1. CONTRACT & DEFINITIONS
1.1. The Primary Terms and these terms and conditions constitute the contract between the Agent and the Artist.
1.2. Expressions defined in the Primary Terms have the meanings set out therein. The following additional definitions apply:
"Agency" the terms and conditions of this contract.
"Agent" Woolwich Contemporary Print Fair Limited (Company number: 10714784) or its successors or assigns.
"Business Day" a day other than a Saturday, Sunday or public holiday when banks in London, UK are open for business.
"Buyer" the person to whom the Agent agrees on behalf of the Artist to sell theWork.
"Completion" the date the Agent receives the Purchase Price from the Buyer in accordance with the Contract for Sale.
"Contract for Sale" the agreement between the Buyer and the Agent to purchase theWork whether it is an oral contract, a written contract or otherwise governed by the Sale of Goods Act 1979 or other relevant legislation.
"Exhibition" the exhibition where the Work shall be displayed for sale.
"Expenses" charges and out of pocket expenses paid or payable by the Agent in respect of and in the course of the Agency and as a result of marketing and promotion costs, display charges, venue costs, installation costs, expenses for loss and damage cover, insurance and marketing brochures and illustrations.
"Purchase Price" the price at which the Agent agrees to sell the Work to the Buyer as agent and on behalf of the Artist at theExhibition.
"Sale Price" the price at which the Agent sells the Work to the Buyer that may be greater than the Minimum Sale Price.
"Services" the services supplied by the Agent to the Artist as set out in this Agency, including the Agent's appointment as the Artist’s agent to promote and sell the Work at the Exhibition on behalf of the Artist and negotiating and signing or otherwise concluding the Contract for Sale and any other relevant documents on behalf of the Artist for a Purchase Price not less than the Minimum Purchase Price without prior reference to the Artist but only in accordance with the Contract for Sale, unless specifically authorised otherwise by the Artist.
1.3. The expression “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4. Unless the context otherwise requires:
1.4.1 words in the singular shall include the plural and in the plural shall include the singular; and
1.4.2 a reference to one gender shall include a reference to other genders.
2. SELECTION PROCESS
2.1. The Agent in its absolute discretion may decide to accept or reject the Application (the "Decision").
2.2. If theApplication is unsuccessful, the Agent shall endeavour to inform the Artist in writing within 14 days of the Decision.
2.3. If the Artist has not been notified of the Decision by 19 July 2019, they should presume that the Application has been unsuccessful.
2.4. If the Application is unsuccessful, the Application Fee shall be non-refundable.
2.5. If the Application is successful, the Agent shall notify the Artist in writing and the below terms shall apply.
3.1. The Artist appoints the Agent as its agent during the Term to provide the Services and agrees to pay the Application Fee in respect of the Expenses incurred by the Agent.
3.2. The Artist shall not, without the Agent’s consent during the Term:
3.2.1 appoint any other person, firm or company as its agent, distributor or franchisee for the sale of the Work throughout the world; and
3.2.2 make offers or quotations to or negotiate with or sell the Work to any person, and shall refer all such possible transactions to the Agent. If the Artist acts in breach of this clause 3.2.2, the Agent may forthwith terminate this Agency and the Artist agrees to pay to the Agent on demand (or the Agent may deduct from any of the Artist’s money held on account) the Withdrawal Fee. The parties confirm that the Withdrawal Fee represents a genuine pre-estimate of the Agent's loss.
3.3. If the Artist shall, within 3 months after the termination of this Agency, directly or indirectly sell or agree to sell the Work or any part of the Work to a person who attended the Exhibition the Artist will immediately pay to the Agent on demand (or the Agent may deduct from the Artist’s money held on account) the Commission.
