Terms & Conditions

GENERAL TERMS AND CONDITIONS

[Harmke Koning-Datema trading under the name Odissi]

Table of contents

1. Definitions
2. Applicability
3. Conclusion of the Agreement
4. Offers, quotations and prices
5. Payments
6. Delivery, deadlines and transfer of risk
7. Retention of title
8. Defects and shortcomings
9. Force majeure
10. Liability
11. Intellectual property
12. Personal data
13. Suspension and dissolution
14. Changes
15. Applicable law and jurisdiction

1. Definitions

Agent: Harmke Koning-Datema and Dil Preet Singh, trading under the name Odissi (KvK-nr. 34351193), with registered office at Schipbeekstraat 36, 3522VL Utrecht, the user of these General Terms and Conditions.

Seller: any natural person or legal entity equivalent to a natural person entering into an agency agreement with Agent for the purpose of selling Works through Agent's Services.

Buyer: any natural person or legal entity equivalent to a natural person who purchases a Work from Seller through Agent's Services.

Agreement: the agreement(s) between the Parties concerning Agent's Services to Seller and/or Buyer.

Party/Parties: Agent, Seller and/or Buyer.

Services: the services to which Seller undertakes to Seller and/or Buyer, including, but not limited to, publishing the offer and/or an interview, displaying Works of Seller and/or Buyer, facilitating the conclusion of a Purchase Agreement and handling relevant payments.

Works: the (art) works, including, but not limited to, traditional works of art, digital works of art and NFTs, traded under Agent's Services.

Platform: www.odissi-art.com and other online and offline places where Agent offers its Services.

General Terms and Conditions: the present Terms and Conditions of Agent.

2. Applicability

2.1. These General Terms and Conditions apply to all offers, quotations and Agreements between the Parties. These General Terms and Conditions also apply to any future legal relations between Parties.

2.2. Additional provisions or provisions deviating from these General Terms and Conditions may only be agreed between Parties in writing. 

2.3. Insofar as the Seller and/or Buyer apply their own general terms (of purchase), these are expressly rejected by the Seller and/or Buyer.

2.4. If any provision or any part of a provision of these General Terms and Conditions is null and void, annulled or declared non-binding, this shall not affect the binding nature of (the remaining part of) the provision(s) of the General Terms and Conditions. The parties will enter into consultation in a timely manner in order to replace (the part of) the provision declared non-binding, whereby a connection will be sought as much as possible with the purpose and purport of the original provision.

3. Conclusion of the Agreement.

3.1. Agreements (as well as amendments thereto) are established by written acceptance and/or electronic confirmation. 

3.2. Agreements are also concluded when Agent has fully or partially implemented a quotation, offer or order from Seller and/or Buyer without prior (written) confirmation.

3.3. Additional agreements may bind Agent only if confirmed in writing by Agent.  

3.4. Agent shall at all times have the right to refuse orders/requests and/or to attach further conditions to the delivery of the Services, including requiring security regarding the payment obligation(s) of Seller and/or Buyer.

3.5.Seller and/or Buyer may not derive any rights from Agent's previous offers and quotations.

4. Offers, quotations and prices

4.1. The prices used by Agent for the provision of Services are expressed in US Dollars ($) in Agent's offers and quotations), unless explicitly stated or agreed otherwise. 

4.2. Prices of the Works on the Platform Agent bases on the information provided to it by Seller. Seller will notify Agent in writing of any price changes regarding the Works offered on Platform in a timely manner, but in any event fourteen days in advance. 

4.3 If Seller does not provide information on prices or these prices are unreasonable and/or do not fit within Agent's market segment, Agent may refuse not to offer the Work on the Platform.

5. Payments and commission

5.1. Sellers may make payments on the Platform using credit cards, debit cards, checks - meaning gift cards, bank transfers, PayPal, Klarna, Shop, or other payment methods as offered by Agent.

5.2. Agent may offer Buyer the option to make payments using cryptocurrency. Buyer making cryptocurrency payments acknowledges that cryptocurrency transactions are subject to market volatility and the exchange rate/value of the cryptocurrency applicable at the time of the transaction. Buyer is solely responsible for the accuracy and security of his or her cryptocurrency transactions.

5.3. Payments for Works sold shall be made by Buyer to Seller via Agent’s account number and/or Cryptowallet within the payment terms as stated on the invoice. If no specific arrangements are made, Buyer shall pay the amount due within 30 days of the invoice date. If payment is not made, the Buyer shall be in default by operation of law, without any summons or prior notice of default being required.

5.4. Agent charges commission to Seller on Works sold and shall remit the amount paid for a Work, less commission and transaction fees, to Seller within the payment period. For further provisions surrounding commission, see the agency agreement between Agent and/or Seller.

