ATELIER TERMS AND CONDITIONS

THESE TERMS AND CONDITIONS (“Terms”) SHALL GOVERN ALL TRANSACTIONS BETWEEN ATELIER AND CUSTOMER (together, “the Parties”) AND ARE SPECIFICALLY INCORPORATED BY REFERENCE INTO ALL AGREEMENTS, INCLUDING, BUT NOT LIMITED TO, ALL ESTIMATES, BILLS OF LADING AND STORAGE AGREEMENTS.

1. DEFINITIONS

“Atelier” shall mean Atelier Fine Art Services, Inc., Atelier Art Storage LLC, Atelier Delaware, LLC, and any of their affiliates, subsidiaries, divisions, and employees, and any affiliates hereafter formed.

“Customer,” “Shipper,” or “Depositor” shall mean the person or entity for whom Services are provided, and any agent, representative, or contractor thereof.

“Items” shall mean items in whole or in part, in a packed or unpacked state, that are tendered to Atelier for the performance of Services, and subject to the rules and limitations set forth herein.

“Services” shall mean any and all services provided by or on behalf of Atelier, including, but not limited to, storage of Items; building of crates; packing of Items; transportation of Items; installation and de-installation of Items; rigging of Items; compilation of collection inventories; production of condition reports; provision of collection care advice and recommendations; exhibition coordination; and provision of exhibition space.

“Bill of Lading” (hereinafter “BOL”) shall mean a document issued by Atelier evidencing the receipt of Items for shipment, transportation, storage, installation, or other Services.

“Consignee” shall mean the person, entity, or organization named in the BOL as the recipient of the Items.

“Storage Agreement(s)” shall mean the specific agreement(s) entered into between Atelier and Customer, if any, regarding the provision of Storage Services by Atelier to Customer.

2. CUSTOMER OBLIGATIONS, REPRESENTATIONS, AND WARRANTIES

(A) Customer represents that it has read and understands these Terms. Atelier is not responsible for explaining anything related to these Terms verbally.

(B) If Atelier is to receive Items that are packed by the Customer, it is the Customer’s responsibility to adequately pack and protect the Items to ensure safe storage, transportation, or other service.

(C) Customer will provide accurate information and properly label the Items in order to prevent delay or errant dispatch.

(D) Customer represents and warrants that it is the legal owner or authorized agent of the Items and of all rights therein, including the right and authority to consent to these Terms. Customer further warrants that the deposit of the Items with Atelier will not infringe upon or violate the rights of any person or entity. 

(E) Customer represents and warrants that neither the Items nor any accompanying packing materials pose any health or safety risks to persons, other property in Atelier’s possession, or Atelier’s facilities. Items shall not include contraband or illegal substances; firearms or munitions; items with insect or mold infestation; or explosive, chemical, noxious, hazardous, or dangerous items.

3. LIMITATION OF LIABILITY

(A) Subject to Subsection 3(B) of the Terms (immediately below), Atelier assumes no liability for loss or damage to any Items and Customer expressly waives any rights to seek recovery for any loss or damage to the Items from Atelier.  Customer waives any rights of subrogation that any party may have with respect to any loss or damage to the Items.  In consideration of the rates charged, Atelier’s maximum liability by any cause is limited to sixty cents ($0.60) per pound per article, as determined by the actual weight of the unwrapped Items, up to two-thousand dollars ($2,000.00). Atelier shall not be liable for any claim in excess of sixty cents ($0.60) per pound per article for any reason. 

(B) Atelier’s liability for loss or damage to the Items may be increased upon: 

1. Atelier’s inspection of the Items to establish the condition of the Items prior to providing any Services;

2. Atelier’s express approval following the inspection of the Items to increase Atelier’s liability;

3. Customer signature of an Estimate listing the amount of Increased Contractual Liability (“ICL”) for each Item(s); and

4. Customer’s agreement to pay an ICL Fee.

Where conditions (1) through (4) are met, Atelier’s liability for loss or damage to the Items will be increased to the amount specified in the Customer’s written declaration ((3) above). 

