Terms of Agreement for Marketing and Selling Works of Art
AGREEMENT for Marketing and Selling of Works of Art
entered into on the______ day of ____________, 20__, between Geoffrey Drew Marketing, Inc. a/b/a Echelon Art Gallery and echelonartgallery.com, hereinafter referred to as “Echelon Art Gallery”, whose office is located at 3000 Hempstead Turnpike, Suite 305, Levittown, NY 11756, and ____________, hereinafter referred to as “the Artist”, located at [the Artist’s address here] with respect to the Marketing and Sale of a particular or work or works of art as listed and described on Appendix A to this agreement and hereinafter referred to as “the Work”.
WHEREAS, the Artist has created the Work and has full right, title, and interest therein; and
WHEREAS, the Artist wishes to sell the Work; and
WHEREAS, Echelon Art Gallery, which is a d/b/a of Geoffrey Drew Marketing, Inc., is in the business of marketing and selling Art among other things.
WHEREAS, Echelon Art Gallery, which is not the buyer; but serves, rather, as an on-line, i.e. an Internet art boutique, store or gallery, through which it endeavors to present the Art produced by Artists or Owned by their estates or inheritors et al, to other Artists, Art Aficionados and Art Buyers;
WHEREAS, Echelon Art Gallery, wishes to Market the Work, identify potential purchasers of the Work and to bring about the sale of the Work;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual obligations, covenants, and conditions hereinafter set forth, and other valuable considerations, the parties hereto agree as follows:
The term of this Agreement starts on the date the Agreement is fully executed by both parties and continues until either the Artist or Echelon Art Gallery terminates this Agreement in writing.
The Artist at all times retains all right, title and interest to the Work provided by the Artist hereunder (including, without limitation, the copyrights to the Work), subject to the rights in the licenses granted to Echelon Art Gallery under this Agreement.
3. License to Use the Work
As used in this Agreement, the term "the Work" means any content uploaded to the Echelon Art Gallery website, i.e. www.echelonartgallery.com which may include without limitation the Artist's name(s) (including professional names), trademarks, trade names, likenesses, photographs, biographical materials, artwork, video, liner notes, and other graphical or textual materials and any computer-generated images, video or other artwork or images that Artist submits to Echelon Art Gallery.
As and when the Work is submitted to Echelon Art Gallery, the Artist grants to Echelon Art Gallery a worldwide, royalty-free, non-exclusive license to prepare and encode the Work or any part of the Work for digital or analog transmission, manipulation and exhibition in any format, modify, adapt, change or otherwise alter the Artist Materials; to display, copy, reproduce, exhibit, publicly perform, broadcast, rebroadcast, transmit, retransmit, distribute through any electronic means (including analog and digital) or other means, and electronically or otherwise publish any or all of the Work, including any part of them, and to include them in compilations for publication, by any and all means and media now known or not yet known or invented. The Artist also grants right to sublicense to any other person or company any of the licensed rights in the Work, or any part of them, subject to the terms and conditions of this Agreement. The Artist acknowledges that the Artist will not have any right, title, or interest in any other materials with which the Work may be combined or into which all or any portion of the Artist Materials may be incorporated.
During the Term, Echelon Art Gallery's licenses under this Agreement include the right to use any part of the Work in the promotion, advertising or marketing of the Echelon Art Gallery web site free of charge. The Work may be used in any media format, without prior consent or approval from the Artist. Where the Work is used to promote Echelon Art Gallery website, Echelon Art Gallery will make efforts to provide a photo credit to the Artist, but Echelon Art Gallery cannot guarantee a photo credit and will not be held liable if one is not made or is made in a different format. Echelon Art Gallery will have all the rights to use the name of the Artist to advertise and promote the Echelon Art Gallery web site.
4. Name and Likeness
The Artist also grants to Echelon Art Gallery:
a) a worldwide, royalty-free, license to use the Artist’s name or names, photograph and/or likeness or likenesses and biographical materials in connection with the distribution, exploitation, promotion, marketing and advertising of the Work, and the Echelon Art Gallery web site as described hereunder:
b) the Artist also agrees not to assert against Echelon Art Gallery any privacy, publicity, moral or similar rights held by Artist and on behalf any other person or persons whose name or names, photographs and/or likeness or likenesses and/or performances are embodied in the Work.
