Terms & Conditions
B+M Art Projects GmbH
Reichenberger Strasse 61,
10999 Berlin-Kreuzberg
General Terms and Conditions Art of B+M Art Projects GmbH
Status: 01.01.2024
We work on the basis of the HGB (German Commercial Code) and the ADSp (German Freight Forwarders‘ Standard Terms and Conditions).
Preamble
The General Contractual Terms and Conditions Art take into account the traffic customs in connection with B+M Art Projects GmbH, transportation and handling of art and antiques, exhibits, collections and related objects (hereinafter: art objects). All orders, including those from non- merchants, shall be provided by B+M Art Projects GmbH (hereinafter referred to as B+M) exclusively on the basis of the following agreements. The contractual conditions shall also apply to future contracts, even if they are not expressly agreed again. Deviations require the written form.
Reference is made to the exclusions and limitations of liability, as well as to the possibility of agreement and insurance of higher liabilities.
1. Scope of application
1.1 The terms and conditions of the contract shall apply to all kinds of transactions in connection with the handling of Objects of Art, irrespective of whether they relate to forwarding, freight, storage or other transactions normally associated with the field of art. This includes, for example, agreements, also as independent contracts, on the mounting and dismounting of paintings, the mounting and dismounting of other Objects of Art, the packing, loading, stowing, transporting, unloading and storage of Objects of Art, on the collection of COD, on customs clearance, on courier services or the brokerage of travel contracts and the provision of transport and property insurance.
1.2 In the absence of a prior written agreement, goods that may pose a risk to other goods, the environment or persons, in particular hazardous goods within the meaning of the Hazardous Goods Act, shall be excluded from the performance. If these are nevertheless handed over, the client shall be liable for any damage arising regardless of fault.
1.3 The Client undertakes to agree the General Contractual Terms and Conditions Art also with its contractual partner, for example the recipient or owner of the art object, in favor of B+M Art Projects GmbH.
2. Information about the art objects
2.1 When placing the order, the client shall inform B+M Art Projects GmbH in writing of the addresses, marks, numbers, number, type and contents of the packages, dimensions, weights, properties and the actual values of the art objects to be handled, as well as the space conditions at the place of collection and destination.
2.2 Incorrect or omitted information shall be the responsibility of the client, even if he is not at fault, unless the incorrectness was obvious and known at the time the order was placed.
3. Liability
3.1 In the case of orders involving foreign countries, B+M Art Projects GmbH shall be authorized to agree on the usual terms and conditions of third parties. If and insofar as damage is caused by a foreign partner, the liability of B+M Art Projects GmbH shall be determined by the contractual provisions agreed with these foreign companies. A further liability of B+M Art Projects GmbH shall only exist if and insofar as the damage is based on the culpable violation of its own duty of care.
3.2 B+M Art Projects GmbH shall otherwise be liable for the conduct of employees and third parties engaged for performance, as for its own conduct. B+M Art Projects GmbH shall be liable for
– damage to goods, i.e. loss of and damage to the object of art that is the subject of the agreement
– consequential damage to goods, i.e. pecuniary loss resulting from damage to goods
In the case of carriage by motor vehicle on the road, by air, rail, inland waterway or sea-going vessel, liability shall be in accordance with the regulations applicable to these means of transport, insofar as these are compulsorily applicable. The limited or excluded liability in sea freight is expressly referred to.
4. Disclaimers
B+M Art Projects GmbH shall be exempt from liability – irrespective of the legal grounds – if and to the extent that the damage was caused by an instruction of the client or an authorized person for which it is not responsible or by circumstances that it could not avert with the due diligence of a prudent businessman.
5. Limitations of liability
Insofar as mandatory provisions (clause 3.2.) do not conflict with this and subject to the provision in clause 5.7., the liability of B+M Art Projects GmbH – irrespective of the legal grounds – shall be limited as follows:
5.1 Liability for damage to goods is limited to 8.33 special drawing rights per kilogram gross of the damaged or lost art object.
5.2 If the delivery deadline is exceeded, B+M Art Projects GmbH shall – without further compensation – pay compensation for the proven damage up to the amount of the contractually agreed fee. The delivery period shall be deemed to have been exceeded if the goods have not been delivered within the agreed period or, if no period has been agreed, if the actual transport period exceeds the period that can reasonably be expected of a diligent carrier, taking into account the circumstances.
5.3 If objects of art that are the subject of the contract are delivered to the recipient without collection of the cash on delivery agreed upon in the contract, B+M Art Projects GmbH shall be liable to the client for the resulting damage, but only up to the amount of the cash on delivery.
