Conditions for your consignment or loan agreements.
The most difficult part in creating a consignment or loan agreement is all the specific conditions you should mention. Hereby we offer an overview of the possibilities.
As we don’t have the authority to give you any legal advice, we simply share a list with examples. Please note that you should always verify with your legal advisor before using any of these, as they function purely as inspiration.
It's quite a long list so we've split them up into several categories. General Conditions, Insurance & Costs, Damages, Transport, Packing, Environment, Installation, Security, Condition Report, Copyrights & Courtesy, Legal, Financial.
Please also read our blog post “Consignment or Loan Agreement. What's the difference and what are the rules.”. Here, you can also download our consignment and loan agreement templates.
GENERAL CONDITIONS
The work(s) will be entrusted on a loan basis to the Borrower and solely for the purposes of exhibiting the work(s) at an agreed venue and for an audience hosted and invited by the Borrower and for the explicit duration agreed by parties and referenced to in the Loan Form.
The Borrower is not entitled to lend, pawn, pledge, sell, hypothecate or further entrust the work(s) to third parties without explicit and prior approval from Lender.
It is herewith explicitly noted and agreed that the Borrower cannot solely decide to alter or modify any of the modalities of this Loan Agreement without the explicit and prior consent of the Lender.
INSURANCE & COSTS
The Borrower will bear any and all costs involved and related to this Loan agreement, including but not limited to inspection and expertise of the condition of the loaned work(s) prior and post loan, packing and transportation, security and safety mechanisms, care of objects and installation.
The Borrower will bear all costs of the insurance policy covering all risks of physical loss or damage to the loaned works concerned whilst in transit to and under the exclusive custody and responsibility of the Borrower as specified in this agreement.
Without detracting from the validity and content of the aforementioned paragraph all other necessary actions and costs shall also be for Borrower’s account.
All costs related to the loan(s) shall be explicitly agreed and confirmed in advance. Neither Party to this agreement has the right to make any financial or other commitments on behalf of the other Party without previous agreement.
The Borrower bears the entire and indivisible liability for the condition of the loaned work(s) as from the moment of acceptance (transportation included) and whilst in his custody/at his sole responsibility until properly returned to and accepted without any comments by the Lender.
Prior to and upon return of the loaned work(s) a mutual inspection by both Parties or their assigned representatives will be executed on the condition of the loaned work(s) and written comments to such can be formulated which are binding for all Parties. Costs of these inspections are for the account of Borrower.
Unless agreed otherwise, the loan(s) shall be insured on a ‘nail-to nail’ basis against all risks of physical loss or damage , including transit.
Prior to the Loan Borrower will issue a certificate of satisfactory insurance including a copy of the general conditions of the said all- risk policy to Lender.
The Borrower will engage such all- risk insurance cover for the loaned work(s) at his name and costs.
The Borrower herewith explicitly acknowledges and agrees to reimburse Lender for any and all damages which may occur during the period of said agreement and which – for any reason whatsoever – would not be reimbursable or claimable by the aforementioned all- risk policy concluded is Borrower’s name and for his account.
DAMAGES
In case of loss or damage to the work(s) subject to this agreement Lender must be notified by Borrower immediately.
The damage must be recorded in a mutual condition report supported with the assistance of each Parties representative/ expert and accompanied by photographs.
TRANSPORT
The transport of the loan(s) to and from the final destination is to proceed at the cost and liability of the Borrower.
The choice of transport agent must be agreed between the Lender and the Borrower.
Any transport company used must have experience in the transportation of delicate and valuable objects with employees trained in the handling of such material.
Vehicles should provide appropriate protection against vibration and shock and extremes in relative humidity and temperature conditions, double drivers and suitable protection from theft. At no time must the truck be left unattended.
PACKING
The works must be packed with appropriate materials designed to give maximum protection to the object(s) and repacked in the same way.
Further to the aforementioned it is herewith explicitly noted that any and all liability to the loaned item(s) arising out of the packing, transportation and unloading is entirely on Borrower’s account and cannot be attributed to the Lender.
The removal, packing, unpacking and transports must be supervised by qualified art handlers in cooperation with members of the Borrower’s staff. Lender can decide to take part in such supervision through their assigned representatives however without detracting from Borrower’s exclusive liability regarding the transportation of the object(s).
For the return transport the works must be repacked in the same or similar materials as received, unless otherwise authorized and agreed by the Lender.
Works packed in climate- controlled crates must be stored for acclimatization for at least 24 hours.
Empty crates shall be stored in a secure climate and temperature- controlled indoor storage area, protected from moisture, pollution, fungus and vermin. For acclimatization they should be delivered to the galleries 24 hours before re-packing begins.
ENVIRONMENT
The property on loan may not be placed in the direct vicinity of heating and humidifying or dehumidifying units or equipment and protected at all times against direct sunlight, heated and cold air sources.
In the exhibition galleries a stable climate with the following conditions has to be maintained at all times during the period of this agreement.
