WEBSHOP GENERAL TERMS AND CONDITIONS
Stichting Kunstpunt Groningen (hereinafter: Kunstpunt Groningen) is registered with the Dutch Chamber of Commerce under number 72916036 and has its registered offices in Trompsingel 27a (9724DA) in Groningen.
Article 1 – Definitions
- In these General Terms and Conditions the following terms are used with the following meanings, unless explicitly stated otherwise:
- Offer: Any written offer by the Vendor to the Buyer to provide the Products to which these terms and conditions are inextricably linked.
- Company: The natural or legal person who is acting in a professional or business capacity.
- Consumer: The natural person who is not acting in a professional or business capacity.
- Buyer: The Company or Consumer that enters into an Agreement (remotely) with the Vendor.
- Agreement: The sales agreement (concluded remotely) which addresses the sale and provision of the Products purchased by the Buyer from Kunstpunt Groningen.
- Products: The Products offered by Kunstpunt Groningen are art products and art-related products, which include affordable artwork and gift vouchers.
- Vendor: The provider of the Products to the Buyer, hereinafter: Kunstpunt Groningen.
Article 2 – Applicability
- These General Terms and Conditions apply to every Offer from Kunstpunt Groningen, to every Agreement between Kunstpunt Groningen and a Buyer and to every Product that is offered by Kunstpunt Groningen.
- Before an Agreement is concluded (remotely), the Buyer shall receive these General Terms and Conditions. If this is not reasonably possible, Kunstpunt Groningen shall indicate to the Buyer how the Buyer can view the General Terms and Conditions, which must at least be published on the website of Kunstpunt Groningen, so that the Buyer can easily save these General Terms and Conditions on a durable medium.
- Exceptional situations may deviate from these General Terms and Conditions if this has been explicitly agreed upon in writing with Kunstpunt Groningen.
- These General Terms and Conditions also apply to supplementary, amended and follow-up agreements with the Buyer. Any general and/or purchasing conditions of the Buyer are expressly rejected.
- If one or more provisions of these General Terms and Conditions are rendered null and void in whole or in part, the other provisions of these General Terms and Conditions shall remain in force and the voided provision(s) shall be replaced by a provision with the same purpose as the original.
- Ambiguity about the content, explanations or situations not provided for in these General Terms and Conditions must be assessed and explained in the spirit of these General Terms and Conditions.
- If these General Terms and Conditions refer to she/her, this should also be understood as a reference to he/she/it, if and in so far as this is applicable.
Article 3 – The Offer
- All offers made by Kunstpunt Groningen are without obligation, unless expressly stated otherwise in writing. If the Offer is subject to restrictions or specific conditions, this will be explicitly stated in the Offer. An Offer must be recorded in writing to be considered an Offer.
- The Offer made by Kunstpunt Groningen is without obligation. Kunstpunt Groningen will only be bound to the Offer if the acceptance thereof is confirmed by the Buyer in writing within 30 days or if the Buyer has already paid the amount due. Nevertheless, Kunstpunt Groningen has the right to refuse an Agreement with a potential Buyer if Kunstpunt Groningen has a valid reason.
- The Offer contains an accurate description of the offered Product with corresponding prices. The description is detailed enough to enable the Buyer to make a proper assessment of the Offer. Apparent mistakes or errors in the Offer cannot be binding for Kunstpunt Groningen. Any images and specific data in the Offer are only estimates and may not constitute grounds for any compensation or for the dissolution of the Agreement (remotely). Kunstpunt Groningen cannot guarantee that the colours in the picture correspond exactly to the real colours of the Product.
- Delivery times and Deadlines mentioned in the Offer of Kunstpunt Groningen are estimates and do not entitle the Buyer to rescission or compensation if exceeded, unless expressly agreed otherwise.
- A composite quotation shall not oblige Kunstpunt Groningen to deliver part of the items/services included in the Offer or proposal for part of the stated price.
