General Terms and Conditions – Flat Mountain Production

General Contractual Terms of F.M.P. Art Logistics UG (Limited Liability) for Art
Version dated: 01/11/2017

Preamble

The General Contractual Terms for Art take into account the customary practices for transport and handling of art and antiques, exhibits, collections and similar items (hereinafter: works of art) as they pertain to F.M.P. Art Logistics UG (Limited Liability). All orders, even from private consumers, shall be carried out by F.M.P. Art Logistics UG (Limited Liability) (hereinafter referred to as F.M.P.) exclusively on the basis of the following agreements. These Contractual Terms shall also apply to all future contracts, even if they are not expressly agreed again. Deviations to the Contract must be in writing.

We expressly refer to the exclusions and limitations of liability, as well as the option of agreeing and insuring higher liability totals.

1. Scope of Application

1.1. The Contractual Terms apply to performances of all kinds related to handling works of art, whether they involve shipping, freight, warehousing or other common transactions related to the art industry. For example, this includes agreements, also as separate contracts, on hanging and taking down pictures, installing and removing works of art, packaging, loading, stowing, transporting, unloading and storing works of art, through collecting payment on delivery, customs handling, courier services or arranging travel contracts or organising transport and property insurance.

1.2. Unless agreed in writing in advance, the performances exclude items that can endanger other goods, the environment or persons, in particular hazardous materials as defined in the Hazardous Goods Act (Gefahrgutgesetz). If they are handed over in spite of this, the Client shall liable for any resulting damage, irrespective of who is at fault.

1.3. The Client undertakes to agree the General Contractual Terms for Art with its business partner, for example the recipient or owner of the work of art, in favour of F.M.P.

2. Details on the Works of Art

2.1. On placement of the order, the Client shall inform F.M.P. in writing of the addresses, codes, numbers, quantities, type and content of the packages, dimensions, weights, characteristics and actual values of the works of art to be handled and the spatial situation at the collection and destination locations.

2.2. The Client shall bear the costs of inaccurate or omitted details, even if it is not at fault, unless the inaccuracy was obvious and known on placement of the order.

3. Liability

3.1. For international orders, F.M.P. is authorised to agree to the standard terms and conditions of third parties. If and to the extent that damage is caused by a foreign partner, the liability of F.M.P. shall be determined by the contractually agreed terms agreed with these international companies. F.M.P. shall only be liable above and beyond this if and to the extent that the damage is due to culpable infringement of an own duty of care.

3.2. Moreover, F.M.P. shall be liable for the behaviour of employees and third parties used as vicarious agents, and for its own behaviour. F.M.P. shall be liable for
– Damage to goods, i.e. loss of and damage to the work of art subject to the Contract
– Consequential damage, i.e. financial losses arising from damage to goods

For road transport in motor vehicles, by aircraft, railway, inland waterway or deep-sea ship, liability shall be assumed in accordance with the regulations valid for this mode of transport, where application is mandatory. We expressly refer to the limited or excluded liability for sea freight.

4. Exclusions of Liability

F.M.P. shall be released from liability – irrespective of the legal reason – if and to the extent that the damage was caused by an instruction of the Client or an authorised agent for which it was not at fault, or by circumstances it could not prevent with the due commercial prudence.

5. Limitations of Liability

Unless contradicted by mandatory provisions (3.2.), and subject to the arrangement in 5.7., the liability of F.M.P. – irrespective of the legal grounds – shall be limited as follows:

5.1. Liability for damage to goods shall be restricted to 8.33 special drawing rights per gross kilogram of the damaged or lost works of art, or to a total of € 1,100 per cubic metre of the damaged or lost work of art, depending on which amount is higher.

5.2. If the delivery deadline is missed, F.M.P. shall pay compensation for the verified damages up to the amount of the contractually agreed fee, without further compensation for damages. The delivery deadline shall be deemed missed if the goods are not delivered within the agreed period, or, where no period is agreed, if the actual transport period that would be reasonably attributed to a diligent carrier taking the circumstances into account is exceeded.

5.3. If works of art subject to the Contract are delivered to the recipient without collecting the payment on delivery amount agreed per the Contract, F.M.P. shall be liable to the Client for the resulting damages, but only to the total amount of the payment due on delivery.

