The undersigned Applicant and the WPI enter into this Agreement with respect to the WPI’s research, review, and/or consideration of the Work for the purpose of possible inclusion in the Publication(s), pursuant to the terms and conditions set forth below. Capitalized terms are defined in the attached Glossary, which is incorporated into and made part of this Agreement.]
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 Publications 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 one or more relevant Publication(s), (ii) a Determination that the Work will not be included in one or more Publication(s), (iii) an inability by WPI to make a Determination as to whether or not the Work should be included in one or more Publication(s), 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 any relevant Publication(s) if it is accepted for inclusion therein.
Applicant shall deliver or caused the Work to be delivered to the WPI’s office or to such other place designated by the WPI for the purpose of the Examination. On the same day as the Examination and upon notification from the WPI, Applicant shall promptly collect the Work from the WPI. Applicant shall be wholly liable for packaging, shipping and delivery of the Work to and from the WPI or other location of the Examination.
Applicant hereby grants the WPI permission to conduct an Examination of the Work. Applicant further grants the WPI, or an expert retained by the WPI (at the WPI’s sole discretion), permission to photograph the Work at the WPI’s own expense. Applicant agrees that, as part of the Examination and/or such photography, 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.
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 (i) 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 (ii) provided all relevant documentation in Applicant’s possession or control (including within the possession of any principal or agent of Applicant) concerning the Work, including without limitation bills of sale, exhibition and publication history, and condition reports, and represents and warrants that all of the foregoing, together with any other information provided in response to the Order Form, and any supplemental materials submitted therewith, are complete and accurate to the best of Applicant’s knowledge.
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.
Acknowledgements and Disclaimers.
Any Determination or other statement by the WPI or any Indemnitee relating to the Work 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 or publicized, and may be treated as public opinion.
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. Without limiting the foregoing, (i) the result of the WPI’s Examination of the Work and the review of the Work and/or of Applicant’s submission materials may be inconclusive, negative or may result in a question as to the authenticity, authorship, and/or attribution of the Work; (ii) 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; (iii) neither the WPI nor its personnel warrants or guarantees the correctness of WPI’s Determination; and (iv) the WPI reserves the right to withdraw or change its Determination, in its sole discretion, at any time.
The WPI may use, display, publish, adapt, distribute and disseminate, including without limitation any and all relevant Publication(s), in part or in full, (i) any reproduction of the Work made during the Examination; (ii) any data, finding(s), statement(s), conclusion(s), or report(s) resulting from the Examination or otherwise from the WPI’s review of or otherwise concerning the Work, including without limitation any Determination about the Work; and (iii) subject to the WPI obtaining any required third-party permissions, any image(s) of the Work that Applicant has provided (in which, together with all application materials submitted by Applicant, all of Applicant’s title and interest transfers to the WPI automatically upon execution of this Agreement or, if later, the submission of such materials). Without limiting the foregoing, the WPI may, in its sole discretion, treat any of the foregoing as public information and/or make any of the foregoing available at the request of any person who, in the WPI’s sole opinion, has a reasonable scholarly or economic interest therein, and Applicant shall not be entitled to any royalties as a result of any such use(s) permitted hereunder.
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. Applicant hereby waives, on behalf of itself and each of its insurer(s), any right of subrogation against the Indemnitees and each of their insurers.
The WPI may recommend that the Applicant, at Applicant’s own risk and initiative, retain one or more third-party expert(s) or vendor(s) 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(s) or vendor(s), that the WPI shall not be responsible for any loss in value or damage to the Work which may occur while any such services are being performed or otherwise resulting therefrom, and that as between the WPI and Applicant, Applicant shall be solely responsible for the fee(s), if any, of such third-parties.
If Applicant fails to collect the Work on the day of the Examination pursuant to paragraph 1.b. above, the WPI shall have the right to deliver the Work to any warehouse company (selected in its sole discretion) for storage on Applicant’s account and at Applicant’s expense.
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.
The benefit of any Determination shall be applicable and inure solely to Applicant, and not to subsequent owners or other parties who have or may acquire any interest in or to the Work.
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 (i) the Examination of the Work by the WPI; (ii) the research, drafting, issuance, non-issuance, and/or content of any Determination for or other statement(s) by the WPI about the Work; (iii) the research, drafting, issuance, non-issuance and/or content of any amended Determination for the Work or other statement(s) by the WPI about the Work; (iv) any other disclosures to any third-parties consistent with this Agreement concerning the Work, the Examination thereof, or any Determination or amended Determination; (v) inclusion or non-inclusion, as applicable, of the Work in any Publication(s); (vi) any alleged breach of any conclusion, opinion, representation or warranty (express or implied) contained in the Determination or other statement(s) by the WPI about the Work (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 (vii) 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(s) 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, lack thereof, or other statement(s) by the WPI about the Work as to the Work constitutes defamation or libel, or has damaged the value of the Work, or alleging breach of any representation or warranty (express or implied). 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 or any third-party brings or makes any Claim against any Indemnitee, Applicant shall immediately advance the reasonable costs determined by the WPI in its sole discretion as may be necessary to defend against such Claim, and if such Claim is asserted by Applicant, Applicant hereby agrees to participate in a mandatory mediation conducted by JAMS (f/k/a Judicial Arbitration and Mediation Services, Inc.), pursuant to paragraph 8 below.
This paragraph 4 shall survive the termination of this Agreement.
Fees. Notices.
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: Termination; Successors and Assigns.
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.
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. Miscellaneous.
APPLICANT
THE WILDENSTEIN PLATTNER INSTITUTE, INC.
Print Name: Elizabeth Gorayeb
GLOSSARY
For purposes of this Agreement:
“Agreement ” means this Submission and Consultation Agreement and any exhibits or attachments hereto or other documents incorporated by reference or into which it 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 a Determination.
“Applicant ” means the owner of the Work or the authorized agent of the owner of the Work, as specified in the Order Form.
“Claims ” means any and all accounts, actions, agreements, bonds, bills, causes of action, claims, covenants, contracts, controversies, costs, 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 a relevant Publication, such decision to be publicized therein and/or on the WPI’s website via legend, color coding, or such other written or visual system as the WPI may elect to use in its sole discretion, and may be supplemented by other information (including without limitation an attestation number) if and as applicable in the WPI’s sole discretion.
“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 the WPI together with its affiliates, officers, managers, directors, members, employees, subcontractors, and agents (including without limitation the Fonds Wildenstein Plattner Institute France), and each of its and their past, current, or future members, representatives, successors, attorneys and assigns.
“Publication(s) ” means one or more relevant online archive or database, digital or printed catalogue raisonné, or other scholarly publication as the same may be authored, approved, prepared, displayed, distributed, directed, and/or reproduced by the WPI, including without limitation essays or other texts published on its Quire platform, and scholarly presentations in other formats, including without limitation webinar or live conference.
“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 identified in the Order Form.
“Order Form ” means the online order details 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.