(C) Customer acknowledges that it has been offered the opportunity to increase Atelier’s liability and that, in the absence of the satisfaction of all conditions specified in Subsection 3(B) of the Terms (immediately above), Customer has elected the limitation of liability set forth in Subsection 3(A) of the Terms (above).

4. EXCLUSIONS

Under no circumstances shall Atelier be liable for: (a) loss or damage to accounts, bills, deeds, evidence of debts, letters of credit, passports, tickets, documents, notes, securities, currency, money, bullion; (b) wear and tear, gradual deterioration, moths, insects, vermin and inherent defect of the Property; (c) any liability arising from any work done in the course of any refinishing, renovating, repairing, restoring, reframing or similar process; (d) loss of market, delay, loss of use, or any consequential loss; (e) in no case shall AFAS be liable for damage or loss directly or indirectly caused by or contributed to by or arising from (i) ionising radiations from or contamination by radioactivity from any nuclear fuel or from any nuclear waste or from the combustion of nuclear fuel; (ii) the radioactive, toxic, explosive or other hazardous or contaminating properties of any nuclear installation, reactor or other nuclear assembly or nuclear component thereof; (iii) any weapon of war employing atomic or nuclear fission and/or fusion or other like reaction or radioactive force or matter; (iv) loss or damage directly or indirectly occasioned by, happening through or in consequence of war, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, military or usurped power (other than while in the course of overseas transit) or confiscation or nationalisation or requisition or destruction of or damage to property by or under the order of any government or public or local authority; (v) Acts of Terrorism other than while in the course of transit; (f) in no case shall AFAS be liable for any fines or penalties imposed by any court or public authority

5. WAREHOUSE’S LIEN

(A)  Atelier shall have a lien on all Items deposited by Customer or on the proceeds thereof in Atelier’s possession, for any and all charges associated with any Services provided to Customer, including, but not limited to, storage, transportation, Increased Contractual Liability, and labor, as well as all costs and expenses which are necessary to preserve the Items or are reasonably incurred in their sale pursuant to Article 7 of the Uniform Commercial Code (UCC) and any applicable law.

(B)  Upon making a good faith attempt to notify Customer and any known person claiming an interest in the Items, this lien may be enforced by public or private sale of the Items in block or parcel, at any time or place and on any terms which are commercially reasonable, pursuant to Article 7 of the UCC and any applicable law, without judicial hearing. 

(C)  If Atelier, in good faith, believes that stored Items are abandoned and are about to deteriorate or decline in value to less than the amount of Atelier’s lien before the end of the next succeeding storage month, Atelier may provide immediate demand for removal of the Items with payment of outstanding charges, and in case the Items are not removed by such specified date, may sell them at public or private sale as provided by law. Customer acknowledges that this shall not relieve Customer of its obligation to pay outstanding charges.

6. ADDRESS OF CUSTOMER

Customer agrees that the address that is initially provided by the Customer to Atelier shall be relied upon by Atelier for all purposes until change of address is given to and acknowledged by Atelier in writing (via hard copy or electronic mail). Notice of any change of address shall not be valid or binding against Atelier if given or acknowledged in any other manner. 

7. INVENTORY

(A) Customer shall provide Atelier with an itemized inventory of the Items to be incorporated into the BOL and/or Storage Agreement. The inventory shall include: any owner-generated identification or reference numbers, artist/maker, title/description, date of creation, medium, dimensions, and any condition notes.  The descriptions of the Items in the itemized inventory are for informational purposes only.

(B) Atelier shall be released from providing or completing any and all Services related to Items which are omitted from the BOL and/or Storage Agreement. 

8. ESTIMATES

(A) Estimates and quotations are based upon the information provided by Customer. Atelier maintains the right to withdraw or revise any estimate, whether issued verbally or in writing. Estimates are valid for thirty (30) calendar days.

(B)Final costs may vary depending upon actual time and work conditions. Should any changes occur in regards to the rate of Services or any other charges that are applicable to the Items, then estimates and charges shall be subject to immediate revision. Atelier may make such revision with or without notification to Customer, even after Atelier has accepted the Items.