Temperature: 18-20 degrees Celsius, Relative humidity: 50-60%
Light intensity: paintings: max 200 Lux, Drawings: Max 50 Lux, Others: max 200 Lux All loaned item(s) must be held in the same conditions as set out here above.
The works must be protected by the Borrower against ultraviolet rays.
INSTALLATION
Any and all liability regarding care of objects and installation shall remain exclusively with the Borrower.
Installation must be handled by qualified professional art handlers supervised by Borrower’s staff.
The Borrower may not make any changes to the condition of the property.
The works must not be removed or re-hung or re-installed without permission from the Lender except in an emergency.
Objects may not be unframed, removed from mounts or protective devices, cleaned or altered in any way without prior written consent by the Lender.
SECURITY
The Borrower shall secure constant and adequate protection of the loan(s).
The objects should be maintained in the condition in which they were received and the Borrower is to take the best possible care of the objects.
The Borrower agrees to safeguard the loan(s) under generally accepted conditions of control and security during the entire time they are at his premises and/or whilst under his obligations of custody and caretaking resulting from this agreement.
The Borrower will provide security by means of guards, barriers, plinths, showcases, electronic devices etc. in order to keep the loan(s) secure whilst at his premises and to ensure that the public does not touch or otherwise damage the said work(s).
The Borrower must ensure that the exhibition venue complies with fire safety regulations and that museum guards are fully prepared for action and intervention in the event of imminent threat or danger.
CONDITION REPORT
The Lender shall prepare a condition report which is to accompany the object and must be completed by the Borrower upon arrival of the object(s).
If any changes in the condition of the loan(s) be noted the Lender must be notified by the same without delay.
In each and every event, both Parties should be granted the ability to formulate their commitment & comments – if any – to the condition of the loaned item(s) as included in the condition report.
The Lender reserves the right to inspect the loan(s) whist they are on exhibition.
Upon request the Borrower will provide the Lender with a Facility report prior to the signing of the Loan Agreement so as to enable the Lender to assess the environment, security and logistical implications of lending to this venue.
Should the Borrower refuse or fail to provide the Lender with such a Facility report meeting all requisite points of safety, the Lender shall be entitled to nullify and/ or cancel this agreement without breaching any of its contractual stipulations and without any right for Borrower to claim for punitive damages.
COPYRIGHTS & COURTESY
Loaned objects must not be photographed, filmed, videoed, televised or copied in any way without prior and explicit agreement by the Lender with whom all rights of title and ownership and/ or intellectual rights (if applicable) shall remain at all times.
Reproductions supplied by the Lender – photographs, transparencies or digital images - but not strictly limited hereto – may be published in the exhibition catalogues or exhibition promotion material only and unless otherwise agreed with the Lender.
Published reproductions must credit the title, artist and owner of the work as well as the photographer.
The Borrower may not transfer any publishing rights on to third parties without explicit and written permission from the Lender.
The press and museum may photograph the loan(s) as part of the exhibition, for advertising purposes or to document a general view. Works may be filmed for exhibition publicity.
The Borrower must provide the Lender with copies of any publication, brochure or publicity material, as well as installation shots of the loan(s) in the exhibition.
The Lender must be acknowledged in displays, exhibition labels, notices, literature, publicity material and catalogues as follows: PUT HERE YOUR COURTESY LINE.
AGREEMENT
The Lender may terminate the Loan Agreement or terminate the provisions of any part of the Loan Agreement by written notice to the Borrower, with immediate effect if the Borrower is in default with any obligation or breach with any contractual stipulation under this agreement and without any entitlement for Borrower to claim for punitive damages against Lender.
Upon the occurrence of an event of default, all rights of the Borrower under this agreement will immediately cease and terminate. The Borrower shall immediately move the loan(s) to a location specified by the Lender. The Lender shall be entitled to recover from the Borrower any and all reasonable costs, including legal fees and expenses but not strictly limited hereto.
The Lender may cancel an exhibition or part thereof or terminate the agreement with 28 days period of notice.
This Agreement may be executed as facsimile originals, and each copy of this Agreement bearing the electronically-transmitted (faxed, scanned, e-mailed, etc.) signature of either Party’s authorized representative shall be deemed to be an original.
Any and all disputes arising out of this Loan Agreement shall be subject to the law and jurisdiction of Lender’s domicile.
FINANCIAL
In the event of a sale, The Consignee agrees to notify the Consignor.
In the event of a sale, The Consignee will receive … % of the sales price and the Consignor will receive … % of the sales price after deduction of production costs.
The retail price quoted by the consignee may not be higher or lower than the retail price listed above, however the consignee may quote the prices in the local currency equivalent.
This consignment is to be settled in the consigned currency, and the consignee bears the risk of exchange rate variation.
Any and all disputes arising out of this Consignment shall be subject to the law and jurisdiction of Consignor’s domicile.
Title does not pass until payment is received in full.
Please note that amy and its team take no responsibility for any legal disputes or other that might arise from using the information in this blog. It serves purely as an example and should not be interpreted as any sort of legal advice.