[Jewelry making - Article 00118] - Re: [Orchid] Consignment Advice

[Charles Lewton-Brain]

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Here is a rather complicated one:

Consignment Agreement

This agreement made this

BETWEEN:

                (your name and address)

AND:

                (Their name and address)


    Recitals WHEREAS, the Gallery is engaged in the sale of works of art
    and jewellery and WHEREAS, the Artist has created, expended time and
    labour on and owns certain works ('Works) described in Exhibit A and
    desires to sell same; THEREFORE, in consideration of mutual covenants
    and conditions contained herein: 

    I. Covenants and Promises of the Gallery 

    Gallery covenants, promises, represents, agrees and acknowledges as
    follows: 

    a) Receipt on consignment of the Works as described in Exhibit A and
    the updated amendments thereto. 

    b) To make reasonable and bona fide efforts to sell each Work at the
    retail prices set forth in Exhibit B.  If sold the Gallery shall
    receive 40% of the retail prices set forth in Exhibit B as it's
    commission for selling the Work.  The Gallery may buy Works upon
    receipt of same from the Artist and may remit 50% of the retail price
    to the Artist instead of consignment. This option must exercised by
    the Gallery within one (1) day of receipt of work from the Artist.  If
    the Artist accepts special order work from a Gallery referral the
    Gallery shall be entitled to 20% of the Artist's selling price to the
    purchaser. 

    c) To display 5 or more of the said works within one week of receipt
    of said Works and continuously thereafter, a combination of said Works
    in that number for a period of 6 months after which this agreement
    will be revalidated by both parties. 

    d) To exercise all due and reasonable care in the handling, display,
    storage, packing and shipping and temporary delivery to other persons
    of the Works until returned to the possession of the Artist.  The
    Gallery will be liable to the Artist for any injury, damage, loss,
    theft or disappearance of or to the Works in an amount equal to 60% of
    the retail price listed in Exhibit B unless the insurer to the Gallery
    refunds the retail price in which case the Gallery is liable to the
    Artist for the full Retail price as listed in Exhibit B.  The Gallery
    will insure the Works against the above hazards while in the
    possession of the Gallery and while in transit being returned to the
    Artist.  The Gallery will pay all costs of returning Works to the
    Artist. 

    e) After withholding from the purchase price such sum as is required
    by law for sales tax and the Gallery's compensation as set forth in
    Section I (b), to remit the balance received to the Artist at the same
    time as submitting the Statement (see Section I (f). 

    f)  To deliver to Artist on or before the end of each month or before
    (but not later than) according to the custom of the Gallery during the
    term of this contract a full and complete statement of inventory and
    account ('Statement') in approximately the form of Exhibit C which
    shall set forth the following: 

        (1) the particular Works sold,
        (2) the date of sale)s) and amount(s) thereof,
        (3) the location of all unsold Works, and whether, if in the
		possession of the  Gallery, said unsold Works are, at the time of the
		statement, currently displayed, and
        (4) the amount due the Gallery and amount due the Artist.

    Gallery hereby represents that this Statement shall be accurate and
    complete in all respects.  The Artist shall have the right to inspect
    the financial records of the Gallery pertaining to any transaction
    involving the Artist's Works during business hours after giving the
    Gallery five (5) days written notice of the intent to examine said
    written records.  In the event the Artist discovers any deficiency
    which exceeds 5% of the amount paid the Artist in any previous period
    the Gallery shall pay such deficiency and all costs of inspection
    including, but not limited to, the amount spent on any accountants,
    attorneys, transportation or the like. 

    (g) In the event of sale of Works, to remit to the Artist at the same
    time as submitting the Statement, the full amount of money received
    and owed to the Artist.  The use of Works in Barter, exchange or
    partial payment is prohibited as payment methods for the Works unless
    the Gallery remits the full amount owed the Artist as set out in
    Section I (f) according to Exhibit B with the Statement that follows
    the transaction regardless of whether the Gallery has yet been paid in
    full by the purchaser. If the Gallery does not remit the Artist's
    payment within the prescribed period the Gallery will pay the Artist
    interest at 9% per month on the unpaid balance.  The Gallery assumes
    full risk of non payment by the purchaser.  However , if a Work is
    returned in good condition by the purchaser for credit the Gallery
    will make appropriate adjustments in future payments to the Artist. 

    h) To return to the Artist within 10 days after receipt of a written
    demand therefor, all Works consigned under this Agreement to the
    Gallery and remaining unsold at the time the request was made. 

