FINE ART SHIPPERS INC. TERMS OF SERVICE
BY ACCEPTING FINE ART SHIPPERS, YOU EXPRESSLY AGREE TO BE BOUND TO THE TERMS AND CONDITIONS SET FORTH BELOW. THESE TERMS AND CONDITIONS MAY LIMIT THE SCOPE OF DUTIES, LIABILITIES OR OBLIGATIONS WHICH FINE ART SHIPPERS MAY ASSUME OR UNDERTAKE ABSENT SEPARATE WRITTEN AGREEMENT.
DEFINITIONS:
(a) Fine Art Shippers, Inc., a Corporation organized and existing under the laws of State of New York maintaining offices at 1936 McDonalds Avenue, Brooklyn, New York 11223 and its employees are referred to as “FAS”, ‘Us’, ‘We’, “Warehouseman” and/or “Carrier.”
(b) “Property,” are items in whole or in part, in packed or unpacked state, that are tendered to FAS for storage, transportation and other services subject to the terms set forth below.
(c) “Client,” “Shipper”, “Bailor” is the person(s), company or organization and/or its employee, agent and representative who retain FAS to store, transport and perform services upon Property and then becomes liable to remit payment to FAS for charges incurred.
(d) Declared Value of Property: is the value of Property as declared by Client in storage, shipment or other documents. Where Client fails to declare the value of Property, Property shall be deemed NVD. “NVD” is an acronym used to indicate that no value is declared for Property. If “NVD” is marked on the documents provided by FAS, then FAS’s maximum liability shall be limited to 0.60 $ per pound as set forth in the paragraph titled, Limitation of Liability below.
(e ) “Bill of Lading” means the contract of carriage executed between Client and FAS for transport and ancillary Services with respect to Client’s Property.
(f) “ Warehouse Receipt” means the non-negotiable document executed between Customer and FAS with respect to storage of Property.
(g) “Services” means handling, placement, transportation, storage, packing, crating or any other services Client requests and FAS agrees to provide.
(h) “Customs Documentation” means any materials relating to Customs, including, but not limited to, regulations, laws, and requirements pertaining to marking, classification, licensing, transporting hazardous materials, export controls, and any other transporting, importing, or exporting requirements.
(i) “Consignee” means the person or company receiving the Goods from FAS or its subcontractors or agents
STORAGE: FAS shall store Property in general storage in its warehouse, or if requested in writing by Client, in space that is reserved solely for Client at FAS. Client shall complete a new Warehouse Receipt for each and every item of Property brought to FAS for storage. Declared value, if any, must be listed on the Warehouse Receipt or attached schedules at the time that Property is tendered to FAS. If no value is declared, Client shall release Property with FAS’s maximum liability for Property being $.60 per pound. FAS shall provide building security and electricity for lighting at its facility(ies). Climate control will be provided if requested by Client in writing (an additional charge will apply if client requires climate control).
TRANSPORTATION AND OTHER SERVICES: FAS may be retained to perform transportation, logistics and ancillary services including, but not limited to packing, crating, installation, assisting with exhibitions, special projects, assistance at art fairs, and handling container loads. Estimates provided by FAS are subject to change without notice and are not binding upon FAS. FAS may also act as an Agent for the Client and may arrange for carriage of the Client’s Property. If Client’s Property is not in FAS’s care, custody and control, FAS is acting only as the Client’s Agent and FAS assumes no liability as a carrier and shall not be responsible or held liable by the Client for any loss, damage, expense or delay to the Property. FAS shall never be regarded as an Ocean Freight Forwarder, NVOCC (Non-Vessel Operating Common Carrier), Indirect or Direct Air Carrier or Customs House Broker.
