Terms and Conditions
Last updated February 22, 2023
1. DEFINITIONS. As used in this Agreement:
- “Arta API” means Arta's proprietary application program interface (API) that enables Client to directly integrate into the Arta Service.
- “Arta Services” means the services provided by or on behalf of Arta as specified in the applicable Order Form, in any combination, including but not limited to the Platform Services, including the application programming interface and any cloud-based software provided to Client by Arta in connection with the use of the Platform Services, and Logistics Services provided throughout the Term.
- “Platform Services” means the services made available to the Client including the application programming interface for the Arta platform and any cloud-based software provided to the Client by Arta in connection with the Client’s use of the Arta platform, and programs, features, functions, developer tools, and report formats, and subsequent updates and upgrades of any of the foregoing made generally available by Arta. For clarity, Arta may, in its sole discretion, modify, replace, or add to the Platform Services described herein during the Term (including without limitation improving or adding new or changed features or functionality (or both) to the Platform Services) from time to time without notice, but shall not materially reduce the features and functionality available through the Platform Services during the Term.
- “Logistics Services”, “Transportation”, and “Transportation Services” means the packing and handling of the freight in addition to the transport and delivery of the freight to its intended destination, as well as customs clearance work where applicable.
- “Arta System” means the technology, including hardware and software, used by Arta to deliver the Platform Services to the Client.
- “Client Data” means any documents, data, or information contained in any document, template or other file submitted by Client or Client’s customer through the Arta Service or provided by Client or Client’s customer to Arta as part of the Arta Service.
- “Documentation” means any user manuals, handbooks, and online materials provided by Arta to Client that describe the features, functionality or operation of the Arta System and Platform Services.
- “Order Form” means any written order executed by the parties that references this Agreement, and describes the Platform Services to be provided and applicable pricing.
- “Users” means Client’s employees, representatives, consultants, contractors or agents that Client authorizes to access the Platform Services in accordance with the terms herein.
2. CERTAIN LICENSED RIGHTS AND RESTRICTIONS.
- Subscription to Platform Services. Subject to the terms and conditions of this Agreement, Arta hereby grants to Client a non-sublicensable, non-transferable (except as provided in Section 15), non-exclusive subscription to: (i) access and use the Platform Services solely for the purpose of using the Platform Services in accordance with the terms of this Agreement; and (ii) access and use the Platform Services set forth in the applicable Order Form, in each case solely for Client’s internal business purposes and in accordance with any usage limitations set forth in the Order Form, and not for resale or to provide services to third parties.
- Marketing Support. Client acknowledges and agrees that Arta may include Client’s name and logo in Arta's client lists and refer to Client in marketing materials and business conversations as a client of Arta's. Arta may also partner on co-marketing and public relations activities, subject to Client’s approval, to demonstrate the launch and success of its partnership (e.g., speaking engagement, case study, video). Arta will provide all content to the Client for review and approval prior to use, and Client shall not unreasonably withhold or delay approval.
- Service Levels. Subject to the terms of this Agreement, Arta shall use commercially reasonable efforts to (a) maintain the security of the Platform Services; and (b) provide the service levels in accordance with the SaaS Service Level Agreement.
- Arta Shippers Network. The Platform Services provides clients with access to a network of global shippers capable of providing shipping and ancillary services related to the shipment of pieces of art. Arta does not provide any shipping, transport, packaging, crating, installation, auction or similar services, and Arta does not monitor or control any third party shippers, 3PLs, installers, auction house service, disaster service and related providers that may be made available via the Arta Service.
- Logistics Services. Arta agrees to arrange for transportation of Shipper’s freight pursuant to the terms and conditions of this Agreement and in compliance in all material respects with all federal, state and local laws and regulations relating to the brokerage of the freight covered by this Agreement. Arta's responsibility under this Agreement shall be limited to arranging for, but not actually performing, transportation of Shipper’s freight.
3. LOGISTICS SERVICE
- Arta is licensed as a Property Broker by the Federal Motor Carrier Safety Administration (FMCSA) in Docket Number MC-969884, or by appropriate State agencies, and as a licensed broker, arranges for freight transportation.
