TERMS & CONDITIONS
1. DEFINITIONS
a. “Company” means Art Installation Design LLC d/b/a Waypoint Fine Art Services.
b. “Client” means any person or entity at whose request or for whose benefit the Company undertakes any business or for whom or to whom the Company provides any Service.
c. “Goods” means any property—including, without limitation, fine art, frames, crates, packing materials, and any component parts thereof—whether packed or unpacked, that Client tenders to Company for any Service.
d. “Services” means the storage, transportation, handling, installation, framing, packing, crating, and related professional services provided by the Company, as described in any Schedule A.
e. “Schedule A” means any written service order, estimate, or other document executed by the Company and Client that describes the Services, Goods, fees, and related job details for a particular project.
2. SCOPE OF TERMS & CONDITIONS
Any and all activities of the Company are undertaken subject to the terms and conditions set forth herein.
3. CLIENT’S REPRESENTATIONS AND AUTHORIZATIONS
Client represents and warrants to the Company that:
a. Client owns and/or is in lawful possession of the Goods.
b. Client has full and lawful authority to engage the services of the Company with respect to the Goods.
c. Possession, transportation, handling, and any transactions involving the Goods are not prohibited by applicable law.
d. The Goods are not hazardous unless that status is disclosed in writing and acknowledged by the Company.
e. A full and accurate written description of the Goods will be provided to the Company prior to commencement of Services.
f. The Goods will be lawfully and properly prepared, packed, and labeled; and if placed in any transport unit, that unit will be in good condition and fit for purpose.
g. The Company shall have safe and lawful access to collect, handle, and deliver the Goods.
h. The address stated in relevant documentation is correct unless changed with seven days’ written notice by Client.
i. Adequate insurance covering the Goods has been, or will be, obtained for the Goods and kept in effect throughout the period the Goods are in the Company’s custody.
The Company has the right to open and inspect the Goods to verify compliance, legal status, and safety. If violations of these warranties or safety concerns are found, the Company may refuse, sequester, return, dispose of, or otherwise lawfully address the Goods. The Company may subcontract or engage third parties as needed.
The Client shall indemnify, defend, and hold harmless the Company and its affiliates, directors, officers, employees, and agents from and against any claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from: (a) any misrepresentation or breach of warranty, (b) the Company’s good-faith compliance with instructions from the Client, and (c) and acts or omissions of the Client or their agents.
4. COMPANY’S REPRESENTATIONS
a. The Company will perform Services in a commercially reasonable and workmanlike manner but is not a guarantor of the Goods.
b. Transportation and other Services will be undertaken with reasonable dispatch, but the Company is not bound to meet any specific deadline unless specifically agreed to in writing.
c. Client acknowledges and agrees that Company may, at its sole discretion, subcontract the performance of any portion of the Services to third parties (each, a “Subcontractor”). If any part of the Services is subcontracted, the Company will reasonably and in good faith assign such Services to third parties. Each Subcontractor is an independent contractor and not an employee or agent of Company. To the fullest extent permitted by law, Company shall not be liable or responsible for any negligence, malpractice, misconduct, fault, errors or omissions in the performance of Services by any Subcontractor. When Subcontractor handles Goods, they do so subject to the same limitations of liability set forth in these Terms & Conditions.
d. NO WARRANTIES: Except as expressly set forth in a written warranty signed by Company, Company disclaims all warranties, express or implied, to the fullest extent permitted by law—including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, and workmanlike performance—regarding the Services and any Goods.
5. PAYMENT
a. Invoices are due upon receipt. Any balance remaining unpaid after sixty (60) days from the invoice date will accrue interest at a rate of 1.25% per month (15% annually), or the maximum rate permitted by law, until paid in full.
b. The Client agrees to pay all amounts owed to the Company, including but not limited to:
i. Service fees;
ii. Insurance (if applicable);
iii. Third-party charges;
iv. Freight, duties, labor, materials;
v. Liquidated damages (if applicable);
vi. Legal fees and collection costs;
vii. Any other applicable costs.
c. Cancellation / postponement fees:
i. With five (5) or more business days’ notice: 50% of estimate.
ii. With fewer than five (5) business days’ notice: 75% of estimate.
d. If the Company incurs any costs due to third-party claims, legal proceedings, or enforcement of these Terms & Conditions, the Client shall indemnify the Company for all such costs.
6. COMPANY’S LIABILITY AND LIMITATIONS
a. The Company shall only be liable for loss of or damage to the Goods resulting from its failure to exercise reasonable care in the performance of Services. The Company shall not be liable for any loss or damage caused by:
i. Acts of God, natural disasters, war, terrorism, pandemics, labor disturbances, governmental actions, power outages, equipment failures, weather conditions, traffic delays, or other circumstances beyond the Company’s reasonable control (collectively, “Force Majeure Events”). The Company’s performance shall be excused in the event of any such Force Majeure Event, and such failure or delay shall not constitute a breach of the Terms & Conditions by the Company. The Company will notify the Client promptly of any Force Majeure Event and will use commercially reasonable efforts to resume performance as soon as practicable;
ii. The nature of the Goods or inherent vice, including deterioration, rust, mold, vermin, or spontaneous changes;
iii. Fragile or sensitive items, including but not limited to electronics, musical instruments, glass, or similar materials, unless specifically accepted in writing and subject to special handling terms;
b. The Company shall not be liable for loss or damage to high-value, irreplaceable, or unique Goods unless (i) such Goods are specifically identified in writing before Services commence, (ii) the Company agrees in writing to accept them with declared value, and (iii) Client pays any applicable increased charges.
