Standard Terms and Conditions
These Standard Terms and Conditions shall govern and apply to all services, transactions, and agreements between Art Conservation Associates, Inc, a New York/New Jersey corporation whose principal business address is 888 Newark Avenue, Suite 511, Jersey City, NJ 07306 (hereinafter “ACA”) and Clients, and are incorporated by reference into all agreements, including but not limited to all Conservation and Restoration Services Proposals and Services Agreements.
1. DEFINITIONS: “ACA” collectively refers to ACA and its employees, subcontractors, independent contractors and agents. “Object(s)” include but are not limited to art work, sculptures, and other related property. “Client” is the person(s), company or organization, who retains ACA to transport, store, and/or conserve and perform Services upon Object(s) and is liable to remit payment for services.
2. SERVICES: ACA’s Services include, but are not limited to: transportation, storage, examination, restoration, conservation, repair, and treatment of Objects. Services shall be specified in writing on the executed Conservation and Restoration Proposal (“Proposal”). Each time Services are requested or modified, a new Proposal shall be executed and shall incorporate these terms and conditions. ACA may accept assignments verbally or via electronic correspondence at its discretion. In addition to the Services agreed upon in each Proposal, ACA may determine at its own discretion that additional Services are required, and request written and/or oral authorizations from Client to perform such Services. Any such Services are subject to the terms and conditions of this Agreement and ACA’s Standard Terms and Conditions.
3. CLIENT AUTHORITY: Client expressly warrants and represents that Client, their art advisors, and agents have authority to obtain Services and to enter into Agreements and Proposals with ACA with respect to Object(s).
4. CONFIDENTIALITY: ACA agrees to keep confidential and to not disclose to any third party, other than such Party’s attorney(s), accountants, and entities or persons relating to the Object(s), Proposals, Services, or Client’s identity, unless compelled or required to do so by government subpoena, applicable law, regulation or legal process; provided, however, that Client agrees that ACA may disclose information concerning the Services for teaching and/or educational purposes. Client acknowledges and agrees that ACA’s Proposals are the sole and exclusive property of ACA Client agrees not to contact ACA’s employees and/or independent contractors, for any reason concerning or relating to Object(s), Proposals, or Services.
5. LIMITATION OF LIABILITY: ACA’S MAXIMUM LIABILITY FOR LOSS OR DAMAGE TO OBJECT(S) BY ANY CAUSE WHATSOEVER, EXCEPT IN CASES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IS LIMITED TO THE TOTAL COST OF SERVICES PAID BY CLIENT OR $500.00, WHICHEVER IS LESS, BUT IT SHALL NOT EXCEED THE ACTUAL LOSS OR DAMAGE. Client agrees that Client is responsible to insure Client’s Artwork(s) against all perils of whatsoever nature. ACA shall not be liable for consequential, special, or punitive damages, including, but not limited to, loss caused by delay, loss of revenue, income, profit, diminution of market value, and /or utility, and emotional distress whether or not ACA had knowledge that such damages may have been incurred.
6. TERM AND TERMINATION: The terms of these Standard Terms and Conditions shall begin on the date of approval of the Proposal or Agreement, or the date that Client’s Object(s) are in the possession of ACA, whichever sooner. These Standard Terms and Conditions shall apply to all services, transactions, and any other activity performed or undertaken by ACA and/or Client. Termination by either party of an Agreement or Proposal shall not affect Client’s obligation to pay ACA for charges incurred. Object(s) may not be removed from ACA until Client pays ACA’s final invoice through the date of termination.
7. RATES, FEES, AND INTEREST: Client shall be solely responsible for all ACA’s Fees for Services as set forth in each Proposal. All payments for charges incurred on Client’s account are due and payable upon invoice by ACA. All reports, photographs, and correspondence remain the sole property of Art Conservation Associates, Inc., until full payment is received. Reports, photographs, and correspondence may be rescinded from authorized users should payment not be received within 30 days of issuance.
8. SUBCONTRACTING: Client acknowledges and agrees that ACA may subcontract the performance of Services to Third Parties (“Subcontractors”). ACA shall not be liable or responsible for any negligence, malpractice, fault, errors or omissions in the performance of Services by Subcontractors. When Subcontractor physically handles or performs Services upon the Object(s), they do so subject to the limitations of liability set forth herein.
9. ACCESS: Client shall at no time be permitted access to their Object(s) without prior notice and approval from ACA All persons must be accompanied by a ACA employee while in ACA’s Studio and/or while viewing Object(s).
