Standard Terms and Conditions
1. Definitions: Novak Studios LLC together with its employees, subcontractors, and agents, are collectively referred to herein as “Novak Studios.” “Client” is a person or organization who retains Novak Studios to perform Services and who then becomes liable to pay Novak Studios for the charges incurred. “Artwork(s)” or “Art” are fine art and other items in whole or in part, in damaged or undamaged state, that are tendered to or examined by Novak Studios subject to the terms set forth below.
2. Services: Subject to the terms and conditions of the applicable Examination, Conservation and Restoration Services Agreement (“ECR Agreements”), and as otherwise provided herein, Client may retain Novak Studios to perform Services listed on a Conservation Condition & Treatment Proposal (“Proposal”) and/or Examinations. Examinations determine the present condition of Artwork(s), whether Artwork(s) have sustained damage, whether such damage is manifest or latent, and to provide as possible a reasonable estimate of when such damage may have been sustained. Determinations or opinions expressed by Novak Studios are opinions, and as such, constitute nonactionable opinion in a court of law. A Proposal may be executed separately by Novak Studios and Client and shall describe the Artwork(s) owner, dimensions, and condition, and the Services to be performed. Client expressly warrants and represents that Client has authority to enter into agreements and authorize Novak Studios’ Proposals with respect to Artwork(s). In the event of a conflict between the terms herein and any other agreement with Client, the terms herein shall control.
3. Treatment Proposals, Estimated Fees: Proposals shall describe the proposed treatment and Services. Proposals and other estimated fees quoted on the Proposal are valid for ninety days from the date of entry and are subject to change, including after execution of the Proposal. Notwithstanding the fees listed on the Proposal, Client acknowledges and agrees that Novak Studios may assess and charge Client fees and expenses based on oral authorizations from Client that could not be confirmed in writing due to the nature of the conservation treatment, including the immediacy of any such work. Upon execution of the Proposal by both Novak Studios and Client, Client shall make a partial payment, as determined in the Proposal, within seven days. Failure to make the initial payment shall release Novak Studios from its obligations under the Proposal. The estimated fees for Services shall be set forth in the Proposal, or a Schedule A annexed to an ECR Agreement, and Client agrees to pay these fees within thirty days of invoicing. Novak Studios reserves the right to refuse any form of payment and/or to request a particular form of payment.
4. Late Fees and Interest: All payments for charges incurred on Client’s account are due and payable upon invoice by Novak Studios. If charges are not paid in accordance with the applicable ECR Agreement or Proposal, Client shall pay an additional 3.0% (or the highest rate of interest allowed by law) interest charge per month for each thereafter until charges are fully paid. Novak Studios reserves the right to refuse payment by check at any time. Client shall pay a $25.00 fee for each dishonored check. No Artwork(s) may be removed from Novak Studios’ possession if Client’s account is 30 or more days overdue. Client shall be responsible for and indemnify Novak Studios against all costs and expenses incurred in the enforcement of these terms and conditions and/or the Proposal, including but not limited to the costs of any collection proceedings, fees and expenses, attorneys’ fees and court costs, in attempting to collect from Client any outstanding charges by reason of non-payment when due.
5. Retrieval of Artwork(S): Client acknowledges and agrees that Novak Studios is not a storage facility or warehouse and has limited space at its facility. Therefore, Client shall retrieve their Artwork(s) within seven days of being notified that Services have been completed and/or of Novak Studios’ request for Client’s retrieval of the Artwork(s), whichever is sooner. If Client fails to comply with its obligations under this provision, Client shall pay a storage fee for each day the Artwork(s) remain in Novak Studios’ possession, in an amount determined at the sole discretion of Novak Studios.
6. Term and Termination: These terms and conditions apply to all Services, transactions, and any other work or activity performed or undertaken by Novak Studios, for any reason. Client’s obligation to pay Novak Studios for charges incurred shall not be affected by termination of an ECR Agreement by either party. Artwork(s) may not be removed from Novak Studios until Client pays Novak Studios’ final invoice through the date of termination.
7. Limitation of Liability: NOVAK STUDIOS’ MAXIMUM LIABILITY FOR LOSS OR DAMAGE TO ARTWORK(S) BY ANY CAUSE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOSS OR DAMAGE RESULTING FROM THE NEGLIGENCE OF NOVAK STUDIOS, IS LIMITED TO THE TOTAL COST OF SERVICES PAID BY CLIENT OR $500.00, WHICHEVER IS LESS, BUT IT SHALL NOT EXCEED THE ACTUAL LOSS OR DAMAGE. Client shall insure Artwork(s) against all perils of whatsoever nature. Novak Studios shall never be liable for consequential or special damages, including, but not limited to, loss caused by delay, loss of revenue, income, profit, diminution of market value, or utility, and emotional distress whether or not Novak Studios had knowledge that such damages may have been incurred. Client acknowledges and agrees that the limitations of liability are an integral part of these Standard Terms and Conditions, ECR Agreements and Proposals, and that the fees charged for Services reflect such limitations. Any subcontractors who physically handle Artwork(s) do so subject to the limitations of liability set forth herein.
8. Access: Client shall at no time be permitted access to their Artwork(s) at Novak Studios’ facility without 24-hours prior notice and approval from Novak Studios. All persons must be accompanied by a Novak Studios employee while in Novak Studios’ facility and/or while viewing Artwork(s).
9. Lien: Novak Studios shall have a lien against Artwork(s) in its care, custody and control, for all charges and expenses incurred for Services performed, attorneys’ fees, and service and processing charges of Novak Studios in enforcing any term of this agreement. This lien is superior to all other liens and security interests and is effective as of the date that Artwork is tendered to Novak Studios. Client shall be deemed to be in default after 90 days in arrears and agrees that upon 30-days written notice, Novak Studios may dispose of Artwork(s) in any manner authorized by New York law.
