Flanders Fine Arts Terms & Conditions ¹

Definitions:

Flanders Fine Arts, LLC its affiliates, subsidiaries, divisions, employees, officers, contractors, subcontractors, and agents, including but not limited to ArtFit Technologies, LLC are collectively referred to as “FFA”.  FFA may be referred to as the “Carrier”, “Warehouse”, “Warehouseman” or “Service Provider”.

“Consignee” shall refer to the person or parties who releases or receives Property from FFA or FFA’s subcontractors or agents.

“Contents” shall refer to any items, excluding Property, including but not limited to fine and decorative arts, antiques, furnishings, equipment and household goods located at the Premises (as defined below).

“Customer” is the person(s) or organization that retains FFA to perform Services, including agents and representatives of Customer.

“Declared Value” shall refer to the value ascribed to Property when seeking to increase FFA’s limitation of liability (LOL), resulting in increased charges for the Services. If No Value is Declared (as defined below), FFA is released to a liability limitation of sixty cents ($0.60) per pound as set forth below.

“Estimates” shall refer to quotations by FFA as to fees and other charges for Services. 

“NVD” refers to when the Customer consigns Property for Services by FFA without a Declared Value for the Property and therefore releases FFA to a limitation of liability of sixty cents ($0.60) per pound as set forth below.

“Premises” shall refer to the structure, fixtures and fittings at any location other than the facilities maintained by FFA, including but not limited to the location where the Services are being performed, the Customer’s residence or place of business, Consignee’s residence or place of business, and/or any location where FFA receives and/or delivers Property and/or performs Services. 

“Property”, as may also be referred to as “Object(s)”, “Cargo”, “Goods” or “Freight”, shall refer to all property in whole or in part, in packed or unpacked state, including but not limited to artworks and cultural property, tendered to FFA for any reason including but not limited to storage, transportation and Services.  

”Services” shall refer to any and all work performed by FFA  for a Customer, including but not limited to storage, transportation, handling, installation, hanging, removal, movement, collecting, receiving, delivering, placement and securing of Property; construction and repair of crates and travel frames; packing and unpacking, crating and uncrating; framing and unframing, condition reports, cataloguing and inventory, collection maintenance, design and construction of pedestals and brackets, exhibition design, and any and all other services performed by FFA. Customer agrees that it will promptly pay FFA for all Services rendered. Additional expenses incurred by FFA shall be charged to Customer, including but not limited to charges relating to Property handled after regular business hours.

“Services Agreement” means a written agreement between FFA and Customer for the performance of Services related to Customer’s Property.

“Shipper” shall refer to any person or organization that consigns Property for transport, carriage, packing and related services.

“Storage Agreement” means a written agreement between FFA and Customer for storage of Customer’s Property within an FFA facility.

“Subcontractors” shall refer to any third parties retained by FFA to perform Services.

“Warehouse” shall refer the storage facilities located at 300 Pleasure Drive, Flanders, New York 11901 or such other storage facilities designated by FFA.

Storage Term: The terms of storage shall be set forth in a Storage Agreement. Absent such a written agreement, storage for Property is provided by FFA on a month-to-month basis at FFA’s prevailing rate. The month-to-month terms will automatically renew, unless terminated by either party in writing on thirty (30) days’ written notice stating the date of termination. An acknowledgement of the notice of termination by the other party is required.

Storage Period and Charges: All storage periods and charges shall be set forth in the Storage Agreement between Customer and FFA. However, in the event that Property is stored in absence of a Storage Agreement, charges shall be made at the then prevailing rates.  A full month’s storage charge will apply to all Property received between the first (1st) and the fifteenth (15th), inclusive, of a calendar month; one-half month’s storage charge will apply to all Property received between the sixteenth (16th) and last day, inclusive, of a calendar month, and a full month’s storage charge will apply to all Property in storage on the first (1st) day of the next and succeeding calendar months.  Standard termination notice requirements and annual increases apply in absence of a Storage Agreement.

Charges for Services other than Storage: The Customer shall pay charges for Services other than storage (including materials furnished) pursuant to FFA’s then prevailing rates within thirty (30) days of the date of FFA’s invoice for Services.  Rates are subject to change at any time.