- Arta shall engage individual transportation service providers in the performance of this Agreement (each referred to herein as a “Carrier”) pursuant to Section 4 to provide such transportation services for Shipper’ and its customers’ benefit, in each case with Client to be named as the shipper unless otherwise specified by Client, and in each case with Client to be named as express third-party beneficiary of Arta's relevant bilateral contracts (or applicable schedule, work order, addendum or similar written supplement thereto covering the subject shipment) with such Carriers. The requirements for Arta's contracts with such Carriers are set forth in Section 4. In addition, Arta will use reasonable commercial efforts to confirm that each Carrier so engaged by it hereunder shall meet (and in any event Arta will not knowingly engage any Carrier that does not meet) the following requirements at the time of its engagement:
- The Carrier shall be a professional transportation services provider qualified to perform the packing, handling and transport of fine art and unique and antique collectible objects, i.e., trained in and committed to exercising the industry standard of care with respect to such category of freight;
- The Carrier shall be duly licensed in active status and good standing and is an entity type authorized to perform the subject transportation services (e.g., if providing interstate transportation services, the Carrier has an active DOT number with interstate authority, a valid MC number, and is authorized for Property and for Hire);
- To the extent any current insurance policy utilized by Arta identifies a list of approved shippers and packers, the Carrier shall be so approved (and, in the absence of such a list, has not been disallowed by any current Arta's insurer); and
- With respect to any international transportation services to be provided, the Carrier shall be or contract a duly licensed customs broker and shall comply with all applicable international laws and regulations relating to the transportation of the subject freight.
4. FREIGHT CARRIAGE; CONTRACT REQUIREMENTS. Arta warrants that it has entered into, or will enter into, bilateral contracts with each carrier (“Carrier”) it utilizes in the performance of this Agreement. Arta further warrants that those contracts shall comply with all applicable federal and state regulations and shall include (without limitation) the following provisions:
- Carrier shall agree that its liability for cargo loss or damage shall be no less than that of a Common Carrier as provided for in 49 USC § 14706 (the Carmack Amendment). Exclusions in Carrier’s insurance coverage shall not exonerate Carrier from this liability.
- Carrier shall agree to maintain at all times during the term of the contract insurance coverage with limits not less than the following, and Arta shall verify that each Carrier it utilizes in the performance of this Agreement has and maintains minimum insurance coverage as defined below:
1. General Liability/Property Damage – $1,000,000
2. Auto Liability – $1,000,000
3. Cargo Liability – $ 100,000
4. Employer’s Liability – $ 500,000
5. Worker’s Compensation – as required by law.
- Carrier shall agree that the provisions contained in 49 CFR § 370.1 et seq. shall govern the processing of claims for loss, damage, injury or delay to property and the processing of salvage.
- Carrier shall authorize Arta to invoice Shipper for the transportation services provided by the Carrier. Carrier shall further agree that Arta is the sole party responsible for payment of its invoices and that, under no circumstance, will Carrier seek payment from the Shipper or Shipper’s customers.
- Carrier shall agree that, at no time during the term of its contract with Arta, shall it have an “Unsatisfactory” safety rating as determined by the Federal Motor Carrier Safety Administration (FMCSA). If Carrier receives an Unsatisfactory safety rating, it shall immediately notify Arta of the same. Arta shall not knowingly utilize any Carrier with an unsatisfactory safety rating in the performance of this Agreement.
- Carrier shall agree that the terms and conditions of its contract with Arta shall apply to all shipments it handles for Arta. Any terms in a tariff that are referenced in the Carrier contract which are inconsistent with the contract shall be subordinate to the terms of such contract
- Carrier shall expressly waive all rights and remedies under Title 49 U.S.C. § 14101(b) to the extent they conflict with its contract with Arta.
5. RECEIPTS AND BILLS OF LADING. If requested by Client, Arta shall provide Client with proof of acceptance and delivery of such shipments in the form of a signed Bill of Lading or Proof of Delivery, as specified by Client. Shipper’s insertion of Arta's name on the Bill of Lading shall be for Shipper convenience only and shall not change Arta's status as a freight broker. Shipper understands that even when, for Shipper’s convenience, Arta is listed on the Bill of Lading, Arta is not a motor Carrier and will not perform transportation of freight. The terms and conditions of any freight documentation used by Arta or Carrier selected by Arta may not supplement, alter, or modify the terms of this Agreement.