5.5. If the Buyer fails to pay the amount it owes on time, it shall owe interest on the (invoice) amount from the due date of the invoice until the time of full payment. This interest amounts to [10%] per month, unless the legal (commercial) interest rate is higher. In that case the highest interest rate shall apply.

5.6. All judicial and extrajudicial costs incurred in collecting any claim against the Buyer, including the costs of engaging the services of lawyers, bailiffs and collection agencies, shall be borne by the Buyer, without prior notice by Agent.

5.7. Agent is entitled to require advance payment and/or security from the Buyer prior to delivery. If the Buyer fails to comply with this request (in a timely manner), Agent shall be entitled to rescind the Agreement on behalf of the Seller. In such cases, Agent shall be entitled to damages. The Buyer may not assert any rights regarding the performance of the Agreement to the extent that it has not complied with the advance payment and/or security.

5.8. The Buyer is obliged to immediately notify Agent of any inaccuracies in the payment details provided or stated.

5.9. If the Buyer is in default of any payment owed by it or fails to fulfill any obligation under the Agreement and/or these General Terms and Conditions, all claims which the Seller has against the Buyer shall be immediately due and payable, without further notice of default being required. Agent shall also be authorized on behalf of Seller in such case to suspend (further) performance of its obligations under all Agreements with Buyer.

5.10. Payments made by the Buyer shall be allocated to any extrajudicial collection costs due sequentially, judicial costs, interest due and then in order of age to the outstanding principal sums, regardless of any other indications by the Buyer.

6. Delivery, deadlines and transfer of risk, return

6.1. If a Service and/or Work is (temporarily) unavailable, the Seller and/or Buyer will be notified within one month of receiving confirmation of the order at the latest. In that case the Buyer and/or Seller may cancel the order free of charge. If the Buyer has already paid for the Work, the amount paid will be refunded to the Buyer. If there are still outstanding claims of Seller against Buyer, an offset will take place which will include the commission for Agent. Agent shall not owe Seller and/or Buyer any compensation. In case of a payment through cryptocurrency, Agent shall not be liable for any decrease in its value. 

6.2. In case of force majeure and/or delay due to – whether or not culpable – acts or omissions of one of the Parties or a third party, the delivery period will be extended by (at least) the duration of the delay.

6.3. Deadlines provided by Agent for the delivery of Services are not considered absolute deadlines, unless expressly agreed otherwise in writing.

6.4. Agent shall not be in default following the failure to deliver Services in a timely manner until it has been given written notice of default by the Seller and/or Buyer, even if a (fatal) deadline has been agreed upon. 

6.5. The Seller shall automatically be in default if the Seller fails to provide the Services in a timely manner, including failure to timely supplement the Platform with works for sale, and/or fails to provide sufficient information to the Agent to provide the Services in a timely manner. All costs incurred as a result shall be borne by the Seller, including storage costs. All damages suffered by the Agent as a result of the failure or inability to deliver the Services shall be recoverable from the Seller. 

6.6. The Seller is responsible for the delivery of a sold Work to the Buyer. Any damages arising from the delivery of Works cannot be recovered from Agent.

6.7 Notwithstanding anything else in this Article, the Buyer may rescind the purchase agreement for 14 days after receipt of the Works without giving reasons. The Buyer must invoke the right of rescission in accordance with the provisions of Art. 6.9 with:

- Agent if less than four days have elapsed since the day of delivery of the Works; 

- the Seller if four days have already elapsed since the day of delivery of the Works.

6.8 The Buyer is not entitled to rescission in case of:

- the delivery of Works manufactured to the Buyer’s specifications, which are not prefabricated and which are manufactured on the basis of an individual choice or decision by the Buyer, or which are clearly intended for a specific person;

- the delivery of Works which by their nature are irrevocably mixed with other items after delivery;

- the delivery of Products in respect of which the right to rescission under Article 6.5.2B of the Civil Code is otherwise excluded or does not apply, in which case this is expressly stated in the Quotation.

6.9 The Buyer exercising the right of rescission may rescind the purchase agreement by submitting a request to Agent or Seller, respectively, by e-mail or by using the model rescission form provided by Agent. As soon as possible after Agent or Seller respectively has been informed of Buyer's intention to rescind the purchase agreement and if the conditions of this article have been met, that party shall confirm the rescission of the Agreement to Buyer by e-mail.

6.10 The Buyer may handle and inspect the Work to be returned to the Seller only to the extent necessary to assess the nature and quality of the Work. It is understood that the Buyer may only handle and inspect the Work as he would in a physical store.

6.11 If a Buyer exercises the right of dissolution, he will return the Work to the Seller undamaged, with all delivered accessories and in the original condition and packaging. Return of the Work by the Buyer shall take place within 14 days after dissolution of the purchase agreement in accordance with the provisions of Article 6.9.