4. AGENT’S OBLIGATIONS
4.1. The Agent undertakes and agrees at all times during the Term:
4.1.1 to use reasonable endeavours to sell the Work;
4.1.2 to act towards the Artist conscientiously and in good faith;
4.1.3 to comply with all reasonable and lawful instructions of the Artist from time to time;
4.1.4 to keep the Artist informed of its activities concerning the sale of the Work upon the Artist's request;
4.1.5 to take delivery and store the Work in accordance with clause 4.4;
4.1.6 exhibit the Work as the Agent may think fit in its sole discretion;
4.1.7 conduct the sale of the Work conscientiously and in good faith;
4.1.8 subject to clause 5, to offer all reasonable assistance to the Artist in enforcing the Buyer’s warranties and representations contained in the Contract for Sale including the failure of the Buyer to pay the Purchase Price.
4.2. Unless otherwise agreed in writing, the Agent shall accept delivery of the Work in accordance with clause 4.1. From the time the Work is delivered into the Agent's custody, the Agent will have possession of it as bailee and owe the Artist a duty of care until title to the Work passes to the Buyer (or to the Agent under clause 8.4).
4.3. Unless otherwise agreed, the Agent shall at its own cost take out and maintain in force during the Term an insurance policy from a reputable insurer that provides general cover against the risk of physical loss or damage including loss, theft and all risks arising both during installation, de-installation and while the Work is on display subject to standard policy exclusions.
4.4. The responsibility of the Agent under clause 4.3 shall cease on the earlier of: (a) the date the Work is collected by the Buyer; or (b) the date on which the Work is collected or by the Artist.
5. ARTIST’S WARRANTIES & UNDERTAKINGS
5.1. Unless otherwise agreed, the Artist shall deliver the Work at his expense into the Agent's custody at the place and time the Agent requires and he shall notify the Agent in writing before the time of delivery of the Work.
5.2. The Artist warrants and undertakes to the Agent that:
5.2.1 he shall act at all times in relation with the Agent dutifully and in good faith;
5.2.2 he has sole legal and beneficial title to the Work and if he is not the owner of the Work (whether or not the Artist has notified the Agent that the he is acting as an agent for the artist), the Artist is duly authorised by the owner of the Work to sell it and the Artist confirms he has verified the identity of the owner;
5.2.3 that in the event of the Agent selling the Work, the sale will conform in every respect with the terms implied by Sections 12(1) and 12(2) of the Sale of Goods Act 1979;
5.2.4 upon receipt of the Purchase Price in cleared funds, good, valid and marketable title and exclusive and unrestricted right to possession of the Work will pass from the Artist to the Buyer free and clear of any and all rights or interests of others, claims, liens, security interests, restrictions, conditions, options or other encumbrances of any kind held or claimed by any person (collectively, “Claims”). The Artist has no knowledge of any Claims hreatened or pending, nor any knowledge of any facts or circumstances likely to give rise to any Claims and in so far as the Artist or any Artist may become aware of any Claims threatened or pending, the Artist shall promptly inform the Agent of it;
5.2.5 the Title/Description/Photographs of the Work are true and accurate in all respects;
5.2.6 the Work has never been stolen to the best of the Artist’s knowledge and belief;
5.2.7 neither the Work nor the funds used to acquire the Work have been obtained by, or in return for criminal conduct. The Work is not criminal property under the UK Proceeds of Crime Act 2002 or any other anti-money laundering legislation worldwide;
5.2.8 any and all taxes due on the Work have been paid;
5.2.9 it authorises the Agent to give to the Buyer on his behalf the warranties and undertaking or information referred to in this clause 5; and
5.2.10 the Work will contain nothing obscene, blasphemous, libellous, in breach of any obligation of confidence or of any right of privacy, or otherwise unlawful, and the exhibition of the Work will not infringe the copyright or any other rights of any third party.
5.3. All of the Artist’s warranties and undertakings contained in this Agency are deemed to be repeated on Completion.
5.4. The Artist undertakes that there are no restrictions (whether copyright or otherwise) affecting the Work or the Agent rights to photograph or illustrate the Work or reproduce (in any manner and in any media) photographs or illustrations or any text of any information or Title/Description/Photographs of, about or relating to the Work provided by the Artist or on the Artist’s behalf.
