TERMS & CONDITIONS

 

All services performed by Momentum Fine Art Photography Gallery & Art Consulting, LLC d/b/a Momentum Fine Art Services (“MFA”) for the Customer shall be subject to the following terms and conditions of service.

 

“Customer” hereunder shall mean the person or entity for whom services are provided, and any agent, representative, or contractor thereof, including but not limited to any shipper, consignor, consignee, exporter, importer, owner, bailor, bailee, warehouseman, forwarder, broker, owner, insurer, and/or carrier, engaged separately by the Customer, as well as the Customer’s heirs, executors, successors and assigns.

 

BY ACCEPTING MFA’S SERVICES, YOU EXPRESSLY AGREE TO BE BOUND TO THE TERMS AND CONDITIONS SET FORTH HEREIN. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.

 

Sec. 1 Application and Acceptance:
A. The act of tendering goods by the Customer to MFA for services including but not limited to warehousing, packing,
crating, import, export, outturn, and transport, shall constitute acceptance by the Customer of these terms and conditions of service.

B. MFA and the Customer acknowledge and agree that these terms and conditions of service are applicable to all of MFA’s invoices, bills of lading, waybills, warehouse and storage agreements, pick-up and delivery receipts, and transportation agreements and contracts of carriage, and are incorporated therein.

C. The Customer acknowledges and agrees that it is responsible for providing notice and a copy of these terms and conditions to all of its agents, representatives, and contractors.

 

Sec. 2 No Agency:
A. Subject to any applicable law, statute, regulation, treaty, or convention and sub-section (B) below, these terms and 
conditions shall not be construed as creating an agency relationship between MFA and the Customer.

B. MFA shall act at all times as an independent contractor, except when providing services pursuant to a duly authorized power of attorney issued by the Customer.

 

Sec. 3 Services by Third Parties:
A. Unless otherwise agreed in writing between MFA and the Customer, MFA shall be entitled to subcontract the whole

or any part of any service provided hereunder to third parties.

B. MFA shall exercise reasonable care in the selection of third-party subcontractors, but assumes no liability and shall not be held responsible for any damage, loss, expense or delay caused by their actions or omissions, except as provided in Section 11 below.

C. It is agreed that third-party subcontractors providing services hereunder shall be considered intended beneficiaries of these terms and conditions, but nothing herein shall be construed as limiting or relieving such third parties of liability to MFA for any damage, loss, expense or delay resulting from their acts or omissions.

 

Sec. 4 Quotations:

All fee and rate quotations provided by MFA to the Customer are for informational purposes only and are subject to change without notice. Under no circumstance shall a quotation be binding upon MFA unless it undertakes in writing to provide services thereunder at a specific and fixed fee or rate prior to the tender and acceptance of goods.

 

Sec. 5 Shipment to Warehouse:
A. In the event that the Customer engages a third party to transport or deliver goods to MFA for warehousing or storage,

the Customer agrees not to ship goods to MFA as the named consignee.

B. Where goods are shipped to MFA as the named consignee in violation of this sub-section (A), the Customer agrees to notify all third-party carriers, with a copy of each notice to MFA, that MFA is acting solely as a warehouseman and has no beneficial title or interest in the goods. The Customer further agrees to indemnify and hold MFA harmless from any and all claims for unpaid transportation charges, including but not limited to unpaid freight, demurrage, and detention charges, made by such third parties.page1image28323456 

C. The Customer further agrees that, should it fail to notify a third-party carrier in accordance with subsection (B) above, MFA shall have to right to refuse such goods and that MFA shall not be liable or held responsible for any damage, loss, expense or delay thereto, except as provided in Section 11 below.

 

Sec. 6 Collection and Handling:

A. Upon the Customer’s request, MFA will collect, pack, store, load, and/or unload goods in accordance with the Customer’s written instructions at agreed-upon rates and charges. MFA shall at all times exercise reasonable care in the handling of the Customer’s goods.

B. MFA’s rates and charges shall cover the ordinary labor involved in handling the Customer’s goods. Additional expenses incurred by MFA for extra services other than ordinary handling, such as the collection, packing, loading/unloading, or storage of damaged, oversized, or unstable goods, shall be charged to the Customer at customary rates. For installation, ordinary conditions assume good access, not above eight (8) feet height and not special equipment required.