6.12 Loss of value will never be determined and settled by Agent.

6.13 If the Buyer exercises the right of rescission, the costs of returning the Product shall be borne by the Buyer.

6.14 Depending on which party (Agent or Seller) has validly exercised the right of rescission in accordance with the provisions of Clause 6.8, the payment received from the Buyer, less any reduction in value determined by Seller if Seller proceeds to repay, shall be repaid to the Buyer as soon as possible, but no later than within 14 days after rescission of the Agreement, provided that the Product has been received back by Seller. The party obliged to reimburse the Buyer shall not be obliged to reimburse the additional costs if, when placing the order, the Buyer expressly opted for a mode of delivery other than the cheapest standard mode of delivery offered.

7. Retention of title

7.1. The Works shall remain the property of Seller until such time as Seller has paid in full all sums due from Buyer under the Agreement and when Buyer has received the certificate of authenticity from Seller and/or under any other legal relationship. 

7.2. The Seller himself shall keep the Works until the time of sale. Any damage arising from the keeping and handling of Works by Seller, Buyer or a third party cannot be recovered from Agent.

8. Defects and Shortcomings.

8.1. Minor and usual deviations in the execution, quantity and/or quality of Services and/or Works shall not be considered grounds for claims against Agent and/or The Buyer is obliged to accept the entire delivery. The actual quantity delivered will be charged.

8.2. If the Buyer and/or Seller has a claim against Agent, this shall not suspend any (payment) obligation(s) in respect of this and any other deliveries. 

8.3. If necessary, Seller shall, at Agent's request, actively cooperate in conducting a thorough investigation of the alleged defects and deficiencies forming the basis of Buyer's claim.

9. Force Majeure

9.1. In case of force majeure, Agent is entitled to suspend the performance of the Agreement or to rescind it in whole or in part. Agent is free in this choice and may do so without judicial intervention and without being obliged to any compensation. 

9.2. In addition to the provisions of the law and jurisprudence, force majeure includes any circumstance beyond the control of Agent, whether or not foreseeable at the time of entering into the Agreement, which permanently or temporarily prevents performance of the Agreement and/or makes performance thereof more difficult. Force majeure includes (but is not limited to): fire, floods, epidemics, bad/extreme weather conditions, strikes, failures at (suppliers of) Agent, terrorist attacks, wars, scarcity of materials and/or lack of personnel.

9.3. If a force majeure situation continues for more than two months, Parties shall be entitled to rescind the Agreement. In that case Agent shall retain the right to compensation for the Services it has provided and shall not owe any compensation to Seller and/or Buyer.

8.2. If the Buyer and/or Seller has a claim against Agent, this shall not suspend any (payment) obligation(s) in respect of this and any other deliveries. 

8.3. If necessary, Seller shall, at Agent's request, actively cooperate in conducting a thorough investigation of the alleged defects and deficiencies forming the basis of Buyer's claim.

10. Liability

10.1 Seller and not Agent is responsible for the storage and delivery of Works up to the time of delivery of the Works to Buyer. 

10.2 Agent shall not be liable for damages of any kind caused by incorrect and/or incomplete information provided by or on behalf of Seller and/or Buyer.

10.3. Agent is likewise not liable for damage, of whatever nature, caused by unauthorized and/or negligent use or maintenance of the Services provided by Agent.

10.4. Agent's liability shall at all times be limited to repairing or replacing the Services provided, as determined by Agent in its sole discretion. Agent reserves the right to choose any of the aforementioned options.

10.5. Only direct damages resulting from Agent's attributable failure to perform the Agreement shall be eligible for compensation. A shortcoming of Agent is imputable only if there is intent or gross negligence on the part of an executive officer of Agent. 

10.6. Agent shall never be liable for any form of indirect damage. This includes, but is not limited to, consequential damage, loss of orders or (business) data.

10.7. Agent's liability is limited to the amount paid out by its insurer in the event of damage. If there is no insurance coverage or the insurer makes no payment, the compensation for direct damage will be capped at an amount of the value of the Service with a maximum of $ 10,000,- (ten thousand  US dollars).

10.8. The Seller and/or Buyer is liable for all damages resulting from improper compliance with the orders, instructions and directions given by Agent. 

10.9. All costs and/or damage resulting from circumstances that Agent did not reasonably have to take into account when entering into the Agreement shall be at the expense and risk of the Seller and/or Buyer. 

10.10. Buyer is at all times solely responsible for the choices made by Buyer with respect to the purchase of a Work and the method of shipment if a preference has been expressed. 

10.10. Any consequences of new laws and regulations that come into effect after the offer is made shall be the responsibility and at the risk of the Seller and/or Buyer. 

10.11. The Seller and/or Buyer shall indemnify the Agent against all claims, including but not limited to infringement of intellectual property rights, of third parties directly or indirectly related to the performance of the Agreement.

