(hereinafter referred to as the “Terms and Conditions”)
All services provided by us shall be exclusively governed by these Terms and Conditions. These Terms and Conditions shall also apply to all future contracts with us without requiring repeated agreement thereto.
1.1 These Terms and Conditions shall apply to all orders placed in connection with the handling of works of art and collector’s items of all kinds hereinafter referred to as the “Object(s).” Such orders shall include, for example, separate agreements about hanging up and taking down pictures, hanging up and dismantling other Objects, packing, loading, shipping, unloading, unpacking and storage of Objects as well as collections for COD deliveries (Nachnahmen), and customs formalities, courier services and the organization of shipping arrangements and property insurance coverage.
1.2 Client (Auftraggeber) herewith obligates itself to obtain agreement to these Terms and Conditions with its contractual partners, for example, Recipient or Owner of the Object(s) on behalf of ART HANDLING Spedition GmbH and to inform its transportation insurance company about such agreements.
2 Information to be provided by Client
2.1 Upon order placement, Client shall inform ART HANDLING Spedition GmbH in writing about the addresses, quantity, type and contents of the packed items, their dimensions, weights, characteristics and value as well as about the local conditions at the pickup and destination locations.
2.2 Client shall be responsible for the consequences of providing incorrect or incomplete information, even If such errors should occur through no fault of Client, unless such errors were obvious and known at the time of order placement.
3.1 ART HANDLING Spedition GmbH shall be liable for damage to the goods (Güterschäden), that is, the loss of or damage to the object(s) that is (are) the subject of this Agreement (Gegenstand des Vertrages), consequential damage to the goods (Güterfolgeschäden), that is, financial losses (Vermögensschäden) due to the damage to the goods, strictly financial losses, that is, those that are not related to damage to the goods or other property damage, insofar as ART HANDLING Spedition GmbH or one of its vicarious agents should be at fault. In case of transport by motor vehicle, airplane, railway, inland or ocean vessels, liability shall be governed by the valid regulations for these means of transportation insofar as such regulations are mandatory.
3.2 In connection with foreign orders, ART HANDLING Spedition GmbH shall be authorized to agree to the customary terms and conditions of the service providers it employs. If and insofar as damages should be caused by a foreign service provider, the liability therefore shall be governed by the contractual provisions agreed with the respective foreign company or mandatory statutory regulations. Any further liability of ART HANDLING Spedition GmbH shall be herewith excluded unless and insofar as damages were due to its culpable violation of its obligation to exercise due care.
4 Exclusions of Liability
ART HANDLING Spedition GmbH shall not be liable regardless of whatever legal ground if and insofar as damages were caused through the instructions of Client’s authorized representative or by circumstances that ART HANDLING Spedition GmbH could not prevent while exercising the diligence of a prudent business person.
5 Scope of Liability / Limitations of Scope of Liability
Insofar as mandatory provisions (e.g. Item 3.1, Paragraph 2, Terms and Conditions) do not otherwise specify, ART HANDLING Spedition GmbH shall be liable as follows regardless of the legal ground on which claims are based:
5.1 For damage to goods (Güterschäden) of up to EUR 2,000 per damaged or lost Object; in case such damage or losses occur during transport, at least with 8.33 special drawing rights (Sonderziehungsrechte) per kilogram gross weight of the affected part of the shipment according to § 431 German Commercial Code (Handelsgesetzbuch (11GB)).
5.2 In the event of a delivery delay, ART HANDLING Spedition GmbH shall indemnify Client for the damages/ losses incurred that have been substantiated up to the maximum amount of the contractually agreed remuneration for ART HANDLING Spedition GmbH. ART HANDLING Spedition GmbH shall not be liable for any additional compensation for damages.
5.3 In the case of any strictly financial losses other than those specified in Item 5.2 of these Terms and Conditions, liability of ART HANDLING Spedition GmbH shall be limited to the contractually agreed remuneration for ART HANDLING Spedition GmbH. In the case of COD deliveries, such liability shall be limited to the amount of the COD payment.
5.4 In any and all cases, liability of ART HANDLING Spedition GmbH shall be limited to the value of the Object(s) damaged specified by Client regardless of the legal grounds on which claims are based.