Payment Terms: All charges and fees for Services are exclusive of sales and use taxes and similar governmental charges, which shall be the responsibility of Customer unless Customer provides evidence of a valid exemption certificate. Despite the acceptance by FFA of instructions to collect freight, duties, charges or other expenses from a Consignee or any other third party, Customer shall remain responsible for all such freight, duties, charges or other expenses and shall immediately pay the same to FFA upon receipt of a proper demand and in the absence of evidence of payment (for whatever reason) by such Consignee or third party when due. If any charges are not paid on or before the due date, Customer shall be liable for late fees at a rate of two percent (2%) per month of the outstanding balance until all amounts due are paid, as well as all costs and expenses incurred in collecting such past due charges, including but not limited to attorney’s fees and court costs.

Tender for Storage & Release and Handling: Each tender of Customer’s Property to FFA for storage constitutes a separate tender and FFA may reject subsequent tenders of Property whether or not identical. Customer shall provide FFA with at least two (2) business days’ prior written notice of each delivery and removal of Property. If Customer fails to provide FFA with at least two (2) business days’ notice, FFA shall have the right to refuse the delivery and/or removal of Property. Customer shall indemnify, defend and hold FFA harmless from all claims for unpaid charges, including but not limited to any tax, transportation or storage charges, in connection with Property shipped to FFA. All Property shall be delivered to FFA properly marked and packed for handling and storage. Property must not contain dangerous, hazardous, odoriferous, radioactive, or leaking substances or any substance or material, including but not limited to infestation, and/or other biological waste or hazard, that is capable of contaminating or damaging FFA or FFA’s Customers’ Property. The contents of the packages, containers or the Property referred to on the face of the Warehouse Receipt or Bill of Lading will not be inspected by FFA for condition, form, color, or for concealed loss, damage or leakage, and shall be deemed in apparent good order unless noted as otherwise. FFA shall handle, store and deliver Property in the packages, crates and containers in which the Property was originally received. When deterioration or failure of packages, crates or containers requires, FFA may, at its discretion and without obligation, repackage the contents and charge Customer for labor and materials. FFA accepts no responsibility for such repair or replacement. Any condition and/or inspection reporting done by FFA during the normal course of business, for the purpose of noting damages visible to the naked and untrained eye, shall not be binding on FFA.

Release and Delivery of Property: Any requests concerning the release, delivery or performance of any other Services in connection with the Property must be made by written request, with reasonable prior notice, and signed by Customer, and is subject to these Terms and Conditions and any other relevant terms and conditions set forth in the Storage Agreement, Services Agreement or any other agreement between Customer and FFA. Unless the Customer is in default of its payment obligations hereunder, FFA shall be obligated to transport Property with reasonable dispatch and shall not be bound to transport Property by any particular timeline. Time shall not be of the essence in the delivery of any Property. In the event of a failure or refusal to accept delivery, it is agreed that FFA shall have a general lien against such Property. In addition, if delivery is not accepted, for any reason, Customer agrees to remit payment to FFA for all expenses incurred resulting from the failure to accept the Property, including, but not limited to, the costs of redelivery and storage of the Property.

Business Hours: During regular business hours (9am-5pm weekdays except public holidays) FFA’s Services shall be billed at the then prevailing rates.  Premium rates may apply outside of regular business hours.

Access: Customer agrees that its access to FFA’s facilities will be restricted, and that Customer must be accompanied by FFA personnel while in FFA’s facilities. Pursuant to applicable restrictions, FFA only allows the Customer and the Customer’s expressly authorized and previously identified agents, employees or assigns to access the Customer’s Property or private space. FFA does not allow any other persons, including, but not limited to, other logistics companies or outside art handlers, to enter FFA’s warehouse under any circumstances.

Alteration: Customer shall make no alterations to the Warehouse, including but not limited to Customer’s space in the Warehouse, without FFA’s prior written approval. All improvements and equipment made or installed by or on behalf of Customer shall be removed by Customer at its sole cost and expense upon termination; and Customer shall repair all damage caused by such installation or removal. Customer shall leave its space in broom clean condition on vacating the space, and any cost to FFA to return the space to its original condition, less ordinary wear and tear, shall be billed to Customer. 