- Freight Claims: Shipper (or the owner of the goods) must file claims for cargo loss or damage with Arta within 7 days from the date of such loss, shortage or damage, which for purposes of the Agreement shall be the delivery date or, in the event of non-delivery, the scheduled delivery date. Shipper (or the owner of the goods) must file any civil action against Arta in a Court of Law within two (2) years from the date the Carrier or Arta provides written notice to Shipper that the Carrier has disallowed any part of the claim in the notice. Carriers utilized by Arta shall agree in writing with Arta to be liable for cargo loss or damage as outlined in paragraph 4.2. Arta's and Carriers’ cargo liability will be limited to $.60 per pound or $50, whichever is greater. Arta offers additional insurance to compensate Shipper loss or damage to goods in excess of these liability limitations. Such additional insurance coverage will be added to the charges paid to Arta for the shipment. It is understood and agreed that the Arta is not a Carrier and that the Arta shall not be held liable for loss, damage or delay in the transportation of Shipper’s property unless caused by Arta's negligent acts or omissions in the performance of this Agreement. Arta shall assist Shipper in the filing and/or processing of claims with the Carrier. If payment of claim is made by Arta to Shipper, Shipper automatically assigns its rights and interest in the claim to Arta so as to allow Arta to subrogate its loss.In no event shall Arta or Arta's Carrier be liable to Shipper or anyone else for special, incidental, or consequential damages that relate to loss, damage or delay to a shipment, regardless of whether Arta or Carrier is notified in advance of the possibility of such damages.
- All Other Claims: The Parties shall notify each other within sixty (60) days of learning of any claims other than cargo loss or damage claims, and shall file any such claims with the other Party within one hundred eighty (180) days from the date of notice. Civil action, if any, shall be commenced in a Court of Law within two (2) years from the date either Party provides written notice to the other Party of such a claim.
7. SURETY BOND. Arta shall maintain a surety bond or trust fund agreement in the amount of $75,000 and furnish Shipper with proof upon request.
8. CLIENT’S USE OF Arta SERVICES
- Access and Security Guidelines. Users will be assigned a unique user identification name and password (“UserID”) for access to and use of the Arta Service.
- Restrictions. Client will not, and will not permit any User or other party to: (a) use the Arta Service to harvest, collect, gather or assemble information or data regarding other Arta customers without their consent; (b) access or copy any data or information of other Arta customers without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the Arta Service or the data contained therein; (d) harass or interfere with another Arta customer’s use and enjoyment of the Arta Service; (f) reverse engineer, disassemble or decompile any component of the Arta System; (g) interfere in any manner with the operation of the Arta Service, or the Arta System or the hardware and network used to operate the Arta Service; (h) sublicense any of Client’s rights under this Agreement, or otherwise use the Arta Service for the benefit of a third party or to operate a service bureau; (i) modify, copy or make derivative works based on any part of the Arta System; or (j) otherwise use the Arta Service in any manner that exceeds the scope of use permitted under Section 2.1.
- Logistics Volume.
1. Client makes no commitment as to the number of shipments to be tendered to Arta under this Agreement. Shipper is not restricted from tendering freight to other brokers or motor Carriers. Arta is not restricted from arranging transportation for other parties.
2. Client shall be responsible to Arta for timely and accurate delivery instructions and description of the cargo, including any special handling requirements, for any shipment.
9. FEES, PAYMENTS, AND SUSPENSION OF SERVICES.
- Subscription Fees. Client will pay Arta the fees for the Arta Service in accordance with the applicable Order Form. All Fees will be billed in accordance with the terms of the applicable Order Form and are due as indicated on the Order Form. All Fees owed by Client in connection with this Agreement are exclusive of, and Client shall pay, all sales, use, excise, and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Client in connection with this Agreement, except for employment taxes and taxes based on Arta's income. Arta reserves the right (in addition to any other rights or remedies Arta may have) to discontinue the Arta Service and suspend all UserID’s and Client’s access to the Arta Service if any Fees set forth in the applicable Order Form are more than thirty (30) days overdue until such amounts are paid in full. Client shall maintain complete, accurate and up-to-date Client billing and contact information.
