAA in which there is a promise to deliver or receive Goods and/or Services in return for a Purchase Price or commission.
Distance Selling - Buyer acquiring Goods at a distance as opposed to over the counter, examples being web shop or telephone orders.
Trade Association - Body representing the interests of AMPs
Purchase Price - Includes the Good(s), cost of packaging, delivery, value added tax, sale, use, excise or similar Service(s) which may be applied, but excludes import/export tax.
Bank Account - The account all electronically made transactions will take place on. Bank details: IBAN: NL** ***** **25 22, account holder AAAFRESH123, BIC/SWIFT Code: INGBNL2A.
Intellectual Property - All exclusive rights to intellectual creations which include artistic and literary property. Since the entry into force of the Treaty on the Functioning of the European Union in 2009, the EU has had explicit competence for intellectual property rights (Article 118).
Force Majeure - Causes beyond either party’s reasonable control, without limitation, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, pandemics, insurrections, riots, wars and supplier failures, -shortages, -breach, or -delays.
On House Accounts - List of Buyers in AAA CRM Hubspot.
General Terms and Conditions
1. The Terms and Conditions constitute the entire understanding of the parties and supersede all prior discussions, negotiations, agreements and understandings, whether oral or written.
2. No change or modification of the Terms and Conditions (including change orders) is valid unless it is in writing and signed by the Buyer and a legal representative of AAA.
3. If any part of the Terms and Conditions is held invalid, unenforceable or void by a court of competent jurisdiction, the Terms and Conditions are considered divisible as to such part, and the remainder of the Terms and Conditions are valid and binding as though such part was not included in the Terms and Conditions to the fullest extent permitted by Dutch Civil and European law.
4. The Terms and Conditions are governed by Dutch Civil law (without regard to the laws that might be applicable under principles of conflicts of law) as to all matters, including, but not limited to, matters of validity, construction, effect and performance and both parties agree to the exclusive jurisdiction of the Dutch Court.
5. The Terms and Conditions may be executed in two or more parts, each of which shall be deemed an original but all of which together shall be one and the same instrument.
6. Nothing in these Terms and Conditions affects the statutory rights of the Buyer.
7. On the occasion that AAA fails, at any time while these Terms and Conditions are in force, to insist that the Buyer performs any of its obligations under these Terms and Conditions, or if AAA does not exercise any of its rights or remedies under these Terms and Conditions, that will not mean that AAA has waived such rights or remedies and will not mean that the Buyer does not have to comply with those obligations.
8. On the occasion that AAA does waive a default by the Buyer, that will not mean that it will automatically waive any subsequent default by the Buyer. No waiver by AAA of any of these Terms and Conditions shall be effective unless it expressly says that it is a waiver and it tells the Buyer so in writing.
9. Any offer or acceptance of a quotation, orally or written, made by the Buyer will be deemed an offer to purchase the Goods governed by these Terms and Conditions.
10. Any third party’s right or benefit is determined by the Contract and is subject to any conditions or other limitations under the contract.
11. No offer or acceptance of a quotation will be deemed a binding agreement of sale until confirmation with a written invoice has been issued by AAA. Upon confirmation, these Terms and Conditions (as they may be amended by AAA from time to time) form a binding agreement between the Buyer and AAA.
12. Any Goods or Services not confirmed by written invoice issued by AAA are deemed additional work and must be agreed in writing signed by both parties. These Terms and Conditions are applicable to any additional work or additional sales to the Buyer by AAA.
Purchase Price and Payment Methods
1. The Purchase Price shall be the price offered by AAA and confirmed to the Buyer by written invoice issued by AAA.
2. Any fees, duty or taxes applied will be billed to and paid by the Buyer as set forth on the written invoice issued by AAA.
3. All payments shall be made in the agreed currency, and the agreed price is due in full at the time the offered price is accepted and confirmed by invoice, unless agreed otherwise in writing.
4. The Buyer will have 10 Working Days from the date of invoice to make payment in full, unless agreed otherwise.
5. Ownership (legal title) of Goods will not pass to the Buyer until the accepted and confirmed price is paid in full by the Buyer and received by AAA in cleared funds.