5.5. The Artist shall use all reasonable endeavours to obtain the irrevocable and unconditional waiver of all moral rights to which any artist of the Works is now or may at any time in the future be entitled to under the Copyright, Designs and Patents Act 1988 Section 80 and under any similar laws in force from time to time during the Term and the Artist shall declare that this waiver shall operate in favour of the Agent.
The Artist agrees to indemnify and keep indemnified the Agent on demand against all claims, proceedings, liabilities, costs and losses including without limitation all legal and professional costs incurred by the Agent, its officers, employees or agents arising from:
6.1. the Agent acting pursuant to the terms of this Agency, the Contract for Sale and any other documents the Agent is reasonably required to enter into on behalf of the Artist;
6.2. any actual or alleged breach of any of the warranties or undertaking in clause 4 or any other warranty, undertaking or obligation by the Artist to the Agent, whether by act or omissions or otherwise;
6.3. any injury, loss or damage caused to any person by the Artist;
6.4. the Agent exercising any of its rights, powers and/or duties under clause 10 (Refusal to Sell);
6.5. the Artist’s fraud;
6.6. the Work being considered a forgery by the Agent; and
6.7. without prejudice to paragraph 6.2, any error, misdescription or omission in any Title/Description/Photograph of the Work or the Minimum Sale Price, so long as it was not caused by a breach of the Agent's duty to the Artist under this Agency to exercise reasonable skill and care.
7. AUTHORITY TO MARKET & SELL
7.1. The Agent may at its discretion produce on behalf of the Artist marketing or promotional material in relation to the Work including visual merchandising material for sale. The copyright in the text and the photographs and illustrations of the Work contained in any marketing or promotional material belongs to the Agent. The Artist will not reproduce or permit anyone else to reproduce such text, photographs or illustrations without the Agent's prior written consent, unless the Artist is merely distributing the marketing or promotional material produced by the Agent to promote the Exhibition.
7.2. The Agent may revise any marketing or promotional material either orally or in writing from time to time in its absolute discretion.
7.3. Notwithstanding clause 7.1, the Artist will not produce or issue or cause to be produced or issued any marketing or promotional material nor make nor cause to be made any public announcements relating to the Work during the Term.
7.4. The Agent is authorised to offer the Work to such prospective Buyers as the Agent may decide in its absolute discretion.
7.5. The Agent is authorised by the Artist to accept offers and to commit to sell the Work on the terms of the Contract for Sale, subject only to:
7.5.1 clause 10 (Refusal to Sell); and
7.5.2 the Work being in the Agent's control.
7.6. Where the Agent irrevocably commits to sell the Work for the Artist on the terms of the Contract for Sale, the Artist undertakes to fully perform the Contract for Sale and the Artist shall indemnify and shall keep indemnified the Agent on demand against all claims, damages and expenses including without limitation all legal and professional costs incurred by it, if the Artist fails or refuses to complete the purchase in accordance with its terms or otherwise is in breach or causes the Agent to be in breach of the Contract for Sale.
7.7. If the Buyer elects to cancel the Contract for Sale, the Agent shall return the Purchase Price to the Buyer within 14 days of receiving the Work from the Buyer in exactly the same condition as it left the Agent or, if the Work has not left the Agent's custody, within 14 days of the Buyer notifying the Agent of its election to cancel the Contract for Sale.
7.8. The Artist shall indemnify and keep indemnified the Agent on demand against all costs associated with the return of the Purchase Price to the Buyer and the return of the Work to the Artist and against all claims, damages and expenses including without limitation all legal and professional costs incurred by the Agent as a result of the Buyer’s notification to the Agent to cancel the Contract for Sale.
8. PAYMENT & EXPENSES
8.1. The Agent is irrevocably authorised to accept receipt of the Purchase Price (or any installment thereof) on behalf of the Artist from the Buyer.
8.2. The Work will only pass to the Buyer on receipt by the Agent in cleared funds of the full Purchase Price. Once the Buyer has paid the Purchase Price and all other sums due to the Agent, the Agent will release the Work to the Buyer.