C. Unless otherwise agreed in writing between MFA and the Customer, the choice of packing materials shall be left to the sole discretion of MFA and/or its third-party subcontractors.

D. In no event shall MFA be liable or held responsible for any damage, loss, expense or delay caused (i) during packing or (ii) by any defect in or failure of any packing material, except as provided in Section 11 below.

E. MFA shall also not be liable or held responsible for any damage, loss, expense or delay caused by any climatic condition of whatever nature experienced during collection, packing, storage, loading and/or unloading, except as provided in Section 11 below.

 

Sec. 7 Billing:

A. MFA’s payment terms are net fifteen (15) days, other than as set forth below.

B. AFAS shall invoice Customer for services rendered at time of service, except for recurring storage charges which shall be invoiced in advance on the 1st of each month of storage.

C. Final payments for all open invoices, services, storage fees or other charges shall be due and immediately payable prior to final release of goods by MFA.

D. Customer shall be liable for interest at a rate of one and a half percent (1.5%) per month on any overdue payment.

E. Customer shall be liable to MFA for all costs of collection and expenses, including but not limited to reasonable attorneys’ fees.

 

Sec. 8 Termination of Storage:

Where no fixed period of storage exists by agreement, MFA shall be entitled to demand the removal of goods from its warehouse, as well as payment of all charges due, after the expiration of thirty (30) days from the date of notice to the Customer and any person claiming an interest in the goods.

 

Sec. 9 Lien:

A. MFA shall have a lien on all goods deposited by the Customer, or on the proceeds thereof in MFA’s possession, for the storage, transportation, insurance, and/or labor charges associated with such goods, as well as all costs and expenses necessary to their preservation or reasonably incurred in their sale pursuant to Florida Statutes, Chapter 677, and/or any applicable law.

B. All goods deposited by the Customer shall be subject to MFA’s lien for like charges in relation to other goods.

C. Upon notifying the Customer and any person claiming an interest in the goods, this lien may be enforced by public or private sale of the goods in bloc or parcel, at any time or place and on any terms which are commercially reasonable, pursuant to Florida Statutes, Chapter 677 and/or any applicable law, without judicial hearing.

 

Sec. 10 Transfer, Release, and Delivery:

A. Except as provided in sub-section (B) below, no goods shall be transferred, released, or delivered from MFA’s storage or warehouse prior to the receipt of complete, written instructions from the Customer via mail, fax, email, overnight courier (UPS, FedEx, DHL), or similar form of written communication.

B. Where no negotiable receipt is outstanding, goods may be transferred, released, or delivered from MFA’s storage or warehouse in accordance with telephone instructions, provided that the Customer has issued prior written authorization to MFA for this purpose. However, MFA shall not be liable or held responsible for any damage or loss occasioned by such transfer, release, or delivery, except as provided in Section 11 below.

C. Upon receipt of instructions from the Customer to transfer, release, or deliver goods, MFA shall be entitled to a reasonable amount of time to carry out the applicable instructions. Any estimated date or time given by MFA for transfer, release, or delivery shall be approximate in nature and not binding, unless it is agreed in writing between the Customer and MFA that time is of the sense.

D. MFA shall not be liable or held responsible for any damage, loss, expense or delay if MFA is unable to carry out the Customer’s instructions due to acts of God, war, public enemies, seizure under legal process, riot or civil commotion, any other reason that is beyond MFA’s control, or any other excuse provided by law.

E. The Customer agrees that, upon the transfer, release, or delivery of goods to a third party, including but not limited to any carrier or bailee engaged separately by the Customer, in accordance with the Customer’s instructions, MFA shall have no further obligation, responsibility, or liability to the Customer for the goods, except as provided in Section 11 below.

 

Sec. 11 Limitation of Liability:

A. In consideration of the rate charged by MFA, the Customer agrees that MFA shall only be liable for its negligent acts that are the direct and proximate cause of injury to the Customer, including but not limited to any damage or loss to goods, expense, or delay.