6. Any payment not paid in full as per the Terms and Conditions will be subject to an 8% statutory interest rate on funds due, according to Dutch law.
7. A payment in cash above €15.000 will be registered by AAA according to the Anti-Money Laundering and Anti-Terrorist Financing Act [Wet ter voorkoming van witwassen en financieren van terrorisme or Wwft].
8. In order to contribute to the fight against money laundering and terrorist financing, AAA will at all times comply with any obligations imposed by any applicable laws, rules, regulations and circulars with respect to the prevention of money laundering and terrorist financing, obliging the Buyer to prove their identity to the Company
Goods and Services
1. The Goods and Services to be delivered shall be specifically described in the written invoice provided by AAA.
2. In the event the specific Good or Service is not available as of the date the order is confirmed by written invoice, AAA agrees to source Goods or Services of similar or greater quality.
3. In the event AAA cannot source Goods acceptable to the Buyer because the ordered Goods are not available, the Buyer will have 10 Working Days to provide written notice to cancel the order. AAA will, upon receipt of such notice, refund moneys paid in full.
4. The Buyer agrees and acknowledges that all specifications and advertising issued by AAA and any descriptions or illustrations contained in AAA marketing materials are provided for the sole purpose of giving an approximate idea of the Goods described in them. AAA is not bound by such descriptions which do not form a part of these Terms and Conditions, nor are they a part of the Contract and this is not a sale by sample.
Product Delivery
1. Unless otherwise agreed by the parties, delivery of the Goods shall be to the Buyer’s home or business address.
2. The Goods may be delivered framed or unframed. The frame will encase the product and is separate from the actual delivery packaging for the Goods. The Buyer acknowledges that the Goods are unique, rare and of high value and that the value of the Goods can be reduced by merely handling the Goods.
3. AAA will make its best effort to deliver the Goods by the agreed date or within a reasonable time if no dates are stated. All delivery dates are estimates only and time of delivery is not of the essence.
4. The Buyer must inspect the Goods upon delivery and advise AAA of any defects within 5 Working Days of delivery date or all complaints as to defects are waived.
5. Risk of loss or damage to the Goods passes to the Buyer upon delivery.
6. Where the Buyer requests that the Goods be placed directly in the safe custody of another party on behalf of the Buyer, delivery shall be deemed to take place on the date the Goods are transferred into safe custody.
7. Where the Buyer requests at the time of purchase, that the Goods are stored “In Bond” outside of the European Union, the Buyer understands that upon import of the Goods into the European Union the Buyer is liable for any import taxes, BTW(VAT) chargeable by any customs authority for the importation of Goods into any member country of the European Union.
Returns
1. Returns are applicable for Distance Selling within 5 Working Days, starting from the Working Day subsequent to the day the Buyer receives the Goods if the Buyer is Contracting as a consumer.
2. If the Buyer is contracting as a consumer and has cancelled the Contract between it and AAA within the agreed cancellation time. AAA will process the refund due to the Buyer within 30 Working Days of the day on which the Buyer gave AAA written notice of cancellation. The Buyer will be responsible for the costs of returning the item to AAA.
3. In all other cases not covered by clause 6.a, the Buyer may return any Goods delivered at the Buyer’s cost within 5 Working Days of receipt by giving written notification (by registered post, confirmed fax or confirmed email) of intent to return to AAA.
4. If the Buyer decides to return the Goods, the Goods must be returned and received by AAA within 10 Working Days of receipt of confirmed notice of return from the Buyer. If the Goods are not received within 10 Working Days of receipt of confirmed notice of return from the Buyer, the sale is deemed final and no returns of the Goods will be accepted.
5. The Buyer acknowledges that the Goods are unique, rare and of high value and that handling of Goods can reduce the value of the Goods.
6. Once a sale is deemed final, no returns will be accepted and the Buyer hereby accepts and waives any claims he/she may have under or otherwise.
7. The Buyer is response for all delivery costs and insurance costs incurred for returned Goods.
Warranties
1. AAA makes no warranties, expressed or implied, except as specifically stated herein. Such warranties are in lieu of all other warranties, written or oral, statutory, express or implied, including without limitation, any warranty of merchantability or fitness for a particular purpose.
