Loan Agreement for Historical Materials and Objects

Transcription

1 Loan Agreement for Historical Materials and Objects 1. Parties; Effective Date. This Loan Agreement for Historical Materials and Artifacts ( Agreement ) is between The Polish Mission of the Orchard Lake Schools, a Michigan nonprofit corporation with offices at 3535 Indian Trail, Orchard Lake, Michigan ( The Polish Mission, Polish Mission, or PM ) and, with offices at ( Borrower ). This Agreement is effective on the date last signed ( Effective Date ). 2. Purpose of Agreement. The goal of The Polish Mission of the Orchard Lake Schools, which were founded in 1885 by Polish immigrants, is to preserve and promote Polish and Polish-American culture, tradition, and history for present and future generations. The Polish Mission provides unique educational experiences based on authentic objects, stories, and lives from Polish and Polish-American traditions. Its purpose is to inspire people to learn from these traditions to help shape a better future. As a part of its mission, and under specified conditions, PM makes available to others certain materials and artifacts from its collections. This Agreement governs the terms and conditions of the loan by PM to the Borrower of the materials and artifacts identified on Schedule A (collectively Artifacts ) for the purpose set forth in that Schedule ( Purpose ). 3. Care and Handling of Artifacts. a. PM shall specify the method by which Artifacts will be packed, crated, and shipped. In returning to PM, Borrower shall ensure that all items are packed, crated, and shipped in the same manner. Borrower shall arrange for a qualified shipper (expert in the field of Artifact handling and transportation) to pick up the Artifacts at PM, transport them to the location on Schedule A ( Venue(s) ) and return them safely to PM upon end of loan term. PM must approve shipping and storage arrangements in writing prior to the delivery of the Artifacts to the shipper. b. Borrower shall be responsible for all costs and expenses associated with packing, crating, transportation, delivery, customs, insurance, storage, and return of the Artifacts to PM. 1

2 c. The Artifacts are (or may be) original, authentic, unique, fragile, and of significant historical significance. Accordingly, Borrower shall use the highest degree of care for the Artifacts, meeting at least the requirements in Schedule B and in the Loan Condition Report. Borrower shall not handle or display any Artifact except as specified by PM or as required in an emergency to safeguard the Artifacts. Borrower shall adjust the environment (temperature, humidity, direct sunlight) for the Artifacts on display or in storage as per PM s requirements in schedule B, arrange for locked display cases for those Artifacts, and arrange for trained security personnel to attend the Artifacts, if specifically identified in Schedule B. i. Borrower represents and warrants that its personnel who will unpack, move, handle, display, and repack the Artifacts will either be staff trained in museum artifact handling procedures, and/or shall be sufficiently informed and trained as to be able to meet the requirements set forth in this Agreement. ii. Borrower shall ensure that Artifacts remain in the condition received. They will not be unframed, removed from mounts or bases, cleaned, repaired, retouched, sewn, taped, or altered. No tags or numbers will be removed from Artifact. iii. NO PINS, NAILS, TAPE, GLUE, WAX, OR OTHER MATERIALS WILL BE USED IN DIRECT CONTACT WITH AN ARTIFACT FOR ANY REASON. iv. Visitors to the exhibit of the Artifacts shall not be permitted to touch or sit on any Artifact. v. Borrower shall immediately report to PM any damage to or deterioration of any Artifact. Borrower shall not attempt to repair such damage but shall follow the instructions of PM. d. Borrower shall inspect the Artifacts immediately upon arrival at the Exhibit Location on Schedule A and will report immediately to PM any loss, damage, deterioration, or other change in condition. Borrower shall complete Borrower s section of the Loan Condition Report sent with shipment of Artifacts. Borrower shall return completed Loan Condition Report to PM within two (2) weeks after receipt of the Artifacts. Prior to returning the Artifacts to PM, Borrower shall complete and forward to PM an outgoing Loan Condition Report, reporting any change in condition of the Artifacts during the term of loan. e. Artifacts are provided solely for purposes of exhibition and education and not to enable Borrower to reproduce copies of the Artifact or developing products or merchandise relating to the Artifacts without the prior written permission of PM. 4. Designated Representatives. The parties designate the representatives in Schedule C to have authority to coordinate matters and resolve questions that may arise in connection with this Agreement. 2

