Art Consignment & Sale Agreement
This agreement is entered into, by and between Bluethumb Pty Ltd, referred to herein as "Gallery" and the individual when signing up as a Member of Bluethumb referred to herein as "Artist".
1) AGENCY, PURPOSE: The Artist does hereby appoint Gallery (Bluethumb Pty Ltd) as agent for the purpose of on-line display and sale of the Artists’s work(s) hereafter referred to as “Artwork(s)” on a non-exclusive basis, in Australia and internationally (at the Gallery's discretion). Gallery shall not permit the Artwork(s) to be used for any other purpose without the express consent of the Artist.
Note: For International Sales & Marketing Campaingns. Where Bluethumb is appointed to sell an Artists's works internationally and an advertising campaign created, a separate signed agreement must be entered into between the Artist and Bluethumb. In this case, Bluethumb will take ownership of the agreed upon artworks by way of purchase agreement, and said artworks will be delivered to a nominated Bluethumb gallery or office prior to commencement of the campaign.
2) CONSIGNMENT: The Artist hereby consigns to the Gallery, and the Gallery accepts upon approval of consignment, those items, listed at not less than $1 each, submitted for electronic format inclusion in the on-line gallery by the Artist.
3) WARRANTY: The Artist hereby warrants that he/she created and possesses unencumbered title to the Artwork(s), and that the descriptions as provided to Gallery are true and accurate. In addition, each Artwork is signed and attributed to the Artist.
4) DURATION OF CONSIGNMENT: This consignment agreement will remain in force until the Artist requests the removal of any or all of the items or the Gallery determines that the items should, for any reason, be withdrawn.
5) NOTICE OF CONSIGNMENT: The Gallery shall give notice, by means of a clear and conspicuous website posting, that the items are being sold subject to a contract of consignment.
6) TERMINATION OF CONSIGNMENT: Upon termination of consignment, the Gallery shall comply
promptly by removing any and all reference to the specified Artwork(s) from the on-line gallery, and the Artist shall remove any and all reference to the listing of the specified item with on-line gallery whether that reference is electronic or print. In the event of the Artists death, the estate of the Artist shall have the right to terminate the Agreement.
7) DIRECT SALES: It is the Artist’s responsibility to update their profile on the Gallery within two hours of any direct sales that the Artist may make of any work that is listed on the on-line gallery that affects the availability of the item or via the artists administration function in the on-line members section. It is recommended as best practice that the artist updates their profile immediately after any direct sales in order to avoid a situation where the artwork also sells on the Gallery. Any artworks listed as available on Bluethumb and sold by Bluethumb must be delivered to the Bluethumb buyer and in the event they are sold at the same time, or a direct sale has occurred and the Bluethumb listing is not current, the sale to Bluethumb's buyer takes priority.
8) TRANSPORTATION RESPONSIBILITIES: 1) Shipping and insurance costs (if applicable), liability and all handling expenses incurred in the delivery of the Artwork(s) to Purchaser shall be assumed by the Gallery. 2) The buyer is responsible for all packing costs,materials and other handling costs in delivering the Artwork(s) to the Gallery’s nominated pickup location.
9) DIRECT SHIPPING TRANSPORTATION RESPONSIBILITIES:1) If by agreement between the Gallery and Artist, the Artist is responsible for delivery of the Artwork(s) directly to the Purchaser all packing and shipping charges, insurance costs, other handling expenses, and risk of loss or damage incurred in the delivery of Artwork(s) from the Artist to Purchaser are the responsibility of the Artist. 2) The Gallery requires that the Artwork(s) are shipped using a service that provides proof of shipment and proof of delivery.
10) FIDUCIARY RESPONSIBILITIES: [a] Artwork(s) remain the property of the Artist until the Artist has been notified of a successful sale by the Gallery; title then passes directly to the Purchaser with shipment. All proceeds from the sale of items shall be held in trust for the Artist and not made available to creditors of the Gallery.