10. APPLICABILITY TO SERVICES PERFORMED OFFSITE: These Standard Terms and Conditions, each Proposal, and each Agreement’s Terms and Conditions shall apply to all Services performed by ACA for Client, including Services performed at ACA’s studio and /or Services performed offsite.
11.THIRD PARTY ACTIONS TAKEN AGAINST ACA: Should any legal actions be served on and/or taken against ACA and/or its employees, relating to Client’s Objects, including but not limited to Subpoenas and Warrants, Client agrees to pay ACA’s attorneys’ fees incurred as a result of ACA’s attorneys’ defense of and/or compliance with said actions.
12. NO WARRANTIES AND NO GUARANTEES: ACA makes no guarantees of success or effectiveness of any Services, and does not make any warranties, express or implied, as to any Services performed by ACA Client acknowledges and agrees that Client assumes responsibility for the results of Services.
13. NOTICE OF CLAIM AND FILING OF SUIT: Claims for loss or damage must be made in writing to ACA within five (5) days of discovery of damage. No actions or lawsuits shall be commenced by Client unless a written claim has been filed with ACA as a condition precedent. Client agrees to retain all packaging, crates, frames and containers and their contents in the same condition they were in when damage was discovered. Any action or lawsuit brought against ACA arising from Services must be commenced within one (1) year of the completion of Services or the date the damages to the Object(s) were discovered (whichever sooner).
14. WAIVER OF SUBROGATION: Client hereby waives any and all rights of recovery against ACA, its officers, members, agents and employees, occurring and or arising out of any loss or damage to the Object(s) to the extent such loss or damage is covered by insurance. 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 this Agreement with respect to any loss of, or damage to the Object(s). Inasmuch as the above waiver will preclude the assignment of any aforesaid claim for loss of, or damage to Object(s) by way of subrogation to an insurance company, the Client agrees to immediately furnish its insurers with written notice of the terms of said 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. Client shall furnish ACA with all applicable insurance policies on request.
15. INDEMNITY AND HOLD HARMLESS: Client shall defend, indemnify and hold ACA harmless from and against any and all claims, liabilities, damages, losses and judgments, incurred or brought by third parties and/or insurers, including attorneys’ fees and costs and expenses incident thereto, which may be incurred by or recoverable from ACA by reason of loss or damage to the Object(s).
16. RIGHT TO AMEND: ACA reserves the right to amend, modify and/or otherwise change at any time, without prior notice of any kind, these Standard Terms and Conditions. Client agrees to abide by the most recent version of these Standard Terms and Conditions.
17. CHOICE OF LAW: This Agreement shall be governed according to the laws of New York without reference to its choice of laws.
18. JURISDICTION: Client agrees that any action arising from this Agreement shall be brought exclusively in the Federal and/or the State Courts of New York in New York County.
19. SEVERABILITY: In the event any Paragraph(s) and/or portion(s) hereof are found to be invalid and/or unenforceable, the remainder hereof shall remain in full force and effect.
Appraisal Reports
20.Travel time, inspection, photography, research, written and verbal correspondence, generation of written documents, and file administration are billed at $250.00 per hour, or at a pre-negotiated flat fee.
21. Authentication is not part of the general appraisal process. Upon arrangement, authentication can be facilitated at a rate of $250.00 per hour, or at a pre-negotiated flat fee.
22.Our minimum fee structure is as follows:
a. Inspections within Manhattan: 3 hours minimum for travel/inspection, plus applicable research and report fees.
b. Inspections outside Manhattan: 4 hours minimum for travel/inspection, plus applicable research and report fees.
c. Desk appraisals with no inspection: 3 hours minimum.
23. Cancellation of an assignment prior to the issuing of a report may be subject to fees for time spent between the date of assignment and the date of cancellation.
24. We request an approximate count of items prior to inspection. Should a significant number of additional items be presented at the time of inspection that fall within the scope of the assignment, we will make one attempt to contact the client. If we are unable to contact the client, time permitting we will inspect the additional items and bill accordingly. Otherwise we will offer the option of a second inspection at a later date.
25. The assigning party accepts responsibility and liability for payment of all fees due for appraisal reports, unless written acceptance of responsibility by another party is submitted. Third party payments are accepted, but should the underwriter, carrier, or other third party fail to submit payment in a timely fashion, responsibility and liability for the bill remains with the assigning party. Payment for reports is due immediately upon issuance of the report and should not be dependent on the settlement of the claim or payment to the assigning party by a third party.