LIMITATION OF FAS’ LIABILITY: THE MAXIMUM LIABILITY OF FAS FOR LOSS OR DAMAGE BY ANY CAUSE IS LIMITED TO $0.60 (SIXTY CENTS) PER POUND PER ITEM AS DETERMINED BY THE ACTUAL WEIGHT OF THE UNWRAPPED PROPERTY, BUT IT CANNOT EXCEED THE ACTUAL LOSS. FAS SHALL NOT BE LIABLE FOR ANY CLAIM IN EXCESS OF $0.60 (SIXTY CENTS) PER POUND, PER ITEM, UNLESS THE CLIENT / SHIPPER DECLARES THE VALUE, PAYS AN ADDITIONAL CHARGE, AND DOCUMENTS ITS ACTUAL LOSS IN ACCORDANCE WITH THESE RULES. If the space provided for Declared Value on a bill of lading, warehouse receipt, occupancy agreement, services agreement or any other contract with FAS is left blank, then no value is declared for Property. Should any claim in an amount in excess of the foregoing limits of liability be asserted against FAS by a third party for loss or damage to Property handled by FAS, Shipper / Client, agrees to indemnify and hold FAS harmless as against any such claim.
FAS incorporates by reference all benefits, defenses and exemptions of the Carmack Amendment 49 USC §14706 to the full extent applicable, including, but not limited to FAS’s $.60 per pound limitation of liability and the two year limitation of time to commence an action if the Carmack Amendment is applicable. To the extent that the Carriage of Goods by Sea Act (“COGSA”) or the Harter Act, 46 U.S.C. § 30701 are applicable to the Shipment, FAS herein incorporates by reference all benefits, defenses and exemptions of COGSA to the full extent applicable, including, but not limited to the $500 per package limitation of liability and COGSA’s one year limitation of time to commence an action. FAS also incorporates by reference all benefits, defenses and exemptions of the Convention on the Contract for International Carriage of Goods by Road (“CMR”), the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw, October 12, 1929, and that Convention as further amended by Montreal Protocol Nos. 1, 2, or 4, including, but not limited to the limitation of liability to 17 SDR per kilogram for damage to property in those Conventions.
CONSEQUENTIAL DAMAGES: FAS shall not be liable for consequential, punitive or special damages, including, but not limited to, loss caused by delay, loss of revenue, income, profit, diminution of market value, utility and/or emotional distress, even if FAS had knowledge that such damage may be incurred.
TRANSPORTATION BY AIR CARRIERS: Notwithstanding the above limitation of liability, if carriage performed by FAS involves air transport and an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention or the Montreal Convention may be applicable and in most cases limit the liability of FAS in respect of loss of, damage or delay to Property. Unless a higher value is declared, liability of FAS may be limited to US$20.00 per kilogram for carriage by air. “Warsaw Convention” means whichever of the following instruments is applicable to the contract of air carriage: the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw, October 12, 1929; that Convention as further amended by Montreal Protocol No. 1, 2, or 4 (1975) as the case may be. “Montreal Convention” means the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on May 28, 1999. Air Carriage is subject to the rules relating to liability established by the Warsaw Convention or the Montreal Convention unless such air carriage is not “international carriage” as defined by the applicable Conventions. Agreed to stopping places (which may be altered by FAS or indirect or direct air carriers in case of necessity) are those places, except the place of departure and place of destination, set forth on the face of the applicable air waybills or shown in the air carrier’s timetables as scheduled stopping places for the route. Carriage to be performed by several successive air carriers is regarded as a single operation. If the abovementioned Conventions do not apply to a shipment by air, FAS’ abovementioned limitation of liability of .60 per pound applies unless Client declares a value for the air shipment.