5.5 In return for an additional charge, Client may agree in writing (as part of the Agreement with ART HANDLING Spedition GmbH) on compensation/indemnification amounts higher than those specified in Items 5.1 through 5.4 of these Terms and Conditions.
5.6 The liability provisions specified in Items 3 through 5 of these Terms and Conditions shall apply to any and all claims asserted against ART HANDLING Spedition GmbH involving Objects that are the subject of the order placed with ART HANDLING Spedition GmbH, regardless of the legal ground on which such claims are based. ART HANDLING Spedition GmbH employees as well as those persons for whom ART HANDLING Spedition GmbH is liable shall be entitled to invoke these limitations of liability unless they intentionally caused the damage or damage was caused by their grossly negligent behavior. These limitations and exclusions of liability shall not be applicable insofar as damage was caused through the intent or gross negligence of vicarious agents of ART HANDLING Spedition GmbH acting in a senior position, and/or by intentional or grossly negligent violation of material contractual obligations. Claimant shall bear the burden of proof of such violations.
5.7 Client shall indemnify ART HANDLING Spedition GmbH against any and all claims asserted by third parties based on action taken or omitted by Client in violation of this Agreement.
6 Delivery and Complaints
6.1 Unless otherwise agreed in writing, a delivery in fulfillment of a contractual obligation may be made by handing over the goods to any adult person who is a member of the business or household of Recipient and who is present on the premises of Recipient or at the contractually agreed delivery address.
6.2 Should external damage to the Object(s) be recognized upon delivery, Recipient shall document such damage including the specific type of loss or damage in a certificate of receipt to be signed by Recipient and the party delivering the Object(s). Recipient shall notify ART HANDLING Spedition GmbH in writing without undue delay of any damages that were not externally visible, at the latest, seven days after delivery. Claimant shall bear the burden of proof.
7 Payment Terms and Right of Pledge
7.1 Invoices are payable upon receipt. Client shall be in default, at the latest, 10 days after receipt of invoices without requiring an overdue payment reminder from ART HANDLING Spedition GmbH or other preconditions.
7.2 Upon request, Client shall immediately indemnify ART HANDLING Spedition GmbH against all freight charges, prepayments and charges in connection with an accident, customs duties, taxes and other charges that are billed to ART HANDLING Spedition GmbH including but not limited to its role as a an authorized representative or as a bailee of Client.
7.3 ART HANDLING Spedition GmbH shall have a right of pledge and a right of retention to the goods or other values in its possession for all its claims against Client based on services provided as stipulated in this Agreement, irrespective of whether these claims are payable or not. The right of pledge shall also apply to all accompanying documentation. Should Client be in default, ART HANDLING Spedition GmbH may, after having notified Client accordingly, sell as many goods and assets in its possession as, after due assessment, are necessary to satisfy its claims. No additional formalities are required. This informal sale may also take place if Client’s location cannot be determined after conducting suitable inquiries. ART HANDLING Spedition GmbH shall be entitled to charge the customary sales commission based on the gross sales proceeds for the pledge or self-help sale.
8 Final Provisions
8.1 These Terms and Conditions as well as all legal relationships between Client, ART HANDLING Spedition GmbH, Recipient and Claimant shall be governed by German law.
8.2 Insofar as Client is a registered business person (Vollkaufmann) in the sense of the German Commercial Code (Handelsgesetzbuch (HGB)), or a legal entity or separate estate under German public law (juristische Person des öffentlichen Rechts oder öffentlich-rechtliches Sondervermögen), the location of the registered office of ART HANDLING Spedition GmbH shall be the place of fulfillment and the court in the district in which the company offices are located shall be exclusively responsible for all disputes that directly or indirectly result from the contractual relationship.
8.3 Any deviations from these Terms and Conditions must be agreed in writing. The written form requirement may only be waived in writing.
8.4 In case of any disputes or disagreements in connection with these Terms and Conditions, the original German version of these Terms and Conditions shall be authoritative and take precedence over the English translation thereof.
Validity Date: Effective January 1, 2010
ART HANDLING Spedition GmbH*
Managing Director: Thomas Rosenbaum
* Registered Office: Cologne, Germany
German Commercial Register Number (Handelsregister) HRB 28953.