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Terms & Conditions

THE SVANE FAMILY FOUNDATION - Ark Commission | ARTWORK SERVICES AGREEMENT

1.         PARTIES.
 
1.1       The “Foundation” is the Svane Family Foundation, a California nonprofit public benefit corporation.
 
1.2       The “Artist” is:
 
 
Name (as filled in on Artcall registration)
 
 
Street Address (as filled in on Artcall registration)
 
 
City, State, Zip Code (as filled in on Artcall registration)
 
 
Telephone Number (as filled in on Artcall registration)
 
 
Email Address (as filled in on Artcall registration)
 
1.3       Each of Foundation and Artist is sometimes referred to in this agreement (“Agreement”) as a “Party”, and they are sometimes collectively referred to herein as the “Parties”.
 
2.         STATUS OF PARTIES.
 
2.1       Artist hereby represents and warrants that Artist is an individual, 18 years of age or older, and currently residing on a full-time basis in one of the following California counties: Alameda; Contra Costa; Marin; Napa; San Francisco; San Mateo; Santa Clara; Solano; Sonoma. Artist further represents and warrants that Artist in not:
(i)        a member of the family of any director, officer, or employee of the Foundation; or (ii) a government official of any kind or type.
 
2.2       Foundation is a California nonprofit public benefit corporation formed in August, 2019. As is typical, Foundation is in the process of obtaining tax-exempt status for
U.S. and California purposes, and has been advised by counsel that it will, in due course (and subject to its continued compliance with various requirements) be granted such status effective as of the date of its formation. As a tax-exempt entity. Foundation may be subject to various special limitations and rules, including, without limitation, the so-called private foundation rules set forth the Internal Revenue Code and related Treasury Regulations. Notwithstanding anything else contained herein to the contrary, Artist hereby agrees in advance to any reasonable modifications or amendments to this Agreement that Foundation represents are helpful or necessary for it to comply with the rules applicable to tax-exempt entities.
 
3.         SERVICES TO BE PERFORMED.
 
3.1       Artist hereby agrees provide the following services (“Services”) to the Foundation: Artist shall create a visual work of art (“Artwork”), suitable for inclusion in an online exhibition, together with an online auction or other sales process, all to be produced by Foundation, and currently scheduled to take place sometime in the Autumn of 2021 (“Event), and deliver it to Foundation in accordance with the terms and conditions set forth herein.
 
3.2       Artist shall have absolute creative control over the content and make-up of Artwork; provided, however, that Artwork shall comply with any guidelines or themes provided by Foundation in connection with the Event.
 
3.3       Artist hereby represents and warrants to Foundation that the Artwork shall be an original work created by Artist that shall not have been previously published or shown to the public in any medium as of the date of the Event. Artwork shall comply with all applicable patent, trademark, and copyright laws, rules, regulations, and codes, and shall not utilize any protected patent, trademark, or copyright unless Artist has first obtained written permission, and all releases and other necessary documents, from the holder of each such right.
 
3.4       Artist agrees and acknowledges that an essential element of this Agreement is the skill and creativity of Artist in creating the Artwork. Therefore, Artist shall not assign or delegate creation of the Artwork (or any meaningful part thereof) to any other person without the advance written consent of Foundation.
 
4.         ARTIST’S FEE.
 
4.1       Upon execution hereof by Artist, and once Artist provides Foundation with a current and valid Form W-9 as set forth in Subsection 9.3, below, Foundation shall pay Artist a fee of $10,000 (“Fee”) in exchange for the Services.
 
4.2       Artist hereby agrees to promptly return the Fee (without any offset or deduction whatsoever) to Foundation in the event of a Breach, as described in Section 10, below.
 
4.3       Artist shall bear all costs and expenses, whether direct or indirect, that Artist incurs in connection with providing the Services (that is, creating the Artwork and delivering it to Foundation), including, without limitation, purchase of raw materials, studio expenses, packaging, and shipping.
 