    i) To refrain from attempting in any way to inhibit the Artist from
    selling any Works other than those covered by the agreement.  The
    Gallery may define an area of exclusivity with the Artist as within
    the city of (their city).  If the Gallery should desire to enter any
    of the Works covered by this agreement in any art or craft shows in
    which awards are made, to obtain the written signature of the Artist
    on any entry form used for the purpose or, in the event there is no
    entry form, to obtain the written consent of the Artist prior to any
    such show. 

    k)  Not to permit any Work to remain in the possession of a customer
    for the purpose of sale on approval for more than 2 days. 

    l)  The Gallery shall guarantee full payment for Works not returned
    to the Artist in the event of bankruptcy or other termination of this
    agreement. 

    m) If the Gallery receives special order requests from purchasers, to
    transmit promptly these requests to the Artist for written
    acceptance. When the Gallery receives the Artist's written acceptance
    the Artist will deal directly with the purchaser.  The Gallery shall
    be entitled to its commission pursuant to section I(b) on all special
    orders which the Artist accepts from Gallery referrals. 

    n)  The Gallery shall send photocopies of any press coverage
    involving the Artist's Works to the Artist..  The Gallery shall not
    use an image of the Works for paid advertising without the written
    permission of the artist.. If a photo the Artist supplied is used the
    Artist shall receive a photo credit and if used in paid advertising
    the Gallery shall pay a fee of $25.00 for such use to the Artist. 
    Photos and images of the Works may be used freely by the Gallery for
    Press Releases and other unpaid advertising purposes without any
    payment due to the Artist. 

    II. Covenants and promises of the Artist 

The Artist hereby covenants, promises, represents, agrees and acknowledges
as follows:

    a)  The Works are as described in Exhibit B and Artist is the creator
    and sole owner of the Works and has full authority to enter into this
    Agreement. 

    b)  The Works do not violate or infringe upon the rights of any
    party, including, but not limited to contractual rights, copyrights or
    any rights of privacy to the best knowledge of the Artist. 

    c) The Gallery is authorized to deliver title to Works covered by
    this Agreement to purchasers and to collect therefore a price no less
    than the retail price set forth for the Work in Exhibit B.  In all
    cases the copyright of the Work remains with the Artist and is not
    transferred by sale of the original Work. 

    d)  During the term of this Agreement, not to make any agreements,
    conditional or otherwise, to sell or to transfer at any time, the
    Works contained in Exhibit A to this Agreement without the written
    consent and confirmation of the Gallery. 

    e)  Not to sell or seek to sell any Work consigned under this
    Agreement and Produced by the Artist without the consent of the
    Gallery. 

    f) To inform the Gallery at all times during the effectiveness of
    this Agreement of any change in the the Artist's present address from
    that noted at the beginning of this Agreement. 

    g)  To pay the Gallery's commission in the case of refered work
    according to Section I (b) within 10 days of receiving payment from
    the purchaser. 

    h)  The Artist shall pay the costs of shipping works from the
    Artist's studio to the Gallery. 

    i)  The Artist shall repair free of charge any Work that is broken or
    damaged due to faults in workmanship or material.  If the damage is
    due to the customer's misuse of the Work then repairs will be done
    upon request with a fair repair fee due the Artist.  The fee is to be
    defined by the Artist at the time of the requested repair. 

III: Gallery Purchases

    The Gallery may purchase the Works for 50% of the Retail price as
    listed in Exhibit B providing that purchase is made within one (1) day
    of receipt of the works from the Artist.  The amount due will be
    remitted to the Artist upon purchase by the Gallery.  The transaction
    will be noted on the Statement for the month in which the purchase of
    the Work(s) was made and monies due the Artist for said purchase shall
    be remitted by the Gallery to the Artist along with the Statement. 

IV: Delivery

    The Gallery will pay the costs of packing and shipping the Works to
    the shipping address requested by the Artist.  The Gallery will insure
    the works while in transit. 

V.Contract Term

    Unless terminated sooner pursuant to Section VI, this Agreement shall
    continue in force and effect from the date hereof until           
    and thereafter from month to month until terminated by written notice
    given not less than 30 days prior to said termination date, or to the
    end of any month thereafter.  Upon termination of this Agreement, the
    Gallery will purchase the Works as provided in Section III or will
    return the unsold Works to the Craftsperson as well as any monies owed
    for Works not returned. 