Limitation of Liability: Unless resulting from the gross negligence or willful misconduct of FFA, FFA’s liability is limited to sixty cents ($0.60) per pound per article of Property as determined by the actual weight of the unwrapped article of Property not to exceed the actual loss. This limitation applies to any loss or damage to Property or any expense directly or indirectly caused by or contributed to, including delay or non- / mis-delivery or misinformation, even if such loss or damage is caused by the negligence of FFA during its performance of Services. Customer has the option to increase FFA’s liability by declaring a higher value for all or a portion of the Property, paying a higher rate to FFA based upon the increased Declared Value of the Property, and documenting its actual loss in accordance with FFA’s claim filing rules. For avoidance of doubt, this limitation of liability for damage to Property applies to all Services (as defined above) performed by FFA, which includes but is not limited to transportation, packing, crating, storage, viewings, installations, and construction and repair of crates and travel frames.

FFA incorporates by reference all benefits, defenses and exemptions of the Carmack Amendment to the Interstate Commerce Act, 49 USC § 14706, the Convention on the Contract for International Carriage of Goods by Road (“CMR”), May 19, 1956, 399 U.N.T.S. 189, the Carriage of Goods by Sea Act ("COGSA"), the Harter Act, 46 U.S.C. § 30701, 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 (referred to as the “Air Treaties”). Declared Value, if any, must appear on all applicable contracts, including but not limited to the applicable Bill of Lading, Warehouse Receipt and/or Services Agreement, and may only be entered by FFA. If the space provided for Declared Value on the applicable agreement is left blank, then no value is declared for the Property. FFA’s liability is limited to sixty cents ($0.60) per pound as set forth above unless Property is transported by sea (in which case FFA’s liability is limited to five hundred US dollars ($500) per package or customary freight unit pursuant to COGSA) or by air (in which case FFA’s liability is limited to twenty-six (26) SDRs per kilogram pursuant to the Air Treaties). 

THE LIABILITY OF FFA FOR LOSS OR DAMAGE TO PREMISES BY ANY CAUSE, INCLUDING THE NEGLIGENCE OF FFA, DURING ITS PERFORMANCE OF SERVICES IS LIMITED TO FIVE HUNDRED US DOLLARS ($500.00).  THE LIABILITY OF FFA FOR LOSS OR DAMAGE TO CONTENTS BY ANY CAUSE, INCLUDING THE NEGLIGENCE OF FFA, DURING ITS PERFORMANCE OF SERVICES, IS LIMITED TO FIVE HUNDRED US DOLLARS $500.00.

Exclusions:  FFA shall not be liable for loss or damage resulting from: improper or inadequate packaging by Customer, inherent vice, wear, tear, gradual deterioration, moths, insects, rodents, vermin, acts of God, war, terrorism, invasion, acts of foreign enemies, hostilities, civil war, rebellion, revolution, insurrection, military or usurped power, confiscation or nationalization, requisition or destruction of or damage to property under the order of any government or public or local authority, civil disobedience, actions by customs or government officials. FFA shall not be liable for punitive, consequential or special damages, including, but not limited to, loss caused by delay, emotional distress, lost revenue, income, market value, loss of use, utility or profit, irrespective of whether FFA knew that such damage could occur. FFA shall not be liable for the mechanical functions of pianos, radios, phonographs, clocks, barometers, mechanical refrigerators or other instruments or appliances.  FFA shall have no liability for damage caused by radiation of any kind, toxic, explosive or hazardous property, nuclear weapons or reactors, nuclear fuel, nuclear waste, or chemical, biological, bio-chemical or electromagnetic weapons.

