Terms of Agreement
Your Brain on Art 2020
WHEREAS the Foundation funds research, including NeuroCAM research, in an effort to accelerate tech solutions and non-pharmaceutical approaches to neurological disorders through partnerships with educational institutions (the “Foundation’s Purpose”);
WHEREAS the Foundation receives funds to support the Foundation’s Purpose, in part, through fundraising events including, but not limited to, an annual event known as Your Brain on Art at which artwork is displayed and auctioned for sale (the “YBOA Event”);
WHEREAS the Artist wishes to donate a piece of artwork to the Foundation to be displayed and auctioned for purchase at the YBOA Event;
NOW THEREFORE, THIS AGREEMENT WITNESSETH, that in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE 1 – THE ARTWORK
The Artist agrees to meet and collaborate with (the “Neuroscientist”), in order to create a piece of artwork that reflects the Artist’s thoughts and impressions about the research project (the “Research Project”) and the Research Project’s impact (the “Artwork”).
The Artist agrees that the Artwork will:
- be either a two (2) or three (3) dimensional piece;
- consist of a solid medium, including, but not limited to, paint or sculpture;
- not contain any video or audio components; and
- not exceed 122 cm x 153 cm in size.
The Artist agrees:
- to donate the Artwork to the Foundation to be displayed and auctioned for sale at the 2020 YBOA Event;
- the artist will receive a $200 honorarium in appreciation for their contribution;
- that all proceeds received from the sale of the Artwork shall belong exclusively to the Foundation and the Artist shall not be entitled to any portion of such proceeds;
- the Artist agrees to provide an image of the Artwork to the Foundation by no later than August 15, 2020. The Artist further agrees to provide the final Artwork to the Foundation by no later than November 1, 2020;
- The Artist will be responsible for dropping off or shipping the Artwork to the venue location on or before November 1, 2020. The Foundation will not be responsible for any loss or damage to the Artwork as a result of shipping or storing.
ARTICLE 2 – ARTIST INFORMATION, PRIVACY, AND PUBLICATION
2.1 The Artist agrees to provide to the Foundation:
- a short biography (a minimum of three sentences) describing the Artist;
- a short exhibition statement (a minimum of three sentences) outlining the Artist’s experience, the conceptual direction of the Artwork, and/or a description of how the Artwork represents the Research Project;
- a physical description of the Artwork including the height and width of the Artwork, the medium used, and the year the Artwork was created in; and
- a digital image of the Artwork; by email on or before August 15, 2020.
2.2 The Artist consents to the Artist Information being published and released in relation to the Artwork, in connection with the Foundation, and in connection with the YBOA Event.
2.3 Subject to the restrictions and conditions set out herein, the Artist acknowledges and consents to:
- the Artwork being publicly displayed and auctioned for sale at the YBOA Event;
- images of the Artwork being displayed and/or distributed in various media formats prior to and following the YBOA Event, including, but not limited to, for the Foundation’s marketing purposes and to facilitate online auction bidding for the Artwork until November 17, 2022.
ARTICLE 3 - INTENT
3.1 It is the agreement of the parties and the intention and wish of the Artist that the Foundation shall have sole and complete control over how the proceeds from the Artwork are used by the Foundation subject to any restrictions and conditions set out herein.
ARTICLE 4 – INTELLECTUAL PROPERTY LICENSE
4.1 The Artist hereby grants to the Foundation a non-transferable, non-exclusive, royalty-free license to use, distribute copies of, and display publicly the Artwork and images of the Artwork in all media formats including, but not limited to, electronic, digital, print, video, and audio, during the period beginning on the Effective Date of this Agreement and ending on November 17, 2022.
4.2 Subject to the license rights granted to the Foundation herein, any and all copyright and moral rights relating to the Artwork remain the sole and exclusive property of the Artist.
