Terms & Conditions
2021 Summer ArtFest
I hereby appoint Western Masters Art Show & Sale, Inc. DBA Summer ArtFest (SAF) to act as my agent to sell the items listed above at public auction though the SAF Silent Auction June 27, 2021 and/or the SAF Live Auction June 27, 2021. I certify that I am the creator or authorized agent of the creator of the artworks listed, have good title and the right to sell, and that each artwork is free from all encumbrances. I have attached clear digital images of each artwork.
TERMS AND CONDITIONS
I agree to ship or deliver Silent Auction Small Works to Cawdrey Gallery (206 Lupfer, Unit 102, Whitefish, MT 59937) arriving on or before Thursday, June 24, 2021 at 6 p.m. Quick Finish Live Auction works must be delivered to 204 Wisconsin Ave, Whitefish by 11 a.m. June 27, 2021 in preparation for the Quick Finish artist demonstration.
Consignor hereby appoints Western Masters as its agent, subject to the terms of this agreement, to sell the artworks (collectively the “Artworks”) listed on the cover page of this Agreement at public auction.
Western Masters will charge a commission equal to 50% of the selling price of all artwork included in the Summer ArtFest Silent and Live Auctions. Out of that 50%, ten percent (10%) of the total collected sales from the Small Works Silent Auction and the “Quick Finish” Artist Demonstration Live Auction sales will be donated by Western Masters to the Whitefish Community Foundation. Western Masters shall be entitled to full payment of its Commission if “Consignor” subsequently sells the Artwork at any time before June 28, 2021, at 11:59 p.m.
Consignor and Western Masters agree that the term of this Agreement will be for the public auctions (Silent and Live) at the Summer ArtFest to be held on June 27, 2021 (the “Auctions”). Western Masters will incur no liability for the postponement or cancellation of the Auctions for any reason.
4. Substitution or Withdrawal of Artwork.
Consignor shall not withdraw or substitute Artworks from the Auction after the date of this Agreement without the written consent of Western Masters. In the case of any withdrawal of Artworks by Consignor, Consignor shall pay Western Masters, in addition to other sums due hereunder, an amount equal to ten percent (10%) of the low auction estimate submitted to this Agreement for each artwork withdrawn.
5. Estimates and Description.
Western Masters does not guarantee the selling price of the Artworks. All pre-sale estimates of value are opinions only and shall not be construed as any promise of a selling price or range of prices. Western Masters is not liable for errors or omissions in catalogue descriptions or marketing material. Western Masters shall have complete discretion as to the description and promotion of the property in its catalogue, literature, or any marketing efforts.
At its sole discretion, Western Masters may accept a confidential reserve (minimum sale price) below which the Artwork will not be sold (the “Reserve”) on Silent Auction Small Works ONLY. The Reserve must be established at the time of this Agreement is signed, and may not be changed or deleted without the written consent of both parties. It is understood that if Western Masters sells an Artwork for a price below the Reserve, Western Masters’ sole liability to Consignor will be payment of the difference between the sale price and the Reserve.
7. Buyer’s Default.
In the event of non-payment by a buyer, Western Masters, in its sole discretion, may cancel the sale, and the Consignor shall retain ownership of the Artwork. Under no circumstances shall Western Masters be liable for any losses or damages to the Consignor, or any other individual or entity, for non-payment by a buyer.
8. Representations and Warranties of Consignor.
Consignor hereby represents and warrants to Western Masters that (a) s/he is the creator of the Artworks, or authorized agent of the creator; (b) s/he has accurately and sufficiently identified the Artworks and by digital image provided to Western Masters; (c) s/he is the sole and exclusive owner of all rights granted to Western Masters in this Agreement and has all rights to enter into this Agreement; (d) s/he has not assigned, pledged or otherwise encumbered the rights to transfer ownership of the Artworks; (e) the Artworks are original creations; (f) and the Artworks do not, in whole or part, infringe any copyright, violate any right to privacy or other personal property right whatsoever, or contain a libelous or scandalous matter or matter otherwise contrary to law.
