Published March 22, 2018
Commission agreements are entered into by the following parties and with the following definition of terms:
“Patron”: client requesting the commission
“Partner”: interior designer requesting the commission
“Company”: CoCo Gallery LLC
“Artist”: CoCo Gallery Artist who has been requested to complete the commission
“Work”: Original and custom work of art that Artist agrees to create for Patron or Partner
“Project Scoping Document”: Contract that will stipulate details of each commission
“Purchase Price”: Retail value of Work
“Shipping Date”: Date by which Work must be complete and ready to ship
WHEREAS, the Company desires to act as the excusive broker between the Patron and the Artist for the purpose of commissioning the Work.
WHEREAS, the Artist desires to create the Work for the Patron or Partner.
WHEREAS, the Patron or Partner desires to commission the Work from the Artist for their client;
WHEREAS, the Artist and the Patron set forth the specifications for the Work on the Project Scoping Document, and is incorporated into this Agreement as though set forth fully herein.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties to this Agreement agree to the following terms and conditions:
1. DESCRIPTION OF SERVICES. The Company will act as the exclusive broker between the Patron and the Artist for the purpose of commissioning the Work. By signing this Agreement, the Patron acknowledges that he/she is utilizing a service provided by the Company to select an Artist to commission an original work.
2. PAYMENT. The Patron shall remit payment of the Purchase Price to the Company, after applying any promotional discounts, upn signing the Project Scoping Document. The Partner shall remit payment of the Purchase Price to the Company, after applying 15% trade discount, upon signing the Project Scoping Document.
The parties will agree to an initial checkpoint, as noted in the Project Scoping Document, whereby the Patron and/or Partner will have the opportunity to suggest feedback to the Artist. If, at any time prior to the approval of the checkpoint image, the Patron or Partner elects to cancel the commission of this Work, and the Artist is not in default of a non-negotiable term set forth in the Project Scoping Document such that one of the Remedies set forth in Paragraph 4 is available to the Patron or Partner, the Deposit shall be forfeited by the Patron or Partner. If, at any time after the approval of the initial checkpoint image, the Patron or Partner elects to cancel the commission of this Work, and the Artist is not in default of a non-negotiable term set forth in the Project Scoping Document, the Patron or Partner is responsible for paying the remainder of the price.
The Artist will receive 70% of the Purchase Price in two installments by check from the Company. The first will be sent after the initial checkpoint image has been approved by the Patron or Partner. The second will be sent after the Artist has sent a final image to the Company and/or Patron or Partner, confirmed non-negotiable aspects of the commission (as stated in the Project Scoping Document) with the Company, and sent tracking information for shipping of the Work.
The Artist must bundle shipping fees or estimate them separately in the Project Scoping Document. If they are estimated separately, the Patron or Partner will be responsible for them, and the shipping fee will be paid to the Artist by the Company in the second installment check.
3. Completion of the Project. The Artist agrees to complete the project and ship the Work to the Patron or Partner by the Shipping Date. If, as a result of feedback or changes requested by the Patron or Partner, the Artist needs additional time to complete the project, the Patron or Partner may grant a reasonable amount of time, negotiated among the Company, Artist, and Patron or Partner, for the Artist to complete the project (the “Extension Period”).
In order to ensure on-time shipping and timely check-ins, the Artist agrees to respond to any e-mail from the Company within 24-48 hours after the Company sends the e-mail, until the delivery of the Work. The Patron or Partner agrees to respond to any email from the Company or Artist within 48 hours in order to hold the Artist to the agreed Shipping Date.
4. REMEDIES. Should the Artist fail to ship the Work within one week of the Shipping Date, or if an Extension Period is agreed to among all three parties, one week of the expiration of the Extension Period, the Patron or Partner shall receive a 25% discount off the Purchase Price.
Where the Patron or Partner and Artist have agreed in the Project Scoping Document to a non-negotiable term, provision or condition (i.e., a non-negotiable Shipping Date), should the Artist fail to perform that provision, term or condition, the Patron or Partner has the option to either (1) terminate this Agreement and receive a full refund of the price; or (2) keep the Work and receive a 25% discount off the price.