10. Hazardous and Prohibited Artwork(s): Artwork(s) may not contain dangerous, hazardous, odoriferous, radioactive, or leaking substances or any substance or material that is capable of contaminating or damaging Novak Studios personnel, Novak Studios’ facility, or other Artwork(s) in Novak Studios’ facility, including: contraband or illegal substances, firearms or ammunition, explosives chemicals, noxious or dangerous Artwork(s); livestock or plants. Client shall be liable for, indemnify and hold Novak Studios harmless against all demands, claims, liabilities, damages, losses and judgments, including attorneys’ fees and costs and expenses incident thereto, which may be incurred by or recoverable from Novak Studios arising from all loss or damage to other Artwork(s) or persons caused by said dangerous Artwork(s).
11. No Warranties and No Guarantees: Novak Studios expresses no opinion as to the actual value or authenticity of the Artwork(s). Novak Studios makes no warranties, express or implied as to any Service performed. Novak Studios cannot and does not predict or guarantee the success or effectiveness of any of the treatment or Services proposed under the Proposal. Client agrees to the Services and assumes responsibility for the results of authorizing the Treatment or the Examination Report.
12. Non-Solicitation: Client shall not directly or indirectly, individually or on behalf of any other person, aid or endeavor to solicit or induce any of the Novak Studios’ employees to leave their employment with the Novak Studios or to accept employment or any other work with Client or any other person, corporation, limited liability company, partnership, sole proprietorship or other entity. If the restrictions set forth in this section would otherwise be determined to be invalid or unenforceable by a court of competent jurisdiction, the parties intend and agree that such court shall exercise its discretion in reforming the provisions of this provision.
13. Claims: Client shall notify Novak Studios in writing of all damages to Artwork(s) within 24 hours after discovery, but in no event more than seven days therefrom. Claims by Client and all other persons must be presented in writing to Novak Studios within thirty days after completion of Services. No action may be commenced against Novak Studios unless notice has been given and a written claim has been filed with Novak Studios. Any action against Novak Studios shall be commenced within 1 year after date of completion of Services or within 1 year after Client is notified of loss or damage to Artwork(s), whichever period is shorter. Payment of claims shall be subject to proof of actual damages. The Client must hold the Artwork(s) and its associated packaging or shipping container/crate and its contents, if any, in the same condition they were in when damage was discovered. No claims for loss or damage shall be entertained until all of Novak Studios’ charges have been paid in full. The amount of the claim may not be deducted from the total due and payable charges.
14. Waiver of Subrogation: Client hereby waives any and all rights of recovery against Novak Studios, its officers, members, agents, employees, and the Landlord, occurring and or arising out of any loss or damage to the Artwork(s) to the extent such loss or damage is covered by insurance. This waiver of subrogation 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 with respect to any loss of, or damage to the Artwork(s). Inasmuch as the above waiver will preclude the assignment of any aforesaid claim for loss of, or damage to Artwork(s) by way of subrogation to an insurance company, the Client 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 prevent the invalidation of said insurance coverage by reason of said waiver of subrogation. Client shall furnish Novak Studios with all applicable insurance policies on request.
15. Indemnity: Client shall defend, indemnify and hold Novak Studios harmless from and against any and all demands, claims, liabilities, damages, losses and judgments, incurred or brought by third parties, including attorneys’ fees and costs and expenses incident thereto, which may be incurred by or recoverable from Novak Studios by reason of loss or damage to Artwork(s), injury to or death of any person or by reason of injury to or destruction of property, or from any cause in connection with an ECR Agreement, a Proposal or any other Service.
16. Indemnity, Hold Harmless, and Waiver of Claims Against Novak Studios’ Landlord: Client shall defend, indemnify and hold Novak Studios harmless from and against any and all demands, claims, liabilities, damages, losses and judgments, incurred or brought by third parties, including attorneys’ fees and costs and expenses incident thereto, which may be incurred by or recoverable from Novak Studios by reason of loss or damage to the Artwork(s). Client also agrees that Novak Studios’ landlord at 401 Broadway, New York, NY, 10013 (the “Building”), such landlord’s managing agent, the holder of each mortgage and lease encumbering the Building, and their respective officers, partners, shareholders, directors, agents and employees, and all subsidiaries and affiliates of all of the foregoing (collectively, the “Landlord”), shall not be liable to Client (or Client’s insurers), and are released from any and all liability to Client (and Client’s insurers), all such liability being irrevocably waived, for any and all loss or damage to Client’s artwork and other property located in or about Novak Studios’ leased premises or elsewhere in the Building, which loss or damage shall be sustained as a result of theft, fire, smoke, water or any other cause whatsoever, regardless of whether such loss or damage was caused by or contributed to by the Landlord’s negligence or failure to perform any obligation.
17. Miscellaneous: These Standard Terms and Conditions shall be construed according to the laws of the State of New York, without regard to its choice of law rule. Client and Novak Studios irrevocably consent to the exclusive jurisdiction of the federal and state courts of New York State and agree that any action shall be brought only in these New York courts. If legal actions are served on Novak Studios relating to Artwork(s), including but not limited to Subpoenas and Warrants, Client shall pay Novak Studios reasonable attorneys’ fees incurred resulting from Novak Studios’ defense of same. Novak Studios shall choose its own attorney. If any term or provision of these terms and conditions or its application to any person or circumstances is, to any extent, invalid or unenforceable, the remainder of these terms and conditions will remain effective.