“Up Transport“: means Up Transport LLC, together with its affiliates, subsidiaries, agents, independent contractors, the owners of the facilities at which services and/or storage of Goods are provided, and their respective employees. Up Transport is a “warehouseman” solely when Up Transport is providing custodial storage of a Customer’s Goods (as opposed to non-custodial storage by the Customer in the Customer’s exclusive private storage room pursuant to an executed occupancy agreement between Customer and Up Transport). Up Transport is a “motor carrier” solely when it is directly transporting Goods by land. In all other instances and when the Goods are not in care, custody and control of Up Transport, Up Transport is acting as the agent of the Customer. “Customer”: means the consignor, shipper, consignee, merchant, person entitled to delivery of the Goods, receiver of the Goods, owner of the Goods and its/their employees, principals and agents who retain Up Transport to perform transportation, storage and other services with respect to the Goods, subject to the limitations, exclusions, rules and conditions set forth herein. “Goods” means articles of every kind and description, including their packaging, containers or other shipping units or materials, tendered to Up Transport for transportation and storage related services.
“Services” means refer to all services provided by Up Transport including, but not limited to, art handling, installations, packaging, crating, storage and transportation.
Agreement to Terms
By tendering Goods to Up Transport, Customer agrees that it has read and fully understands these Terms and Conditions, confirms that Up Transport is not responsible to clarify to Customer any of these Terms and Conditions, and that these Terms and Conditions govern all respects the Services rendered, including the limits on Up Transport’s liability and release of responsibility of Up Transport for loss or damage to the Goods. Up Transport reserves the right to modify these Terms and Conditions at any time. INSURANCE: Customer acknowledges that Up Transport does not provide, and is not responsible to maintain any insurance with respect to Customer’s Goods. At Customer’s request, Up Transport can arrange insurance for Customer in excess of Up Transport’s stated limits of liability set forth below provided that Customer elects to have such insurance provided by Up Transport based upon a specific declared value for the Goods given to Up Transport in writing before possession of the Goods is transferred to Up Transport or before Goods already in Up Transport’s possession are designated for shipment. Premiums for such insurance is based on the written declared value of the Goods as provided to Up Transport which shall be added to the cost of Up Transport’s Services and to be effective must be paid in full by Customer and are in addition to any additional fees for increased declared value as set forth below (See Limited Liability).
Cancellation Policy and Rush Fees
If Customer submits a Service Request which is subsequently cancelled on less than two (2) business days notice, Customer shall pay all Charges incurred by Up Transport in preparation for the Services and a cancellation fee of fifty percent (50%) of estimated charges. Additionally, if Customer cancels a Service Request on less than one (1) business day notice, Customer shall pay a cancellation fee of one hundred percent (100%) of estimated charges.
If Customer submits a Service Requests after three (3) pm EST for the next business day, Customer will be subject to a rush fee of an additional fifty percent (50%) of total charges. Up Transport reserves the right to modify and update this policy.
Customer’s Insurance and Waiver of Subrogation
Customer is solely responsible for arranging and maintaining insurance coverage for the Goods at Customer’s own expense for all risk of loss or damage. Customer hereby waives any and all right of recovery against Up Transport for loss and or damage to Goods, persons and property during the course of Up Transport’s performance of Services. This waiver shall be in addition to, and not in limitation or derogation of, any other waiver, release, or limitation of liability contained in these Terms and Conditions or any other agreement between Customer and Up Transport with respect to any loss of, or damage to, the Goods, persons and or property. Inasmuch as the above waiver will preclude the assignment of any claim for loss of, or damage to Goods, persons and property by way of subrogation to an insurance company, or otherwise, Customer 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 the effect that such waiver shall not adversely affect or impair said policies or invalidate said insurance coverage by reason of said waiver and shall waive all rights of subrogation against Up Transport with respect to any loss of, or damage to, the Goods, persons and or property covered by such insurance.
