NFAS GENERAL TERMS and CONDITIONS
1. The following General Terms and Conditions (GTC) shall govern all contracts / assignments / services, in particular those pertaining to consulting, seminars, inspections, underwriting, product development and conception, insurance contract processing, loss processing or expert assessments entered into with and carried out by NFAS – Noack Fine Art Services International Art Consultancy under Sole Proprietorship (hereafter termed NFAS; proprietor: Dr. Bernd Noack). This scope shall also apply to contracts brokered by NFAS to Third Parties.
2. Any Clients‘ Terms and Conditions deviating from NFAS Terms and Conditions are hereby negated and shall be added to the relevant contracts only, in part or in whole, at the discretion of an NFAS managing director and with permission expressly issued in writing.
II. Subject of the Contract / Time of Performance
1. All agreements entered into between the Client and NFAS pertaining to the relevant assignment shall be documented in writing by NFAS in a contract, an assignment confirmation or these NFAS General Terms and Conditions. Subject of the contract is strictly the instruction as specified in the order, i.e. consulting, inspection, product conception, product development, underwriting, insurance contract processing or expert assessment etc. Terms agreed upon therein are subject to NFAS Terms and Conditions. Any particular positive outcomes on behalf of the Client, financially or otherwise, are not owed by NFAS under their GTC. Notably, any counsel, advice, expert assessments, concepts, contract policies and/or statements issued by NFAS shall be explicitly understood as mere suggestions to the Client. These suggestions shall serve to achieve betterment of the inspected risk, of loss management, of insurance products / policies and insights gained for the Client, while NFAS shall not guarantee that implementation of some or all recommendations given will indeed result in increased safety / betterment.
2. The Client is aware of the fact that only documents, objects, facilities, networks etc. disclosed or made accessible to NFAS are assessed. NFAS is not obliged to take into consideration undisclosed documents or objects, facilities, networks etc. not made accessible.
3. NFAS is entitled, as authorised by the Client, to instruct external consultants on behalf of the Client. Services rendered by external consultants are not subject to contractual duties on the part of NFAS. Any claims whatsoever resulting from instruction of external consultants shall arise strictly between the Client and the external consultant instructed by NFAS.
4. In the case of NFAS being instructed to broker the completion of a contract, the respective contract partner is selected to the best of NFAS‘ knowledge and belief. The selected contract partner’s performance or willingness to perform is likewise not within the scope of NFAS‘ contractual duties.
5. In the case of NFAS being instructed to process a loss on behalf of the Client, NFAS shall be understood to liaise with the respective insurance contract partner exclusively in the name of and by order of the Client and not in its own name.
6. Times of performance not expressly agreed on as binding must be regarded exclusively as non-committal. Should NFAS culpably default on an expressly stated deadline or experience other miscellaneous delays in performing the stipulated service, the Client shall grant NFAS an adequate grace period. In the case of this grace period remaining inefficacious, the Client is entitled to withdraw from the contract.
III. Obligations of the Client
1. The Client shall make available to NFAS all information and documentation potentially relevant to the assignment, without express request from NFAS and in good time. The Client shall in particular ensure permanent accessibility of to-be-assessed objects, facilities, networks etc. during regular business hours. On the request of NFAS, the Client shall, without delay, delegate a competent employee entitled to make decisions on the Client’s behalf. NFAS reserves the right to refuse, at any given time, a delegated representative and to insist on a different one.
2. NFAS shall assume that data, documents, contracts, appliances etc. made available to NFAS by the Client during the duration of the assignment are accurate and complete. Verification of accuracy, completeness and correctness of conveyed figures and documents shall fall within the scope of the subject of the contract only if this has been explicitly agreed on in writing, or if the duty of verifying does arise from the inherent nature of the assignment.
3. Should NFAS, in accordance with subparagraph II. 5, undertake loss handling procedures for the Client and should the relevant contract partner as stated in the insurance contract lodge any claims – irrespective of alleged legal grounds – against NFAS, the Client shall release NFAS from these claims and bear the costs of legal defence for NFAS.
1. Remuneration shall be payable at once on receipt of the invoice. In the case of receipt of the invoice being uncertain, remuneration shall be effected on conclusion of all works and services provided by NFAS. Early payment discount shall be understood as not agreed on.
2. The invoice amount is quantified in accordance with the table of fees current at the time, the agreed-on fixed price, hourly or daily rates plus the statutory VAT. Fixed price fees shall be agreed on in writing, as per contract or assignment confirmation. Verbally conducted collateral agreements or amendments shall be considered as invalid. Travel times and expenses and ancillary costs incurred by travelling shall be charged for additionally. The Client may request the relevant table of fees valid at the time for perusal at any time. In instances of dispute over quantification of the invoice, at minimum the fees and rates as stated in the NFAS table of fees at the time of contract closing shall be applicable.
3. Service fees and rates for expenses as conveyed to the Client can be adjusted by NFAS 12 months from contract closing at the earliest. NFAS shall notify the Client of these adjustments in writing. Previously set fees and rates shall be applicable until the Client has received notification of adjustments. Increases in NFAS fees and rates shall offset increased NFAS payroll and miscellaneous costs.