Termination by AAA
1. AAA may terminate a Contract if the Buyer fails to make payment when due or substantially breaches any other obligation of these Terms and Conditions. AAA may notify the Buyer in writing regarding such termination and recover from the Buyer the payment (by means of a third party) for Goods sold or Services delivered.
2. The Buyer is liable for any and all costs incurred by AAA in connection with collection of such unpaid funds.
Force Majeure
1. If any obligation under a Contract is prevented due to Force Majeure, then the obligations of the party shall be suspended to the extent necessary by such event.
2. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased.
3. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
Mediation and Arbitration
1. Any disputes between the parties hereto, whether arising under these Terms and Conditions or under any written invoices issued by AAA or otherwise, which the parties cannot resolve between themselves using good faith, shall be referred to a court certified mediator in The Hague, The Netherlands.
2. Any mediation shall be held in The Hague, The Netherlands. The Buyer shall bear the cost of said mediation. In the event that said dispute is not resolved in mediation, the parties shall submit the dispute to a neutral arbitrator residing in The Hague, The Netherlands.
3. The arbitration shall be held in The Hague, The Netherlands. If either party refuses to comply with a ruling or decision of the arbitrator and a lawsuit is brought to enforce said ruling or decision, it is agreed that the party not complying with the ruling or decision of the arbitrator shall pay all the court costs and reasonable legal fees incurred in enforcing the ruling or decision of the arbitrator. Any rights of injunctive relief shall be in addition to and not in derogation or limitation of any other legal rights.
Indemnity
1. The Buyer hereby agrees to indemnify AAA and undertakes to keep AAA indemnified against any losses, damages, costs, liabilities and expenses (including without limitation legal expenses and any amounts paid by AAA to a third party in settlement of a claim or dispute on the advice of its legal advisers) incurred or suffered arising out of any breach by Buyer of any provision of these Terms and Conditions or arising out of any claim that the Buyer has breached any provision of these Terms and Conditions.
Liability
1. If AAA fails to comply with these Terms and Conditions, it will be responsible for loss or damage that the Buyer suffers which is a foreseeable result of AAA’s breach of the Terms and Conditions or its negligence, but it is not responsible for:
a. any loss or damage that is not foreseeable;
b. any loss which that is not caused by a breach of AAA or its agents or employees; and
c. any business losses, or losses to parties who are not consumers.
d. loss or damage is foreseeable if they were an obvious consequence of AAA’s breach or if they were contemplated by both parties at the time the contract is entered into.
2. In Compliance with the Dutch Consumer Protection Laws [Wet handhaving consumentenbescherming article 7:1 t/m 7:50 BW]. Nothing in these Terms shall limit or exclude AAA liability for:
a. personal injury resulting from negligence by AAA;
b. defective products;
c. for fraud or fraudulent misrepresentation;
d. breach of the terms implied by Article 193g or Article 193i of Book 6 of the Dutch Civil Code;
e. breach of the terms regarding to description, satisfactory quality, fitness for purpose and samples); or defective products
3. In any event, the total liability of AAA in respect of breach of any contract for the sale of Goods or any representation given in connection with such a contract, whether in contract, tort (including negligence), statute or otherwise shall be limited to the purchase price for the Goods.
Communication
1. All notices shall be in writing and sent by registered post, facsimile or email to the address of the recipient stated in any quotation, order or acknowledgement of order.
2. Notices shall be deemed to be received if sent by registered post, on the second Working Day following the day of posting and, if sent by email or facsimile, on day of transmission during Working Hours.
Contract
1. Each right or remedy of AAA under a Contract is without prejudice to any other right or remedy of AAA whether under the Contract or not.
2. No failure or delay by AAA to exercise any right, power or remedy within a Contract will operate as a waiver of it, nor will any partial exercise preclude any further exercise of the same, or of any other right, power or remedy.
3. The parties do not intend that the Terms and Conditions shall be enforceable by virtue of a Contract by any person that is not a party of it.
Data Protection And Privacy
1. AAA will hold any personal information provided to it in confidence and in accordance with General Data Protection Regulation [GDPR] and other applicable data protection legislation.