EXCLUSIONS: FAS is not liable for loss or damage to Property due to: improper or inadequate packing or mislabeling by Shipper, its agents or employees or by third parties directed by Shipper, internal damage or concealed breakage, breakage of glass, mirrors, marble, stone, ceramic, works in plaster, uncured (not thoroughly dry) paintings, inherent vice, defect, weakness, wear, tear, gradual deterioration, moths, insects, rodents, vermin, pre-existing conditions, the fabrication, repairing, refinishing, renovating, framing, reframing, restoring or retouching process, internal mechanics or instrumentation, waxen, resinous, or viscous surface areas, excessively worn items, such as antiques in disrepair; uncured or unset varnish applied to furniture, mysterious disappearance, fire, lightning, windstorm, hail, hurricane, tsunami or other catastrophic weather events, explosion, earthquakes, floods, mudslides, collapse, burglary, theft, vandalism, malicious mischief, rust, oxidation, mold, directional orientation to which Shipper does not affix descriptive arrows in advance, extreme weather, changes in temperature or humidity, acts of God, pandemics and pandemic response or declaration of national emergency orders and government directives resulting in transportation delays, breakdown or mechanical defect of vehicles or equipment, faulty or impassable highways, civil disobedience, riots, strikes or lockouts, illegal or unlawful actions, loss or damage related to war, invasion, acts of foreign enemies or customs officials, rebellion, revolution, insurrection, military or usurped power of confiscation or conversion by any government, public or local authority, ionizing radiations, contamination by radioactivity from any nuclear fuel or waste, atomic or nuclear fission, radioactive, toxic explosive or other hazardous properties of any nuclear component, any weapon of war, biological or chemical weapons, terrorism, willful misconduct, consequence of war, invasion, acts of foreign enemies, hostilities, nationalization or requisition or destruction of or damage to property by or under the order of any government or public or local authority, cyber-attack, damage caused by spoilage, contamination, deterioration, freezing, electrical and/or mechanical failure, damage to refrigerated and/or temperature controlled Property, damage caused by mechanical or electronic derangement on clocks, scientific instruments, computers, and hi-fi equipment, decrease in market value, leakage, loss in weight or volume and/or folded or rolled art. Regarding damage to any item that is part of a pair or set, FAS shall only be liable for the separate value of the damaged item without respect to any special value claimed for such item as a part of a pair or set.
CUSTOMS CLEARANCE and EXPORT CONTROL: FAS may not be listed as a “known shipper” on any Customs documents. It is the Client’s duty to provide FAS with all information necessary to comply with all United States Customs and Border Protection rules, regulations and laws. All penalties incurred for non-compliance shall be the Client’s sole responsibility. Client hereby appoints FAS as its Agent to assist with customs clearance and certifies FAS as the nominal consignee for the purpose of retaining a licensed customs broker to perform customs clearance. In some instances, local authorities may require additional documentation confirming FAS’ appointment. The Customer shall furnish such information to FAS as necessary to comply with such laws, rules and regulations. FAS assumes no liability to the Customer or any other person or party for any losses or expenses due to the Customer’s failure to comply with this provision. The Customer is responsible for all charges, including transportation charges, duties, customs assessments, governmental penalties and fines, taxes, and FAS’ reasonable attorneys’ fees and legal costs related to the Goods. Customer authorizes FAS to act as Forwarding Agent for Customer for export control and customs purposes. Customer hereby certifies that all statements and information provided to FAS relating to exportation are true and correct. Furthermore, Customer understands that civil and criminal penalties, including forfeiture and sale, may be imposed for making false or fraudulent statements; for violation of any United States Laws on exportation, including but not limited to 13 USC §305, 22 USC §401, 18 USC §1001, and 50 USC App. 2410; or for the violation of export laws of other countries.
RATES: Client shall pay charges pursuant to Our current service rates. Client shall remit charges per itemized invoice within the timeframe agreed upon the parties. Invoices may be sent to Client; however, Client agrees that all charges shall be paid on time without request or demand by FAS. Rates for services, handling and storage, packing and transportation are subject to change at any time by written notice from FAS to Client, until such time as Client has agreed to estimated itemized invoice. FAS is not responsible for performing any services that are not expressly requested by the Client at the time of retention of FAS for Services and are not listed in the agreed upon itemized invoice. Any services not specifically listed in the itemized invoice agreed to by the Client shall be deemed ‘Additional Services’ and shall be subject to additional charges. Unpaid invoices are subject to a monthly late fee equal to 1.25% of outstanding balance. Additionally, Client will be liable to FAS for all collection costs including but not limited to legal costs and expense as well as attorney’s fees in the amount of 20% of outstanding balance.