Claims, Time Limits and Procedures:

a) Damage or Loss resulting from Storage and/or Services (not transportation): Customer agrees to notify FFA in writing for all loss or damage to Property, Contents or Premises within five (5) days after Customer discovers or should have discovered the damage to Property, Contents or Premises as a result of Services (not transportation) furnished by FFA. No action may be maintained by Customer against FFA to recover for claimed loss or damage to Property, Contents or Premises resulting from Services (not transportation), unless such proceeding is commenced within twelve (12) months after Customer discovers or should have discovered the damage to Property, Contents or Premises as a result of Services (not transportation) furnished by FFA. If Customer fails to timely notify FFA and fails to commence suit against FFA within the above time limits, FFA shall not be liable for such claims and such claims shall not be paid.

b) Damage or Loss Resulting from Transportation: Claims for loss, damage or delay arising from transportation must be filed in writing with FFA within nine (9) months after the delivery and receipt of Property, except that claims for failure to make delivery must be filed in writing within nine (9) months after a reasonable time for delivery has elapsed. Suits for loss, damage, injury or delay arising from transportation must be commenced against FFA no later than two (2) years and a day from the date that the claim was denied by FFA (unless the shipment was carried by sea, and then COGSA’s one (1) year limitation of time applies). If claims are not filed or suits are not commenced within the above time limits, FFA shall not be liable and such claims shall not be paid. In the event of a claim, the Customer and/or the Consignee must hold the packaging, shipping container and its contents in the same condition they were in when damage was discovered.

Indemnity and Hold Harmless: Unless resulting from the gross negligence or willful misconduct of FFA, Customer shall defend, indemnify and hold FFA harmless from and against any and all claims, liabilities, damages, losses and judgments, incurred or brought by third parties, including attorneys’ fees, which may be recoverable from FFA: 1) by reason of loss, damage or destruction of Property, Contents, Premises or any other property in excess of the above referenced Limitation of Liability and/or any other limitation of liability contained in FFA’s standard Terms and Conditions; or 2) by reason of injury to or death of any person, or loss, damage or destruction of Property, Contents, Premises and/or any other property resulting from the fault, willful misconduct or negligence of Customer, its officers, agents, subcontractors and/or employees. Moreover, Customer shall indemnify FFA from and against all losses, costs, claims, expenses, penalties or liabilities, including attorneys’ fees, which arise or may be asserted against FFA resulting from 3) claims for damage by third parties resulting from Property deposited with FFA by Customer; or 4) competing claims of ownership asserted against Property.  In all instances FFA shall choose its own lawyers, and Customer shall bear responsibility for fees, costs and expenses incident thereto.

Third Party Beneficiary Indemnity: Except as expressly provided herein, no person other than Customer and FFA shall have any right or privilege hereunder, and Customer shall indemnify and hold FFA harmless for claims brought by third party privies of Customer against FFA whenever such claims, arising out of loss or damage to Property transported or stored hereunder, exceed the limitations of liability for Property as provided above.

Waiver of Subrogation: To the extent permitted by law, Customer hereby waives all rights of subrogation against FFA, its officers, members, agents and employees, occurring and or arising out of any loss or damage to Property, Contents or Premises to the extent such loss or damage is covered by insurance. This waiver of subrogation shall be in addition to, and not in limitation or derogation of, any other waiver, release, or limitation of liability contained in this Agreement with respect to any loss of, or damage to the Property, Contents or Premises. Inasmuch as the above waiver will preclude the assignment of any aforesaid claim for loss of, or damage to the Property, Contents or Premises by way of subrogation to an insurance company, Customer agrees to immediately furnish its insurers with written notice of the terms of said waiver, and to have all applicable insurance policies properly endorsed, if necessary, to prevent the invalidation of said insurance coverage by reason of said waiver of subrogation. All insurance policies covering Property that Customer has or shall procure shall contain a waiver of subrogation in favor of FFA. Customer shall furnish FFA with all applicable insurance policies on request.

FFA No Warranties:FFA makes no warranties, express or implied, as to any Service applicable to this Agreement, unless expressly so stated and agreed to in writing.

Customer Warranty: Customer warrants that the Property is in its custody and control and Customer has full authority to direct FFA to perform Services in accordance with these Terms and Conditions. Customer shall reimburse, indemnify and hold FFA harmless for any breach of this warranty. 