- If and in so far as there is a proposal, this does not automatically apply to repeat orders. Offers are valid only as long as stock lasts and are on a “first-come-first-served” basis.
Article 4 – Conclusion of the Agreement
- The Agreement is concluded at the moment when the Buyer has accepted an Offer from Kunstpunt Groningen by paying for the Product in question.
- An Offer can be made by Kunstpunt Groningen via the website.
- If the Buyer has accepted the Offer by entering into an Agreement with Kunstpunt Groningen, Kunstpunt Groningen shall confirm the Agreement with the Buyer in writing, in any case by email.
- If the acceptance deviates (on minor points) from the Offer, Kunstpunt Groningen shall not be bound by it.
- Kunstpunt Groningen is not bound by an Offer if the Buyer could reasonably have expected or should have understood that the Offer contains an apparent mistake or error in writing. The Buyer may not derive any rights from this error or mistake.
- The right of withdrawal is excluded for a Buyer that is a Company. A Buyer that is a Consumer has the right to exercise its right of withdrawal within the statutory period. If withdrawal is applicable, the Buyer shall handle the Product and its packaging with care. The Buyer shall only unpack or use the Product to the extent necessary to determine the nature, characteristics and operation of the Product. The direct costs of returning the Product shall be borne by the Buyer.
Article 5 – Execution of the Agreement
- Kunstpunt Groningen shall execute the Agreement to the best of its knowledge and ability.
- If and in so far as required for proper implementation of the Agreement, Kunstpunt Groningen is entitled to have certain activities carried out by third parties at its own discretion.
- The Buyer shall ensure that all information which Kunstpunt Groningen indicates is necessary or which the Buyer should reasonably understand is necessary for the execution of the Agreement is provided in a timely manner to Kunstpunt Groningen. If the information required for the execution of the Agreement has not been provided in time to Kunstpunt Groningen, then Kunstpunt Groningen is entitled to postpone the execution of the Agreement.
- During the execution of the Agreement, Kunstpunt Groningen is not obliged or required to follow the instructions of the Buyer if this alters the content or scope of the Agreement. If the instructions result in additional work for Kunstpunt Groningen, the Buyer shall be obliged to pay the additional or accompanying costs accordingly.
- Kunstpunt Groningen may require a security or full payment in advance from the Buyer before proceeding to execute the Agreement.
- Kunstpunt Groningen is not liable for damage, of whatever nature, which is caused by incorrect and/or incomplete information provided by the Buyer, unless this incorrectness or incompleteness was known to Kunstpunt Groningen.
- The Buyer indemnifies Kunstpunt Groningen against any claims from third parties who suffer damage in connection with the execution of the Agreement and which is attributable to the Buyer.
Article 6 – Delivery
- If the commencement, progress or delivery of the Agreement is delayed because, for example, the Buyer has not supplied all requested information or not done so in a timely manner, is insufficiently cooperative, the payment or deposit has not been received on time by Kunstpunt Groningen or because of other circumstances beyond the control of Kunstpunt Groningen, then Kunstpunt Groningen will be entitled to a reasonable extension of the delivery deadline. No agreed delivery deadlines are strict deadlines. The Buyer must declare Kunstpunt Groningen to be in default in writing and grant it a reasonable period of time to still deliver. The Buyer is not entitled to any compensation as a result of the delay that has occurred.
- The Buyer is obliged to purchase the delivered goods/services at the time they are made available to the Buyer in accordance with the Agreement, even if they are provided earlier or later than agreed.
- If the Buyer refuses to purchase the delivered goods/services or is negligent in providing information or instructions which are necessary for the delivery, Kunstpunt Groningen is entitled to store the items at the expense and risk of the Buyer.
- If the Products are delivered by Kunstpunt Groningen or an external carrier, Kunstpunt Groningen is entitled to charge for any delivery costs, unless otherwise agreed upon in writing. These will then be invoiced separately unless expressly agreed otherwise.