3 5. Insurance. a. Borrower shall secure "all risks" insurance including but not limited to theft, robbery, burglary, earthquake, flood, and cargo insurance (inland, ocean, and air transit) from the time the Artifacts leave the PM location until its return to PM. This insurance shall have a loss payable endorsement and shall be primary and non-contributory to any other insurance held by PM. The Polish Mission shall be named as an insured as respects the Artifacts described in Schedule A. Borrower shall also maintain policies for general liability insurance on a primary and non-contributory basis in favor of PM with a waiver of subrogation endorsement, and for workers compensation insurance. Borrower shall provide PM copies of certificates evidencing such coverage. Borrower shall provide copies of such insurance to PM within ten (10) calendar days of the Effective Date, and thereafter upon written request of PM. Insurance value may be reviewed periodically; Borrower shall obtain an increase in coverage if requested by PM. b. PM must be given thirty (30) days notice if any cancellation or change in insurance coverage occurs during the terms of this loan. Borrower shall communicate this change to PM designated representative listed in Schedule C. c. Any failure to secure and maintain such insurance is a material breach of this Agreement. Borrower remains fully liable to PM and any other third parties holding legal interests in the Artifacts for direct, indirect, consequential, and special damages arising from such failure. No conduct of PM shall be a waiver of Borrower s insurance obligations. d. Borrower shall remain liable for any damage, destruction, deterioration, or loss of any Artifact(s) from the time they leave the premises of PM until they are returned, uncrated, inspected, and found by PM to be in the same condition as when they were loaned to Borrower. e. Borrower hereby guarantees the return of the Artifacts to Lender, or, in the event that return should be impossible, Borrower agrees to compensate Lender for the full value of the Artifact described in Schedule A. Borrower also agrees to indemnify Lender for all legal expenses Lender may incur in connection with any seizure of the Artifacts or other legal action preventing its return. 6. Promotion of Artifacts; Permissions; Indemnification. a. PM grants Borrower a limited license to reproduce images of the Artifacts, and to publicly disseminate information about the Artifacts, in traditional channels of promotion and communication, such as mailings, web site postings, news releases, and catalogs prepared specially for any exhibit or display of the Artifacts. See Schedule C: Photographic Use Agreement for Artifacts on Loan for details related to this limited license. b. Unless otherwise noted in Schedule A, the Artifacts may be photographed by the general public for private, non-commercial use; provided that no devices radiating heat may be used near the Artifacts. 3

4 c. All copies of documents, photographs, and electronic images provided by PM remain the property of PM, may be used by Borrower solely in connection with the exhibit, display, or other use of the Artifacts. d. All Artifacts and photographs of the Artifacts will be labeled with content provided by PM (or other information approved in writing by PM), shall bear the statement From the Collections of the Polish Mission of the Orchard Lake Schools, Orchard Lake, Michigan, and all advertising and promotion (whether direct mail, posters, catalogs, Web, broadcast, newspaper, or magazine) shall contain recognition of PM in a form approved in advance by PM. e. PM represents that it owns or has the right to loan the Artifacts. It does not represent that it owns the intellectual property rights (if any) relating to the Artifacts. f. If the Artifacts contain the trademarks, copyrights, or other intellectual property rights of third parties (including but not limited to rights of publicity), Borrower shall be responsible for securing any clearances, permissions, or licenses (if applicable) to the use of the Artifacts by Borrower contemplated under this Agreement. Borrower hereby indemnifies, holds harmless, and agrees to defend PM from all damages, costs, fees, and expenses relating to third party claims arising from Borrower s use of the Artifacts, images of the Artifacts, and information about the Artifacts. g. Either party may use the name of the other to accurately report, describe, and communicate the relationship established and activities undertaken in connection with this Agreement. PM grants Borrower a license to use The Polish Mission name and logo in connection with the promotion and advertisement of the exhibits featuring, and the display of, the Artifacts. Borrower shall provide PM with two (2) copies of all tangible materials promoting the Artifacts or any published catalogs of the exhibitions. h. All use of PM logos, trademarks, and other brands is under the control of PM and inures to the benefit of PM. Borrower may not create any merchandise bearing PM name, slogan, logo, or other brand, or bearing images of the Artifacts, without the prior written agreement of PM. 7. Fees and Expenses. a. Borrower shall pay all reasonable, out-of-pocket expenses incurred by PM in connection with assistance provided to Borrower under this Agreement, including travel-related expenses of PM staff providing conservation and curatorial assistance. At the request of PM, Borrower shall prepay expenses for flight, ground transportation, and hotel accommodations for PM staff that travel in connection with the provision of services under this Agreement. Any other incidental travel costs incurred by PM staff shall be reimbursed in accordance with this Agreement. b. Borrower will bear all expenses relating to the loan including, but not limited to preparation, packing, crating, shipping (outgoing and return), and storage, plus any special costs for required mounts, casing, and conservation treatment. If PM determines that a Loan 4