11. Intellectual property

11.1. All copyright and other intellectual property rights in the Platform and its components, including the software, the design and operation of the Platform and the images displayed through the Platform, belong to Seller or its licensors, except to the extent that these rights legally belong to the User.

11.2. The Seller and/or Buyer is not permitted to disclose, duplicate, take into use, make available to third parties, make available for inspection, or affix, remove or otherwise alter, in whole or in part, the documents and materials referred to in Article 11.1, or any indication of intellectual property rights to them.

11.3. If the Seller and/or Buyer infringes the Seller's intellectual property rights, Agent shall be entitled to an immediately payable fine of $ 10,000.00 (ten thousand US dollars), without prejudice to the Seller's right to compensation for the damage actually suffered.   

11.4. Agent may take technical (precautionary) measures to protect and safeguard the intellectual property rights vested in the Services and/or materials provided by Agent and the Works licensed by Agent. 

11.5. Agent in no way guarantees that the Services provided by it do not infringe any (un)written intellectual property right of third parties. Parties declare that they will refrain from actions that may cause (reputational) damage to the (trade) names of either Party.

11.6. The Seller remains the owner of all copyrights and other intellectual property rights to the Works, unless otherwise agreed. 

11.7. The Parties acknowledge that virtual art and NFTs are subject to intellectual property rights. Sellers and Buyers agree not to reproduce, distribute or use virtual art or NFTs in a manner that violates the intellectual property rights of the artists or creators. Sellers displaying/representing virtual and NFT art(s) shall ensure that the digital artworks and NFTs comply with all relevant laws and intellectual property rights. 

11.8. Seller grants Agent an unconditional, royalty-free license for the Works offered for sale, to disclose and reproduce the Works for offering and reproducing on the Platforms and for offering the Services and exposure.

12. Personal data

12.1. Agent may process personal data when necessary for the performance of the Agreement. In such case Agent will treat the personal data confidentially and process it in accordance with the requirements of the General Data Protection Regulation (GDPR) and any related laws and regulations. 

12.2. Seller and/or Buyer guarantees that it will only provide personal data to Seller, if and to the extent Seller and/or Buyer is entitled to do so and/or has obtained the necessary consent from the data subject. 

12.3. Seller and/or Buyer shall indemnify Agent against any claims by third parties - including the data subject - related to a breach by Seller and/or Buyer of that which is stipulated in this article of the General Terms and Conditions. In such cases, Seller and/or Buyer shall also reimburse the related costs incurred by Seller. 

12.4. The Seller guarantees that the Buyer's personal data will never be disclosed in any form whatsoever, unless the Seller has been expressly and unambiguously authorized to do so by the Buyer. 

12.5. If Seller fails to comply with the provisions of Article 12.4, Agent and/or Buyer shall give Seller notice of default. If Seller fails to comply with the provisions of Article 12.4 within the period set by Agent and/or Buyer, Seller shall be in default and liable for a penalty of $ 10,000 (in words: ten thousand US dollars).- imposed by Agent and/or Buyer. 

13. Suspension and dissolution

13.1. Agent shall be entitled, without notice of default and without judicial intervention, to suspend the performance of the Agreement or to rescind it in whole or in part, without being liable for any compensation and without prejudice to its other rights. Agent may, inter alia, exercise this power in the following cases:

(i) if Seller and/or Buyer fails to comply with any obligation arising from the Agreement or any related agreement or these General Terms and Conditions;

(ii) if there is a well-founded fear that Seller and/or Buyer is not or will not be able to fulfill its obligations;

(iii) in the event of (the application for) bankruptcy, suspension of payments and/or placement of the Seller and/or Buyer under guardianship, or the cessation, liquidation or full/partial transfer of the Seller's business.

13.2. In each of the cases mentioned in Article 13.1, the claims of Seller or Parties shall be immediately due and payable in full. Any damages suffered by Agent as a result shall also be borne by Seller and/or Buyer.

14. Changes

14.1. Agent shall have the right to unilaterally amend these General Terms and Conditions. In that case Agent will notify Seller and/or Buyer of the changes in a timely and explicit manner, whereby a minimum period of thirty days between the notification and the coming into force of the intended changes is in any case timely. The amended General Terms and Conditions shall not come into force until the Buyer has agreed to them.

14.2. The most recent version of the General Terms and Conditions is published on Agent's website https://www.odissi-art.com/

15. Applicable law and jurisdiction

15.1. All legal relations between Agent and Seller and/or Buyer shall be governed by Dutch law. The application of foreign law is expressly excluded. 

15.2. The District Court of Midden-Nederland, location Utrecht, shall have exclusive jurisdiction to hear disputes arising from or in connection with the Agreement(s) and/or these General Terms and Conditions. 

VERSION 1  

12 October, 2023