Goods Tendered to Up Transport
Customer must physically inspect all Goods tendered to Up Transport. Customer’s Goods are accepted by Up Transport in apparent good order and condition. By tender of the Goods to Up Transport, Customer represents that Customer is storing only Goods that Customer has the legal right to store and acknowledges that Up Transport is relying on Customer’s representations. Customer acknowledges that the Goods will not be inspected by Up Transport for any purpose whatsoever, and Customer waives any claim that the condition of the Goods has changed or the Goods have been damaged while in Up Transport’s possession. Customer understands that Up Transport does not employ fine art conservators and that Up Transport’s art handlers may, during the normal course of business, issue a condition report for the purposes of noting damages visible to the naked and untrained eye, which condition report is made without prejudice and is not binding on Up Transport. Customer warrants that Goods provided to Up Transport “packed by shipper” for the purpose of tender to Up Transport have been packed, packaged, protected and labeled to ensure safe handling. Up Transport shall not be liable for loss or damage to Goods received packed by shipper. Customer acknowledges that Up Transport shall be entitled to rely on the description of the Goods provided by Customer to Up Transport and that acceptance of the care, custody or control of the Goods by Up Transport is not an acknowledgement or confirmation by Up Transport of the accuracy of such description, and that Up Transport is entitled to rely upon such description and to use such description in Up Transport’s business records, including inventory and other reports, service requests and shipping documentation without any liability to Customer or any third party with respect thereto. Customer understands and agrees that that Up Transport is relying upon Customer’s representation with respect to the identity, nature and condition of the Goods, and agrees to indemnify, defend and hold harmless Up Transport from and against all claims, liabilities, demands, costs and expenses of every nature and description (including attorney’s fees and disbursements and court costs) incurred by or asserted against Up Transport if this representation is untrue in any respect.
Goods shipped, installed or tendered to Up Transport to be placed into storage are valued at a released rate of the lesser of one hundred dollars ($100.00) per item or one dollar ($1.00) per pound. However, in no event shall Up Transport’s aggregate liability exceed the lesser of two thousand five hundred dollars ($2,500.00) or the value of the actual loss. Up Transport’s liability may be fixed at a higher value if the nature and value of the Goods are declared by the Customer to Up Transport in writing before possession of the Goods is transferred to Up Transport or before Goods already in Up Transport’s possession are designated for shipment, and Customer pays Up
Transport an increased rate based upon such increased declared valuation. Customer acknowledges that there will be an additional monthly charge (NOT INSURANCE) of fifty cents ($0.50) for each one hundred dollars ($100.00) or fraction thereof for value declared in excess of applicable release value set forth above. Any partial loss or damage shall be adjusted pro rata on the basis of any applicable declared value. All limited liability provisions shall apply even if Up Transport packs, packages and labels Goods on Customer’s behalf. Up Transport shall not have any liability whatsoever for any consequential, indirect, punitive or special damages, including, but not limited to, loss caused by delay, loss of revenue, income, profit, market value, utility and/or profit, and emotional distress whether or not Up Transport had knowledge that such damage(s) might be incurred. Up Transport reserves the right to inspect all Goods to be shipped, and shall be permitted to perform additional wrapping or packing, at Customer’s cost when Up Transport deems it to be necessary. Up Transport is not bound to transport Goods by any particular means, schedule, vehicle or otherwise, but must transport Goods with reasonable dispatch, unless otherwise agreed to in writing. Customer shall be liable for the freight and other lawful charges accruing on the shipment as billed. Customer agrees to indemnify, defend and hold Up Transport harmless from and against any claim asserted against Up Transport by a third party for loss or damage to Goods, persons, and property other than Goods, including applicable costs and attorney’s fees and disbursements. Customer accepts and assumes risk of loss of Goods stolen by thieves or hijacking. The parties agree that the terms of 49 U.S.C. 14706 (c)(1)(A) and (B) will apply if applicable to a particular shipment. Nothing herein shall wave, diminish, or lessen any protection which Up Transport may have pursuant to any statute, rule or regulation of the United States, any state or territory thereof or any other jurisdiction governing a particular shipment. Customer’s liability for payment of additional charges that may be found to be due after delivery shall be as specified by 49 U.S.C. 13706 (or any successor statute), if applicable to a particular shipment. Up Transport assumes no liability and shall not be held responsible for any loss or damage to the Property or any delays, costs, expenses, liabilities or claims due to the acts or omissions of any third party service providers, and undertakes only to use reasonable care in the selection of third party service providers and others to whom it may entrust the Property for services requested by Customer which are not performed directly by Up Transport. When Up Transport physically handles the Goods, including when acting as a carrier directly transporting Customer’s Goods, Up Transport does so subject to the limitations of liability set forth in these Terms and Conditions.