- If Kunstpunt Groningen requires information from the Buyer regarding the execution of the Agreement, the delivery time will only commence after the Buyer has provided all the information required for the implementation to Kunstpunt Groningen.
- If Kunstpunt Groningen has provided a delivery deadline, it is an estimate. Longer delivery times apply to deliveries outside the Netherlands.
- Kunstpunt Groningen is entitled to deliver the goods/services in instalments, unless this has been deviated from in the Agreement or the instalment has no independent value. Kunstpunt Groningen is entitled to invoice the delivered goods/services separately.
- Deliveries shall only be made if all invoices have been paid, unless explicitly agreed otherwise. Kunstpunt Groningen reserves the right to refuse delivery if there is a well-founded concern of non-payment.
Article 7 – Packaging and Transport
- Kunstpunt Groningen undertakes vis-à-vis the Buyer to properly pack the goods/services to be delivered and to secure them in such a way that they will reach their destination in good condition during normal use.
- Unless otherwise agreed in writing, all deliveries include value-added tax (VAT), including the packaging and packaging materials.
- Accepting goods without making any comments on the consignment note or the receipt is considered proof that the packaging was in good condition at the time of delivery.
Article 8 – Investigation, Claims
- The Buyer is obliged to inspect the delivered goods/services or have them inspected at the time of delivery, but in any event within 14 days of receipt of the delivered goods/services, and only to unpack or use them to the extent necessary to assess whether they retain the Product. In doing so, the Buyer must examine whether the quality and quantity of the goods/services delivered corresponds to the Agreement and whether the Products meet the requirements that apply to them in normal commercial or non-commercial dealings.
- The Buyer is obliged to investigate and learn about how the Product should be used and, in the case of personal use, to test the Product in accordance with the instructions for use. Kunstpunt Groningen does not accept any liability for the improper use of the Product by the Buyer.
- Any visible defects or shortcomings must be reported in writing to Kunstpunt Groningen at firstname.lastname@example.org. The Buyer has a period of 14 days after delivery to do so. Non-visible defects or shortcomings must be reported within 14 days of their discovery, but no later than 6 months after delivery. If the Product is damaged as a result of careless handling by the Buyer, the Buyer is liable for any reduction in value of the Product.
- If a claim is made in time pursuant to the previous paragraph, the Buyer remains obliged to pay for the purchased goods. If the Buyer wishes to return defective goods, this shall only be done with the prior written consent of Kunstpunt Groningen in the manner indicated by Kunstpunt Groningen.
- If a Buyer that is a Consumer exercises their right of withdrawal, they shall return the Product and all accessories, in so far as this is reasonably possible, in their original condition and the packaging to Kunstpunt Groningen in accordance with the return instructions of Kunstpunt Groningen. The direct costs for return shipments are at the expense and risk of the Buyer.
- Kunstpunt Groningen is entitled to investigate the authenticity and condition of the returned Products before a refund is provided.
- Refunds to the Buyer shall be processed as soon as possible, but may take up to 14 days after receipt of the Buyer’s statement of rescission. Reimbursement shall be made to the account number previously provided.
- If the Buyer exercises their right to claim, a Buyer that is a Company, shall not be entitled to suspend its payment obligation or to set off outstanding invoices.
- In the case of incomplete delivery, and/or if one or more Products are missing, and this can be attributed to Kunstpunt Groningen, Kunstpunt Groningen shall, after a request to that effect by the Buyer, send the missing Product(s) or cancel the remaining order. Confirmation of receipt of the Product takes precedence in this situation. Any damage suffered by the Buyer as a result of the (deviating) scope of delivery cannot be recovered from Kunstpunt Groningen.
Article 9 – Prices
- During the period of validity of the Offer, the prices of the Products offered shall not be increased, except in the case of changes in VAT rates.
- The prices stated in the Offer include VAT, unless explicitly stated otherwise.
- The prices as mentioned in the Offer are based on the cost factors that apply at the time the Agreement is concluded, such as: import and export duties, freight and unloading costs, insurance and any levies and taxes.