4. The Client is considered to be in arrears – even without a reminder – if the invoice amount is not settled within 30 days from the due date and from receipt of the invoice or an equivalent written remuneration request from NFAS. In the instance of the Client being in arrears, NFAS is authorised – from the relevant date onwards – to demand interest on the amount owed at an interest rate which is set at 8 % above the European Central Bank base rate. NFAS reserves the right to demand a rate exceeding said 8 % if such an increase can be justified and proven.
5. The Client may curtail the relevant invoice amount solely if such curtailment is not contested by NFAS or has been legally established to be justified. The Client may exercise the right of curtailment only with reference to the relevant contract / assignment at issue.
V. Client’s Liability / Duty to Compensate
1. In the case of a contract not being fulfilled on account of a circumstance which lies within the Client’s scope of responsibility, NFAS is entitled to at least lump sum compensation equaling the entire remuneration stipulated for this particular assignment, given that blanket remuneration or fixed price was agreed on; any other expenses incurred until that point in time shall be added to the compensation amount by NFAS. The Client shall be at liberty to produce proof of actual NFAS expenses having been considerably lower than stated.
2. In the instance of remuneration having been stipulated to be quantified by hourly or daily rates or by the NFAS table of fees, the Client shall have to compensate for at minimum the actual rendered services and all expenses incurred until that point in time.
3. NFAS is principally entitled to demand blanket compensation payment set at a rate of 10 % of the contract value in lieu of compensation demands as per subparagraphs V.1. and V.2. The Client shall be at liberty to produce evidence of a loss not actually having arisen in the first place or it being considerably below the blanket sum.
In the instance of NFAS being under warranty obligations on account of deficiencies in the services provided, the Client shall initially only be entitled to exercise the right of demanding subsequent improvement. Only in instances of subsequent improvement having failed twice within an adequate grace period may the Client demand an invoice reduction or rescind the contract.
1. NFAS shall be liable for damages resulting from deliberate or grossly negligent breaches of duty or bad faith on the part of NFAS, its legal representatives or agents. Should deliberate breach of duty on the part of NFAS not be proven, liability shall be limited to the extent of a predictable, typically occurring damage. Liability on the grounds of culpable harm to life, body and health remains inviolate, this also applies to mandatory liability regarding product liability law.
2. NFAS shall be liable for damages resulting from ordinary negligence, provided that this negligence concerns contractual duties that are instrumental and of special importance to fulfilling the contract (cardinal duties). Such liability on the part of NFAS shall be limited to predictable, contractually typical, direct average damage in accordance with the nature of the respective contract; this also applies to its legal representatives or agents.
The limitation period for liability claims is 12 months from conclusion of performed services by NFAS.
IX. Copyright / Rights of Use / Reservation of Ownership
1. The Client shall be granted the non-exclusive, non-transferable right to use NFAS services in accordance with the following restrictions. Those services subject to copyright must not be photocopied, published, conveyed to Third Parties or become subject to of enquiries addressed to Third Parties without written permission from NFAS.
2. Transfer of rights of use as stated in subparagraph 1 as well as transfer of ownership concerning items handed over by NFAS shall come into effect only after remuneration has been paid in full.
X. Client’s Items and Documents, Storage
1. On conclusion of services as rendered per contract stipulations, the Client shall, at the Client’s own expense, take back all items and documents made available to NFAS.
2. In the instance of the Client not taking back items and documents immediately on conclusion of services, NFAS shall be obligated to store items and documents at issue for a duration of three months. NFAS shall be obligated to exercise only such standard of diligence that it would exercise in handling its own property. On expiry of said three-month period, NFAS may deal with said items and documents as it sees fit, including destruction of items/documents. On expiry of said period, NFAS shall explicitly remind the Client of this circumstance.
XI. Collateral Agreements, Amendments and Additions, Miscellanea
1. NFAS employees are not authorised to negotiate individual agreements deviating from NFAS GTC. Such agreements can be negotiated and come into effect solely with NFAS managing directors or their explicit permission, which must be submitted in writing.
2. Verbal agreements concerning the relevant contract shall come into effect solely if written confirmation has been issued by NFAS.
3. In the instance of an NFAS GTC Term/Condition being or becoming invalid or inexecutable, neither the effectiveness of the contract nor of these GTC shall be affected. Rather, the contract parties shall commit themselves in this particular case to replace the invalid or inexecutable Term/Condition with a valid and executable one. The replacement Term/Condition shall be in accordance with economic and ideal regulations within statutory frameworks to the greatest possible extent.
XII. Governing Law, Place of Performance, Dispute Resolution
1. All contract relationships between Clients and NFAS are exclusively subject to German law.
2. Place of performance is Berlin. Place of dispute resolution is Berlin, provided that the Client is a merchant and has placed instructions in his capacity as merchant.
3. In cases of doubt or dispute, the original German language version of the NFAS GTC shall be referred to as the authoritative one.
NFAS – Noack Fine Art Services
International Fine Art Consultancy under Sole Proprietorship
Proprietor: Dr. Bernd Noack
Duisburger Straße 2