Up Transport shall not be liable for loss, damage or delay caused by including, without limitation, acts of nature (including hurricanes, typhoons, tornadoes, cyclones, other severe storms, winds, lightning, floods, earthquakes), fires, explosions, disease, or epidemics; acts of war (declared or undeclared), armed conflict or other hostile action; civil war, rebellion, revolution, insurrection or usurpation of sovereign power, anarchy, rampant lawlessness, civil or legal disobedience or any other major disruption to the rule of law and/or governmental stability; riots or other civil commotion; terrorism (including hijacking, sabotage, chemical or biological attacks, nuclear events, bombing, murder, assault and kidnapping) or the threat thereof; strikes or similar labor disturbances; shortage of fuel, break down or mechanical defect of vehicles or equipment, a faulty or impassible highway, shortages of critical materials or supplies; action or inaction of governmental authorities having jurisdiction over the Services,(including the imposition of restrictions on material aspects of the applicable Services, or the revocation or refusal to grant licenses or permits, where such revocation or refusal is not due to the fault Up Transport, infestation or other causes of active deterioration, act or default caused by Customer, defects or inherent vice in Goods, or other causes beyond Up Transport’s control (“Uncontrollable Events”). Up Transport is not liable for loss or damage to Goods after delivery, or installation, or after departing an installation site. Up Transport shall have no liability for loss or damage to any of the following: items improperly/inadequately packed or mislabeled; Goods having internal or
concealed damage or breakage; glass and ceramic with existing cracks; Goods damaged as a result of inherent vice or weakness due to poor craftsmanship in fabrication; Goods containing internal mechanics or instrumentation; Goods with waxen, resinous, or viscous surface areas be they in wet, semi-dry, or in a hardened state; Damaged or excessively worn antiques; Goods in disrepair, Goods exhibiting prior repairs or breakage; Uncured and/or not thoroughly dry objects of art, paintings, uncured and/or unset varnish applied to furniture; Goods with directional orientation to which Customer does not affix descriptive arrows in advance; Goods shipped unwrapped at the stated request of the shipper; Loss or damage to mirrors, glass, marble, or stone; loss of or damage from ordinary wear, tear or deterioration as a result of natural climatic changes which may occur despite Up Transport’s efforts to maintain a controlled climate during storage or transit; loss of or damage to any article, pair, or set of articles consisting, when complete, for use of several Goods; Up Transport shall be liable only for the separate value of such item without respect to any special value claimed for such item as a part of the article, pair or set of articles; unexplained or mysterious disappearance; Loss or damage or missing Goods resulting from shipper’s, owner’s, or third-party’s packing or unpacking. Customer acknowledges that Up Transport shall have the right to interpret any subjective terms used above (e.g., “inadequately packed”, “inherent qualities,”) as is reasonably and commonly acceptable in the fine art handling industry and as applied against common and previous occurrences in the normal course of handling fine art, antiques and comparable property. Up Transport will not knowingly transport/ship the following Goods under any circumstance: contraband or illegal substances; firearms or ammunition; explosives, chemicals, noxious or other dangerous goods; livestock, plants, biological or hazardous Goods, and any costs and expenses incurred by Up Transport with regard to Up Transport’s removal of any such Goods shall be borne by Customer, and Customer agrees to indemnify, defend and hold Up Transport harmless from and against any and all liability and damage including but not limited to costs for fines, penalties, legal fees, damage to Up Transport’s equipment and/or personal injury and workers compensation benefits to Up Transport’s employees, and or personal injury or death to persons, including, without limitation, Up Transport’s employees, arising out of the shipping, handling, transporting, installing or storage of such prohibited Goods.
Transportation Substitution of Mode or Equipment
Customer authorizes Up Transport to choose a carrier or other company to transport shipment, and Up Transport’S obligation is limited to delivery of Goods to any such company. Transportation of the Goods is subject to availability of equipment and the space therein. Up Transport shall have the right to (i) substitute alternative carriers or other means of transportation, and (ii) select the routing or deviate from the routing shown on ANY bill of lading. Up Transport is not bound to transport Goods by any particular schedule, train, vehicle or vessel, or in time for any particular market, or in any manner other than with reasonable dispatch. Up Transport shall have the right, in case of physical necessity, to forward Goods by any carrier or route between the point of shipment and the point of destination. When acting as a carrier, Up Transport has the right in its sole discretion to choose the means, route and procedure to be followed in the transportation and delivery of the Goods. To the extent that the Carmack Amendment (49 USC §14706) (or any successor statute) is applicable to the transportation services provided by
Up Transport as carrier, all benefits, defenses and exemptions of the Carmack Amendment are incorporated herein by this reference to the fullest extent applicable.