c. The Company will only procure insurance covering the Goods upon Client’s written request and payment of the associated premium. No insurance coverage shall be implied or provided unless expressly confirmed in writing by the Company.
d. COMPANY’S MAXIMUM LIABILITY FOR LOSS OF OR DAMAGE TO GOODS BY ANY CAUSE, INCLUDING NEGLIGENCE, SHALL NOT EXCEED US $1.00 PER POUND, AS DETERMINED BY THE ACTUAL WEIGHT OF THE UNWRAPPED PROPERTY, OR $500 PER SERVICES ENGAGEMENT IF THE WEIGHT OF THE GOODS IS UNKNOWN. IN NO EVENT SHALL THE COMPANY’S LIABILITY FOR LOSS EXCEED THE ACTUAL LOSS SUSTAINED, UNLESS CLIENT AT THE TIME OF ACCEPTANCE OF WAREHOUSE RECEIPT DECLARES A HIGHER VALUE FOR GOODS AND PAYS AN INCREASED CHARGE BASED ON THE DECLARED VALUE AND DOCUMENTS ITS ACTUAL LOSS IN ACCORDANCE WITH THE CLAIM FILING RULES SET FORTH BELOW. IF NO VALUE IS DECLARED, CLIENT SHALL RELEASE GOODS WITH COMPANY’S MAXIMUM LIABILITY FOR GOODS BEING $1.00 PER POUND. Any declared value may only be entered by Company and may not be altered without Company’s written consent. Company shall not be liable for loss of merchantability, consequential, exemplary, incidental, punitive or special damages.
e. Client must notify the Company in writing of any damage or shortage within five (5) days after completion of the Services. All formal claims must be filed in writing with the Company within thirty (30) days after the date the Services were performed. Any lawsuit against the Company arising out of the Services must be commenced within one (1) year after the cause of action accrues. No claim for loss or damage shall be considered unless all amounts owed to the Company have been paid in full. The amount of any claim may not be deducted from the total charges owed to the Company. The Company may inspect, repair, or replace damaged items at its option.
f. The Client assumes all risk of loss or damage to the Goods occurring while the Goods are outside the Company’s care, custody, and control.
7. COMPANY’S LIEN
Without waiving any applicable liens governed by U.C.C. §§ 7-209 and 7-210 or other applicable law, and pursuant to New York Lien Law §180, the Company shall have a lien on all Goods of Client held at the Company for charges due, and for expenses necessary and reasonably incurred for the protection or collection of any monies owed to the Company, including reasonable attorneys’ fees. This lien is superior to all other liens and security interests and is effective as of the date that Goods are tendered to the Company for Services. Client shall be deemed to be in default if any charges remain unpaid for more than ninety (90) days. Upon at least thirty (30) days’ written notice, the Company may dispose of the Goods in any manner permitted by law.
8. WAIVER OF SUBROGATION
To the fullest extent permissible under law, Client waives any and all rights of subrogation against Company arising from any loss or damage to the Goods to the extent such damage is, or is required to be, covered by insurance carried by Client. This waiver shall preclude the assignment of any claim for loss of or damage to Goods by way of subrogation to any insurance company. 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 these Terms & Conditions. Client agrees to immediately furnish its insurers with written notice of this 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. Failure to obtain or provide such endorsements does not affect the validity of this waiver. Client shall furnish Company with all applicable insurance policies on request. This waiver of subrogation shall survive the termination, cancellation, or expiration of these Terms & Conditions, any associated project documentation, or any separately executed agreement between Client and Company and shall remain in full force and effect regardless of the cause of termination.
9. JURISDICTION AND LAW
These Terms & Conditions shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict-of-laws principles. Client irrevocably consents to the exclusive jurisdiction and venue of (i) the United States District Court for the Southern District of New York and (ii) the state courts located in New York County, New York, for any action arising out of or relating to these Terms & Conditions. The Parties waive their right to a trial by jury. If any provision of these Terms & Conditions is held invalid or unenforceable, the remaining provisions shall remain in full force and effect. No amendment or modification shall be effective unless in writing and signed by both Parties.
10. CONTROLLING EFFECT AND MODIFICATIONS
These Terms & Conditions apply to and are incorporated into all orders, estimates, Schedules A, bills of lading, and other agreements between the Parties, unless otherwise stated in a separate written agreement signed by an authorized representative of the Company. These Terms & Conditions supersede any inconsistent provisions in prior or contemporaneous documents unless specifically modified in a signed writing. No modification, amendment, or waiver of any provision shall be effective unless in writing and signed by both Parties. The most current version of these Terms & Conditions is maintained at www.waypoint.art/terms.