2. The Privacy Policy is discussed in detail and can be found on the AAA website and is applicable for all business, contracts and transactions between AAA and Buyer.
6. At any given time, on request the Buyer can “Opt-out”, meaning that all personal data will be removed from AAA databases, if not in contradiction to European or Dutch Civil law. (example: AAA-T&C (2017), s3(7,8))
Copyright and Confidentiality
1. Copyright, trademarks, database rights and all similar rights in this website and marketing materials are owned by AAA, its licensors or relevant third-party content providers. The Terms of Website Service van be found on the websites managed by AAA.
2. You may use the information on this site and reproduce it in hard copy for your personal reference only. Such information may not otherwise be reproduced, distributed, stored in a data retrieval system or transmitted in any form or by any means without the prior written permission of AAA.
3. Nothing in our marketing materials or in this website should be considered granting any license or right under any trademark of AAA or any third party.
Artist Royalty
1. The Artist’s Resale Right (ARR) entitles the Artist of original works of art (including paintings, engravings, sculpture and ceramics) to a royalty each time one of their works is resold through the Buyer.
2. The right to this royalty lasts for the same period as copyright, so since January 2012 ARR has applied to qualifying works by artists who have been dead for less than 70 years
3. Sales between private individuals, without the use of an art market professional, or to public, non-profit making museums do not attract royalty payments
4. Goods being resold acquired directly from the Artist less than three years previously being resold for €10,000 or less are exempt to the Artist Royalty. (Bought as stock exception).
5. The Royalty owed to the Artist is 4% up to €50,000, 3% between €50,000.01 and €200,000, 1% between €200,000.01 and €350,000, 0,5% between €350,000.01 and €500,000, 0,25% in excess of €500,000.
Right of First Refusal
1. In the event that the Buyer desires to sell a Good, previously acquired from AAA and the Buyer has received a legitimate offer in writing from an unaffiliated third party to buy any Good previously acquired from AAA’s, the Buyer shall first notify AAA in writing (Sale Notice) of the proposed sale.
2. Each Sale Notice shall contain all material terms of the proposed Sale, including, without limitation, a copy of the written offer received, the name and address of the prospective purchaser, the purchase price and terms of payment, and the date and place of the proposed sale.
3. AAA shall have an option for a period of 10 Working Days from the date the Sale Notice is given to elect to purchase the work of Art at the same price and subject to the same material terms and conditions as described in the Sale Notice. AAA may exercise such purchase option and, thereby, purchase all (or any portion of) the Goods by notifying the Buyer in writing before expiration of such 10 Working Day period as to the Goods that AAA wishes to purchase from the Buyer.
4. If AAA gives the Buyer notice that it desires to purchase such Goods, then payment for the Art Work shall be by cheque or bank transfer, against delivery of the Art Work to be purchased at an address agreed upon between the Buyer and AAA and at the time of the scheduled closing therefor, which shall be no later than the later than 30 Working Days after the date the Sale Notice is given.
If the AAA fails to purchase all of the Goods by exercising the option granted in this Section within the period provided, AAA shall forfeit its Right of First refusal
Resale of Goods or Services
1. The Buyer, in the case that the Buyer is a commercial entity, if not otherwise agreed upon in an AMP agreement, agrees to pay AAA 10% of any profit achieved from the resale of any Service or Good purchased through AAA. This amount is to be paid to the AAA Bank Account or within 10 Working Days of the resale of the Service or Good by the Buyer.
Disclaimer
1. No information provided by AAA should be deemed to constitute the provision of financial investment or other professional advice.
2. The Buyer understands fully the merits and risks of the fluctuating value of Goods and has the economic means to afford the non-liquidity of such purchase. AAA will in no way be held responsible for the non-liquidity of such purchase.
3. The Services described or recommended in our marketing materials or on the website may not be suitable for all people. You should seek your own professional advice as to the suitability of any such investment or service before you enter into any transaction.
4. Any information relating to past valuation of Goods is not necessarily a guide to future performance.
5. Fluctuations in the rate of exchange may have an adverse effect on the value, price or income of non-euro denominated Goods.
For Questions Regarding terms and Conditions…
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