- Logistics Fees. Arta shall invoice Client for Logistics Services in accordance with the rates, charges and provisions set forth in Rate Quotes to this Agreement and/or any written supplements or revisions that are mutually agreed to between the Parties. If rates are negotiated between the Parties and not otherwise confirmed in writing, such rates shall be considered “written,” and shall be binding, upon Arta's invoice to Client and Client’s payment to Arta. All Logistics Fees are due upon receipt. Arta shall apply payment to the amount due for the specified invoice, regardless whether there are earlier unpaid invoices. Payment of the freight charges to Arta shall relieve Client, Consignee or other responsible party of any liability to the carrier for non-payment of its freight charges; and Arta hereby covenants and agrees to indemnify Client, Consignee or other responsible party against such liability.
- Arta System and Technology. Client acknowledges that Arta retains all right, title and interest in and to the Arta System and all software and all Arta proprietary information and technology used by Arta or provided to Client in connection with the Arta Service (the “Arta Technology”), and that the Arta Technology is protected by intellectual property rights owned by or licensed to Arta. Other than as expressly set forth in this Agreement, no license or other rights in the Arta Technology are granted to the Client. Client hereby grants Arta a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Arta Service any suggestions, enhancement requests, recommendations or other feedback provided by Client, including Users, relating to the Arta Service. Arta shall not identify Client as the source of any such feedback.
- Client Data. Client retains all right, title and interest in and to the Client Data. Arta will only use Client Data to provide Arta Service; provided, that, Arta may use Client Data in de-identified aggregate form, on a perpetual and irrevocable basis, to improve the Arta Technology. Client grants to Arta all licenses in and to such Client Data as necessary for Arta to provide the Arta Service to Client. Arta will not otherwise knowingly use or access any Client Data unless authorized to do so by Client. Client will not provide, post or transmit any Client Data that: (a) infringes, misappropriates or violates any intellectual property rights, publicity/privacy rights, law or regulation; (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; or (c) is deceptive, defamatory, obscene, pornographic or unlawful. Client is solely responsible for the accuracy, timeliness and truthfulness of all Client Data.
11. TERM AND TERMINATION.
- Term. The initial term of this Agreement will commence on the Effective Date and until all Order Forms have expired (the “Term”). Unless otherwise stated in the applicable Order Form, each Order Form will have an initial term of one (1) year. Unless otherwise set forth in the applicable Order Form, each Order Form will renew for additional one (1) year terms unless either party gives written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term. Arta reserves the right to increase the Fees applicable to any renewal term upon written notice to Client, provided, such notice is given at least thirty (30) days prior to such renewal term.
- Termination. Either Party may terminate this Agreement upon written notice if the other party breaches any material provision of this Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach. Upon the expiration or termination of this Agreement for any reason, (a) any amounts owed to Arta under this Agreement will become immediately due and payable; and (b) each party will return to the other all property (including any Client Data (excluding any de-identified and aggregated data per Section 10.2) of the other Party. Arta agrees that upon expiration or termination of this Agreement, Arta will enable Client to access the Client Data for thirty (30) days. Thereafter, Arta will remove all Client Data from the Arta System and all Client access to the Arta Service will cease. Sections 1, 10, 11.2, 12.2, 13-18 will survive the termination of this Agreement.
12. WARRANTY; DISCLAIMER.
- Limited Warranty. During the Term, Arta warrants that the Arta Service, when used as permitted by Arta and in accordance with the Documentation, will operate as described in the Documentation in all material respects. If Client notifies Arta of any breach of the foregoing warranty, Arta shall, as Client’s sole and exclusive remedy, use commercially reasonable efforts to repair or replace the non-conforming Arta Service.
- Disclaimer. Except as expressly provided in Section 12.1, and to the maximum extent permitted by applicable law: (a) the Arta Service, Arta System and documentation are provided “as is” and “as available” and (b) Arta and its suppliers make no other warranties, express or implied, by operation of law or otherwise, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose.