8.3. The Artist agrees that the Agent, any associated company of the Agent and/or Own Art (an Arts Council England initiative operated by Creative United, a registered trademark of Creative Sector Services CIC, a Community Interest Company registered in England and Wales under number 08280539) may, at the Agent's absolute discretion, offer credit facilities to the Buyerto finance the sums payable to the Agent and the Artist.
8.4. The Agent may at its absolute discretion pay the Purchase Price to the Artist before receipt of the Purchase Price from the Buyer and in so doing, title in the Work will pass to the Agent and the Artist’s right to payment of the Purchase Price will pass to the Agent together with any right of action which the Artist may have against the Buyer for non-payment.
8.5. The Purchase Price shall be held by the Agent on trust for the Artist (subject to the provisions of this clause 8).
8.6. the Artist authorises the Agent to retain from the Purchase Price any monies due to the Agent from the Artist including the Commission, the Administration Fee, VAT and any other sums due to the Agent in respect of any other goods bought or sold through the Agent for the Artist.
8.7. the Agent may retain the Purchase Price until the Artist has delivered to the Agent:
8.7.1 the Work; and/or
8.7.2 any relevant documentation reasonably required by the Agent in relation to the Work.
8.8. If before the Purchase Price less those deductions set out in clause 8.6 (“Sale Proceeds”), have been distributed to the Artist, the Buyer or any other person makes a claim against either the Artist or the Agent in relation to the Work, the Agent may withhold distribution of the Sale Proceeds to the Artist until such time as the claim has been resolved and the Artist agrees to indemnify and keep indemnified the Agent on demand against defending any such claim (whether threatened, issued or in contemplation) including without limitation all legal and professional costs, liabilities and other losses incurred by the Agent, its officers, employees or agents.
8.9. All sums payable under this Agency are exclusive of VAT which, where applicable, will be payable at the appropriate rate.
8.10. In the absence of a contrary agreement, the Commission shall be paid to the Agent in the same currency as the Purchase Price.
9. ARTIST'S RESALE RIGHT
The Agent reserves the right to charge the Buyer an additional premium to cover its expenses including the payment of royalties under the Artists Resale Right Regulations 2006 (“Additional Premium”). If any such payment of an Additional Premium does not cover, in full, the amount of any payment due under the Artists Resale Right Regulations 2006 or the Buyer fails to pay the Additional Premium, the Artist agrees to pay the Agent, on demand, any shortfall and agree that the Agent may deduct such amount from the Purchase Price.
10. REFUSAL TO SELL
10.1. The Agent may refuse to sell the Work if it has reasonable cause for believing that:
10.1.1 the Agent and/or the Artist may be or are restrained by order of the court or other competent authority in respect of the Work or may be or are otherwise not legally entitled to sell the Work; or
10.1.2 the Artist is in breach of any of the warranties and undertakings set out in clause 5;
10.1.3 the information about the Work given to the Agent by the Artist is inaccurate or misleading in any material respect; or
10.1.4 the Work is a fake or forgery,
and the Artist shall be liable to pay to the Agent the Withdrawal Fee on demand.
10.2. the Agent will give the Artist written notice of any decision under paragraph 10.1 as soon as reasonably practicable.
10.3. In addition to the Agent rights under clause 10.1, the Agent may, by written notice to the Artist, refuse to sell any Work without reason. If the Agent exercises this right after delivery of the Work, the Agent will reimburse the Artist his reasonable expense directly incurred by the Artist in connection with that delivery and the collection and removal of the Work from the Agent's custody and/or control.
11.1. The Artist may terminate the Agent's agency on one month’s written notice and on payment to the Agent of the Withdrawal Fee. In addition, the Artist shall forfeit the Application Fee.
11.2. Without prejudice to clauses 3.2.2 and clause 10, the Agent may at any time by notice in writing to the Artist terminate this Agency.
11.3. On the early termination of this Agency, the Work will be returned to the Artist at the Artist’s expense within fourteen days of the Agent receiving payment in cleared funds of the Withdrawal Fee.
