General Terms and Conditions Art
(Status: 10 October 2016)
Preamble
These General Terms and Conditions of Contract (hereinafter: ‘GTCC Art’) govern the respective contractual relationship between ARTSECO and its contractual partner (client or contractor). They apply both to commercial transactions and to contractual relationships with non-merchants or consumers; the latter, however, only insofar as the individual provisions do not conflict with mandatory statutory consumer protection regulations. The AVB-Kunst shall also apply to future contracts, even if they are not expressly agreed again.
1 Scope of application
1.1 Unless otherwise clarified in the following provisions of these GTC (Sections 10.2, 12.2 and 13; validity for all contractual partners), the GTC apply to all contractual relationships in which ARTSECO as contractor is commissioned by the client to provide transport, forwarding, warehousing and/or logistics services – in particular with regard to works of art – or services related to these (e.g. transport, forwarding, warehousing and/or logistics services). related services (e.g. packaging, mounting and dismounting or assembly of goods, collection of cash on delivery, export declarations, import clearance, brokering of travel contracts, procurement of transport and property insurance, including in the case of independent contracts for work and labour).
1.2 Unless otherwise agreed in text form, the goods to be handled by ARTSECO (transport goods, stored goods, etc.) may not consist of dangerous goods (hazardous goods within the meaning of the Hazardous Goods Ordinance, other dangerous goods), money, securities, animals, weapons and weapon parts or body parts.
2 Obligations of the customer
2.1 When placing the order, the customer must inform ARTSECO in text form of the addresses, marks, numbers, number, type and content of the packages, dimensions, weights, properties and the space conditions at the pick-up and destination locations. It shall ensure that, in the case of transport, the pick-up point and the delivery point on the private premises of the pick-up address or delivery address are readily accessible during normal business hours – outside of these: at the agreed pick-up or delivery time.
2.2 When placing the order, the customer shall inform ARTSECO in text form of the actual value of the goods to be handled (e.g. transported goods, stored goods) as well as the risks recognisable to it in the event of possible deficiencies in performance (e.g. loss of profit, loss of production, contractual penalties) and shall quantify these. This does not imply an increase in the limitation of liability or an order to take out transport insurance.
2.3 Insofar as the customer can recognise risks for the goods to be handled by ARTSECO (e.g. increased risk of theft, increased sensitivity of the goods), it is the customer’s responsibility – irrespective of any responsibility of ARTSECO – to commission special measures to mitigate these risks (e.g. transport with a box van and/or two drivers, direct transport without transshipment and additional loading).
2.4 Missing or incorrect information within the meaning of clauses 2.1 to 2.3 may lead to contributory negligence.
2.5 The customer must pack and label the goods for safe transport, taking particular account of the stresses and risks of groupage transport, unless packaging by ARTSECO has been agreed in text form between ARTSECO and the customer. This agreement must have been made either specifically for this transport or expressly for all transports; the mere fact that a previous consignment was packed by ARTSECO – whether with or without an agreement – is not sufficient in this respect. If a consignment is packed by ARTSECO in accordance with the order, ARTSECO is entitled to demand customary and reasonable remuneration for this.
2.6 Unless otherwise agreed in text form, the customer is responsible for obtaining export licences and for import clearance. If ARTSECO is commissioned in deviation from this, ARTSECO is entitled to demand a customary fee for this.
2.7 If ARTSECO has to make payments to third parties (e.g. compensation for damages, import duties) which the customer has to reimburse to ARTSECO, the customer is obliged to indemnify ARTSECO upon request.
3 Limitations of liability for damage to goods in transport and forwarding contracts
3.1 Within the scope of application of Section 431 (1) HGB – including Sections 458 to 461 (1) HGB – no limitations of liability deviating from the law are agreed.
3.2 Within the scope of liability under maritime law – directly pursuant to §§ 498 et seq. HGB or indirectly in the case of multimodal transport in accordance with § 452 a HGB – ARTSECO is not responsible for the fault of its personnel and the ship’s crew if the damage was caused by behaviour in the management or other operation of the ship, but not in the execution of measures taken primarily in the interest of the cargo, or by fire or explosion on board the ship.
4 Limitation of liability for ordered storage
4.1 In the case of warehousing by order, the limitation of liability for damage to goods (loss of or damage to the stored goods) is agreed by these GTC Art at 8.33 special drawing rights per kilogramme of the damaged part of the goods. Liability is in any case limited to EUR 25,000.00 per claim.
per claim. Section 429 of the German Commercial Code (HGB) shall apply accordingly to the calculation of the damage to the goods.
4.2 The limitation of liability for damage not caused by loss of or damage to the stored goods – with the exception of personal injury and material damage to third-party goods – is agreed by these AVB-Kunst at three times the amount that would be payable in the event of loss of the stored goods, up to a maximum of EUR 25,000.00 per claim.
5 Other limitations of liability, mediation of services
5.1 For all claims of the customer not covered by clauses 3 and 4 of these GTC Art, the limitation of liability by these GTC Art is agreed at EUR 25,000.00 per claim, up to a maximum of EUR 100,000.00 per loss event. This also applies if several injured parties have acquired claims against ARTSECO as a result of a damaging event. However, if ARTSECO is liable for damage to an object of art – for example in connection with the hanging of a painting – outside of the liability under transport, forwarding or storage law within the meaning of Section 3.1, the following applies 3.1 of these AVB-Kunst shall apply accordingly.
5.2 With the exception of the limitations of liability and other limitations of liability under transport law regulated in clause 3, an upper limit of EUR 1,000,000.00 per year for all claims of a client and EUR 2,000,000.00 per year for the claims of all clients or injured parties is agreed in these GTC Art.