Article 10 – Payment and Collection Policy
- Payment should preferably be made in advance in the currency of the invoice by the method indicated.
- The Buyer cannot derive any rights or expectations from an estimate issued in advance, unless the parties have expressly agreed otherwise.
- The Buyer must make a lump sum payment to the account number and details of Kunstpunt Groningen which have been made known to them. The Parties are only able to agree on a different term of payment after explicit and written consent from Kunstpunt Groningen.
- If a periodic payment obligation of the Buyer has been agreed, Kunstpunt Groningen is entitled to adjust the applicable prices and rates by giving three months notice in writing.
- In the case of liquidation, bankruptcy, seizure or suspension of payment on the Buyer’s part, the claims of Kunstpunt Groningen against the Buyer shall be due on demand.
- Kunstpunt Groningen is entitled to have the payments made by the Buyer first be applied to reduce the costs, then to reduce the interest still due and finally to reduce the principal sum and the current interest. Kunstpunt Groningen may, without being in default, refuse an offer of payment if the Buyer indicates a different sequence for the allocation of payment. Kunstpunt Groningen may refuse full payment of the principal sum, if at the same time the overdue and current interest as well as the costs have not been paid.
- If the Buyer fails to meet its payment obligation and has not complied within the stipulated payment term of 14 days, the Buyer shall be in default. A Buyer that is a Consumer shall first receive a written reminder with a term of 14 days after the date of the reminder to still fulfil the payment obligation with an estimate of the non-statutory costs if the Consumer does not fulfil its obligations within this term, before the Buyer is considered in default.
- From the date on which the Buyer is in default, Kunstpunt Groningen shall, without further notice of default being required, claim interest at the statutory rate (commercial or otherwise) from the first day of default until full payment and compensation for non-statutory costs in accordance with Article 6:96 BW (Dutch Civil Code), to be calculated in accordance with the graduated scale of charges for non-statutory collection costs from 1 July 2012.
- If Kunstpunt Groningen has incurred greater expenses that are reasonably necessary, such expenses will be considered for reimbursement. Any judicial and execution costs incurred shall also be borne by the Buyer.
Article 11 – Retention of Title
- All goods/services delivered by Kunstpunt Groningen remain the property of Kunstpunt Groningen until the Buyer has fulfilled all obligations arising from all Agreements concluded with Kunstpunt Groningen.
- The Buyer is not authorised to pledge or otherwise encumber goods/services subject to retention of title if ownership has not been transferred in full.
- If third parties seize delivered goods/services subject to retention of title or wish to establish or assert rights over them, the Buyer is obliged to inform Kunstpunt Groningen thereof as soon as can reasonably be expected.
- In the event that Kunstpunt Groningen wishes to exercise its ownership rights as stated in this article, the Buyer hereby grants unconditional and irrevocable consent and authorisation to Kunstpunt Groningen or third parties to be appointed by Kunstpunt Groningen to enter all locations where the property of Kunstpunt Groningen is kept and to repossess it.
- Kunstpunt Groningen is entitled to retain the Product(s) purchased by the Buyer if the Buyer has not yet fulfilled their payment obligations (in full), despite an obligation to transfer or hand over the Product(s) by Kunstpunt Groningen. After the Buyer has fulfilled their obligations, Kunstpunt Groningen shall make every effort to deliver the purchased Products to the Buyer as quickly as possible, but within 20 working days at the latest.
- Costs and other (consequential) damage as a result of keeping the purchased Products in custody are at the expense and risk of the Buyer and shall be reimbursed by the Buyer to Kunstpunt Groningen at its first request.
Article 12 – Warranty
Kunstpunt Groningen guarantees that the Products comply with the Agreement, the specifications stated in the Offer, usability and/or reliability and the legal rules/regulations at the time the Agreement is established. This also applies if the goods/services to be delivered are intended for use abroad and the Buyer has expressly informed Kunstpunt Groningen of this use in writing at the time of entering into the Agreement.
