Applicant hereby submits the Work to the WPI for the purpose of possible inclusion in the Catalogue, pursuant to the following terms and conditions:
Scope of Services. At the request of Applicant, the WPI shall review the Work for the purpose of rendering a Determination. Applicant acknowledges and agrees that the WPI accepts works for inclusion in catalogues raisonnés at its sole and absolute discretion, and that while WPI undertakes to review submitted works in a timely manner, the result of such review may be (i) a Determination that the Work is accepted for inclusion in the Catalogue, (ii) a Determination that the Work will not be included in the Catalogue, (iii) an inability by WPI to make a Determination as to whether or not the Work should be included in the Catalogue, or a variation of any of the above responses. Applicant agrees that the WPI retains the right to issue no Determination at all, or to change its Determination if new information becomes available, including by subsequently withdrawing the Work from the Catalogue if it is accepted for inclusion therein. The WPI reserves the right to make any Determination about the Work available at the request of any person who, in the WPI’s opinion and sole discretion, has a reasonable scholarly or economic interest therein, and Applicant hereby acknowledges and agrees that such Determination by WPI about the Work does not constitute a factual statement nor a representation or warranty of any kind, but shall be treated as public information. Permission to Perform Certain Services. Applicant hereby grants the WPI permission to conduct an Examination of the Work. Applicant agrees that, as part of the Examination, the WPI is authorized to remove the Work from any matting and/or framing (if and as applicable). The WPI will not be held responsible for loss of value or damage resulting from this process. Retention of Photographs; Copyright. Applicant hereby acknowledges and agrees that upon execution of this Agreement and submission of the required photographs and application materials, Applicant transfers all of its interest in and title to the physical copies of such materials to the WPI, and represents and warrants that the WPI shall have the right to publish any image of the Work that Applicant has provided, without Applicant being entitled to any royalties as a result of such publication(s). Applicant grants the WPI, or an expert retained by the WPI (at the WPI’s sole discretion), the right, permission and full consent to photograph the Work at its own expense and to publish any reproduction of the Work made during the Examination, as well as any data, findings, conclusions, or the final report resulting from the Examination. For the avoidance of doubt, the WPI’s right to publish reproductions of and other information about the Work shall extend to any catalogue raisonné that may be prepared, published, or approved by the WPI. Representations and Warranties of Applicant.
Applicant is the sole and exclusive owner of the Work or an authorized agent of the owner (whose identity agent shall disclose), or, if a joint owner of the Work, is fully and duly authorized in writing to undertake this submission to the WPI.
Applicant has the full legal authority, without any further action or any other party’s consent, to enter into and perform this Agreement and to make the representations and warranties contained herein, which such actions are not contrary to any interest, right, or claim by any other party. Applicant has provided the WPI with all information that Applicant has pertaining to or concerning the Work, including information about its ownership, provenance, authenticity, condition, publication, exhibition, and appraised value, and all relevant documentation, including without limitation bills of sale, exhibition and publication history, and condition reports, and represents and warrants that such information, any information provided in response to the Order Form hereto, and any supplemental materials submitted therewith are complete and accurate.
Applicant is not aware of any facts or opinions of others, other than those provided to the WPI, that indicate or suggest that the Work is a forgery or counterfeit or that any aspect of its provenance is false or otherwise suspect. Applicant has included all documentation in Applicant’s possession (including documentation in the possession of any principal or agent of Applicant) concerning the Work (including, but not limited to, bills of sale, exhibition and publication history, and condition reports) and has provided two high-resolution, professional quality photographs of the front and back of the Work.
Purpose of Determination. Applicant expressly acknowledges and agrees that any Determination is not intended as a statement of fact, but rather as a statement of the opinion of the WPI based on the information provided and the circumstances known to the WPI at the time any such statement is made. The benefits of any Determination, as well as all other opinions, representations and warranties made pursuant to this Agreement shall be applicable only to, and inure solely to the benefit of, Applicant, and not to subsequent owners or other parties who have or may acquire any interest in or to the Work. Disclaimer. Applicant expressly acknowledges and agrees (a) that the result of the WPI’s Examination of the Work and the review of Applicant’s submission materials may be inconclusive, negative or may result in a question as to the authenticity of the Work, (b) the WPI necessarily makes judgments based upon a number of factors, including largely subjective evaluations, and that therefore the WPI’s Determination or other statement(s) about the Work constitute nothing more than an opinion, (c) neither the WPI nor its personnel warrants or guarantees the correctness of WPI’s Determination, and (d) the WPI reserves the right to withdraw or change its Determination, in its sole discretion, at any time. Indeed, reasonable disagreements about the authenticity of a work of art and revisions of opinions on that subject are commonplace among scholars and in the art market. Applicant further expressly acknowledges and agrees that one or more of the members of the WPI responsible for reaching, or consulted in relation to, the Determination may be in the business of buying and selling art as principal or as a dealer. The WPI was founded and is supported and/or governed by members of the Wildenstein and Plattner families, some of whom have large holdings of and/or extensive dealings with such works. Indemnification, Release and Waiver.
