for a consignment term from June 13, 2023 and concluding September 4, 2023.
AGREEMENT TO SELL
In accordance with this Agreement, the Consignor grants Western Gallery an exclusive right to display and offer for sale the mutually agreed upon pieces of artwork (pieces), pursuant to the terms of this Agreement.
Western Gallery agrees to place on display the mutually agreed upon pieces at western.gallery in an online store, and advertise their availability to Western Gallery's audience.
The sale price of all pieces shall be determined by the Consignor.
Upon agreement to consign, the Consignor shall provide a complete and accurate inventory list of the artwork pieces to consign to be sold. This list must include the title of each piece, the medium of each piece, the dimensions of each piece, the agreed upon price of each piece, and it must be signed by both the Consignor and Consignee upon acceptance.
PROCEEDS AND TERMS OF SALES
The Consignor shall retain possession of the consigned artwork, but the Consignee shall represent control of the consigned artwork for a minimum period of 80 days.
The Consignee agrees to maintain the agreed upon selling price for each piece consigned and will accept nothing less unless otherwise agreed upon in writing. Western Gallery may apply a discount as a whole to any transaction through its online store in the form of a Shopping Cart Coupon Code, but any discount will be applied to the cart and not impact the selling price of any consigned work. In all completed sales, including sales completed with a Shopping Cart Coupon Code, the Consignor will always receive 60% of the listed selling price.
In all completed sales, the Consignor will receive 60% of the sale price. The Consignee shall be entitled to retain a commission of 40% of the sale of each piece consigned. However, if a Shopping Cart Coupon Code has been applied to the sale, the Consignee shall be entitled to retain a commission of 40% of the sale of each piece consigned, less any discount.
The Consignor will be notified via email of any sales made within 48 hours of the sale, including Buyer details. Buyer details include the name, shipping address and email address of the Buyer. A phone number will be provided if possible.
Within 30 business days of the successfully completed delivery of the piece(s) to the Buyer, as indicated by digital tracking number, the Consignee will deliver the full amount of the sale price, less the aforementioned agreed upon commission, to the Consignor.
Both the Consignee and the Consignor agree that payments to the Consignor shall be made in the form of Paypal, Venmo, ACH or Check.
If a sale can not be completed due to damage or theft to a piece, the sale will be cancelled and all monies refunded to the buyer. The Consignor shall bear responsibility for any damage or theft that may occur to any pieces in their possession throughout the consignment term, until successfully completed delivery of the piece(s) to the Buyer.
Representation or control of any artwork that is not sold at the end of the consignment period shall be returned to the Consignor.
SHIPPING
To better facilitate online sales, all works will be offered with “Free Shipping.”
The Consignor will be notified via email and sent Buyer details within 48 hours of the cleared and completed sale of each piece. Buyer details include the name, shipping address and email address of the Buyer. A phone number will be provided if possible.
Within two business days of a sale notification, the Consignor will pack and ship each sold piece to the Buyer(s), insured for its full value plus packing, shipping and handling expenses, and send a digital tracking number to the Consignee. Once a work has sold, Consignors are responsible for all shipping and handling expenses.
LIABILITY FOR LOSS, DAMAGE OR THEFT OF CONSIGNED ARTWORK
In the event that the consigned artwork is lost, stolen, destroyed, damaged or unaccounted for due to any cause, known or unknown, while consigned to the Consignee:
If a sale can not be completed due to damage, theft or loss of a piece, the sale will be cancelled and all monies refunded to the buyer. The Consignor shall bear responsibility for any damage or theft that may occur to any pieces.
If damage or theft occurs while in transit or upon delivery to Buyer, the Consignor must notify the Consignee and the Buyer within one business day of notification of a loss. The Consignor will bear the responsibility of both the cost of the lost or damaged artwork and packing, shipping and handling costs. In the event of a total loss, the Buyer will be refunded all monies and the Consignor will be responsible for claiming any shipping insurance directly.
ARTWORK RECORDS
It shall be the responsibility of the Consignee to maintain all records of consignments and ensure accurate record keeping of each piece, and what was sold, to whom. The Consignor shall have the right to request records related to their account.
ARTWORK OWNERSHIP
The Consignor shall retain ownership of any and all consigned artwork until such time as the artwork is sold and successfully shipped and delivered, as indicated by digital tracking number, and its good condition confirmed by the Buyer. Ownership of the physical artwork will then transfer to the Buyer.
COPYRIGHT, INTELLECTUAL PROPERTY AND IMAGE LICENSING
Image copyrights and the intellectual property of any artwork consigned will remain with the Consignor and/or License-holder(s), not to be transferred as part of the sale.