5.         PROGRESS REPORT.
 
5.1       Artist shall furnish the Foundation with a progress report on or around January 15, 2021, which progress report shall include images and a written description of the Services performed and the Artwork in progress. Such report shall include, without limitation, the Artist’s likely timeline for completion, any foreseeable planning issues related to delivery and exhibition of the Artwork, and a statement regarding how the process has gone so far.
 
5.2       The intent of the progress report is: (i) for Foundation to track Artist’s progress with respect to the Artwork; and (ii) to generate content (including, without limitation, images, videos, and written descriptions) of the Artwork (as a work in progress or otherwise) in the run up to the Event.
 
6.         DELIVERY OF ARTWORK.
 
6.1       Artist shall deliver the completed Artwork to Foundation on April 8 or April 9, 2021, with the exact date and time to be provided in advance by the Foundation. Artist shall be solely responsible for the costs of delivery.
 
6.2       Delivery shall be made c/o Minnesota Street Project Art Services, 1150 25th Street, San Francisco, CA 94107.
 
6.3       Notwithstanding the preceding provisions of this Section 6, Foundation shall have the authority to reasonably modify the exact date, time, and place of delivery by advance notice to the Artist, provided that the delivery location must be in the San Francisco Bay Area, unless Artist agrees otherwise in writing.
 
7.         THE EVENT.
 
7.1       Artist agrees and acknowledges that Foundation intends to include the Artwork in the Event, with the ultimate expectation that the Artwork will be sold to a third-party purchaser in an online auction or other sales process. Regardless of whether the Artwork is in fact sold at auction or via some other process, or not, and regardless of the ultimate sales price, Artist acknowledges that the Fee is the only monetary consideration to be received by Artist hereunder.
 
7.2       Notwithstanding Subsection 3.2, above, or anything else contained herein to the contrary, Foundation shall not be required to include the Artwork in the Event, including, among other things, if Foundation determines (in its sole and absolute discretion) that the Artwork is not appropriate for inclusion for any reason whatsoever.
 
7.3       Artist acknowledges that Foundation intends to donate the proceeds from the Event (that is, receipts from the auction or other sale of artwork included in the Event, including the Artwork) to one or more charities (including, without limitation, charities with a focus on the arts and/or otherwise); however, Artist hereby agrees and acknowledges that Foundation is under no obligation to donate such proceeds in such manner, but instead may: (i) retain such proceeds (or any portion thereof,
 
including proceeds from the sale of the Artwork) for its own account, to be used in accordance with its general charitable mission and purposes; (ii) retain the Artwork for its own account, to be used in accordance with its general charitable mission and purposes; (iii) dispose of the Artwork by sale, donation, or otherwise, whether in connection with the Event or otherwise; and/or (iv) take any other actions with respect to disposition of the Artwork it deems helpful or appropriate, all in its sole and absolute discretion, and subject to its express obligations hereunder.
 
7.4       The Parties’ rights and obligations hereunder shall apply even if the Event does not ultimately occur.
 
7.5       The Parties agree that the character and nature of the Event, including, without limitation, the auction or other sales process, shall be determined by the Foundation in its sole discretion.
 
8.         OWNERSHIP OF ARTWORK.
 
8.1       Artist retains all copyright rights in the Artwork, including, without limitation, all common law copyright rights, reproduction rights, and the right to claim statutory copyright. In accordance with the foregoing, the Artwork may not be reproduced or altered without the written consent of the Artist, except as expressly provided in Subsection 8.5, below.
 
8.2       Foundation will use reasonable efforts not to permit any intentional destruction, damage, or modification of the Artwork. If the Artwork is damaged, Foundation will consult Artist before any restoration and shall give Artist first opportunity to restore it, if practicable.
 
8.3       Foundation will take reasonable steps to ensure that Artist’s copyright to the Artwork is protected, including, without limitation, by informing any third-party purchaser that Artist retains copyright in the Artwork.
 
8.4       Upon delivery of the Artwork to the Foundation pursuant to Section 6, above, Foundation shall be the legal owner of the Artwork, with all rights and privileges arising in connection therewith, except as expressly provided to the contrary in this Section 8.
 