Applicant hereby agrees to indemnify and hold harmless the WPI and the additional Indemnitees, from any and all Claims arising out of or relating to any services rendered by the WPI , including without limitation (1) the Examination of the Work by the WPI, (2) the research, drafting, issuance, non-issuance, and/or content of any Determination for the Work, (3) the research, drafting, issuance, non-issuance and/or content of any amended Determination for the Work, (4) any disclosures to any third-parties consistent with this Agreement concerning the Work, the Examination thereof, or any Determination or amended Determination, (5) any publication of the Work in the Catalogue or any other catalogue raisonné by or authorized by the WPI, including without limitation any claim relating to any reproduction of the Work or other use by WPI of any image of the Work, (6) any alleged breach of any conclusion, opinion, representation or warranty (express or implied) contained in the Determination (including, but not limited to, any liability or alleged liability for libel, slander, or any other claim with respect to the Work which may be deemed to arise from the Determination) , and (7). any Claim by any prior or subsequent owner of the Work or any third-party to which Applicant makes or has made or causes or has caused to be made any statement concerning the Work. Applicant hereby knowingly and voluntarily waives and relinquishes all rights, if any, to bring or take any action or make any Claim against any of the Indemnitees based on this Agreement or the WPI’s services thereunder, including without limitation any Claim that any Determination (or lack thereof) as to the Work constitutes defamation or libel, or has damaged the value of the Work. Applicant hereby irrevocably waives, releases and discharges forever the Indemnitees from any and all liabilities and obligations to Applicant, Applicant’s authorized agents or Applicant’s representatives, of any kind or nature whatsoever, including, without limitation, in respect of rights of contribution or indemnification, in each case whether absolute or contingent, liquidated or unliquidated, and whether arising hereunder or under any other agreement or understanding or otherwise at law, in equity, or otherwise. If, notwithstanding the above, Applicant takes any legal action or brings any Claim against any Indemnitee, Applicant shall immediately advance the reasonable costs determined by the relevant Indemnitee(s) in its or their sole discretion as may be necessary to defend against or respond to such Claim and to the extent that such Claim is initiated directly against an Indemnitee, Applicant agree to participate in a mandatory mediation conducted by JAMS or its successor . This paragraph 7 shall survive the termination of this Agreement.
Third-Party Services. Applicant acknowledges that the Examination of the Work may be inconclusive and that the WPI may recommend that the Applicant, at their own risk and their own initiative, retain third-party experts for additional testing or analysis of the Work. Applicant acknowledges and agrees that the WPI does not warrant or guarantee the work product or results of such expert or specialist(s), that the WPI shall not be responsible for any loss in value or damage to the Work which may occur while such service(s) is being performed or which results from such service(s), and that as between the WPI and Applicant, Applicant shall be solely responsible for the fee(s) of any such expert(s) or specialist(s), if any. Fees. Applicant shall submit the appropriate Submission Fee upon execution of this Agreement. Applicant acknowledges that no work shall be undertaken by the WPI until it has received the Submission Fee in good, cleared funds. In addition, Ancillary Fees shall be charged to, and promptly paid by Applicant, following the WPI’s provision of an estimate for any such expenses, but prior to the WPI incurring such expenses or proceeding with the Examination of or a Determination for the Work. Insurance. Applicant acknowledges that the WPI does not carry any insurance against damage to, or loss of, works of art in its custody or its personnel. Applicant shall be responsible for the arrangement and payment of insurance for the Work against any loss, damage or theft. Applicant shall provide satisfactory proof of such insurance to the WPI upon execution of this Agreement, and further agrees to look only to such insurance in the event of loss of, or damage to, the Work and waives any right of subrogation against the WPI. Delivery. Applicant agrees that, at Applicant’s own expense, Applicant shall make the Work available at the WPI’s office or at any other place designated by the WPI for the purpose of its Examination. Applicant further agrees that, on the same day as the Examination and upon notification from the WPI, Applicant shall promptly collect the Work from the WPI. Applicant acknowledges that if Applicant fails to collect the Work on the day of the Examination, the WPI shall have the right to deliver the Work to any warehouse company (selected in its sole discretion) to be stored on Applicant’s account and at Applicant’s expense. If delivery of the Work is required in order for the WPI to conduct its evaluation, Applicant shall be wholly liable for packaging, shipping and delivery of the Work to and from the WPI. Termination. This Agreement may be terminated upon ten (10) business days’ written notice by either party. Upon termination, any fees and disbursements due to the WPI from Applicant shall become immediately due and payable. In the event of termination, the WPI shall not issue a Determination. A Determination may not be canceled after it has been issued. Notices. All notices, requests, demands, applications for legal relief, services of process, and other communications which are required to be or may be given under this Agreement shall be deemed to have been duly given if sent by electronic mail, telex, telecopier or facsimile transmission or delivered or mailed, certified first class mail, postage prepaid, return receipt requested, to the parties hereto at the following addresses:
The Wildenstein Plattner Institute Inc.
