AGREEMENT
This agreement (the “Agreement”) is made on this ____ day of ______________, 20___ (the “Effective Date”), by and between , of , , New York 11106 (“Artist”), and ___________________________, of __________________________________________________________ (“Collector”) (Collector and Artist, each a “Party” and together, the “Parties”).
RECITALS
WHEREAS Artist owns the Art Object described in Article 4 herein (the “Art Object”), which has the value and condition stated:
WHEREAS Artist and Collector wish to enter into an enforceable contract between the Artist as creator of the Art Object and Collector as the purchaser of the Art Object, upon the terms and conditions set forth below.
WHEREAS the ongoing interaction between the Artist and the Collector is an integral component in the formation of the history of the Art Object.
WHEREAS each Party to this Agreement has the legal capacity to enter into a binding contract.
WHEREAS in consideration of the matters described above, and of the mutual benefits and obligations set forth in this Agreement, Artist and Collector desire to enter into this Agreement with respect to the Art Object, on the following terms and conditions:
Article 1. TITLE TO THE ART OBJECT
1.1. Title to the Art Object is hereby transferred to Collector as of the Effective Date, subject to the terms of this Agreement, including but not limited to the conditions regarding possession set forth in Article 4 hereof.
1.2. No rights are hereby transferred by Artist to Collector under any copyright laws, including 17 U.S.C. §§ 101 et seq. (the “Copyright Act”). Only physical possession of tangible personal property (i.e., the Art Object itself) is hereby transferred and only upon the terms of this Agreement. Transfer of any intellectual property rights in and to the Art Object or this Agreement under any laws or regulations, including the Copyright Act or similar laws in jurisdictions outside the Untied States, is hereby expressly disclaimed and excluded by the Parties either under the express terms or by implication of this Agreement.
1.3. For the avoidance of doubt, Collector shall not, and shall not permit any person to, copy or reproduce, distribute, or create derivative works based upon, the Art Object. Artist specifically retains all such rights, including but not limited to the right to make commercial and non-commercial use of images of the Art Object. Collector, however, shall have the right to publicly display the Art Object itself.
Article 2. CONSIDERATION
2.1. The Parties acknowledge that Artist is relinquishing title of the Art Object, to the benefit of Collector, who will benefit from owning the Art Object. The Parties further acknowledge that Collector assumes the obligations and risks of abiding by the restrictions stated herein. This exchange was freely and mutually bargained for, and both Parties intend for it to be binding.
2.2. [payment terms]
Article 3. TERM AND TERMINATION
3.1. The term of this Agreement shall commence on the Effective Date of this agreement, as stated above, and shall end only upon: (i) the mutual written agreement of the Parties, signed by each Party; (ii) the sale of the Art Object by the Collector; (iii) the death of the Artist; or (iv) the death of the Collector (such period, the “Term”).
3.2. Neither Party may unilaterally terminate this Agreement for any reason.
Article 4. DESCRIPTION, POSSESSION AND TRANSFER OF ART OBJECT
4.1. The collector is given the option to temporarily return the piece to the artist to be repainted with a different color at any point in time. The repainted color, tint, medium and technique shall be at the Artist’s sole discretion. Any location within the surface of the image area is subject to reworking. The allotted time for reworking is 45 days (“Reworking Period”). The Collector must alert the artist of a return 14 business days in advance of any Reworking Period. The Artist is not liable for any damage to the Art Object as a result of repeated reworking of the surface, or otherwise.
4.2. If the collector sells the Art Object, this Agreement shall immediately terminate pursuant to Article 3.1 herein. For the avoidance of doubt, Collector’s right to return the Art Object to the Artist for reworking shall not pass with title to the Art Object, nor shall such right be revived should the Collector repurchase the Art Object at a future date.
4.3. If the Artist dies before the end of any Reworking Period, the Art Object will be considered finished and physical possession will then be transferred to the Collector.