(C) Conditions which nullify estimates and cause rate adjustment may include, but are not be limited to, the following: Additional volume (larger or heavier Items), special handling or equipment, additional pick-ups, deliveries, administration, labor, materials, crating, or storage; delays or cancellations (either known or unforeseen) due to waiting time, poor access or non-availability of Items; lack of preparation, planning, information, communication, errors, or omissions made by Customer or Consignee.

9. CANCELLATIONS

Cancellations made two (2) business days prior to the day of the scheduled Services will incur a cancellation fee of twenty-five percent (25%) of the estimated total charges. Cancellations made one (1) business day prior to or on the day of the scheduled Services will incur a cancellation fee of fifty-percent (50%) of the estimated total charges.

10. LATE FEES AND INTEREST

All payments for charges incurred on Customer’s account are due and payable upon invoice by Atelier. Interest will be charged on all accounts unpaid for a period of thirty (30) days after they become due. All accounts past due will be charged interest at the rate of three percent (3%) per month (or the highest rate of interest allowed by law) for each month thereafter until charges are fully paid. The Customer shall be responsible for and indemnify Atelier against all costs and expenses incurred in the enforcement of these Terms, including without limitation, the costs of any collection proceedings, the fees and expenses of a collection agency, attorney’s fees, and court costs, in attempting to collect from Customer any outstanding charges by reason of non-payment when due.

11. LABOR, MATERIAL, AND CHARGES

Atelier will charge for labor and material supplied on all Items for which Services are performed at its prevailing rates. Customer agrees that it will promptly pay Atelier for any such services rendered. Despite the acceptance by Atelier of instructions to collect duties, charges, or other expenses from a Consignee or any third party, Customer shall remain responsible for all such duties,  charges, or expenses and shall immediately pay the same to Atelier upon receipt of demand and in the absence of evidence of payment (for whatever reason) by such Consignee or third party when due.

12. DELIVERY TO CUSTOMER

When providing transportation services, Atelier shall be obligated to transport the Items in accordance with the timeline outlined in the Estimate. Otherwise, time shall not be of the essence in the delivery of any Items unless specifically agreed otherwise in writing by Atelier. Any part or all of said Items stored pursuant to a Storage Agreement shall be delivered to Customer only upon receipt of written instruction, signed by Customer, along with payment in full for accrued charges, including interest, if any. In the event of a failure or refusal to accept delivery, Atelier shall have a lien against such Items and the right to dispose of such Items in accordance with these Terms. In addition, if delivery is not accepted, for any reason, Customer agrees that Atelier shall charge Customer for, and Customer agrees to pay, all expenses incurred as a result of the failure to accept the Items, including, but not limited to, the costs of redelivery and storage of the Items.

13. CLAIMS

(A) Customer acknowledges and agrees that it is the responsibility of Customer, Shipper, and/or Consignee to note in writing any loss or damage to Items at the time of transfer, release, or delivery. 

(B) All claims by Customer for damage or loss to Items during transit must be submitted to Atelier in writing within seven (7) days from (i) the date of delivery or (ii) the date on which delivery should have occurred, whichever is later. 

(C) All other claims by Customer for any loss, damage, injury, expense, or delay must be submitted in writing to Atelier within seven (7) days from any of the following, whichever comes first: (i) the date of transfer, release, or delivery or the date the Services were completed, (ii) the date on which transfer, release, or delivery should have occurred or the date the Services should have been completed, (iii) the date on which Customer received written or oral notice from Atelier of the loss, damage, injury, expense, or delay at issue, or (iv) Customer’s knowledge of the loss, damage, injury, expense or delay. 

(D) Claims not reported within seven (7) days of the delivery date or other date set forth in Subsection (B) and (C) of this Section shall be deemed waived.

(E) Atelier reserves the right to inspect all Items and packing materials that are being made subject to a claim. It is the responsibility of Customer to retain the Items in the original container(s) or materials and to make such Items and materials available to Atelier or its insurance company for inspection. Failure to do so will constitute a release of any liability of Atelier.