Warehouseman’s Lien: Pursuant to the provisions of the Uniform Commercial Code §§ 7-209 and 7-210 and/or as permitted by any other applicable state laws, FFA shall have a lien on all Property of Customer held at the Warehouse for charges for Services, or any other charges past due or due in future. This lien is superior to any other lien or security interest and goes into effect as of the date the Property is brought to the Warehouse. FFA maintains a lien on the Property covered by all applicable warehouse receipt(s), and a lien on all Property, concurrently, or later received by FFA for the account of the Customer or of any other persons and organization having an interest in the Property covered by the applicable Warehouse Receipt(s), for all charges for storage or transportation (including demurrage and terminal charges), insurance, labor or other charges, present or future, in relation to the Property covered by the applicable Warehouse Receipt(s), and for expenses necessary for the preservation of such Property or reasonably incurred in its sale. FFA has this lien in full force and effect should Customer cause any of the following to occur: failure to pay storage charges; failure to pay any other charges, fees or pass-through expenses or advancements; abandonment of Property; failure to execute a vacate/release form; or failure to comply with any term or condition contained herein.

Customer Default and Remedy: FFA shall have a general lien against Property for all Services rendered and to cover all monies and materials advanced to third parties in connection with any Property of the Customer, and for all expenses reasonably incurred for the protection of monies due to FFA. When any amounts due and owing to FFA remain due and unpaid for sixty (60) days, Customer shall be deemed to be in default of these Terms and Conditions. In the event of such default, FFA shall provide written notice to Customer of its intent to exercise such lien and the exact amount of monies due and owing, as well as any ongoing storage or other charges; Customer shall notify all parties having an interest in its Property of FFA's rights and/or the exercise of such lien. Unless, within thirty (30) days after receiving the notice of lien, Customer posts cash or a letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to one hundred ten percent (110%) of the value of the total amount due, in favor of FFA, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, FFA may sell the Property at public or private sale pursuant to all corresponding and applicable laws, or so much thereof as may be necessary to satisfy such lien, and apply the net proceeds of such sale to the payment of the monies owed to FFA. Any surplus from such sale shall be transmitted to the Customer; and the Customer shall be liable for any deficiency in the sale. The Customer shall pay all costs and expenses, including reasonable attorneys’ fees, reasonable service charges and processing charges of FFA in enforcing any action or any term contained herein.

Subcontractors: Customer authorizes FFA, in its sole and absolute discretion and without further notice, to engage any subcontractor, agent or other third-party independent contractor to undertake any and all Services requested by Customer. In the event that FFA engages a subcontractor for all or part of the Services furnished to Customer, all other conditions of these Terms and Conditions, including the Limitations of Liability, shall apply.

Transfer of Property: FFA reserves the right, with or without prior notice, to relocate Property to any FFA facility and/or move Property within any FFA facility at its expense. 

Customer Address: The address of Customer that is stated in the relevant FFA agreement shall be relied upon by FFA for all purposes until change of address is given in writing to FFA and acknowledged in writing by FFA. Notice of any change of address shall not be valid or binding against FFA if given or acknowledged in any other manner.

Force Majeure: Neither party shall be liable for any delay or failure to perform caused by acts of God, governmental actions, labor unrest, acts of terrorism, riots, unusual traffic delays or other causes beyond its reasonable control.

Cancellation: FFA may terminate its relationship with Customer at its discretion upon sixty (60) days’ written notice to Customer. Upon the termination of the relationship with Customer for any reason, the Customer shall immediately pay FFA all amounts due for Services performed up to and including the date of cancellation.

Subpoenas and Warrants: If any legal action related to Property is taken against FFA, including but not limited to subpoenas and warrants served on FFA, FFA shall choose its own attorneys, and Customer shall pay FFA’s attorneys’ fees and costs associated with defending and/or otherwise responding to such legal action(s).

Law and Jurisdiction: For any and all claims arising out of work, storage, and/or Services provided by FFA, Customer agrees that New York law shall apply without reference to its choice of laws.

Severability and Binding Effect: If any provision of these Terms and Conditions and/or any other agreement by and between Customer and FFA should be deemed invalid, illegal or otherwise unenforceable, the remaining provisions shall still be in full force and effect.

¹ These Ts&Cs shall govern all transactions by and between Flanders Fine Arts, LLC (“FFA”) and its Customers, including but not limited to storage and logistics, and is specifically incorporated by reference into FFA’s agreements and other legal documentation.