12. AGENT'S LIABILITY
12.1. The Artist acknowledges and confirms that:
12.1.1 the Agent will not be in any way liable or responsible for any damage to or defect in the Work which is apparent from an inspection of the Work on delivery and/or which occurred while the Work was not in the Agent's custody or possession;
12.1.2 the Withdrawal Fee reflects the limitations and exclusions of liability contained in this Agency; and
12.1.3 he waives any rights he may have to claim damages against the Agent on the basis of any oral or written statement made by the Agent (whether made carelessly or not) that is not set out or referred to in this Agency (or for breach of any warranty given by the Agent not so set out or referred to), unless such statement or warranty was made or given fraudulently.
12.2. The Agent will not be liable whether in negligence, other tort, breach of contract or statutory duty or in restitution or under the Misrepresentation Act 1967 or in any other way for lack of conformity with or inaccuracy, error, misdescription or omissions in relation to the Work made by the Artist and whether made before or after the Term of this Agency.
12.3. While the Work is at the Artist’s risk and the Artist’s property but in the Agent's custody and/or control, the Agent's duty to the Artist is to exercise reasonable care in relation to the Work.
12.4. The Agent will not be liable to the Artist for any loss of business, profits, revenue or income or for loss of reputation or for disruption or wasted time on the part of the Artist, the Artist’s management or staff or for any indirect losses or consequential damages of any kind, irrespective in any case of the nature, volume or source of the loss or damage alleged to be suffered, and irrespective of whether the said loss or damage is caused by or claimed in respect of any negligence, other tort, breach of contract, statutory duty, bailee’s duty or otherwise arising under or in connection with this Agency.
12.5. In any circumstances the Agent's aggregate liability arising under or in connection with this Agency will be limited to an amount which will not exceed by way of maximum the amount of (a) until the Work is sold, a sum equal to the Minimum Sale Price less any Commission and VAT which would have been payable if the Work had been sold at the Minimum Sale Price; or (b) after the Work is sold but before title in the Work has passed to the Buyer, the amount of the Purchase Price less Commission and VAT (if applicable), irrespective in any case of the nature, volume or source of any loss or damage alleged to be suffered or sum claimed as due, and irrespective of whether the liability arises from negligence, other tort, breach of contract, statutory duty, bailee’s duty or otherwise.
12.6. Nothing shall limit or exclude the liability of either party for death or personal injury resulting from negligence or fraud or fraudulent misrepresentation.
13.1. Nothing in this Agency shall be deemed to create a partnership or joint venture between the parties.
13.2. The Artist may not assign either the rights or obligations of this Agency without the Agent's prior written consent.
13.3. Where this Agency is addressed to more than one Artist, each shall be jointly and severally liable for the Commission and the Withdrawal Fee and all other obligations under this Agency and any Contract for Sale.
13.4. The Agent's failure or delay in enforcing or exercising any power or right under this Agency will not operate or be deemed to operate as a waiver of its rights under it except to the extent of any express waiver given to the Artist in writing. Any such waiver will not affect the Agent's ability subsequently to enforce any right arising under this Agency.
13.5. Any notice or other communication to be given under this Agency must be in writing and may be delivered by hand or sent by first class post or air mail or email (if to the Agent marked for the ‘Attention of the Directors’, to email@example.com), or by post to Mews Studio c/o 253 Lewisham Way, London SE4 1XF.
13.6. This Agency contains the entire agreement between the parties with respect to the appointment of the Agent as agent for the purchase of a Work, supersedes all previous agreements, correspondence, emails and verbal understandings between the parties with respect thereto and may only be modified by a document in writing signed by or on behalf of both parties. Each party acknowledges that in entering into this Agency, it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agency. Nothing in this clause shall limit or exclude any liability for fraud.
13.7. If any provision or part-provision of this Agency is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such a modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 13.7 shall not affect the validity or enforceability of the rest of this Agency.
13.8. No one other than a party to this Agency shall have any right to enforce any of its terms.
The governing law of this Agency and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agency or its subject matter or formation shall be the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.