ARTICLE 5 – REPRESENTATIONS AND WARRANTIES
5.1 The Artist represents, warrants and covenants, as at the date the Artwork was or is created, that:
- the Artist is the sole legal and equitable owner of all interest and rights in the Artwork;
- the Artwork is an original creative work by the Artist and not a reproduction of any other creative work by the Artist or any third party;
- the Artist has the full right and authority to grant the license referred to in Article 4 to the Foundation;
- the Artist has the full right and authority to grant the Foundation permission to use the Artist Information, the Artwork, and images of the Artwork as described within this Agreement;
- the Artist has not transferred, exclusively licensed, or encumbered the Artwork, or agreed to do so, except as set out in this Agreement;
- the Artwork will not violate, infringe, or misappropriate any third party’s rights including, but not limited to, any intellectual property rights, licensing rights, or privacy rights of any third party;
- there are no third party consents, assignments, or licenses, necessary for the Artist to perform the obligations set out in this Agreement;
- the Artist was not or will not be acting within the scope of employment of any third party when conceiving or creating the Artwork;
- the Artist has full power and authority to enter into this Agreement and make the donation of the Artwork to the Foundation; and
- the Artist is not prohibited or limited, by any statute, regulation, or other law of the Province of Alberta or the laws of Canada applicable therein, or any policies or documents, from providing the donation of the Artwork to the Foundation.
ARTICLE 6 – TERMINATION
6.1 This Agreement shall be effective as of the Effective Date, and shall remain in full force and effect until the completion of the 2020 YBOA Event, subject to the prior termination in accordance with this Agreement.
6.2 This Agreement may be terminated by the Foundation prior to the End Date if the Artist fails to meet the obligations agreed upon in Articles 1.1 to 1.5, and 2.1 or if the Artist is found to be in breach of the representations and warranties made in Article 5.1.
6.3 Notwithstanding Article 6.1 and 6.2 above, the obligations set out in Articles 2.2, 2.3, 3.1, 4.1, 4.2, 5.1, 7.3, 7.7, 7.8, 7.9 and 7.10 shall survive the termination or expiry of this Agreement.
ARTICLE 7 – GENERAL PROVISIONS
By mutual consent of the Foundation and the Artist any provisions of this Agreement may be amended, modified, or deleted. Any such changes, deletions, or additions shall be approved in writing by the Artist and the Foundation, and shall be attached to and form part of this Agreement.
All notifications required under this Agreement shall be directed to "the Artist" or "the Foundation:
Laureen Jensen, President and CEO
Branch Out Neurological Foundation
400-119 14th Street SW
Calgary, AB T2N 1Z6
7.3 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta, and the parties hereto irrevocably attorn to the jurisdiction of the Courts of the Province of Alberta.
This Agreement may be executed in counterpart and by facsimile or electronic transmission and the counterpart execution pages together shall constitute this Agreement.
7.5 Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the donation of the Artwork and supersedes all prior agreements, negotiations, representations, warranties, statements, promises, and understandings, whether oral or written, with respect to the subject matter hereof.
No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement.
7.7 Limitation of Liability
In no event shall the Foundation be liable for any loss, cost, damage, expense, obligation, or liability whatsoever which the Artist may sustain, pay, or incur in any way including, but not limited to, any tax liability under the Income Tax Act (Canada) or any other taxes or tax assessments whatsoever, resulting from or arising as a consequence of, directly or indirectly, the Artist making the donation of the Artwork or any part thereof.
If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a Court of competent jurisdiction finds that any provision in this Agreement is invalid or unenforceable, but that by limiting such a provision, it would become enforceable, then such provision shall be deemed to be written, construed and enforced as so limited.
This Agreement shall be binding upon and endure to the benefit of the parties signatory hereto, and their respective permitted successors and assigns.
The Artist will indemnify and hold the Foundation harmless against all third party actions, proceedings, claims, demands, losses, damages, and costs (on a solicitor-client basis) which may be brought against or suffered by the Foundation or which it may sustain, pay, or incur arising or resulting from a breach of this Agreement by the Artist.
7.11 Force Majeure
Neither party is responsible for any failure or delay in performing its obligations under this Agreement if such failure or delay is due to fire, riots, war, or other causes beyond its control.
These parties have caused this Agreement to be executed by their duly authorized representatives.