Article 13 – Suspension and Dissolution
- Kunstpunt Groningen is entitled to postpone the fulfilment of the obligations or to dissolve the Agreement if the Buyer does not fully comply with the (payment) obligations in the Agreement.
- Furthermore, Kunstpunt Groningen is authorised to terminate the Agreement, in so far as it has not yet been executed, without legal intervention, if the Buyer does not comply properly, in a timely manner or at all with the obligations resulting from any Agreement that the Buyer has entered into with Kunstpunt Groningen.
- Furthermore, Kunstpunt Groningen is authorised to terminate the Agreement or have it terminated without prior notice of default being required, if circumstances arise of such a nature that executing the Agreement is impossible or can no longer be demanded according to standards of reasonableness and fairness, or if other circumstances arise of such a nature that continuing to execute the Agreement unaltered can no longer reasonably be expected.
- If the Agreement is dissolved, the claims of Kunstpunt Groningen against the Buyer shall be immediately due and payable. If Kunstpunt Groningen suspends fulfilment of the obligations, it will retain its claims under the law and the Agreement.
- Kunstpunt Groningen always retains the right to claim damages.
Article 14 – Limitation of Liability
- If the execution of the Agreement by Kunstpunt Groningen leads to liability on the part of Kunstpunt Groningen vis-à-vis the Buyer or third parties, this liability shall be limited to the costs charged by Kunstpunt Groningen in connection with the Agreement, unless the damage has occurred due to intent or gross negligence. The liability of Kunstpunt Groningen is in any event limited to the maximum amount of damage per event per year that is paid out by the insurance company.
- Kunstpunt Groningen is not liable for consequential damage, indirect damage, loss of profit and/or suffered losses or missed savings, and damage as a result of the use of the delivered Products is excluded. For the Consumer a limitation applies in accordance with what is allowed under Article 7:24 paragraph 2 of the Dutch Civil Code.
- Kunstpunt Groningen is not liable for and/or obliged to repair damage caused by the use of the Product. Kunstpunt Groningen provides strict maintenance and user instructions which must be followed by the Buyer. Any damage to Products resulting from wear and use is expressly excluded from liability (this includes signs of use, impact damage, light and water damage, theft, loss, etc.).
- Kunstpunt Groningen is not liable for any damage which is or may be the result of any act or omission as a consequence of (imperfect and/or incorrect) information on the website(s) or on linked websites.
- Kunstpunt Groningen is not responsible for any errors and/or irregularities in the functionality of the website and is not liable for malfunctions or unavailability of the website for any reason whatsoever.
- Kunstpunt Groningen is neither liable for the proper and complete transmission of the content of emails sent by or on behalf of Kunstpunt Groningen, nor for their timely receipt.
- All claims of the Buyer on account of shortcomings on the part of Kunstpunt Groningen shall lapse if they have not been reported to Kunstpunt Groningen in writing with an explanation of the reasoning for those shortcomings, within one year after the Buyer became aware or could reasonably have been aware of the facts on which their claims are based. In any case, all claims of the Buyer lapse one year after termination of the Agreement.
Article 15 – Force Majeure
- Kunstpunt Groningen shall not be liable if it cannot comply with its obligations under the Agreement due to a situation of force majeure nor can it be obliged to comply with any obligation if it is hindered in doing so as a result of a circumstance that is not its fault and for which it cannot be held accountable by virtue of law, legal act or generally accepted views.