Should the Artist fail to ship the Work within one month of the Shipping Date, or, if an Extension Period is agreed to among all three parties, one month from the expiration of the Extension Period, the Patron or Partner has the option to terminate this Agreement and receive a full refund of the price.
If, as a result of one of the above enumerated deficiencies, the Patron or Partner elects to terminate this Agreement and receive a full refund of the price, the Company is not liable for that portion of the price that has already been paid to the Artist and must seek recuperation directly from the Artist.
5. ARTIST AS INDEPENDENT CONTRACTOR. The Parties intend that this Agreement creates an independent contractor relationship. The Artist performing under this contract is not an employee, subcontractor, or agent of the Company or the patron. The Artist will not hold him/herself out as nor claim to be an officer or employee of the Company or the Patron or Partner. Nor will the Artist make any claim of right, privilege, or benefit which would accrue to an employee under law.
The Artist shall create all artwork commissioned through the Company at a location determined by the Artist.
The Artist is responsible for payment of all costs related to the creation of the Work, including but not limited to subcontractors, required materials, supplies, equipment, labor of assistants, insurance, communications, studio space, travel, lodging, sustenance, transportation, storage and rentals.
6. COPYRIGHT AND REPRODUCTION RIGHTS. The Artist shall retain all rights under copyright law to which the Work, preliminary studies, drawings, specifications, and models may be subject. The Artist represents and agrees that the Artist is the sole creator of the Work and that the Work has not been previously displayed in whole or in part, and that nothing in the Work shall infringe copyright, violate any rights to privacy or publicity, or otherwise violate applicable law.
The Artist shall also retain all reproduction rights to the Work. The Patron or Partner may not reproduce the Work without the prior approval of the Artist, as noted in the Project Scoping Document.
The Artist grants to the Company and it assigns an irrevocable license to make and use images and photographs of the Work for promotional materials, including, but not limited to, display on the Company’s website and inclusion in a visual chronicle of completed projects facilitated by the Company. The Artist agrees that these rights shall be royalty-free, unrestricted, non-exclusive, and permanent. Images of the Work may include but are not limited to any artwork proposals, preliminary studies, initial sketches, images of models of the Work, and/or images of the Work during fabrication. The Company shall not identify or represent reproductions of any artwork proposal, preliminary studies, Sketches, or models of the Work as finished Works.
7. NON-CIRCUMVENTION. By signing this Agreement, the Patron agrees that they will not contract for the commission or provision of any work of art with the Artist for 36 months from the date noted in the Project Scoping Document without the involvement of the Company. The Partner agrees that they will not contract for the commission or provision of any work of art with the Artist without the involvement of the Company hereafter. Neither party will contact any of the artists introduced in the initial portfolio sent by the Company without involvement of the Company.
8. NONASSIGNABILITY. Neither this Agreement, nor any claim arising from this Agreement, shall be transferred or assigned by either party without prior written consent of the other party.
9. RISK OF LOSS. The responsibility for and risk of damage to or loss of the Work during fabrication and through delivery shall be solely that of the Artist. The Artist shall take such measures as are reasonably necessary to protect the Work from loss or damage during the creation, storage, transportation and delivery of the Work.
Upon satisfactory delivery of the Work, the responsibility for and risk of damage to or loss of the Work shall no longer be the responsibility of the Artist, and shall shift to the Patron.
10. WARRANTY OF TITLE. The Artist warrants and represents that, upon shipment of the Work and final payment to the Artist by Company, the Patron shall acquire good title to the Work, and that the Work shall be free from any and all claims, licenses, and charges by any other person or entity, including but not limited to any employee, supplier, or subcontractor of the Artist.
11. WAIVER. Waiver of any default or breach shall not be deemed to be a waiver of any subsequent default or breach. Any waiver shall not be construed to be a modification of the terms of the Agreement unless stated to be such in writing signed by the waiving party.
12. SEVERABILITY. The provisions of this Agreement are intended to be severable. If any term or provision is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of the Agreement.
13. AMENDMENT. This Agreement may be amended by mutual agreement of the Parties. Such amendments shall not be binding unless they are in writing and signed by each of the parties.
14. ENTIRE AGREEMENT. This Agreement, including referenced attachments and addenda, represents all the terms and conditions agreed upon by the Parties. No other statements or representations, written or oral, shall be deemed a part hereof.