5. Limitation of Rights
The rights and licenses granted to Echelon Art Gallery in this Agreement require Echelon Art Gallery to obtain the Artist’s consent before making any commercial agreement with anyone else to separately buy, license, re-publish, or commercially use the Work. No additional consent is required for any other licensed uses under this Agreement. Echelon Art Gallery will contact the Artist in writing about any individual commercial uses of the Work initiated by Echelon Art Gallery.
6. Representations and Warranties
The Artist represents and warrants:
a) that the Artist has the full right and power to enter into and perform this Agreement and to grant Echelon Art Gallery all rights to use the Work as contemplated in this Agreement,
b) that, if the Artist being is a minor, that he or she is represented by his or her parent or legal guardian with regard to the Work, and that his or her parent or legal guardian reviewed, understands, and approves of and agrees to the terms of this Agreement,
c) that the Artist has obtained all necessary third-party consents, rights, licenses and permissions, if any, required for the Artist to enter into this Agreement and to grant Echelon Art Gallery the rights to use the Work set out in this Agreement. The Work itself and the use of the Work by Echelon Art Gallery under this Agreement do not and will not infringe on any rights of any third party, including any trademark, copyright, patent, trade secret, right of privacy or publicity or moral rights of any third party,
d) that the Artist has all information provided or will provide to Echelon Art Gallery is true and complete,
e) that the Work does not and will not violate any law, statute, ordinance or regulation and will not be defamatory, libelous, threatening, pornographic, obscene, harmful to minors, violations of child pornography or child sexual exploitation laws,
f) that the Work does not and will not contain any viruses or other programming routines that may detrimentally interfere with computer systems or data, whether those of Echelon Art Gallery or any third party,
g) that the Artist will not use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers," that accesses the Website in a manner that sends more request messages to the Echelon Art Gallery servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser.
h) that the Artist agrees not to collect or harvest any personally identifiable information, including account names, from the Website, nor to use the communication systems provided by the www.echelopnartgallery.com web site (e.g. comments, or e-mail or the like) for any commercial solicitation purposes. The Artist also agrees not to solicit, for commercial purposes, any other artists whose work is included on www.echelopnartgallery.com web site with respect to their Art work.
i) that if the Artist is a minor, that the parent or legal guardian of the Artist hereby warrants that the Artist has the legal right to have this Agreement executed on his or her behalf and guarantees such person's performance of the terms of this Agreement. These warranties shall survive any termination of this Agreement,
j) the Artist is responsible for all licensing, reporting and payment obligations of any kind to third parties in connection with the Work,
k) incase a potential Purchaser communicates his or her intention to purchase an Artwork on the Website, Echelon Art Gallery shall within 24 hours of receipt of such communication notify the Artist of the potential Purchaser's communication expressing an interest in purchasing the Work and the Artist shall immediately upon receipt of such notification from Echelon Art Gallery ensure that the Work is made available. Upon receipt of the full Sale Price from the potential Purchaser, Echelon Art Gallery will confirm the sale of the Artwork to the Artist and request the Artist to deliver the Work in accordance with instructions provided by Echelon Art Gallery,
l) the Artist authorizes Echelon Art Gallery to collect and receive the Sale Price for the Artwork sold through the Website or any other means in any manner which Echelon Art Gallery considers appropriate, and to deduct there from any sums that may be due Echelon Art Gallery from the Artist, including the Commission, expenses related to the sale covered by this Agreement and applicable sales tax, before remitting the balance to the Artist,
m) the Artist authorizes Echelon Art Gallery, to generate an invoice and to submit it to the potential Purchaser, such invoice to include any special packaging, shipping and handling and other ancillary charges such as appropriate insurance and applicable taxes. It is understood that if the potential Purchaser fails to pay the full Sale price within 7 (seven) days from the date on which the Work is sold through the Website or any other means, the Work shall be deemed to be unsold and shall forthwith be returned to the Artist if the Work is in the physical possession of Echelon Art Gallery or one of its agents.