VI. Termination

    This Agreement may be terminated by either party in the event of a
    breach by the other party of any covenant, promises, representation or
    agreement herein.  Termination shall be effective when either party
    serves a written notice thereof on the other party to the appropriate
    address noted in Section XIV hereof.  In addition, this Agreement
    shall terminate upon the death, bankruptcy or dissolution of either
    party.  Upon termination, all Works shall be returned to the Artist,
    or his successors, heirs or assigns. a) Upon termination by the
    Gallery , the Gallery shall return the Works consigned under this
    agreement to the Artist (or shipping address as defined in Section IV)
    within thirty (30) days of the postmark date of the Termination
    notice. 

VII.Copyright

    The Artist shall retain the copyright in all Works consigned to the
    Gallery.  No Work may be reproduced by the Gallery without prior
    approval of the Artist.  If written permission to reproduce is granted
    to the Gallery then all approved reproductions in catalogues,
    brochures, advertisements and other promotional literature shall carry
    the following notice: © by (your name), 19-- (see Exhibit A and
    amendments thereto).  The copyright is not transferrred to the
    purchaser of the Work from the Artist upon purchase. 

    Artist authorizes the Gallery to make Artist a co-plaintif, at no
    cost to the Artist with the Gallery in any litigation against a third
    party for infringement of any copyright on any and all of Artist's
    Works sold by the Gallery.  Any recovery from such litigation shall be
    applied first to reimburse the Gallery for it's expenses in connection
    therewith and the balance shall be divided equally between the Artist
    and the Gallery. 

VIII. Security

    The Works shall be held in trust for the benefit of the Artist and
    shall not be subject to claim by a creditor of the Gallery.  In the
    event of any default by the Gallery, the Artist shall have all the
    rights of a secured party under the commercial code. 

IX. Nonassignability

    This Agreement may not be assigned by the Gallery without the prior
    written approval of the Artist.  The Gallery shall notify the Artist 
    in advance of any change in personnel in charge of the Gallery or of
    any change in the ownership of the Gallery.  Any such change in
    personnel or ownership shall be deemed a breach within the meaning of
    Section VI and shall entitle the Artist to terminate this Agreement
    immediately. 

X. Sole and Entire Agreement

    This written agreement contains the sole and entire Consignment
    Agreement between the parties and shall supersede any and all other
    agreements between the parties.  the parties acknowledge and agree
    that neither of them has made any representations, including the
    execution and delivery hereof, except such representations as are
    specifically set forth herein and each of the parties acknowledges
    that he/she/it has relied on his/her/its own judgement in entering
    into this agreement.  The parties further acknowledge that any
    statements or representations that may have been made to each other
    prior to this Agreement are void and of no effect and that neither of
    them has relied thereon in connection with his/her/its dealings with
    the other. 

XI. Modification

    No modification of the Agreement or of any covenant, condition or
    limitation herein contained shall be valid unless in writing and duly
    executed by both parties to this Agreement. 

XII. Waiver

    A waiver of any breach of the provisions of the Agreement shall not
    be considered to be a continuing waiver of other breaches of the same
    or other provisions hereof. 

XIII. Heirs and Assigns

    This Agreement shall be binding upon the parties hereto, their heirs,
    assigns and personal representatives. 

XIV. Notices

    Any notice required or permitted to be given under this Agreement
    shall be sufficient, if in writing, and if sent by registered or
    certified mail, return receipt requested to the following Addresses: 

                (your name and address)

                (gallery name and address)

XV Choice of Law

    This Agreement shall be construed in accordance with the laws of the
    (your state or province) and all litigation shall be brought in the
    courts of that state or province. 

XVI. Attorney's Fees

    The prevailing party will be entitled to have the nonprevailing party
    pay all costs and expenses, including reasonable attorneys fees, at
    trial and on appeal, incurred by the prevailing party in enforcing
    this Agreement. 

XVII. Severability

    If any section of this Agreement is held to be invalid the remaining
    sections of this Agreement will not be affected. 

XV111 Shipping Address

    When Works are returned to the Artist the Gallery shall ship them to: 

                                (your name and address)

    or:  To an address communicated to the Gallery for shipment of a
    specific Work or Works. 


Agreed to and accepted: 

Artist:

Gallery:

Dated:


Exhibit A-List of Works
        Description
1)      (list of works)

Exhibit B-Commission Arrangement

        Retail Price                                            Retail Price
1)      (list of works with prices)


Exhibit C-Monthly Statement Example

Artist:
Gallery
Period from             , 19     to              19     .
Item Numbers     Description     Date of Sale     Price     Amount due
Gallery
Amount due Artist     Location displayed.


Charles Lewton-Brain
Box 1624, Ste M, Calgary, Alberta, T2P 2L7, Canada



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