4.4. If the Collector dies before the end of any Reworking Period, the Artist will continue working on the Art Object through the end of such final Reworking Period already in progress at the time of Collector’s death. However, neither Collector’s estate nor Collector’s heirs shall have the right to return the Art Object to the Artist for reworking, such right being exclusive to the Collector personally.
4.5. If the Artist should be incarcerated, institutionalized or otherwise incapacitated, including as a result of serious illness, and is thus unable to work on the Art Object for any period of time, including during any Reworking Period, such work will be suspended and Artist shall not be obliged to resume work unless and until the Artist is physically able to do so, at the Artist’s sole discretion. The occurrence of any such event will not extend the duration of any Reworking Period.
Article 5. DELIVERY
5.1. Artist will initially transfer physical possession of the Art Object to Collector not later than ten (10) business days after the delivery date specified in Article 5.2 herein (“Delivery Date”), and not later than ten (10) business days after the conclusion of any Reworking Period. Delivery of the Art Object shall be made to Collector at ____________[address], ____________[city], ____________ County, ____________[state] or to such other address as the Collector may, from time to time, indicate to Artist in a written notice. Acceptance or retention by Collector of the Art Object shall constitute acknowledgment that it was received in the condition described herein and that Collector agrees to be bound by the terms of this Agreement.
5.2. The Delivery Date shall be [insert date].
5.3. Delivery of the property to Artist with respect to any Reworking Period shall be made to Artist at ____________[address], ____________[city], ____________ County, ____________[state] or to such other address as the Artist may indicate to Collector in a written notice, from time to time or upon receiving notice of any Reworking Period as contemplated by Article 4.1 herein.
5.4. All shipping costs shall be paid by Collector, including all shipping costs related to any Reworking Period.
Article 6. RISK OF LOSS
6.1. Artist assumes no liability for any damage or loss to the Art Object due to any reason or cause whatsoever. Collector assumes the risk of, and shall be responsible for, any loss or damage to the Art Object, including while it is in Artist’s possession or control during any Reworking Period.
6.2. Storage location of the Art Object during any Reworking Period shall be determined by Artist in his sole discretion.
Article 7. NOTICES
Any notice to be given pursuant to the terms of this Agreement shall be sent, by registered United States Mail with postage prepaid and return receipt requested, to the Party to be notified at the address set forth at the beginning of this agreement, or at such other address as the Party to be notified shall have directed in writing, and shall be deemed to be given when delivered to the United States Post Office.
Article 8. INDEMNIFICATION AND INSURANCE
8.1. Collector assumes sole responsibility and liability for death of or injury to any person and damage to or loss of property resulting from, and will indemnify and hold Artist harmless from and against all claims, damages, and expenses in connection with the Art Object during the Term of this agreement.
8.2. Artist has established the value of the Art Object to be ______ dollars (US$_______), and Collector shall secure and maintain sufficient insurance on the Art Object to cover this stated value during any Reworking Period.
Article 9. LIMITED WARRANTY
Artist warrants he possesses legal title to the Art Object. ARTIST MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE ART OBJECT, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Article 10. DISPUTE RESOLUTION
10.1. Any controversy or claim arising out of or relating to this Agreement shall be resolved by arbitration before a single arbitrator in the English Language in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then pertaining (available at www.adr.org), except where those rules conflict with this provision, in which case this provision controls. Any court with jurisdiction shall enforce this clause and enter judgment on any award. The arbitrator shall be selected within twenty business days from commencement of the arbitration from the AAA’s National Roster of Arbitrators pursuant to agreement or through selection procedures administered by the AAA. Within 45 days of initiation of arbitration, the Parties shall reach agreement upon and thereafter follow procedures, including limits on discovery, assuring that the arbitration will be concluded and the award rendered within no more than eight months from selection of the arbitrator or, failing agreement, procedures meeting such time limits will be designed by the AAA and adhered to by the Parties. The arbitration shall be held in New York County, New York, and the arbitrator shall apply the substantive law of New York, except that the interpretation and enforcement of this arbitration provision shall be governed by the Federal Arbitration Act. Prior to commencement of arbitration, emergency relief is available from any court to avoid irreparable harm. THE ARBITRATOR SHALL NOT AWARD EITHER PARTY PUNITIVE, EXEMPLARY, MULTIPLIED OR CONSEQUENTIAL DAMAGES, OR ATTORNEYS FEES OR COSTS.