B. Where the Customer’s goods are transported by interstate motor carriage, these terms and conditions of service shall constitute the entire contract of carriage between the Customer and MFA. The Customer further agrees to waive any and all rights and remedies under Title 49, Subtitle IV, Part B of the U.S. Code, pursuant to 49 U.S.C. § 14101, and agrees that its exclusive remedy for breach of these terms and conditions of service shall be an action filed in accordance with Section 16, below.

C. MFA’s liability, in any event, shall be limited to the lesser of (i) one dollar ($1.00) per pound per article, or (ii) one hundred dollars ($100.00) per total shipment or warehouse receipt, unless both a higher value is declared and the Customer agrees to pay a higher rate for increased valuation in writing prior to MFA’s receipt of the goods. The declared value shall not exceed the actual market value of the goods at the time of tender to MFA. The Customer hereby acknowledges that it has been offered an opportunity to increase MFA’s liability and that, in the absence of a declared value and an agreement to pay a higher rate for increased valuation, the Customer has elected the limitation set forth above to apply to the services provided by MFA.

D. MFA shall not be liable, in any event, for consequential, indirect, incidental, punitive, or special damages, including but not limited to lost profits or loss of market, even if MFA has been placed on notice of the possibility of such damages.

E. In the event that the limitations set forth above in sub-sections (A) through (D) violate the compulsory or restrictive limited liability provisions of any applicable law, statute, regulation, treaty, or convention, whether based on weight, package, or monetary or shipping unit, MFA’s liability shall be limited to the fullest extent allowed thereunder.

 

Sec. 12 Mysterious Disappearance:

A. MFA shall not be liable for loss of goods due to inventory shortage or unexplained or mysterious disappearance of goods unless the Customer establishes that such loss (i) occurred because of MFA’s failure to exercise reasonable care in storing and warehousing the goods, and (ii) are more than ten percent (10%) of the goods received by MFA.

B. The Customer agrees that any such shortage or unexplained or mysterious disappearance of goods shall not constitute a conversion in the absence of evidence that the goods were actually converted by MFA for its own use.

C. In no event shall MFA’s liability for a shortage or unexplained or mysterious disappearance of goods exceed the limitations set forth above in Section 11.

 

Sec. 13 Insurance:

A. The Customer hereby acknowledges that MFA is not an insurer of goods and that the Customer should maintain its own insurance on its goods for any damage, loss, expense or delay suffered while the goods are in MFA’s care, custody, or control. In the event that the Customer maintains such insurance, it shall be considered as being for the benefit of both the Customer and MFA.

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B. Upon written request by the Customer in sufficient time prior to the shipment or receipt of the goods, MFA shall make reasonable efforts to place insurance on the goods for the period of time that they are MFA’s care, custody, or control. The request shall state the amount of insurance coverage to be placed and shall confirm the Customer’s agreement to pay all fees and costs incurred by MFA in placing and/or attempting to place such insurance. However, MFA does not undertake or warrant that such insurance can or will be placed.

C. Where insurance is placed by MFA pursuant to sub-section (B) above, such insurance shall be governed by the certificate or policy issued and shall only be effective in accordance with the terms thereof.

D. In the event of a coverage dispute with any insurer or underwriter, the Customer shall have no claim or right of recourse against MFA. The Customer further agrees to indemnify and hold MFA harmless for any claims made by any insurer or underwriter in connection therewith.

 

Sec. 14 Notice of Claim:

A. The Customer acknowledges and agrees that it is the responsibility of the Customer, its agents, representatives, or contractors to note in writing any damage or loss to goods at the time of transfer, release, or delivery. A signed bill of lading or receipt without exception or notation as to loss or damage shall be prima facie evidence that the goods were not lost or damaged while in MFA’s care, custody, or control.

B. All claims by the Customer for damage or loss to goods transported by interstate motor carriage must be submitted to MFA in writing within nine (9) months from the date of delivery or the date on which delivery should have occurred.

C. All other claims by the Customer for damage, loss, expense or delay must be submitted in writing to MFA within sixty (60) days from (i) the date of transfer, release, or delivery of the goods, (ii) the date on which transfer, release, or delivery should have occurred, or (iii) the date on which the Customer received written or oral notice from MFA of the damage, loss, expense or delay at issue, whichever occurs first.

