General Terms & Conditions of Borzo Kunsthandel B.V.
FILED WITH THE REGISTRY OF THE AMSTERDAM COURT UNDER NO. 31/2020
Article 1 - General provisions
- These General Terms and Conditions apply to all offers, orders, quotations, order confirmations and agreements made by or concluded with Borzo Kunsthandel.
- Deviations from these General Terms and Conditions can only be made in writing.
- The applicability of any Terms and Conditions of the Purchaser is explicitly rejected by Borzo Kunsthandel.
- The General Terms and Conditions drawn up in the Dutch language shall take precedence over the General Terms and Conditions translated into English or any other language.
- Nullity or annulment or the non-binding nature of any of the provisions of these General Terms and Conditions shall not affect the other provisions of these General Terms and Conditions.
- No oral or written statement by Borzo Kunsthandel shall imply that the rights or legal remedies available to Borzo Kunsthandel are waived.
Article 2 - Conclusion of the agreement
A purchase agreement between the Purchaser and Borzo Kunsthandel is only concluded if Borzo Kunsthandel has expressly accepted an offer from the Purchaser.
Article 3 - Purchase prices and payment
- The mentioned purchase prices are in Euro and include V.A.T., unless expressly agreed otherwise.
- Unless expressly agreed otherwise, the costs for (international) shipment, return, import and export duties, packaging and insurance shall be borne by the Purchaser.
- Borzo Kunsthandel does not accept cash payments. Payments can only be made by bank transfer or credit card.
- Payment of the purchase price shall not be made later than 30 days from the invoice date.
- In the event that the Purchaser is late paying the purchase price, the Purchaser shall automatically be in default and shall owe collection costs. Borzo Kunsthandel shall determine these costs on the basis of the graduated scale of Extrajudicial Collection Costs (BIK).
Article 4 - Delivery
- The work of art shall be delivered to Purchaser immediately after the payment, unless expressly agreed otherwise.
- Delivery of the work of art takes place by the Purchaser's collecting or having collected the work of art.
- Unless expressly agreed otherwise, the work of art shall be for the expense and risk of the Purchaser from the moment of delivery, even if the ownership has not yet been transferred.
Article 5 - Retention of title
Borzo Kunsthandel retains the ownership of the work of art until the time of full payment of the purchase price by the Purchaser. The Purchaser is not allowed to sell/hire out/process/restore/encumber the work of art or otherwise infringe the ownership rights of Borzo Kunsthandel until the time the ownership passes to the Purchaser.
Article 6 - Warranties/Non-conformity/Swapping/Dissolution by Purchaser
- Purchaser buys the work of art in the condition which it is in at the time of the purchase ("as is") and accepts the characteristics that were reasonably known at the time the purchase was concluded.
- The nature of the work of art implies that the characteristics can change due to advancing insight and age.
- Borzo Kunsthandel guarantees the authenticity of the work of art, unless the guarantee is expressly or tacitly reserved (for instance, by the amount of the purchase price or mention of a specific attribution) and except when progressive insight unexpectedly affects the authenticity of the work of art.
- If the work of art does not comply with the agreement, the Purchaser must - under penalty of forfeiture of rights - inform Borzo Kunsthandel thereof within the payment period of 30 days or, in the case of hidden defects, no later than two months after discovery, on presentation of one or more expert's reports showing this failure.
- Purchaser may dissolve the purchase agreement with consent of Borzo Kunsthandel in the event of a situation such as referred to in Article 6 (4), and under the condition that the work of art is still in the same condition as at the time of delivery, provided that there are such hidden defects or such an incorrect description was given, that Purchaser would have decided not to make the purchase if he had been familiar with the correct information at the time of the purchase, or in that case he would only have purchased the work of art at a considerably lower price.
- Borzo Kunsthandel under no circumstances refunds an amount higher than the purchase price that was paid to the Purchaser.
Article 7 - Suspension and set-off
Purchaser cannot suspend (in derogation of Section 7 book 6 of the Dutch Civil Code) or set off (in derogation of Section 12 Book 6 of the Dutch Civil Code) its obligation to Borzo Kunsthandel.
Article 8 - Customer due diligence/Dissolution by Borzo Kunsthandel
- Borzo Kunsthandel is required by Directive 2018/843 of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purpose of money laundering or terrorist financing and the Money Laundering and Terrorist Financing (Prevention) Act (Wet ter voorkoming van witwassen en financieren van terrorisme) to collect personal data (including a copy of the identification document) of the Purchaser and to carry out a customer due diligence on the Purchaser.
- Borzo Kunsthandel may dissolve the agreement concluded with the Purchaser if:
a) Purchaser does not pay on time, immediately after expiry of the payment term;
b) In the event of (a petition for) bankruptcy (faillissement), suspension of payment (surséance van betaling), debt restructuring (schuldsanering) or a guardianship order (onder curatele stelling) of the Purchaser;
c) Purchaser (a legal entity) is being dissolved;
d) Purchaser does not provide the correct personal data, which Borzo Kunsthandel needs to comply with its legal administrative duties or to perform the customer due diligence based on the Act for the prevention of money laundering and financing of terrorism;
e) Based on the results of the customer due diligence under d, Borzo Kunsthandel is prohibited to carry out transactions with Purchaser;
f) Force majeur might be a reason for Borzo Kunsthandel to dissolve the agreement or to delay the execution of the agreement.
Article 9 - Liability
- Borzo Kunsthandel shall only be liable in the event of gross negligence on its part in the performance of the (purchase) agreement and in the event of non-conformity. Borzo Kunsthandel shall only be liable to the maximum of the invoice amount charged to the Purchaser within the framework of the (purchase) agreement concluded between Borzo Kunsthandel and Purchaser. Borzo Kunsthandel shall under no circumstances be liable for any business loss, financial loss, consequential loss and/or indirect damage suffered by the Purchaser, for physical damage to the work of art or theft or the destruction of the work of art.
- Borzo Kunsthandel is not liable for damage resulting from incorrect or incomplete information provided by the Purchaser.
Article 10 - Applicable law and competent court
- Agreements and any other legal relationships between Borzo Kunsthandel and the Purchaser and these General Terms and Conditions are exclusively governed by Dutch law, with the exclusion of the Vienna Convention.
- All disputes that could arise between Borzo Kunsthandel and the Purchaser shall be adjudicated by the District Court of Amsterdam, except in so far as mandatory competency rules would impede this choice.
Article 11 - Consumer law
- Where a contract is concluded between Borzo Kunsthandel and a natural person not acting in the performance of their profession or undertaking (consumer) with the use of one or more means of distance communication up to and including the time at which the contract is concluded, the following provisions shall apply:
The Purchaser (consumer) is entitled to withdraw from the contract without charge and without giving any reason for 14 days from the day the Purchaser, or a third party designated by the Purchaser, takes possession of the work of art. This termination shall be made in writing (by e-mail, letter or fax) or by means of any other unequivocal statement to Borzo Kunsthandel.
- In case of a distance purchase agreement, the expense and risk for the work of art passes to the Purchaser when the Purchaser or a third party designated by the purchaser takes possession of the work of art.
Article 12 - Privacy
- Borzo Kunsthandel points out that it is legally obliged to collect and retain the Purchaser's personal data under (inter alia) the Directive 2018/843 of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and the Money Laundering and Terrorist Financing (Prevention) Act (Wet ter voorkoming van witwassen en financieren van terrorisme).