[b] International Marketing & Sales. Artists opting in selected artworks for inclusion in Bluethumb’s interntional marketing & sales campaign will abide by different conditions to 10 [a] above. Artworks offered to the Gallery for inclusion will be reviewed by Bluethumb. If accepted, at Bluethumb’s discretion, ownership of included Artworks will be transferred to Bluethumb prior to their inclusion in the international marketing & sales program. Bluethumb will enter into a contract with the artist and pay a deposit towards each artwork, thereby taking ownership. The balance of value will be paid to the artist once the Gallery has successfully sold said artwork. Once the artwork has been accepted, and the deposit paid, the artist will have two (2) weeks to deliver the artwork(s) to Bluethumb’s premises (either Melbourne or Adelaide). Exceptions to this rule may be requested in writing to Bluethumb, and approved or rejected at Bluethumb’s discretion.
11) SEVEN DAY SATISFACTION GUARANTEE: The Gallery offers Purchasers a ‘Seven Day Satisfaction Guarantee’ which allows Purchasers to return the Artwork(s) in original condition for a period of no more than 7 calendar days. 1) If the Purchaser elects to return the Artwork(s) under the ‘Seven Day Satisfaction Guarantee’ then the Gallery will be responsible for all packing and shipping charges, insurance costs, other handling expenses, and risk of loss or damage incurred in the delivery/return of Artwork(s) from the Purchaser to Artist. 2) If the Purchaser elects to return the Artwork(s) under the ‘Seven Day Satisfaction Guarantee’ they shall remain the property of the Purchaser until the Gallery has been notified; title then passes directly to the Artist with shipment.
12) REMOVAL FROM FACILITY: Dealer will not permit any consigned Artwork(s) to remain in the possession of a potential customer for the purpose of sale on approval for a period exceeding 5 days. In this event, Gallery and Client will assume responsibility for the Artwork(s) during this period.
13) PRICING: The Gallery shall sell the Artworks only at the Retail Price specified in the Artist’s “item inventory”. Any change in the retail price by the Gallery, must be agreed to in advance by the Artist and the Gallery
14) COMMISSION: The Gallery and the Artist agree that the Gallery's commission is to be thirty per cent (30% + GST) of the Retail Price of the Artwork. Any change in the Gallery's commission, must be agreed to in advance by the Artist and the Gallery
15) TERMS OF PAYMENT: Payment to the Artist shall be made by the Gallery within 14 working days after the successful delivery of the Artwork(s), provided the artwork has been registered as delivered to the Buyer, and the Buyer has not lodged a claimed against the Seven Day Satisfaction Guarantee or earlier at the Gallery’s discretion. The Gallery assumes full risk for the failure to pay on the part of any purchaser to whom it has sold an Artwork(s). The Gallery will only make payment to Australian bank accounts via electronic funds transfer. Bluethumb will not make payments to International bank accounts, without prior written approval.
16) PROMOTION: Gallery shall use its best efforts to promote the Artwork(s) of the Artist. The Gallery shall identify clearly all Artwork(s) with the Artist’s name, title, media and related information. It is at the Gallery’s discretion how many pieces of the Artist’s Artwork(s) will be displayed and in what manner.
17) REPRODUCTION: The Artist reserves all rights to the reproduction of the Artwork(s) except as noted in writing to the contrary. (The Artist will not withhold permission for the reproduction of such works for promotional and marketing purposes by Gallery.)
18) NOTICES AND CHANGES OF ADDRESS: All notices shall be sent to the Artist at the address specified in this Agreement. Each party agrees to give written notification of any change of address prior to date of said change.
19) INDEMNIFICATION: Artist agrees to indemnify Gallery against all costs and expenses (including reasonable legal fees) incurred by Gallery in connections with any claims made against Gallery that the Artwork(s) is not an original creation of Artist or infringes upon a third-party’s copyright.
20) GOVERNING LAW: This agreement shall be governed by the law of the state of South Australia.
21) PROCEDURES FOR MODIFICATION: Artists will be notified of any amendments,deletions or additional provisions to this Agreement at least thirty (30) days prior to said amendment, deletion or addition taking effect. Within thirty (30) days of receiving any change notification, the Artist may accept the change or “opt-out” of participation in the on-line gallery. All accounts shall be settled and all items shall be removed from the Gallery.
22) MISCELLANY: This Agreement represents the entire agreement between the Artist and the Gallery. If any part of this Agreement is held to be illegal, void, or unenforceable for any reason, such holding shall not affect the validity and enforceability of any other part. 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 provision or other provisions hereof. This Agreement shall not be assigned, nor shall it inure to the benefit of the successors of the Gallery, whether by operation of law or otherwise, without the prior written consent of the Artist.