14. FILING OF ACTIONS

(A) Subject to Atelier’s receipt of timely notice of a claim, pursuant to Section 13 (Claims) above, all suits, actions, or proceedings arising from or related in any way to the Services provided by or on behalf of Atelier or these Terms shall be filed against Atelier within three (3) months of any of the following, whichever comes first: (i) the date of transfer, release, or delivery or the date the Services were completed, (ii) the date on which transfer, release, or delivery should have occurred or the date the Services should have been completed, (iii) the date on which the Customer received written or oral notice from Atelier of the loss, damage, injury, expense, or delay at issue, or (iv) Customer’s knowledge of the loss, damage, injury, expense or delay. 

(B) In the event that any limitation period set forth in Subsection (A) above violates the compulsory or restrictive provisions of any applicable law, statute, regulation, treaty, or convention, all suits, actions, or proceedings must be filed against Atelier within the shortest allowable period set forth therein.

15. SUBCONTRACTORS

Customer and Atelier agree that Atelier may engage any subcontractor, agent, or other third party independent contractor (i) to undertake any and all Services requested by Customer, (ii) to perform services which, in the sole opinion of Atelier, are necessary or desirable in connection with the Services requested by Customer, or (iii) to perform services which, in the sole opinion of Atelier, are necessary or desirable in the performance of its obligations or in the interests of the Customer. In the event of Atelier engaging a subcontractor for all or part of the Services to Customer, all other conditions of these Terms, including the limitations of liability, shall apply.

16. SEVERABILITY

In the event any Section(s) or portion(s) of these Terms are found to be invalid or unenforceable, the remainder hereof shall remain in full force and effect.

17. RELATIONSHIP BETWEEN THE PARTIES

When and to the extent that Atelier, in accordance with these Terms, is acting as an agent on behalf of Customer, Atelier shall be entitled and Customer hereby expressly authorizes Atelier to enter into contracts on behalf of Customer for the carriage, storage, packing, shipment, loading, unloading or handling of the Items or to do such acts as may, in the opinion of Atelier, be necessary in the performance of its obligations in to the Customer. 

18. INDEMNIFICATION

Customer agrees, to the fullest extent permitted by law, to defend, indemnify, and hold Atelier harmless for any claim, action, proceeding, liability, loss, damage, and expense, including, but not limited to, attorney’s fees, (i) caused by, arising from, or related in any way to Customer’s Items; (ii) concerning title to the Items, lawful possession of the Items, or right of possession of the Items; or (iii) caused by, arising from, or related in any way to an act or omission of the Customer.

19. LAW AND JURISDICTION 

These Terms and any act or contract or transaction to which they apply shall be governed by the laws of the Delaware without regard to the principles of conflicts of law. Any dispute arising out of any such act or contract or transaction to which these Terms apply shall be subject to the exclusive jurisdiction of the Courts of Delaware.

20. INCORPORATION AND MODIFICATION 

(A) These Terms shall be deemed to be incorporated by reference into any BOL, Estimate, Storage Agreement, or any other agreement signed by the Parties. Together said agreements represent the entire agreement of the Parties, including, but not limited to, the rates and conditions as enumerated in the BOL or Storage Agreement, and shall apply to all Services performed by Atelier for the Customer. 

(B) Only Atelier has the right to alter the face of the BOL or Storage Agreement. In the event that any Customer, Consignee, or agent thereof alters the BOL or Storage Agreement, specifically by making omissions or additions without Atelier’s knowledge or approval, Atelier shall be released from providing any and all Services. This may affect, but not be limited to, the charges for such Services. 

(C) In the event of a conflict between the written terms of the BOL or Storage Agreement and these Terms, the terms of the BOL or Storage Agreement shall control and be deemed to apply. 

21. TERM AND TERMINATION

These Terms shall begin on the date the Estimate is approved by Customer, whether verbally or in writing, or the date of execution of BOL or the date of execution of the Storage Agreement, whichever is earliest. These Terms shall continue on a month to month basis, until terminated as provided herein, and may be terminated at any time, with or without cause, upon thirty (30) days written notice. Termination by either party shall not affect Customer’s obligations to pay Atelier for charges incurred.

ATELIER TERMS & CONDITIONS