Consignor authorizes Western Masters to accept the return of and rescind the sale of the Artworks, if in the sole discretion of Western Masters, it is determined that Consignor has violated any of the covenants, representations or warranties herein. In such an event, Consignor further authorizes Western Masters to refund or credit the buyer for the purchase price of the Artworks. If Western Masters has already remitted to Consignor any proceeds of the rescinded sale, Consignor shall pay to Western Masters on demand an amount equal to the remitted proceeds. Western Masters will return Artwork to Consignor at Consignor’s expense provided Consignor’s indebtedness to Western Masters, if any, is paid in full.
Consignor agrees to publicly display the Summer ArtFest Artwork in sale-ready condition in an exhibition room established by Western Masters from June 24, at 12:00 p.m. until completion of the Auction. Western Masters shall deliver the Artworks to the auction location, present the Artworks on stage, retain possession of and take commercially reasonable measures to provide security for the Artworks through the Auction, after the Auction, and until possession of the Artworks is taken by the winning buyer.
11. Risk of Loss, Theft, or Damage.
Except as provided in Paragraph 10, the Artworks shall remain in the possession, custody, and control of Consignor. Except as expressly provided in Paragraph 10, Western Masters, including its officers, directors, employees, agents, and volunteers, shall not provide services to Consignor or purchasers for shipping, delivery, storage, handling, display, security, or handling of the Artworks. If unsold, the Artworks shall be immediately removed by Consignor following completion of the Auction. Except as expressly provided in Paragraph 10, Consignor assumes all risk of loss, theft, or damage to the Artworks.
11. Limitation of Liability. Western Masters’ aggregate liability, if any, under this Agreement or Consignor’s participation in the Summer ArtFest Auctions, shall be limited to the commission for the Auction paid by Consignor to Western Masters, unless liability arises pursuant to Paragraph 10 and 11, at which point, Western Masters’ aggregate liability, if any, will be limited to the “Auction Estimate” value of the Artwork stated in this submission. Notwithstanding the foregoing, in no event shall Western Masters be liable for any special, indirect, incidental, consequential, exemplary, or punitive damages, loss of profits or revenue, or loss of use even if informed of the possibility of such damages. To the extent permitted by applicable law, these exclusions and limitations will apply regardless of whether liability arises from breach of contract, warranty, tort (including but not limited to negligence), by operation of law, or otherwise.
. Consignor agrees that Western Masters, in its sole discretion, may photograph, publish, and promote Artwork and the name and likeness of Artist in catalogs, websites, brochures and other publicity materials.
13. Indemnification and Attorney’s Fees
. Consignor agrees to indemnify and defend Western Masters against and hold it harmless from any and all claims, actions, damages, loss, liabilities and expenses (including reasonable attorneys' fees) arising out of this Agreement or resulting from any breach of Consignor’s obligation or warranty hereunder or from Western Masters offering for sale or selling the Artworks. Consignor’s warranties and this indemnity shall survive the completion of the Auction and termination of this Agreement. In addition to all other legal and equitable remedies, in the event it becomes necessary for Western Masters to enforce the terms of this Agreement, including but not limited to any action to collect sums due hereunder, Western Masters shall be entitled to an award of its reasonable attorney’s fees, litigation expenses and costs of collection.
Given the unique nature of Consignor’s services under this Agreement, Artist may not assign this Agreement without the express written permission of Western Masters.
15. License or Use Rights
. Consignor is free, in his/her sole discretion, to license the Artworks to a third-party, including the buyer at the Auction. As a courtesy to Consignor, Western Masters may, in its sole discretion, agree to announce to potential buyers any license or use rights that accompany the Artworks as specified by Consignor. Western Masters shall have no liability or responsibility to Consignor or buyer for such license or use rights.
This Agreement and any addenda attached hereto and agreed to by the parties in writing, constitute the entire agreement between the parties, and supersede any and all prior agreements and arrangements, whether oral or written, between the parties. No modification of this Agreement shall be binding unless in writing, attached hereto, and signed by both parties. This Agreement shall be construed in accordance with the laws of the State of Montana, excluding its choice of law provisions, and the parties consent to the exclusive jurisdiction of courts in Montana to resolve any disputes hereunder. If any provision is found to be illegal, invalid, or otherwise unenforceable by any judicial or administrative body, the other provisions will not be affected and will remain in full force and effect. Provisions herein which by their very nature are intended to survive termination or cancellation of this Agreement will survive such termination or cancellation. This Agreement shall be binding upon and inure to the benefit of the parties, their officers, directors, employees, volunteers, agents, heirs, successors and assigns.
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