10.2. Prior to commencement of arbitration, the Parties must attempt to negotiate in good faith for a period of not less than thirty (30) days to resolve any controversy or claim.
10.3. Each Party has the right before or, if the arbitrator(s) cannot hear the matter within an acceptable period, during the arbitration to seek and obtain from the appropriate court provisional remedies such as attachment, preliminary injunction, replevin, etc. to avoid irreparable harm, maintain the status quo, or preserve the subject matter of the arbitration.
10.4. This Agreement shall be governed by and construed under the laws of the State of New York, United States of America, without giving effect to any choice of law principles that would require the application of the laws of a different state or country.
Article 11. MISCELLANEOUS
11.1. All section headings contained in this Agreement are for convenience of reference only and will not affect the meaning or interpretation of this Agreement.
11.2. This Agreement has been prepared jointly and will not be strictly construed against either Party.
11.3. Unless otherwise set forth in this Agreement, all rights and remedies of the Parties, including all rights to payment, rights of termination, rights to injunctive relief, and other rights provided under this Agreement, shall be cumulative and in addition to all other remedies provided for in this Agreement, in law, and in equity.
11.4. The Parties’ rights and obligations under this Agreement will bind and inure to the benefit of their respective successors, heirs, executors and administrators and permitted assigns. Neither Party shall assign or delegate its obligations under this Agreement either in whole or in part without the prior written consent of the other Party, which consent may be granted or withheld in such Party’s sole and absolute discretion.
11.5. This Agreement constitutes the final, complete and exclusive agreement of the Parties relative to the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements relating to its subject matter. This Agreement may not be changed, modified, amended or supplemented except by a written instrument signed by both Parties.
11.6. The first paragraphs of this Agreement, beginning with the first instance above of the word “AGREEMENT” and all subsequent paragraphs hereof (including the Recitals) are hereby incorporated by reference into the body of this agreement as if fully set forth herein.
11.7. The waiver by either Party of a default or a breach of any provision of this Agreement by the other Party will not operate or be construed to operate as a waiver of any subsequent default or breach. The continued performance by either Party with knowledge of the existence of a default or breach will not operate or be construed to operate as a waiver of any default or breach.
11.8. If any provision in this Agreement is deemed to be, or becomes, invalid, illegal, void or unenforceable under applicable laws, then: (i) it will be deleted with respect to the applicable jurisdiction(s) to which such Law pertains and the validity, legality and enforceability of the remaining provisions of this Agreement shall not be impaired or affected in any way, and (ii) the Parties will use reasonable efforts to substitute for the invalid, illegal or unenforceable provision a valid, legal and enforceable provision which conforms as nearly as possible with the original intent of the Parties.
11.9. The relationship of the Parties is that of independent contractors. Nothing in this Agreement will be construed to constitute, create, give effect or otherwise imply a joint venture, agency, partnership or other formal business organization or any employer/employee relationship of any kind between the Parties.
11.10. The Parties will execute and deliver any further or additional instruments or documents and perform any acts which may be reasonably necessary in order to effectuate and carry out the purposes of this Agreement.
11.11. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A facsimile or PDF transmission of the signed Agreement will be legal and binding on both Parties.
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have caused this Agreement to be executed by their duly authorized representatives as of the date first written above.
| William Brovelli
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[COLLECTOR]
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Copyright ©2010 by William Brovelli. All rights reserved. Federal copyright law prohibits unauthorized reproduction by any means.
Contract Development Team: NYC based attorneys Jamie Stockton & Matthew Zisk
Tags: art law, conceptual art, monochromatic