8.5       Artist hereby grants to Foundation a royalty-free, perpetual, non-exclusive, irrevocable license to: (i) make two-dimensional reproductions of the Artwork, both in connection with the Event and for Foundation’s general purposes, and both before, after, and during the Event, including, but not limited to, reproductions used in connection with web sites, social media, print brochures, media publicity of all types and kinds, and catalogues; and (ii) to publicly display the Artwork, including, without limitation, online, both in connection with the Event and for Foundation’s general purposes, and both before, after, and during the Event. In any such case, Foundation shall use reasonable efforts to ensure that Artist is clearly credited as the creator of the Artwork.
 
9.         RELATIONSHIP OF THE PARTIES.
 
9.1       Artist enters into this Agreement as, and shall continue to be, and to hold herself, himself, or themselves out to the general public as, an independent contractor. The Foundation shall not have the right to direct or control the means, manner, or details by which Artist accomplishes the Services, nor will the Foundation instruct Artist as to when, where, or how Artist is to work, or the order of tasks to be performed. Except as otherwise expressly and specifically provided herein, Artist shall furnish Artist’s own transportation, equipment, and instrumentalities of every kind required for the prompt and efficient execution of the Services.
 
9.2       Except as expressly and specifically authorized hereunder, Artist is not an agent of the Foundation and has no authority to enter into any contract nor to incur any liability, debt, or other obligation on behalf of the Foundation, and shall have no right to reimbursement for any expenses paid or incurred by Artist unless otherwise agreed to in writing and in advance by Foundation. This Agreement does not create a partnership or joint venture between the Parties.
 
9.3       Upon execution hereof, Artist shall provide Foundation with a current and valid Form W-9.
 
9.4       Artist shall not look to the Foundation as Artist’s employer or partner. Artist understands that, as an independent Artist, Artist shall not be entitled to any benefits accorded to the Foundation’s employees, including without limitation worker’s compensation, unemployment, disability, health, or retirement benefits, vacation or sick pay, or for any benefits provided to employees under federal, state, or local law. Artist shall be responsible for providing, at Artist’s sole expense, and in Artist’s name, appropriate disability, worker’s compensation, and other insurance, as well as licenses and permits usual or necessary for conducting the Services.
 
9.5       Foundation shall not withhold any taxes from any payments made to Artist hereunder, except as required by law, and shall issue Artist a Form 1099-MISC for all monies remitted in accordance herewith. Artist is fully responsible for reporting and payment of Artist’s own federal and state income taxes on Artist’s Fee, and, if applicable, the reporting and payment of Artist’s social security taxes as a self- employed person.
 
9.6       Artist agrees to indemnify, defend, and hold Foundation (and its officers, directors, and affiliates) harmless from any tax obligation (or similar) to any tax authority (or similar) for any taxes (or similar obligations) arising from Artist’s provision of Services to Foundation hereunder, delivery of the Artwork, and Artist’s receipt of the Fee, including, without limitation, income taxes, payroll taxes, and sales/use taxes. Artist agrees that Artist shall timely file all tax returns, tax schedules, and tax declarations, and shall timely pay all taxes required with respect to any payment made hereunder.
 
10.       BREACH BY ARTIST – RETURN OF FEE.
 
10.1    In accordance with Subsection 4.2, above, Artist agrees to promptly return the Fee (without any offset or deduction whatsoever) to Foundation in the event of a Breach by Artist.
 
10.2    Any of the following shall be a “Breach” by Artist for purposes of Subsection 10.1, above: (i) if Foundation determines, based on its good faith belief, that any material representation or warranty by Artist set forth herein (including, without limitation, those representations and warranties set forth in Subsection 2.1  and Subsection 3.3, above) is untrue, incomplete, or otherwise incorrect; (ii) failure by Artist to make a timely and complete progress report as required in Section 5, above; (iii) failure by Artist to make a timely delivery of the completed Artwork as required in Section 6, above; and (iv) any other material breach by Artist of any covenant or obligation hereunder.
 