- In all cases, force majeure is understood to mean, but is not limited to any existing definitions in the law and jurisprudence: (i) force majeure affecting Kunstpunt Groningen’s suppliers, (ii) the inability to properly meet requirements of supplier’s that have been recommended or required by the Buyer or Kunstpunt Groningen, (iii) any shortcomings regarding the goods/services, equipment, programs or materials of third parties, (iv) government measures, (v) electrical malfunction/disruption, (vi) malfunctions/disruptions of internet, data network and telecommunications facilities and services (e.g. due to cybercrime and hacking), (vii) natural disasters, (viii) war and terrorist attacks, (xi) general transport problems, (x) strikes/suspension in Kunstpunt Groningen’s business operations and (xi) other situations that, in the view of Kunstpunt Groningen, fall outside of its sphere of influence and temporarily or continuously prevent it from satisfying its obligations.
- Kunstpunt Groningen is entitled to invoke force majeure if the circumstance preventing (further) fulfilment arises after Kunstpunt Groningen should have fulfilled its obligation.
- The parties may suspend their obligations under the Agreement during the period of force majeure. If this period lasts longer than two months, either party shall be entitled to dissolve the Agreement without any obligation to pay the other party damages.
- In so far as Kunstpunt Groningen has partially fulfilled its obligations under the Agreement at the time force majeure occurs and shall be able to fulfil them, and independent value can be attributed to the fulfilled or still to be fulfilled part, Kunstpunt Groningen is entitled to separately invoice the part already fulfilled or still to be fulfilled respectively. The Buyer is obliged to pay this invoice as if it were a separate Agreement.
Article 16 – Transfer of Risk
The risk of loss of or damage to the Products which are the subject of the Agreement shall transfer to a Buyer that is a Company when the goods/services leave the warehouse of Kunstpunt Groningen. For Consumers, the above-mentioned risk shall transfer to the Buyer if the Products have been submitted to the Buyer’s control. This is the case if the Products have been delivered to the Buyer’s delivery address.
Article 17 – Intellectual Property Rights
- All intellectual property rights and copyrights of Kunstpunt Groningen are held exclusively by Kunstpunt Groningen and are not transferred to the Buyer.
- The Buyer is prohibited from disclosing and/or reproducing, or changing any documents which are subject to the intellectual property rights and copyrights of Kunstpunt Groningen or making these documents available to third parties without the express prior written consent of Kunstpunt Groningen. If the Buyer wishes to make any changes to the goods/services delivered by Kunstpunt Groningen, Kunstpunt Groningen must give its explicit consent for the intended changes.
- The Buyer is prohibited from using Products under the intellectual property rights of Kunstpunt Groningen other than as agreed in the Agreement.
Article 18 – Privacy, Data Processing and Security
- Kunstpunt Groningen shall handle the personal data of the Buyer and visitors to its website(s) with care. If requested, Kunstpunt Groningen shall inform the party involved about this.
- If, on the basis of the Agreement, Kunstpunt Groningen is required to provide security for information, this security shall comply with the agreed specifications and a security level that is not unreasonable in view of the state of the art, the sensitivity of the data and the costs involved.
Article 19 – Complaints
- If the Buyer is not satisfied with the Products of Kunstpunt Groningen and/or has complaints about the (execution of the) Agreement, the Buyer is obliged to report these complaints as soon as possible, but no later than within 14 calendar days of the situation that led to the complaint. Complaints can be reported via email@example.com with the subject “Complaint”.
- The complaint must be sufficiently substantiated and/or explained by the Buyer in order for Kunstpunt Groningen to handle it.
- Kunstpunt Groningen shall respond to the complaint as soon as possible, but no later than within 14 calendar days of receipt.
- The Parties shall try to reach a solution together.
Article 20 – Applicable Law
- Dutch law applies to every Agreement between Kunstpunt Groningen and the Buyer. The applicability of the Vienna Sales Convention (CISG) is expressly excluded.
- In the event of an interpretation of the content and scope of these General Terms and Conditions, the Dutch text shall always prevail. Kunstpunt Groningen is entitled to change these General Terms and Conditions unilaterally.
- All disputes arising from or in connection with the Agreement between Kunstpunt Groningen and the Buyer shall be settled by the competent court of Noord-Nederland by its Groningen location, unless mandatory provisions lead to the jurisdiction of another court.