Consigned Works License
By consigning work with the Consignee, the Consignor grants, and represents and warrants that the Consignor has the right to grant to the Consignee an unrestricted, unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide right, and license to host, use, copy, reproduce, disclose, publish, broadcast, archive, store, cache, publicly perform, publicly display, reformat, translate, transmit, excerpt (in whole or in part), and distribute the images of such works consigned including also, without limitation, the name, image and/or voice of the Consignor, for the commercial purpose of promoting, advertising and/or selling the consigned artwork(s), or otherwise, and grant and authorize sublicenses of the foregoing. The use and distribution may occur in any media formats and through any media channels, expressly including print advertisement and any form of digital reproduction in support of selling the Consigned artwork(s), documentation of the full exhibition in the form of a commemorative non-fungible-token or tokens and a printed documentary book.
This license will apply to any form, media, or technology now known or hereafter developed, and includes use of the Consignor’s name, company name, and franchise name, as applicable, and any of the trademarks, service marks, trade names, logos, and personal and commercial images provided. The Consignor waives all moral rights in any consigned works and warrants that moral rights have not otherwise been asserted in any consigned works.
The Consignee does not assert any ownership over consigned works. The Consignor retains full ownership of all the Consignor’s consigned works until sold and delivered. The Consignor retains any intellectual property rights or other proprietary rights associated with the Consignor’s consigned works. The Consignee is not liable for any statements or representations in consigned works. The Consignor is solely responsible for their works and expressly agrees to exonerate the Consignee from any and all responsibility and to refrain from any legal action against the Consignee regarding consigned works.
BUSINESS OPERATION
The Consignee shall maintain the exclusive right to determine the business operation and management of its store. The Consignor shall have no liability or responsibility for the operation and management of the Consignee's business, employees, staff, officers or agents or any torts or other causes of action that may result from daily operation of business, and the Consignee agrees to defend, indemnify and hold harmless the Consignor for same.
BREACH OF AGREEMENT
In the event that the Consignee fails to perform and/or adhere to the terms and obligations contained herein this Agreement, the Consignor shall be afforded the opportunity to cancel this Agreement by providing 10 days advance written notice to the Consignee.
However, the Consignor shall in turn afford the Consignee the opportunity to take corrective action prior to the deadline stated in the aforementioned advance written notice to avert cancellation of this Agreement.
TERMINATION OF CONSIGNMENT AGREEMENT
The Consignee may terminate this Agreement at any time and for any reason by providing 10 days advance written notice and by returning control to the Consignor of all the unsold artwork that is the subject of this Agreement. The Consignor may terminate this Agreement at any time and for any reason by providing 30 days advance written notice, but said termination shall not affect the agreement regarding pieces of artwork already sold.
Written notice shall be emailed to info@western.gallery duly acknowledged by both parties.
ARBITRATION/MEDIATION DISPUTE RESOLUTION
The Consignee and the Consignor both agree that should any dispute arise through any aspect of this relationship, the parties shall confer in good faith to promptly resolve any dispute. In the event that the parties are unable to resolve the dispute between them, then the matter shall be mediated and/or arbitrated in an attempt to resolve any and all issues between the parties.
The parties agree that any claim or dispute that arises from or through this agreement, the relationship or obligations contemplated or outlined within this agreement, if not resolved through mediation, shall then go to and be resolved through final and binding arbitration. Any decision reached by the Arbitrator shall be final and binding and, if required, may be entered as a judgment in any court having jurisdiction. This Agreement shall be interpreted and governed by and in accordance with the Federal Arbitration Act 9 U.S.C. §1-16.
Mediation and arbitration shall occur at a location determined by the Consignee, and with mediators or/and arbitrators appointed by the Consignee.
SEVERABILITY CLAUSE
In the event that any provision of this Consignment Agreement shall be deemed to be severable or invalid, and if any term, condition, phrase or portion of this Agreement shall be determined to be unlawful or otherwise unenforceable, the remainder of the Agreement shall remain in full force and effect, so long as the clause severed does not affect the intent of the parties. If a court should find any provision of this Agreement to be invalid or unenforceable, but that by limiting said provision it would become valid and enforceable, then said provision shall be deemed to be written, construed and enforced as so limited.
ENTIRETY
The herein contained Consignment Agreement constitutes the entire understanding of both the Consignee and the Consignor pertaining to all matters contemplated hereunder at this time. The parties signing this Consignment Agreement desire or intend that any contract or other agreement entered into between the parties subsequent hereto shall supersede and preempt any conflicting provision of this Consignment Agreement whether written or oral.
WARRANTIES
Neither the Consignee nor the Consignor shall make any guarantee or warranties in relation to any sale, use or transfer of the artwork by the other party or any third party acting on behalf of the Consignee or the Consignor.
ASSIGNMENT
This Agreement is not assignable and may not be modified other than by a written modification agreed to and signed by both parties.
GOVERNING LAWS
This Agreement shall be construed and governed in accordance with the laws of the State of Texas.
WAIVER
The Consignee and the Consignor agree that instances or patterns of waiver, forbearance, course of dealing or trade usage shall not affect the right of either party to demand performance of any term or condition contained within this Agreement.