5 requires conservation and curatorial assistance at the Location (or if Borrower requests curatorial assistance, such as inventory of Artifacts, supervising the uncrating, unloading, movement, cleaning, hanging, display, and installation of Artifacts, preparing condition reports for the Artifacts, researching and selecting photographs and graphics, research and writing text labels, and conducting a final review of the installation to ensure accuracy of the information, proper treatment of the Artifacts, and appropriate recognition of PM), the parties shall agree upon the scope of services and the fees associated with such services. Borrower may not contract with any other third party for such assistance relating to the Artifacts (including storage of the Artifacts) without the prior approval of the PM representatives listed on Schedule C. c. PM shall invoice Borrower for payments due under this Agreement and Borrower shall pay such invoices thirty (30) days after the date of such invoice. Invoices may be sent by hand delivery, messenger, U.S. Postal Service, Fed Ex or other courier service, , facsimile, or other means of transmission as adopted by PM and Borrower. Borrower shall bear all expenses associated with its activities under this Agreement. 8. Limitations of Liability. Other than for damages arising from the provisions of Sections 3, 5, and 6(g), neither party shall be liable for indirect, incidental, consequential, special, punitive or exemplary damages, or for lost profits or business interruption losses, in connection with this Agreement, regardless of whether such party has been made aware of their possibility. 9. Term and Termination. a. This Agreement commences upon the Effective Date and concludes on the earlier of the safe return of the Artifacts, or the date set forth in Schedule A, or as set forth in Section 9(b). b. PM reserves the right to recall, for any reason, an Artifact prior to the expiration of the intended Loan. PM will use its best efforts to give Borrower advance notice and to facilitate the activities required for such recall. c. Either party may terminate this Agreement upon a material breach by the other that is not cured within thirty (30) days after receipt of written notice of default; provided that PM may immediately terminate Borrower s continued possession of the Artifacts if, in PM s judgment, Borrower s default may harm the Artifacts. Without limitation, failure to properly care for Artifacts, failure to secure and maintain insurance, and failure to timely pay fees and expenses, is each a material breach of this Agreement. 10. Force Majeure. It shall not be a breach of this Agreement if a party is unable to perform certain obligations in this Agreement where such inability occurs by reason of any act of God, fire, flood, storm, earthquake, tidal wave, sabotage, war, military operation, national emergency, civil commotion, terrorism, strikes or acts of governmental authority, or either party s compliance therewith or governmental proration, regulation, or priority, labor dispute, or any other cause beyond either party s reasonable control whether similar or dissimilar to the above described causes; provided, however, that nothing in the foregoing shall relieve a party 5

6 of its obligations to perform on its insurance obligations, its indemnification obligations, and its obligations to preserve and keep safe the Artifacts, and failure to do so shall be a breach of this Agreement. 11. Indemnification. Borrower hereby agrees to indemnify, hold harmless, and defend PM for all damages, costs, expenses, fees, claims, losses, liabilities, and causes of action (collectively, Claims ) arising out of its breach of any obligation or representation set forth in this Agreement. PM shall promptly notify Borrower of any Claim and shall provide Borrower with reasonable assistance in the investigation and resolution of such Claim. 12. General. a. Notices. All required communications shall be in writing and addressed to a party at its address as set forth in this Agreement, to the person who signed the Agreement on behalf of such party or to such address and person as may be designated by such party in writing. All communications will be deemed given when hand-delivered; or if mailed, by registered mail with verification of receipt, upon date of mailing; or by overnight service (such as Fed Ex, DHL, or U.S. Postal Service); or by electronic mail or facsimile, when received. Borrower will acknowledge all forms of communication when received. b. Entire Agreement. The Agreement, all Schedules, and any amendments constitute the entire understanding of the parties with respect to the subject matter of the Agreement and replace all prior and contemporaneous written and oral communications, promises, or understandings. The Agreement may be amended only by a writing signed on behalf of both parties. Electronic mail shall not be deemed to constitute a signed writing for purposes of this modification provision unless expressly identified as an amendment. No purchase order or other administrative document will amend the Agreement unless signed by a representative of both parties and identified as an amendment to the Agreement, even if accepted by the receiving party without objection. Schedule A: Loan Artifacts, Location of Exhibition/Display, Purpose of Loan, Term of Loan; Identification and Insurance Value Schedule B: Care and Handling of Artifacts/Historic Vehicles: Any special instructions for the specific care of the Artifacts on loan will be included in the Loan Condition Report shipped with the Artifacts Schedule C: Photographic Use Agreement for Artifacts on Loan Schedule D: Designated Representatives c. Governing Law; Venue. This Agreement shall be governed by the laws of 6