USE OF PREMISES: The Client may only store Property that the Client has the legal right to store. FAS shall rely upon the representation from the Client that the Client is storing only Property which it has the legal right to store and that the Property are free and clear of all superior liens.
ACCEPTANCE OF PROPERTY: Client’s Property is accepted by FAS in apparent good order and condition (except as noted otherwise). Property may not be inspected by FAS and FAS undertakes to handle, store and deliver Property in the packages in which the Property was originally received by FAS. FAS’ art handlers may, during the normal course of business, issue a condition report for the purpose of noting damages visible to the naked and untrained eye; such condition report is not binding on FAS.
ACCESS: If Client has reserved private space within FAS’s warehouse(s), Client shall be permitted access to Client’s reserved space during FAS’s regular business hours, from 9:00 am to 5:00 pm, Monday through Friday, except public holidays. Upon request and FAS’ written approval, Client may be permitted access before or after business hours, subject to an additional charge.
ALTERATION AND ABANDONMENT: Client shall make no alterations to any of FAS’ facilities without FAS’ prior written approval. Damage to FAS’ facilities or violations of the terms and conditions contained herein shall constitute default. If Client vacates FAS, the space shall be deemed abandoned. Abandonment shall constitute voluntary termination of the Agreement. Client agrees that by its abandonment it shall remain responsible for all charges due hereunder through the date of termination.
DANGEROUS AND/OR HAZARDOUS PROPERTY: Property tendered to FAS may not contain dangerous, hazardous, odoriferous, radioactive, or leaking substances or any substance or material that is capable of contaminating or damaging FAS Property or Property of other clients of FAS. Should Client’s Property cause damage or loss to FAS or to Property of other Clients of FAS, to the extent permitted by law, Client agrees to defend and indemnify FAS and hold FAS harmless with respect to all claims against FAS and any and all resulting damages including reasonable attorney’s fees incurred by it to defend such claims.
DELIVERY AND REMOVAL: Client shall provide FAS with prior written notice of each delivery and removal of Property within one business day. If Client fails to notify FAS within one business day of delivery, FAS shall have the right to refuse Property and, in case of such refusal, shall not be liable for loss or damage to Property.
RECEIPT / ACCEPTANCE WITHOUT NOTATION: Receipt by the Client, Consignee or another carrier of Property without written notification of damage on the applicable Bills of lading, Service Agreement, Warehouse Receipts or any other document received from FAS shall be prima facie evidence that the Property was delivered by FAS in good order and condition.
DEFAULT AND REMEDY / WAREHOUSEMAN’S LIEN: NY CLS UCC §§ 7-209 and 7-210 apply to all storage performed by FAS in New York. Pursuant to these statutes, FAS shall have a lien on all Property of Client held at FAS or charges due, and for expenses necessary and reasonably incurred for the protection of any monies due FAS. This lien is superior to any other lien or security interest and is effective as of the date Property is brought to FAS. FAS has this lien in full force and effect should Client have any of the following occur: failure to pay accrued charges; abandonment; and/or failure to comply with FAS’ Warehouse Receipt, Bill of Lading, Occupancy Agreement, Services Agreement and these Standard Terms and Conditions which are incorporated herein by reference. If Client is in default of any provision herein, or fails to pay charges when due, FAS, (in addition to all other rights and remedies as provided by law, at FAS’ sole option or if FAS after giving ten (10) days written notice to Client (which notice shall be deemed to be given by FAS by mailing same, postage prepaid, at the last known address of Client)) may make any demand or give any notice as may be required by law. Should Client fail to comply with such demand or notice within the time required by law if any, FAS may declare this Agreement terminated. (b) FAS shall have the right to refuse access to Client’s space. (c) FAS shall have the right to overlock and/or remove Client’s lock on the door of the space (if applicable). There is no requirement that FAS provide notice in order to avail these self-help measures which Client agrees are valid and reasonable. (d) FAS shall have the right, but not the duty to inventory Property and charge Client for the reasonable cost of taking the inventory. (e) FAS shall have the right to dispose of or sell Property contained in the space to any person by public or private sale in block or in parcels, at any time or place, and on any terms which are commercially reasonable, pursuant to Sections 7-209 and 7-210 of the Uniform Commercial Code and any applicable New York state laws. FAS shall apply the proceeds of such a sale only to Client’s indebtedness to FAS and shall hold any proceeds over and above, if any, the amount owed by the Client to FAS in account for the benefit of Client. Upon written demand, the excess, if any, shall be returned to Client without interest. FAS shall hold such proceeds for a period not to exceed two years, and it is specifically understood that the proceeds of such sale shall first pay for the costs of sale and subsequent to the costs of sale, the payment of all charges. Client agrees to pay all costs and expenses, including reasonable attorneys’ fees, and service and processing charges of FAS in enforcing any term of this agreement.