 

Sec. 15 Limitation on Actions:

A. Subject to the receipt of timely notice of claim under Section 14 above, all suits, actions, or proceedings for damage or loss to goods must be filed against MFA within the following periods: (i) for goods transported by ocean carriage to or from the United States, within one (1) year from the date of delivery or the date on which delivery should have occurred; (ii) for goods transported by interstate motor carriage, within two (2) years from the declination or disallowance of a timely notice of claim; (iii) for goods transported by international air carriage, within two (2) years from the date of arrival, or the date on which arrival should have occurred, or the date on which carriage stopped; (iv) for all other movements, storage and warehousing, within nine (9) months from (i) the date of transfer, release, or delivery of the goods, (ii) the date on which transfer, release, or delivery should have occurred, or (iii) the date on which the Customer received written or oral notice from MFA of the damage, loss, expense or delay at issue, whichever occurs first.

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

 

Sec. 16 Jurisdiction and Venue:

These terms and conditions shall be governed by the laws of the State of Florida without regard to its conflicts of law principles. The Customer and MFA hereby agree that any suit, action or proceeding arising out of or relating to this Agreement shall be instituted in Miami-Dade County, State of Florida, to the exclusion of all other venues, and irrevocably submit to the jurisdiction of any court so located therein.

 

Sec. 17 Tender Warranty:

The Customer represents and warrants that it has lawful possession of the goods, as well as the right and authority to tender those goods to MFA. The Customer further agrees to indemnify and hold MFA harmless for any and all losses, expenses, and costs (including reasonable attorneys’ fees) incurred by MFA in connection with any dispute, action, or similar legal proceeding concerning the lawful title to and/or possession of the goods.

 

Sec. 18 Accurate Information:
A. The Customer agrees to provide MFA with accurate and complete information to allow MFA to comply with all laws

and regulations governing the storage, handling and/or transport of the goods. The Customer further agrees to indemnify and hold MFA harmless for any and all losses, expenses, and costs (including reasonable attorneys’ fees) incurred by MFA in connection with the Customer’s failure to fully discharge this obligation.

B. It shall be the Customer’s responsibility to ensure that all addresses, including but not limited billing and delivery addresses, are accurately conveyed to MFA. The Customer further agrees to notify MFA immediately in writing of all changes to any such addresses.

 

Sec. 19 Legal Compliance:
A. The Customer hereby acknowledges that it is the responsibility and duty of the Customer to know and comply with

all applicable laws, statutes, regulations, treaties, and conventions, including but not limited to U.S. Customs laws and regulations.

B. MFA shall not be liable for any action taken or any fine or penalty assessed by any government agency against the Customer on account of MFA’s failure to comply with such laws, statutes, regulations, treaties, and conventions, except as provided in Section 11, above.

C. The Customer further acknowledges that it is solely the responsibility and duty of the Customer to maintain all records required by such laws, statutes, regulations, treaties, and conventions, including but not limited to Sections 508 and 509 of the Tariff Act, as amended (19 U.S.C. §§ 1508 – 1509). Unless otherwise agreed in writing between MFA and the Customer, MFA shall only keep those records that it is required to maintain by law, statute, regulation, treaty, or convention, but not as a “record- keeper” or “record-keeping agent” for the Customer.

 

Sec. 20 Severability:
These terms and conditions shall be severable. In the event that any provision herein is held to be invalid, void or unenforceable by 
a court of competent jurisdiction, the remaining provisions shall remain unaffected in full force and effect. Sec. 21 No Modification or Waiver:

A. These terms and conditions may not be modified or amended except by written agreement between the Customer and MFA and signed by both parties.

 

B. MFA’s failure to require the Customer’s strict compliance with any provision herein shall not constitute or be deemed a waiver or estoppel to a later demand for such compliance with any other provision.

C. This contract contains the final and entire agreement and understanding between the Parties and is the complete and exclusive statement of its terms. This contract supersedes all prior agreements and understandings, whether oral or written, in connection therewith.