7 the State of Michigan and U.S. copyright and trademark laws. In the event of any dispute, the parties agree to negotiate in good faith to reach a resolution of the dispute. The sole venue for litigation shall be the United States District Court for the Eastern District of Michigan, Southern Division, and the parties hereby consent to personal jurisdiction and venue is such forum; provided that if such court does not have subject matter jurisdiction then the parties stipulate to the Circuit Court for the County of Wayne, Michigan. d. No Implied Waiver. No waiver of any right or remedy will be effective unless given in writing and signed on behalf of the party making such waiver. The remedies accorded PM are cumulative and in addition to those provided by law. e. No Assignment. The rights granted to Borrower are personal, and Borrower may not assign any rights or delegate any duties under the Agreement without the prior, written consent of PM, and any attempt shall be void. The Agreement is binding upon the parties successors and permitted assigns. AGREED AND ACCEPTED: The Polish Mission By: Date: Borrower By: Date: Name: Jeffrey J. (JJ) Przewozniak Printed Curator of Collections Title: Name: Title: Printed Please retain a copy of this agreement for your files. 7

8 SCHEDULE A Term of Loan Object List / Insurance Information Description & Purpose of Loan: Venue(s): Term: Credit Line: From the Collections of The Polish Mission of the Orchard Lake Schools, Orchard Lake, Michigan Artifact List: Object ID Object Description Value 8

9 SCHEDULE B Care and Handling Prior to shipping, The Polish Mission s Conservation department will document the condition of the item(s) to be loaned in a typed/written Loan Condition Report. A copy of the Loan Condition Report will be supplied to the Borrower at the same time item(s) are shipped. The Borrower agrees to the following: Inspect the item(s) immediately upon arrival at exhibit venue. Complete a Loan Condition Report documenting discrepancies between the recorded condition and the condition of the item(s) as received Return the completed Loan Condition Report to The Polish Mission within two calendar weeks Complete a second copy of the Loan Condition Report prior to returning the item(s) to The Polish Mission, next exhibit venue, or storage location, reporting any change in condition of the item(s) during the term of the loan The item(s) is to remain in the condition in which it was received. No unframing, removal from mounts or bases, no cleaning, repairing, retouching, sewing, or taping will be done. No tags or numbers are to be removed from the item(s). No pins, nails, tape, glue, wax, or other materials will be used in direct contact with any item to mount it for exhibition purposes. The institution s Conservation department is happy to provide additional direction if the Borrower has any questions in this regard. Each item shall at all times be given due care to insure it against loss, damage, or deterioration. The Borrower shall maintain constant and adequate protection against fire, insects, dirt, theft, and mishandling by unauthorized or inexperienced personnel or the public. Whenever possible, the item(s) shall be exhibited in locked cases with security personnel present. Should loss, damage, or deterioration be noted, regardless of who might be responsible, The Polish Mission must be informed immediately by phone. The Borrower shall protect the item(s) at all times against direct or indirect sunlight, precipitation, excessive humidity and excessively dry conditions, strong artificial light, fluorescent light, or proximity to heat or cold air sources. 9

10 The institution requires that the following environmental controls be used in both exhibits and storage venues: Visible light should be maintained between 5 to 20 foot candles; Ultraviolet radiation should be maintained at less than 74 microwatts per lumen; Infrared radiation should be eliminated, or in the case of filming, limited to the shortest possible duration; Temperature should be maintained between 18 and 24 degrees Centigrade (65 to 78 degrees Fahrenheit); Relative humidity of between 35% and 55% should be maintained; with daily fluctuation of no more than 3% Paper items should not be exposed to light levels in excess of 10 foot-candles; Textiles should not be exposed to light levels in excess of 5 foot-candles; Additional special instructions related to environmental conditions will be supplied when appropriate by The Polish Mission s Conservation department, or when requested by the Borrower. The Borrower agrees to use the item(s) only for the purposes specified in the formal written request. NOTE: Any special instructions for the specific care of the artifact being borrowed will be included in the Loan Condition Report shipped with the artifact. 10

11 SCHEDULE C Photographic Use Agreement for Artifacts on Loan The Polish Mission ("PM") grants, with offices at ("Borrower"), permission to photograph the artifacts listed below ("Artifact list") while on loan from PM. The resulting images may be used in traditional channels of promotion and communication related to the exhibit, such as brochures, news releases, and catalogs prepared for the exhibit. This agreement prohibits sale or commercial use of the images, or distribution of the images to a third party. All images of artifacts shall bear the statement From the Collections of The Polish Mission of the Orchard Lake Schools, Orchard Lake, Michigan wherever they may appear. All photography must be done on the premises of the Borrower. The Borrower will send two copies of any materials produced with the resulting images to: Reason photography is requested The Polish Mission attn: JJ Przewozniak 3535 Indian Trail, Orchard Lake, MI How photographs will be used Artifact List: Object ID Object Description PM Approval Borrower Date Date 11

12 SCHEDULE D Designated Representatives The Polish Mission Contact: JJ Przewozniak Title: Curator of Collections Office: (248) Cell: (586) Facsimile: (248) jjprzewozniak@orchardlakeschools.com Mailing Address: The Polish Mission 3535 Indian Trail Orchard Lake, MI Contact: Title: Office: Cell: Facsimile: Mailing Address: 12