- By Arta. If any action is instituted by a third party against Client based upon a claim that the Arta Service or Arta System, as delivered, infringes any third party’s intellectual property rights, Arta shall defend such action at its own expense on behalf of Client and shall pay all damages attributable to such claim which are finally awarded against Client or paid in settlement. If the Arta Service or Arta System is enjoined or, in Arta's determination is likely to be enjoined, Arta may, at its option and expense (a) procure for Client the right to continue using the Arta Service, (b) replace or modify the Arta System or Arta Service so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Client’s access to the Arta Service and refund any amounts previously paid for the Arta Service attributable to the remainder of the then-current term. This Section sets forth the entire obligation of Arta and the exclusive remedy of Client against Arta for any claim that the Arta Service infringes a third party’s intellectual property rights.
- By Client. If any action is instituted by a third party against Arta relating to Client’s breach of Section 10.2, Client will defend such action at its own expense on behalf of Arta and shall pay all damages attributable to such claim which are finally awarded against Arta or paid in settlement of such claim. This subsection states the sole and exclusive remedy of Arta and the entire liability of Client for the claims and actions described herein.
- Procedure. Any party that is seeking to be indemnified under the provision of this Section 13 (an “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the Indemnifying Party the sole control over the defense of such Claim.
14. LIMITATION OF LIABILITY. EXCEPT AS SET FORTH IN THIS SECTION 14, TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ARTA OR CLIENT BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS IN ANY WAY RELATING TO THIS AGREEMENT. IN NO EVENT SHALL ARTA’S OR CLIENT’S AGGREGATE, CUMULATIVE LIABILITY IN ANY WAY RELATING TO THIS AGREEMENT EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY ARTA FROM CLIENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO PAYMENT, AND INDEMNITY OBLIGATIONS. THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR SUCH LIMITATIONS.
15. ASSIGNMENT. Neither Party may assign any rights or obligations arising under this Agreement, without the prior written consent of the other; except that either Party may assign this Agreement without consent of the other Party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment or transfer in violation of the foregoing will be null and void.
16. SEVERABILITY/SURVIVABILITY. In the event that the operation of any portion of this Agreement results in a violation of any law, or any provision is determined by a court of competent jurisdiction to be invalid or unenforceable, the Parties agree that such portion or provision shall be severable and that the remaining provisions of the Agreement shall continue in full force and effect. The representations and obligations of the Parties shall survive the termination of this Agreement for any reason.
17. CHOICE OF LAW AND VENUE. All questions concerning the construction, interpretation, validity and enforceability of this Agreement, whether in a court of law or in arbitration, shall be governed by and construed and enforced in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would cause the laws of any other jurisdiction to apply. Any action filed by either party shall be filed only in a state or federal court of the State of New York, and the Parties irrevocably consent to the exercise of personal jurisdiction by those courts.
18. CONFIDENTIALITY. Parties shall not publish, use or disclose the contents or existence of this Agreement except as necessary to conduct their operations pursuant to this Agreement. Arta will require its Carriers and/or other brokers to comply with this confidentiality clause.
19. FORCE MAJEURE. Neither Party shall be liable to the other for failure to perform any of its obligations under this Agreement during any time in which such performance is prevented by fire, flood, or other natural disaster, war, embargo, riot, civil disobedience, or the intervention of any government authority, or any other cause outside of the reasonable control of the Client or Arta, provided that the Party so prevented uses its best efforts to perform under this Agreement and provided further, that such Party provide reasonable notice to the other Party of such inability to perform.
20. BACK SOLICITATION. Client shall not solicit the services of Arta's motor Carriers where the Client’s use of such Carrier first occurred through the Arta's efforts. If the Client breaches this provision of this Agreement, Arta shall be entitled, as reasonable damages and not as a penalty, to a commission of fifteen percent of the gross revenue from traffic assigned by Shipper to such Carrier for a period of fifteen months. Client also agrees that the breach of this provision entitles Arta to be entitled to obtain an injunction against Client in a court of competent jurisdiction, at Arta's option.
21. ENTIRE AGREEMENT. This Agreement, including all Appendices and Addenda, constitutes the entire agreement intended by and between the Parties and supersedes all prior agreements, representations, warranties, statements, promises, information, arrangements, and understandings, whether oral, written, expressed or implied, with respect to the subject matter hereof. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.