11.       MISCELLANEOUS PROVISIONS.
 
11.1    Artist hereby indemnifies, defends, and holds harmless Foundation (and its officers, directors, and affiliates) from and against any and all liability imposed or claimed, including attorney fees and other legal expenses, arising directly or indirectly from any act or failure of Artist, including, without limitation, claims relating to the injury or death of any person or damage to any property.
 
11.2    This Agreement embodies the entire agreement and understanding between Parties on the subjects addressed herein and supersedes all prior discussions, agreements, or understandings between them, whether express or implied.
 
11.3    Except as expressly set forth in Subsection 2.2, above, this Agreement may not be modified or amended except by an instrument in writing signed by both of the Parties. No term or condition of this Agreement shall be deemed to have been waived, nor shall there be any estoppel against the enforcement of any provision of this Agreement, except by written instrument of the Party charged with such waiver or estoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate for the future only as to the specific term or condition.
 
11.4    The Parties agree that MANDATORY ARBITRATION PROCEEDINGS as provided in this Subsection 11.4 will constitute the exclusive remedy for resolution of any dispute or claim concerning the terms or conditions of this Agreement. The arbitration proceedings shall be conducted before a single arbitrator in the County of San Francisco, California. The decision of the arbitrator, including the determination of the amount of any damages suffered, shall be exclusive, final, and binding on both Parties, their heirs, executors, administrators, successors, and assigns, as applicable. The arbitrator shall assess reasonable attorney and paralegal fees, accountant fees, and other expert fees, and the costs and charges of any arbitration proceeding, including, without limitation, the fees of both Parties’ representatives and the arbitrator, against the losing Party and in favor of the prevailing Party. Judgment on the award may be entered in any court having jurisdiction.
 
11.5    The rights and obligations of the Parties under this Agreement shall inure to the benefit of, and shall be binding upon, their respective successors and assigns. Without limiting the foregoing, the Foundation’s rights and obligations set forth in Section 8, above, shall attach to the Artwork and bind, and inure to the benefit of, any third-party purchaser, subject to applicable law.
 
11.6    If, for any reason, any provision or partial provision of this Agreement is held invalid, such invalidity shall not affect the remainder of such provision or any other provision of this Agreement not so held invalid, and each other provision, or portion thereof, shall, to the full extent consistent with law, continue in full force and effect.
 
11.7    The headings of the Sections and Subsections of this Agreement are inserted for convenience of reference only and are not intended to be a part of, or to affect the meaning or interpretation of, this Agreement.
 
11.8    This Agreement shall be construed and interpreted fairly in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Foundation in construing or interpreting the provisions hereof simply because its counsel drafted this Agreement. Artist expressly acknowledges and agrees that Artist has had the opportunity to consult with, or has actually consulted with, one or more attorneys of Artist’s own choice regarding each term and condition of this Agreement, that Artist understands the meaning and effect of each provision contained in this Agreement, and that Artist has voluntarily and knowingly entered into this Agreement.
 
11.9    This Agreement shall be construed under the laws of the State of California without regards to its conflicts-of-laws provisions.
 
11.10  This instrument may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A facsimile, photocopy, telecopy, or other reproduction of this instrument may be executed by either Party and may be delivered by such Party by facsimile, email, or other customary and reasonable means of electronic transmission, and such execution and delivery shall be deemed to be valid, binding, and effective for all purposes.
 
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IN WITNESS WHEREOF, and intending to be legally bound, the Parties have executed this THIS ARTWORK SERVICES AGREEMENT as of the dates indicated below.
 
THE SVANE FAMILY FOUNDATION:
. 

(Upon Artist's receipt of email containing proposal approval on behalf of Foundation, Agreement will be effectively executed by Foundation)

ARTIST

Upon Artist agreeing to Terms & Conditions through Artcall for this submission, Agreement will be effecitvely executed by ArtistThis call has agreed to ArtCall.org Terms & Conditions