GENERAL LIEN: Notwithstanding the abovementioned warehouseman’s lien, FAS shall also have a general lien on Property for all sums due at any time from Client for services, and shall be entitled to sell or dispose of such Property as Agent for and at the expense of Client and apply the proceeds in or towards the payment of such sums on 30 days’ notice in writing to Client and in accordance with the applicable law.
NOTICE OF DAMAGES, CLAIM AND FILING OF SUIT INVOLVING STORAGE AND/OR SERVICES: With respect to Property in storage and/or upon which FAS performs Services, Client shall notify FAS in writing of all damages within twenty four (24) hours after discovery of damage to Property, but in no event more than three (3) days after receipt of Property. Claims by Client and all other persons must be presented in writing to FAS within 30 days after date of delivery by FAS. Any action or lawsuit brought against FAS involving storage or services must be commenced within one (1) year of the date of delivery or the date that the damages to Property were discovered (whichever is sooner). Notwithstanding any provisions to the contrary, in no event will FSA be liable for any claims of damage unless the Client, its agent or representative, opened Property when received from FAS or its agents in the presence of video surveillance and has documented video evidence of damage to Property existing on receipt of same from FAS.
NOTICE OF DAMAGES, CLAIM AND FILING OF SUIT INVOLVING TRANSPORTATION: With respect to claims for loss, damages or delay involving transportation performed by FAS, Client shall file same in writing with FAS within nine months after the delivery and receipt of the Property, except that claims for failure to make delivery must be filed in writing within a reasonable time for delivery has elapsed. As a condition precedent to recovery, claims for loss, damage or delay during transit must be filed in writing with FAS in accordance with the provisions of the claim filing regulations of the Federal Motor Safety Administration set forth in 49 C.F.R § 70, which regulations are expressly incorporated herein by reference in their entirety. Suits for loss, damage, injury or delay for transportation of Property must be commenced against FAS no later than two years from the day when delivery was made (unless the Carriage of Property by Sea Act (“COGSA”) applies to the shipment and then COGSA’s one year limitation of time to file suit shall apply). Payment of any claim shall be subject to proof of actual damages suffered. The Consignee must hold the packaging(s), shipping container(s) and its contents in the same condition they were in when damage was discovered. When Property has not been delivered, notice may be given of known loss or injury to Property by mailing of a registered or certified letter to the Client.
No claims for loss or damage shall be entertained until all of FAS’ charges have been paid in full. The amount of the claim may not be deducted from the total due and payable charges.
NO WARRANTIES: FAS makes no warranties, express or implied as to any Service, unless expressly so stated and agreed to by FAS.
INSURANCE: FAS does not insure Client’s Property and FAS is not an insurance broker. At Client’s written request, FAS may arrange for insurance to be purchased through FAS’s insurance broker by Client, at client’s expense, at a premium based on the value of Property but Client will be required to sign a Waiver of Subrogation against FAS if required to do so by insurance carrier.