26. Appraisal reports are subject to all terms and conditions listed as numbers 1 through 19 in this document.
Restoration Estimates/Restoration Reports
27. Works of art should not be opened/unframed on-site due to the risk of contamination. Restoration estimates and appraised values based on on-site inspections are subject to change if/when the items have been opened and fully inspected in the studios of ACA.
28. If items are transported to the studios of ACA for the purposes of a restoration and/or a restoration estimate, the works of art must be opened/unframed, photographed, and inspected prior to the issuance of an estimate. This will be billed at a rate of $250.00 per hour, or at a prearranged flat fee.
29. The following elements can be included in the written restoration estimate/report at a charge of $250.00 per hour, or at a prearranged flat fee, as required by the client, owner, or representative:
a) Brief description or single photograph, recommended treatment, and fee for treatment range, for each item.
b) In-depth assessment of previous condition, new damage, recommended treatment, and fee for treatment, including detail photographs.
c) Appraisals of items included in the claim.
30. If an appraisal for each item is not requested, ACA will not determine or advise if the fee for treatment exceeds the value of the item, and no values will be provided for items deemed non restorable.
31. Any fees billed for the generation of restoration estimates are not deductible from the fees billed for restoration, should restoration be undertaken.
32. If items are transported to the studios of ACA for the purposes of a restoration estimate, damaged frames and framing materials that show a risk of contaminating our facilities will be treated as a total loss and will be discarded. Written permission to do so must be granted by the carrier and the owner prior to arrangement for pickup. The discarded framing materials will be photographed, and small samples retained, prior to disposal.
33. Storage and/or facility charges commence from the date of arrival at ACA facilities. Thirty (30) to sixty (60) days may be deductible from the final bill for the period of report/appraisal and/or restoration.
34.If the items were transported to the studios of ACA, the owner, client, or representative is offered the opportunity to inspect the items prior to redelivery, and/or at the time of delivery. Should the client or representative fail to inspect and sign a certificate of satisfactory condition upon delivery, the client has five (5) days from the date of delivery to notify ACA of any condition issues. ACA assumes no liability for condition issues once the items have been out of their care, custody, and control beyond this five-day period.
35. The assigning party accepts responsibility and liability for payment of all fees due for restoration estimates, unless written acceptance of responsibility by another party is submitted. Third party payments are accepted, but should the underwriter, carrier, or other third party fail to submit payment in a timely fashion, responsibility and liability for the bill remains with the assigning party.
36. Cancellations or changes made more than 24 hours after booking, and/or less than 7 days prior to the scheduled date, will be subject to a change fee calculated as a percentage of the total fee. Individuals are responsible for this cancellation charge if not covered by their insurance carrier.
37. Restoration reports are subject to all terms and conditions listed as numbers 1 through 19 in this document.
Transportation to ACA Facilities
38. ACA utilizes third-party art movers and handlers. Charges for packing and transportation will be paid to the third-party art movers directly by ACA, and subsequently billed to the owner or underwriter by ACA
39. A handling/administrative fee of $250.00 per hour may be applicable. This covers the time spent in arranging for the pickup/redelivery, correspondence regarding the pickup/redelivery, receiving the property, placing the property in storage, and returning the property to the art handlers.
40. A count of items will be provided to the owner or representative at the time of pickup. Photography of the items at the time of pickup, or an itemized inventory/receipt at the time of pickup, can be provided only with advance request at a charge of $250.00 per hour in addition to the base transportation charge.
41. Transportation is subject to all terms and conditions listed as numbers 1 through 19 in this document.
Storage
42. Storage is billed at a monthly rate based on the volume and type of materials stored.
43. Storage is payable monthly, in advance.
44. We require a minimum of 14 days notice before the return of items in storage.
45. Storage is subject to all terms and conditions listed as numbers 1 through 19 in this document.
46. All items held in the possession of Art Conservation Associates, Inc. are subject to storage fees at all times, unless specifically waived by previous agreement.
47. Storage is billed monthly. If storage remains unpaid for 3 subsequent months, items are considered abandoned and may be disposed of in any manner determined by Art Conservation Associates, Inc.
48. If no storage agreement is in place, or a previous storage agreement has expired, Art Conservation Associates, Inc. will attempt contact by all methods on record for 14 days. If there is no response within 14 days, , items are considered abandoned and may be disposed of in any manner determined by Art Conservation Associates, Inc.
49. Responsibility to maintain storage agreements and pay storage fees lies with the owner. Should items be declared abandoned, Art Conservation Associates, Inc. retains no liability or responsibility for any costs or value losses to any party.