The Artist agrees to defend, indemnify, reimburse and hold Echelon Art Gallery, which is a d/b/a of Geoffrey Drew Marketing, Inc. and subsidiary and affiliated entities, and its and their members, managers, officers, directors, representatives, employees, agents, successors, designees, licensees, sub licensees and assigns harmless from and against any and all liability, loss, damages, judgments, costs and expenses including reasonable attorney's fees, costs and expenses and court costs arising out of or related to:
a) the Artist's use of the Echelon Art Gallery site;
b) any breach or alleged breach of the Artist's representations and warranties and/or any breach, alleged breach or violation of the notices, terms and conditions of this Agreement; and
c) the Artist's violation or alleged or threatened violation of any rights of a third party, including, without limitation, any trademark, copyright, patent, trade secret, right of privacy or publicity or moral rights of any third party, arising from the submission and/or use of the Artist Materials as provided in this Agreement.
8. Echelon Art Gallery Performance
The Artist acknowledges and agrees that the operation of the web site of Echelon Art Gallery may, from time-to-time encounter technical or other problems and may not necessarily continue uninterrupted and Echelon Art Gallery will not be responsible to Artist or others for any interruptions, errors or problems or even for an outright discontinuance of the Echelon Art Gallery service. There are no assurances whatsoever that any of the Work or any part or element of the Work will actually be used on the Echelon Art Gallery site or if used will continue to be available for any particular time. Echelon Art Gallery has the right, according to the sole and absolute discretion of in Echelon Art Gallery, to remove from the Echelon Art Gallery web site at any time the Work and/or to revoke any sublicense granted by Echelon Art Gallery to any affiliate or unaffiliated third party. Echelon Art Gallery is to be in control the content of the Work as represented on the Echelon Art Gallery web site. The Artist acknowledges that the Artist is solely responsible for all content submitted to the Echelon Art Gallery for use on the Echelon Art Gallery web site. The Echelon Art Gallery web site may be discontinued at any time, with or without reason and all the Artist Materials uploaded to Echelon Art Gallery may be removed and unavailable for recovery by any means.
9. No Warranty
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ECHELON ART GALLERY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO:
A) UNINTERRUPTED OR CONTINUOUS AVAILABILITY OF THE ECHELON ART GALLERY WEB SITE, AND
B) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NO INFRINGEMENT WITH RESPECT TO THE ECHELON ART GALLERY WEB SITE AND ANY SERVICES PROVIDED BY ECHELON ART GALLERY HEREUNDER. IN ADDITION, ALTHOUGH ECHELON ART GALLERY INTENDS TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES OR OTHER DESTRUCTIVE MATERIALS TO THE ECHELON ART GALLERY WEB SITE, AND WHETHER OR NOT ECHELON ART GALLERY IMPLEMENTS THE AFOREMENTIONED REASONABLE PROTECTIONS, ECHELON ART GALLERY DOES NOT WARRANT THAT THE ECHELON ART GALLERY WEB SITE, ANY PART THEREOF, OR ANY INFORMATION OR OTHER MATERIAL ACCESSIBLE THROUGH THE ECHELON ART GALLERY WEB SITE IS FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS.
10. No Liability for Third Party Use
ECHELON ART GALLERY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY THIRD-PARTY USE OF THE WORK MADE AVAILABLE ON THE ECHELON ART GALLERY WEB SITE BY THE ARTIST OR BY ECHELON ART GALLERY PURSUANT TO THE TERMS OF THIS AGREEMENT. THE ARTIST SHALL BE SOLELY RESPONSIBLE FOR SEEKING RELIEF FOR ANY UNAUTHORIZED USE OF THE WORK BY A THIRD-PARTY, AND NOT FROM ECHELON ART GALLERY, WHICH IS A D/B/A OF GEOFFREY DREW MARKETING, INC. THIS MEANS, AMONG OTHER THINGS, THAT IF ANOTHER PERSON OBTAINS THE WORK FROM ECHELON ART GALLERY(WHETHER OR NOT WITH ECHELON ART GALLERY'S PERMISSION), AND USES THOSE MATERIALS IN A WAY NOT AUTHORIZED BY THE LICENSES GRANTED UNDER THIS AGREEMENT THE ARTIST WILL SEEK REDRESS OR RECOVERY FROM THE OTHER PERSON OR ENTITY AND NOT FROM ECHELON ART GALLERY, AND THAT THE ARTIST WILL NOT HOLD ECHELON ART GALLERY RESPONSIBLE OR LIABLE FOR SUCH UNAUTHORIZED USE.