5.4 Liability for damages other than those specified in clauses 5.2. and 5.3. of these contractual terms and conditions shall be limited to the contractually agreed remuneration.
5.5 In any case, liability – irrespective of the legal grounds – shall be limited to the value of the Objects of Art that are the subject of the damage, as stated by the Client.
5.6 The Customer may agree in writing in the contract, against separate payment, higher amounts than the maximum amounts regulated in clauses 5.1. to 5.5. of these contractual conditions, higher values, both for damage to goods, consequential damage to goods and pure financial loss.
In this case B+M Art Projects GmbH shall arrange insurance for the art object, for example transport or storage insurance, only on the basis of a written agreement stating the sum insured and the risks to be covered. In case of doubt, B+M Art Projects GmbH shall decide on the type and scope of the insurance at its own discretion and shall take out such insurance at standard market conditions. B+M Art Projects GmbH shall be entitled to special remuneration and reimbursement of its expenses for the provision of insurance.
5.7 The exclusions and limitations of liability provided for in clauses 4 and 5 of these contractual conditions shall apply to any claim against B+M Art Projects GmbH in respect of objects of art that are the subject of the order placed with B+M Art Projects GmbH, irrespective of the legal basis of the claim. The exclusions and limitations of liability regulated in these contractual conditions may also be invoked by the employees of B+M Art Projects GmbH as well as by persons for whom B+M Art Projects GmbH is liable, unless they have caused the damage by intent or by gross negligence.
The limitations of liability shall not apply insofar as damage has been caused by intent or gross negligence on the part of vicarious agents in managerial functions and/or by intentional or grossly negligent breach of duties essential to the contract. The burden of proof of intentional or grossly negligent fault lies with the claimant.
5.8 The client shall indemnify B+M Art Projects GmbH against claims by third parties that are asserted against B+M Art Projects GmbH due to an act or omission by the client that is in breach of the contract.
6. Delivery, Complaint
6.1 Unless otherwise agreed in writing, delivery may be made with discharging effect to any adult person belonging to the business or household and present on the recipient’s premises or in the contractually agreed receiving premises.
6.2 If damage to the Object of Art is externally recognizable upon delivery, the Recipient shall record this in a receipt to be signed by both parties, stating the specific nature of the loss or damage. Damage that is not externally recognizable must be reported in writing without delay – no later than 7 days after delivery. The burden of proof shall be on the claimant.
7. Payment, set-off, statute of limitations
7.1 Invoices shall be due for payment immediately. Default in payment shall occur, without the need for a reminder or other preconditions, no later than 10 days after the invoice date. In the event of default, B+M Art Projects GmbH shall be entitled to charge interest at a rate of 10% from the date of default as well as the usual local charges. B+M Art Projects GmbH reserves the right to prove higher damages.
7.2 Upon request, the client shall immediately release B+M Art Projects GmbH from freight claims, average contributions, customs duties, taxes and other levies imposed on B+M Art Projects GmbH, in particular as the party authorized to dispose of or as the owner of third-party goods.
7.3 With respect to contractual claims subject to this Agreement and related non-contractual claims, set-off or retention shall only be permissible with due counterclaims to which an objection is not opposed.
7.4 B+M Art Projects GmbH shall have a right of lien and a right of retention on the goods or other assets under its control in respect of all claims, whether due or not, to which it is entitled against the client arising from the performance of work subject to this agreement. The lien extends to the accompanying documents. If the client is in default, B+M Art Projects GmbH may, after having threatened to sell, sell as much of the goods and values in its possession as it deems necessary to satisfy the client, without further formalities.
The informal sale can also take place if the client cannot be identified despite investigations having been carried out. For the pawn or self-help sale, B+M Art Projects GmbH may charge the usual sales commission from the gross proceeds.
7.5 Claims, irrespective of their legal basis, shall become statute-barred after one year. The limitation period shall commence when the entitled party becomes aware of the damage, but no later than upon delivery of the Object of Art. If the good has not been delivered, the limitation period shall commence at the end of the day on which the good should have been delivered.
8. Final provisions
8.1 The law of the Federal Republic of Germany shall apply to these contractual terms and all legal relationships between the Customer, Recipient or Claimant.
8.2 Insofar as the client is a registered merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the commissioned branch of B+M Art Projects GmbH shall be the place of performance and exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
8.3 If a provision of these contractual terms and conditions or a provision within the scope of other agreements is or becomes invalid, this shall not affect the validity of all other provisions or agreements.