5.3 If the maximum amounts per loss event or per year specified in this Section 5 are not sufficient to satisfy the claims of all injured parties, their claims shall be satisfied in the respective ratio to the authorised total claims until the respective maximum amount is reached.
5.4 Insofar as ARTSECO only arranges service contracts on the basis of a contractual agreement – for example furniture assembly by third-party contractors – ARTSECO is only liable for the proper selection of these contractors.
6 Cessation of limitations of liability
6.1 The limitations of liability set out in Sections 4 and 5.1 to 5.3 do not apply if the damage was caused by intent or gross negligence on the part of the management or a senior employee of the company commissioned by ARTSECO. Furthermore, they do not apply if the damage is caused by intentional or grossly negligent – in the case of contracts with consumers: also simply negligent – breach of material contractual obligations of other vicarious agents, whereby the respective claim for compensation is then limited to the foreseeable, typical damage. Material contractual obligations are obligations whose fulfilment is essential for the proper performance of the contract and on whose compliance the contractual partner may regularly rely.
6.2 Whether and under what circumstances the limitations of liability set out in clause 3 do not apply shall be determined by the applicable statutory provisions.
7 Non-contractual claims
All provisions on limitations of liability regulated above in these AVB-Kunst also apply – subject to mandatory statutory provisions to the contrary – to non-contractual claims and also in favour of ARTSECO’s vicarious agents.
8 Extension of liability, insurance
8.1 All of the aforementioned limitations of liability may be replaced by deviating amounts or provisions by means of an express individual agreement concluded in text form. The designation of a specific value of the goods or an interest alone is not sufficient for such an agreement. If such an agreement is made, ARTSECO is entitled to demand separate remuneration for this at its own reasonable discretion and in accordance with Sections 315 and 316 BGB.
8.2 ARTSECO shall procure insurance for the goods, for example transport or storage insurance, only on the basis of an agreement concluded in text form, stating the sum insured and the risks to be covered. In case of doubt, ARTSECO decides on the type and scope of the insurance at its own discretion and takes out the insurance at standard market conditions. ARTSECO is entitled to special remuneration and reimbursement of its expenses for the provision of insurance.
9 Delivery, complaints
9.1 Unless otherwise agreed in text form, delivery may be made with discharging effect to any adult person belonging to the business or household and present on the recipient’s premises.
9.2 If the customer wishes to instruct ARTSECO to collect the consignment itself from the receiving warehouse, it must inform ARTSECO of the first and last name of the person collecting the consignment and thus authorised to receive it in text form at the latest when placing the order. If more than one person is authorised to collect, this applies to each of these persons. Changes to the person(s) authorised to collect must be communicated in good time before collection so that they can be taken into account in the normal course of business. The consignment will only be handed over to one of the persons notified and only on presentation of an official photo ID of this person. The consignment must be collected from the receiving warehouse no later than Friday, 2.00 pm, after arrival of the consignment. The usual storage charges may be levied for later collection. This does not apply if the arrival of the consignment at the receiving warehouse has been delayed by at least one day and the sender or recipient has not been informed of this at least one day before the aforementioned collection deadline.
at the latest.
9.3 The client must ensure that upon delivery or handover to the recipient, externally recognisable damage to the goods is reported immediately, but at the latest within one day of delivery or handover, and externally unrecognisable damage within 14 days of delivery or handover at the latest. If the damage is reported after delivery or handover, it must be in text form and describe the damage. If it is not made in due time, claims for damages based on the damage or partial loss of the goods shall lapse. This applies in particular to storage. In the case of transport, the relevant statutory provisions on notifications of damage shall apply instead.
10 Due date, offsetting, retention
10.1 ARTSECO is entitled to demand a reasonable advance payment. Storage fees must be paid monthly in advance by the third working day of each month at the latest.
10.2 With regard to all contractual partners, offsetting or retention against ARTSECO’s claims is only permitted with due counterclaims that are undisputed by ARTSECO or have been legally established. In the case of contracts with consumers, this applies with the restriction that the right of retention in relation to counterclaims from the same contractual relationship remains unaffected.
11 Other provisions of the storage contract
11.1 ARTSECO may store the goods in its own or third-party premises. The customer may request in text form that, in the event of storage on third-party premises, it be informed of this and of the storage location without delay.
11.2 If the storage contract has been concluded for an indefinite period, it may be terminated by either party with one month’s notice to the end of the month.
12 Statute of limitations
12.1 The limitation period for claims under transport, forwarding and warehousing law shall be governed by the statutory provisions. Notwithstanding § 475 a sentence 1 HGB, however, the limitation period for claims for damages by the client also begins as soon as the client becomes aware of the damage. The latter does not apply to contracts with consumers.
12.2 For all other claims of the contractual partner against ARTSECO – such as claims in connection with the assembly of furniture – the limitation period is one year and begins when the claim arises.
13 Final provisions concerning all contractual partners
13.1 These contractual terms and conditions and the entire legal relationship between the contractual partner and ARTSECO shall be governed by the law of the Federal Republic of Germany.
13.2 If the contractual partner is a registered trader within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Cologne. For claims against ARTSECO, this place of jurisdiction is exclusive, insofar as mandatory statutory provisions – for example in accordance with the provisions of the CMR – do not conflict with this.
13.3 Should individual provisions of these GTC Art be invalid, this shall not affect the conclusion of the contract and the validity of all other provisions of the GTC Art.
13.4 Other General Terms and Conditions of Business shall not apply, even if they are accepted without objection and insofar as they contain clauses that do not contradict these AVB-Kunst.
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