Ms. Elizabeth Gorayeb
elizabeth.gorayeb@wpi-art.org
With a copy to (which shall not constitute notice):
Megan E. Noh
mnoh@pryorcashman.com
To Applicant: Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and all their personal or legal representatives, heirs, distributees, legatees, executors, administrators, successors, and assigns. Applicant may not assign its rights or obligations under this Agreement without the express written consent of the WPI. Choice of Law and Dispute Resolution. Any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS, f/k/a Judicial Arbitration and Mediation Services, Inc, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration in New York City pursuant to its Streamlined Arbitration Rules and Procedures. New York law, without regard to its conflicts of law principles, shall govern. Judgment on any award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party.Miscellaneous. This Agreement contains the entire agreement between the parties hereto, supersedes any and all other prior and contemporaneous agreements and understandings between the parties, oral or written, and renders all such prior agreements and understandings between the parties null and void. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by the parties hereto. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby, and shall be construed so as to give effect to the intent of the parties that Applicant provides protection and indemnification to the WPI and its personnel to the fullest enforceable extent. This Agreement may be executed with PDF or facsimile signatures and in counterparts, each of which, when executed, shall be deemed to be an original and which together shall be deemed to be one and the same instrument.
APPLICANT
THE WILDENSTEIN PLATTNER INSTITUTE, INC.
Print Name: Elizabeth Gorayeb
DEFINITIONS
For purposes of this Agreement:
“Agreement” means this Agreement and any exhibits or attachments hereto or other documents incorporated by reference or into which this Agreement is incorporated by reference.
“Ancillary Fees” means reasonable expenses for travel and other out-of-pocket expenses incurred by the WPI and its personnel in connection with rendering the Determination.
“Applicant” means the owner of the Work or the authorized agent of the owner of the Work, as identified in the Order Form.
“Catalogue” means the catalogue raisonné of works by the artist referenced in the Order Form.
“Claims” means accounts, actions, agreements, bonds, bills, causes of action, claims, covenants, contracts, controversies, damages, debts, demands, dues, extents, executions, fees (including reasonable attorneys’ fees for counsel of each applicable Indemnitee’s choice, including in-house counsel) judgments, liabilities, promises, reckonings, specialties, suits, sums of money, trespasses, and variances, asserted or assessed by any person or entity, whether at law, in equity or otherwise.
“Determination” means a decision to be rendered by the WPI concerning the inclusion of the Work in the Catalogue.
“Examination” means an independent investigation of the Work (including, if requested by the WPI, a physical inspection of the Work which must be delivered to the WPI with its frame removed), conducted by the WPI and others that it may consult (including scholars and forensic scientists) in its sole and unfettered discretion.
“Indemnitees” (each an “Indemnitee”) means the WPI together with its affiliates, officers, managers, directors, members, employees or agents or any of the past, current, or future members of the WPI or the representatives, successors, attorneys or assigns of any of the foregoing.
“Submission Fee” means the cost of the WPI’s services, which shall be {{order_total}} United States Dollars per submitted artwork.
“Work” means the work of fine art listed in the Order Form.
“Order Form” means the online order submitted by Applicant to provide true and correct information (including without limitation, in relation to ownership and provenance) about the Work, which submission is hereby incorporated into and made a part of this Agreement.
“WPI” means the Wildenstein Plattner Institute, Inc., a tax-exempt private operating foundation incorporated in Delaware.