11. Exclusion of Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT (INCLUDING NEGLIGENCE) SHALL ECHELON ART GALLERY, ITS OFFICERS, DIRECTORS, MEMBERS, PARENTS, AFFILIATES, SUBSIDIARIES, LICENSEES, ASSIGNS, SUCCESSORS, AGENTS, REPRESENTATIVES, EMPLOYEES OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF AN ACTION UNDER CONTRACT, NEGLIGENCE OR ANY OTHER THEORY AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES), WHETHER OR NOT ECHELON ART GALLERY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE ECHELON ART GALLERY WEB SITE. IN NO EVENT SHALL THE TOTAL LIABILITY OF ECHELON ART GALLERY TO THE ARTIST UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED $5.00 (FIVE DOLLARS). THE PARTIES ACKNOWLEDGE AND AGREE THAT ECHELON ART GALLERY HAS ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE LIMITATIONS OF LIABILITY SPECIFIED IN THIS AGREEMENT, WHICH ALLOCATE THE RISK BETWEEN THE ARTIST AND ECHELON ART GALLERY, AND FORM THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
12. Copyright and Trademark Notices
The Echelon Art Gallery web site, the Echelon Art Gallery logo and the layout and design of the Echelon Art Gallery web site, among other marks that may appear on the Echelon Art Gallery web site are all trademarks of Echelon Art Gallery, which is a d/b/a of Geoffrey Drew Marketing, Inc. Other trademarks and service marks on the Echelon Art Gallery web site may be the property of the advertisers or other corporate or individual entities, content partners and/or providers, or other third parties. The Artist may not use any of the Echelon Art Gallery marks without prior written permission from Echelon Art Gallery and the Artist may not use any third party marks without the prior written permission from those third parties.
This Agreement shall be binding upon the parties hereto, their heirs, successors, assigns, and personal representatives. This Agreement constitutes the entire understanding between the parties. Its terms can be modified only by an instrument in writing signed by both parties. A waiver of any breach of any of the provisions of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions hereof. This Agreement shall be governed by the laws of the State of New York.
Echelon Art Gallery shall have the right to assign this Agreement in whole or in part to any person or business entity. The Artist may not assign the Artist's rights or delegate the Artist's obligations under this Agreement without the prior written consent of Echelon Art Gallery.
All notices, requests and other communications under this Agreement must be in writing and may be sent either electronically (i.e. via E-Mail), or by registered letter to:
Echelon Art Gallery
a d/b/a of Geoffrey Drew Marketing, Inc.
3000 Hempstead Turnpike
Levittown, NY 11756.
The Artist may terminate this agreement on 60 days’ prior notice to Echelon Art Gallery at any time, or immediately by written notice to Echelon Art Gallery if:
a) Echelon Art Gallery is in material breach of this contract having (if the breach is capable of remedy) failed to comply with a 30 days' notice in writing requiring Echelon Art Gallery to remedy such breach
b) Echelon Art Gallery enters into liquidation
c) Echelon Art Gallery ceases to carry on its business
18. Pending or Potential Claims.
The Artist represents and warrants that, as of the date the Work is submitted to Echelon Art Gallery, the Artist is not aware of any pending or threatened claims, suits, actions, or charges pertaining to the Work, including without limitation any claims or allegations that any or all of the Work infringes, violates, or misappropriates the intellectual property rights of any third party. The Artist also agrees that the Artist will notify Echelon Art Gallery immediately if he/she becomes aware of any such actual or potential claims, suits, actions, allegations or charges.
The relationship between the Artist and Echelon Art Gallery a d/b/a of Geoffrey Drew Marketing, Inc. is limited and restricted up to this agreement. The Artist is an independent supplier and is not an employee or agent of Echelon Art Gallery for any purpose. It is expressly agreed and understood that the Artist has no power or authority to enter into contracts of any type on behalf of Echelon Art Gallery. No proposal regarding the sale of any Echelon Art Gallery service shall be binding on the Artist unless and until such proposal is accepted, in writing, by Echelon Art Gallery.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the date first set forth above.
X ___________________________________ Date: ___/ ___ / ___
Authorized Contact for the Agent: [_______________], Title __________
X ___________________________________ Date: ___/ ___ / ___
Authorized Contact for the Artist: [_______________], Title __________