5.4. For claims other than those described in 5.2. and 5.3 of these Contractual Terms, liability shall be limited to the contractually agreed fee.

5.5. In any case, liability shall be restricted to the value specified by the Client for the works of art subject to damage, irrespective of the legal grounds.

5.6. In return for a separate fee, the Client can agree higher amounts for damages to goods, consequential damage and pure financial losses in writing in the Contract than specified in 5.1. to 5.5. of these Contractual Terms.

In this case, F.M.P. shall arrange insurance of the work of art, for example transport or warehouse insurance, exclusively on the basis of a written agreement, stating the insurance total and the risks to be insured. In cases of doubt, F.M.P. shall decide after due consideration on the type and scope of insurance and conclude it at standard market conditions. F.M.P. shall be entitled to separate remuneration and compensation for its expenditures in return for arranging the insurance cover.

5.7. The exclusions and limitations of liability in 4 and 5 of these Contractual Terms apply for all claims against F.M.P. with regard to the works of art subject to the order placed with F.M.P., on which the legal grounds of the claim are based. Employees of F.M.P. and persons for whom F.M.P. is liable can invoke the limitations and exclusions of liability governed in these Contractual Terms, unless they caused the damage intentionally or via grossly negligent conduct.
The limitations of liability are not applicable if the damages were caused through intent or gross negligence of vicarious agents in managerial positions and/or intentional or grossly negligent violation of material contractual duties. The claimant shall be responsible for proving the intentional or grossly negligent fault.

5.8. The Client must indemnify F.M.P. from third-party claims asserted due to an act or omission of the Client vis-à-vis F.M.P. in contravention of the Contract.

6. Delivery, Complaints

6.1. Unless otherwise agreed in writing, delivery with discharging effect may be made to any adult member of the business or household present in the premises of the recipient or the contractually agreed delivery premises.

6.2. If damage to the work of art is visible externally on delivery, the recipient must note it, including specific details of the loss or damage in a confirmation of receipt to be signed by both parties. Damage not externally visible must be reported in writing without delay – 7 days after delivery at the latest. The claimant shall bear the burden of proof.

7. Payment, Offsetting, Statute of Limitations

7.1. Invoices are due for payment immediately. The Client shall be deemed in default of payment without requiring a reminder or other conditions 10 days after the invoice date at the latest. In the event of default, F.M.P. shall be entitled to charge interest at 10% and the customary local costs from the date on which the Client is deemed to be in default. F.M.P. reserves the right to provide evidence of higher damages.

7.2. On request, the Client shall indemnify F.M.P. immediately from freight claims, general average deposits or contributions, customs charges, taxes and other charges made against F.M.P. in particular as an authorised agent or as possessor of property of others.

7.3. Contractual claims subject to this agreement and associated non-contractual claims shall only be offset and withheld against undisputed counter-claims due for payment.

7.4. Based on all claims due and not due to F.M.P. from the performances to the Client subject to this Contract, F.M.P. shall have a right of lien and right of withholding on the goods or other values in its possession. The right of lien also covers accompanying documents. If the Client is in default, F.M.P. can sell such of the goods and values in its possession required by its discretion to satisfy its claims, without further formalities, after giving notice of its intention to sell such items.

Such formless sales can also be implemented if the Client cannot be identified in spite of research conducted. For sale of pledged items or self-help sale, F.M.P. can charge the usual sales commission on the gross revenue.

7.5. Irrespective of the legal grounds, claims shall expire after one year. The statute of limitations period shall begin on notification of the damage to the entitled party, but on delivery of the work of art at the latest. If the goods are not delivered, the statute of limitations shall begin at the end of the day on which the goods was to have been delivered.

8. Final Provisions

8.1. These Contractual Terms, as well as all legal relationships between the Client, recipient or claimant, shall be governed by the Law of the Federal Republic of Germany.

8.2. If the Client is a registered trader as defined by the German Commercial Code (HGB), a legal person under public law or a special fund under public law, the commissioned branch office of F.M.P. shall be the place of performance and exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.

8.3. Should a provision of these Contractual Terms or a provision of other agreements be or become invalid, the validity of all other provisions or agreements shall remain unaffected.