TRANSFER, TERMINATION OF STORAGE, REMOVAL OF PROPERTY: FAS reserves the right to move any Property within the facility in which it is stored and /or to any of its other facilities without notice to Client. FAS may, upon 30 days written notice to the Client and/or any other person known by FAS to claim an interest in Property, require the removal of any Property by the end of the 30 day notice period. If Property is not removed before the end of the 30 day notice period, FAS may sell Property in accordance with applicable law. If FAS believes that Property may deteriorate or decline in value to less than the amount of Warehouse’s lien before the end of the 30 day notice period, FAS may specify in the notification any reasonable shorter time for removal of Property and in case Property is not removed, may sell Property at public sale held one week after a single advertisement or posting as provided by law. If FAS after a reasonable effort is unable to sell Property, it may dispose of it in any lawful manner and shall incur no liability by reason of such disposition. Pending such disposition, sale or return of Property, FAS may remove Property from FAS’s facility and shall incur no liability relating to its removal.
SUBCONTRACTORS/ROUTES: FAS may and Client expressly authorizes FAS to engage carriers, truckers, forwarders, customs brokers, air carriers, agents, warehousemen, art handlers, others and/or any other transportation intermediary, as required, to transport, store, perform services on and deliver Property. FAS has discretion in choosing the means, route and procedure to be followed in the handling, transporting, delivering and servicing Property. The above limitations of liability apply to all work performed by FAS and its subcontractors.
ALTERATION: Only FAS employees may alter these terms and conditions. All conditions set forth herein are binding and cannot be modified altered or waived by any person including FAS employees, save for officers of FAS, and then only in writing and when signed by such an officer. FAS retains the right to prepare other terms and conditions and addenda as necessary.
THIRD PARTY ACTIONS TAKEN AGAINST FAS: Should any legal actions be served on and/or taken against FAS and/or its employees, relating to Client’s Property, including but not limited to Subpoenas and Warrants, Client agrees to pay FAS reasonable attorneys’ fees incurred as a result of FAS’ defense of and/or compliance with said actions.
INDEMNITY AND HOLD HARMLESS: To the full extent permitted by law, The Client shall defend, indemnify and hold FAS (“indemnitee”) harmless from and against any and all claims, liabilities, damages, losses and judgments, including reasonable attorneys fees and legal costs and expenses arising out of or incident thereto, which may be suffered by or accrue against, be charged to or recoverable from FAS by reason of injury to or death of any person or by reason of injury to or destruction of Property, from any cause including but not limited to the fault, breach of warranty or negligence of FAS, its officers, agents, subcontractors or employees and/or from the fault, breach of warranty or negligence of the Client, its officers, agents, subcontractors or employees.
NON-WAIVER: Any failure on the part of FAS to enforce at any time or for any period of time any term or condition of this Agreement shall not be deemed a waiver of any such terms and conditions or of any rights and remedies available to FAS.
BENEFITS AND ASSIGNMENTS: Client shall not assign, sublicense or otherwise transfer with any of its rights or obligations under this Agreement without the prior written consent of FAS. FAS shall have the right, without the consent of Client, to assign this Agreement to an acquiring entity in the event of a sale of all or substantially all of FAS’s assets, and the acquiring entity shall become responsible for all of FAS’s obligations hereunder and shall be entitled to all rights and remedies available to FAS herein.
GOVERNING LAW: This relationship of FAS and the Client shall be construed according to the laws of the State of New York, without regard to its choice of law rule.
JURISDICTION AND VENUE: Shipper / Client/ Bailor consents to the jurisdiction of the federal and state courts that sit in the States of New York regardless of location of Client’s domicile at the time of dispute and agrees that any action taken against FAS, shall be brought only in the courts of competent jurisdiction in the City and State of New York. Parties hereby waive the right to a jury trial.
SEVERABILITY: In the event any Paragraph(s) and/or portion(s) hereof are found to be invalid and/or unenforceable, the remainder hereof shall remain in full force and effect.