Delivery Requirements; Non-Delivery and Storage; Services
No Goods shall be delivered or transferred, except upon receipt by Up Transport of complete written instructions from Customer. A reasonable time shall be given Up Transport to carry out such instructions. If Up Transport is unable to carry out such instructions due to any reason beyond Up Transport’s control, or because of loss or destruction of the Goods, including, without limitation, due to Uncontrollable Events, Up Transport shall not be liable for failure to carry out such instructions and the Goods remaining in storage shall continue to be subject to regular storage charges. If Customer refuses any Goods tendered to Customer for delivery, or if Up Transport is unable to deliver the Goods to Customer or to the destination designated by Customer for any reason whatsoever, or if the Goods are required to be placed in storage during transit, or the Goods are placed into storage at Customer’s direction for any reason whatsoever, Up Transport’s liability shall then become that of a warehouseman. Storage charges, based on Up Transport’s rates or the rates of the operator of a storage facility where the Goods may be stored shall start on the business day after storage commences. Storage may be, at Up Transport’s option, in any location that provides reasonable protection against loss or damage. Such storage shall be at Customer’s expense and without liability to Up Transport.
Right of Rejection
Up Transport reserves the right to reject Goods when accepting such Goods would likely result in delay or damage to other shipments, equipment or personnel, the Goods are prohibited by law or the shipment or storage of such of Goods would violate these Terms and Conditions or the terms of any agreement between Customer and Up Transport. This right of rejection shall apply to any tender of Goods to Up Transport even if a previous tender of similar Goods under similar or dissimilar circumstances was accepted by Up Transport.
Claims for loss, damage or delay must be filed with Up Transport in compliance with 49 C.F.R. §370 (or any successor statute), if and to the extent applicable to a particular shipment. Claims for loss, damage to Goods or delay for which 49 C.F.R. §370 (or any successor statute) is not applicable must be filed in writing with Up Transport within fourteen (14) days after the delivery of the Goods, except that claims for failure to make delivery must be filed in writing within three (3) months after a reasonable time for delivery has elapsed. Suits for loss, damage, injury or delay must be instituted against Up Transport (1) for shipments for which 49 C.F.R. §370 (or any successor statute) is applicable no later than two (2) years and one day from the day when written notice is given to the claimant that Up Transport has disallowed the claim or any part or parts of the claim specified in the notice, and (2) for shipments for which 49 C.F.R. §370 (or any successor statute) is not applicable, no later than one (1) year from the day when written notice is given to the claimant that Up Transport has disallowed the claim or any part or parts of the claim specified in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions Up Transport shall not be liable for any such claims.
Lien on any Property
Up Transport has a general and continuing lien on any and all Goods in Up Transport’S possession, custody or control or in transit for all charges, expenses or advances incurred by Up Transport in connection with any shipments, storage, installation or transportation of the Goods and if any such claim remains unsatisfied for thirty (30) days after demand for its payment is made, Up Transport exercise all rights and remedies available to Up Transport at law, in equity or otherwise including, without limitation, to sell the Goods or so much thereof as may be necessary to satisfy such lien and apply the net proceeds of such sale to the payment of the amount due to Up Transport, at public auction or private sale, upon such notice as may be required by law. Any surplus from such sale shall be returned to Customer. However, in the event that there is a deficiency and monies are owed to Up Transport after the sale or auction, Customer shall be liable for and shall promptly pay to Up Transport the deficiency. This lien is superior to any other lien or security interest of any party. Customer shall be responsible to notify any third party having or claiming any interest in the Goods, or any part thereof, including any security interest under the Uniform Commercial Code, of the lien of Up Transport as set forth herein and in any other agreement between Customer and Up Transport with respect to the Goods.
Access and Security
Access by Customer and each person authorized by Customer to have access to the any storage facility operated by Up Transport (a “Facility”) shall be conditioned in any reasonable manner deemed necessary by Up Transport in order to maintain the security, safety, care, cleanliness of the Facility and for the preservation of good order and operations at the Facility, including having a representative of Up Transport accompany Customer and each person authorized by Customer to have access to the Facility at any time while in the Facility. Customer may not work or be anywhere within the Facility unless accompanied by employees of Up Transport or those of its designee, except solely while Customer is within its exclusive private storage room pursuant to an executed occupancy agreement between Customer and Up Transport. If Customer requires assistance of an art handler, Up Transport shall designate an art-handler to assist Customer at Customers cost and expense. Up Transport has rules and regulations regarding which Up Transport may change from time to time. It is the responsibility of Customer that it and any person authorized by Customer to access the Facility be fully familiar and comply in all respects with such rules and regulations. Any person authorized by Customer to access the Facility or any part thereof is an agent of Customer and shall not have any legal, equitable or possessory rights in the Premises. Customer shall be responsible for the conduct of any person authorized by Customer to access the Facility or any part thereof while at the Facility. If Customer has an exclusive private storage room at a Facility pursuant to an executed occupancy agreement between Customer and Up Transport, subject to the foregoing, Customer and each person authorized by Customer to have access to the Facility during the normal operating hours of the Facility. Up Transport shall have the right to deny Customer and any person authorized by Customer access the Facility if any charges, expenses or advances due Up Transport remain unpaid for five (5) days after the due date thereof. Smoking or the consumption of food or beverages is prohibited at all times in the Facility.
