Whereas the artist, Nancy M. McCarthy is a recognized
and professional artist and
Whereas the purchaser admires the work of the artist
and wishes to commission the artist to create a work of art ("the
work") in the artist’s own unique style and
Whereas the parties wish to have the creation of this
work of art governed by the mutual obligations, covenants, and
conditions herein.
Now, therefore, in consideration of the foregoing
premises and the mutual covenants hereinafter set forth and other
valuable considerations, the parties hereto agree as follows:
Title:
______________________________________________________________________________________________
Materials to be used:
__________________________________________________________________________________
Dimensions: (subject to proportionate consideration
by the artist): ________________________________________________
Description:
_________________________________________________________________________________________
___________________________________________________________________________________________________
___________________________________________________________________________________________________
The artist agrees to consult with the purchaser
should the design stray significantly in the artist’s opinion, from
the preceding description. The purchaser may participate in the
selection of photographic reference to be used providing the final
artistic judgment rests with the artist.
PROGRESS PAYMENTS: The artist agrees to proceed
with the construction of the work, and the purchaser agrees to pay the
remainder of the price of the work as follows; 1/3 of the total price
of the work within thirty days of the actual beginning of the
artist’s construction of the work, and 1/3 the total price of the
work upon completion of the work. The purchaser shall pay all of the
applicable sales tax with the final progress payment. Completion of
the work shall be determined by the artist who shall use her
professional judgment to deviate from the preliminary design as she in
good faith believes is necessary to create the work. If, upon
presenting the purchaser with written notice of any payment being due,
the purchaser fails to make said payment within two weeks of receipt
of notice, interest at the prime rate for banks in the State of Ohio
shall accrue upon the balance due. The purchaser shall have the right
to inspect the work in progress upon reasonable notice to the artist.
DATE OF DELIVERY: The artist agrees to complete the
work on the mutually agreed upon date of __________________________.
This completion date shall be extended for such a period of time as
the artist may be disabled by illness preventing progress of the work.
The completion date shall also be extended in the event of delays
caused by events beyond the artist’s control, including but not
limited to fire, theft, shortages of materials, and acts of God. Time
shall not be considered of the essence with respect to the completion
of the work.
TERMINATION: This agreement may be terminated on
the following conditions:
The purchaser or the artist wishes to terminate
this agreement within the first seven days of signing.
The purchaser may, upon any progress payment
pursuant to paragraph 2 or upon payment of an amount agreed upon by
the artist to represent the pro rata portion of completion of the
work if requested to do so by the purchaser.
The purchaser shall have a right to terminate
this agreement if, pursuant to paragraph 3, the artist causes a
delay of more than 4 months in the completion date, or if events
beyond the artist’s control cause a delay of more than 1 year in
the completion date, provided, however, that the artist shall return
all payments made pursuant to paragraphs 1 and 2 and shall not be
liable for any damages, or claims of any kind based on failure to
complete the work.
The artist shall have the right to terminate this
agreement in the event that the purchaser is more than 60 days late
in making any payment due pursuant to paragraphs 1 and 2, provided
however, that nothing herein shall prevent the artist bringing suit
based on the purchaser’s breach of contract.
The purchaser has the right to terminate this
agreement if the artist fails without cause to complete the work
within 60 days of the completion date in paragraph 3. In the event
of termination pursuant to this subparagraph, the artist shall
return to the purchaser all payments made pursuant to paragraph 2,
but shall not be liable for any additional expenses, damages, or
claims of any kind based on failure to complete the work.
This agreement shall automatically terminate in
the event of the artist’s death, provided, however, that the
artist’s estate shall retain all payments made pursuant to
paragraphs 1 and 2.
The exercise of a right of termination under this
paragraph shall be written and set forth the grounds of termination.
OWNERSHIP: Title to the work shall remain the
artist’s until she is paid in full. In the event of termination
pursuant to subparagraphs A), B), C), D), or E), of paragraph 5, the
artist shall retain all rights of ownership of the work, In the event
termination of this agreement pursuant to subparagraph F), the
purchaser shall own the work in whatever degree of completion and
shall have the right to complete, exhibit, and sell the work if he/she
so chooses. Notwithstanding anything to the contrary herein, the
artist shall retain all rights of ownership and have returned to her
the preliminary designs, all incidental works made in the creation of
the work, and all copies and reproductions thereof of the work itself,
provided, however that in the event of termination pursuant to
paragraph 4 F), the purchaser shall have a right to keep copies of any
preliminary design work for the sole purpose of completing the work.
The artist shall not be held liable for any
additional expenses, damages, or claims of any kind based upon the
condition of any property lent to her by the purchaser in reference to
the commission of the work.
COPYRIGHT: The artist reserves the right to herself
all reproduction rights and all copyrights in the work, the
preliminary designs and any incidental works made in the creation of
the work. The artist will also receive authorship credit in connection
with the work or any reproductions thereof.
NON-ASSIGNABILITY: Neither party hereto shall have
the right to assign this agreement without the prior written consent
of the other party. The artist shall, however, retain the right to
assign monies due to her under the terms of this agreement.
HEIRS AND ASSIGNS: This agreement shall be binding
upon the parties hereto, their heirs, successors, assigns, and
personal representatives, and references to the artist and the
purchaser shall include their heirs, successors, assigns and personal
representatives.
INTEGRATION: This agreement constituted the entire
understanding between the parties. Only an instrument in writing
signed by both parties can change its terms.
WAIVERS: 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 or other provisions hereof.
NOTICES OF CHANGE OF ADDRESS: All notices shall be
sent to the artist at the address following her signature and to the
purchaser to the address following his/her signature. Each party shall
give written notice of any change of address prior to said change.
GOVERNING LAW: the laws of the State of Ohio shall
govern this agreement.
Nancy M. McCarthy, P.O. Box 148, Bethel, OH 45106