Neither Up Transport nor any of Up Transport’s agents or employees makes any warranties, express or implied with respect to any Services or as to the suitability or fitness for a particular use or purpose of any Facility or part thereof, unless expressly so stated and agreed by Up Transport in a writing signed by a duly authorized representative of Up Transport. Without limiting the foregoing, Customer acknowledges that no representations or warranties have been made with respect to the safety, security or suitability of the Facility for the storage of Customer’s property, and that Customer has expert knowledge concerning the storage of works of art, and that Customer inspected the Facility that Customer has made its own determination of such matters including from Customer’s inspection of the Facility. Up Transport shall have the right at any time, without the same constituting an eviction and without incurring liability to Customer therefor, to change the arrangement and/or location of public
entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets, or other public parts of the Facility.
Customer shall be solely responsible to understand and comply with all requirements, laws, ordinances, rules and regulations of all Federal, State and local governmental authorities and of the appropriate departments, commissions, boards and officers thereof, pertaining in any way to the Goods, including, but not limited to, those pertaining to marking, classification, licensing, transporting, exporting and importing the Goods, and shall be solely responsible for, and indemnifies Up Transport from and against any actions taken or fines or penalties assessed due to the failure of Customer to comply with any such requirements, laws, ordinances, rules and regulations.
Bills of Lading and Warehouse Receipts
Only duly authorized Up Transport employees may alter the faces of any bills of lading or warehouse receipts. Any estimates for charges for Services on any bills of lading or warehouse receipts are not binding on Up Transport, but are based upon the information provided to Up Transport by Customer and are subject to change based upon determination actual conditions and circumstances.
Customer shall indemnify Up Transport for all claims, fines, penalties, damages, costs or other sums which may be incurred by Up Transport for any reason, including, but not limited to, any violation of by Customer of these Terms and Conditions or the terms of any agreement between Customer and Up Transport, and for, damage to, theft of, demurrage on and detention charges to equipment procured by Up Transport for Customer in connection with any Services performed for Customer.
Waiver of Jury Trial
TO THE FULLEST EXTENT PERMITTED BY LAW, Up Transport AND CUSTOMER WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM, OR CROSS COMPLAINT, IN ANY ACTION BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY MATTER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE GOODS OR SERVICES, CUSTOMER’S USE OF THE FACILITY, OR ANY CLAIM OF BODILY INJURY OR PROPERTY LOSS OR DAMAGE, OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY LAW, STATUTE OR REGULATION. THIS JURY TRIAL WAIVER IS ALSO MADE BY CUSTOMER ON BEHALF OF ANY OF CUSTOMER’S AGENTS, GUESTS OR INVITEES, AND IN FAVOR OF THE AGENTS, EMPLOYEES AND REPRESENTATIVES OF Up Transport.
If any clause or provision of these Terms and Conditions, or the application thereof to any person or in any circumstance, shall to any extent be invalid or unenforceable, the remainder of these Terms and Conditions, or the application of such clause or provisions to persons or in circumstances other than those to which it invalid or unenforceable, shall not be affected thereby, and each clause and provision of these Terms and Conditions shall be valid and enforceable to the fullest extent permitted by law and, in such case, the provisions hereof shall be interpreted or reformed by the court so as to nearly as possible effectuate the intent of the parties.
Construction of Terms and Venue
These Terms and Conditions shall be construed according to the laws of the State of New York without giving effect to any conflict of laws rule or principle that might require the application of the laws of another jurisdiction. Unless otherwise consented to in writing, in the event of any dispute with respect to these Terms and Conditions, the parties hereby consent to the exclusive jurisdiction of the courts of the State of New York located in the County of New York and the United States District Court located in the Southern District of New York.