The pitch: Kitschen: September 2012

Contract for Artist Commission THIS AGREEMENT IS MADE ON THE 18 OF JUNE 2012 BETWEEN:

(A) Kitschen has agreed to commission Isoceles to create an original Work of art, subject to the following terms.

(B) The original Work of art will be installed at the Site know as Curve.

Interpretation

In this Agreement ;

“Brief” means the required design and specification of the Commissioner for the Work;

"the Commencement Date" means the date upon which this Agreement is completed, agreed and signed by the Parities;

“Design” means the design of the proposed Work as provided for in the Schedule;

“the Parties” means the parties to this Contract;

“Programme” means the timetable identifying the periods within which and the

dates by which works must be completed as set out in Schedule [ ];

“Site” means the place in which the work will be installed;

“Work” means the work of art to be created by the Artist in accordance with this Agreement and as described in Schedule [ ];

“Confidential Information” means any information which has been designated as confidential by any party to this Agreement in writing or that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) including information which relates to the business, affairs, properties, assets, trading practices, developments, trade secrets, Intellectual Property Rights, know-how, personnel, customers and suppliers any party to this Agreement, all personal data and sensitive personal data within the meaning of the Data Protection Act 1998 and the Commercially Sensitive Information;

“Information” has the meaning given under section 84 of the Freedom of Information Act 2000;

Schedule 1 – Brief Specification and Approved Design Schedule 2 - Installation and Delivery Schedule 3 – Maintenance Arrangements Schedule 4 – Payment Milestones

1.0 The Commission

1.1 Kitschen hereby commissions Isoceles to undertake and complete the Campaign (Work) using reasonable skill, care and diligence and in accordance with these terms and conditions.

2.0 Design and Approval

2.1 Isoceles will submit the Design as specified in the Brief attached hereto in Schedule [1] to Kitschen for approval before Isoceles proceeds with the production of the Campaign (Work). In the event that it is evident that the Design does not meet the scope and standard of the Brief as detailed in Schedule [1], Isoceles agrees to amend the Design to ensure compliance with the said Schedule, and any additional costs arising hereof shall be borne by Isoceles.

3.0 Acceptance and Completion of Work

3.1 Isoceles agrees to complete the Campaign (Work) in accordance with the Programme as detailed in Schedule [1].

3.2 The measurements and materials agreed for the Campaign (Work) will be in accordance with Schedule [1].

3.3 Isoceles shall use his/her aesthetic judgement to create the Campaign (Work) and to determine when the Campaign (Work) is completed. Isoceles will notify Kistchen once the Campaign (Work) is completed and Kitschen shall have the right to inspect the work and request reasonable changes to be made before it is installed.

3.4 Kitschen agrees that it will accept the completed Campaign (Work) unless in the Kitschen’s reasonable opinion the Campaign (Work) was not executed substantially in accordance with the description given in the approved Design attached hereto in Schedule [1].

4.0 Responsibilities of Commissioner

4.1 Kitschen will be responsible at its own cost for carrying out the preparatory Site (Curve) works as agreed in writing between Isoceles and Kitschen as described in Schedule [2].

4.2 Kitschen will afford Isoceles and his/her authorised employees agents or subcontractors access at all reasonable times to the Curve in connection with installation of the Campaign (Work).

4.3 Kitschen will be responsible for ensuring that all necessary consents and approvals of any statutory authority and any other licences or permissions are obtained in good time for the siting and installation of the Campaign (Work) and for all costs associated therewith.

4.4 The Design and responsibility for the installation system for the Campaign (Work) will be as described in Schedule [2].

5.0 Delivery of Work

5.1 The Campaign (Work) shall be delivered to Kitschen in accordance with Schedule [2] and programme therein.

5.2 The cost of transporting the Campaign (Work) (including packaging and transport and insurance) which shall be agreed in advance with Kitschen and shall include transport from the point of delivery to the Curve shall be paid by Kitschen

6.0 Installation

6.1 Curve (Site) installation shall be carried out in accordance with Schedule [2].

6.2 For the purposes of this Agreement Isoceles and his/her authorised employees agents or subcontractors shall at all times take all such precautions as are necessary to protect the health and safety of all persons, and shall comply with the requirements of the Health and Safety at Work Act 1974 and of any other Acts, Regulations or Orders pertaining to Health and Safety at work or any re-enactment thereof.

7.0 Warranties

7.1 Isoceles undertakes to Kitschen that the Campaign (Work) will be original and will not infringe the copyright or other rights belonging to any third party.

7.2 Isoceles shall indemnify Kitschen against all claims, demands, actions, costs, expenses (including but not limited to legal costs and disbursements on a solicitor and client basis), losses and damages arising from or incurred by reason of any infringement or alleged infringement (including but not limited to the defence of such alleged infringement) of any Intellectual Property Right in connection with the receipt of the Work.

7.3 Isoceles shall exercise all reasonable skill, care and diligence in undertaking and carrying out the Campaign (Work).

7.4 Isoceles shall indemnify Kitschen against:

a) any liability, damage, loss, expense, cost, claim or proceedings in respect of personal injury to or death of any person arising out of or in connection with the provision of the Campaign (Work), and

b) any liability, damage, loss, expense, cost, claim or proceedings in respect of loss, injury or damage to any property (including property owned by Kitschen)

in so far as the same is due to the negligence, omission or default of Isoceles, its sub-contractors or employees.

Without prejudice to its liability to indemnify Kitschen, the shall take out and maintain, and cause any subcontractor to take out

and maintain:

a) Public Liability insurance, which shall, for any one occurrence or series of occurrences arising out of one event, be not less than £10,000,000.

b)Professional Indemnity insurance, which shall, for any one occurrence or series of occurrences arising out of the same event, be not less than £5,000,000. and be maintained for a minimum of six years.

c) Employers Liability insurance, which shall, for any one occurrence or series of occurrences arising out of one event, be not less than £10,000,000.

8. Repairs

8.1 Isoceles undertakes to rectify at his/her cost any defects in workmanship or materials which are not caused by fair wear and tear, wilful damage or misuse in accordance with the support and maintenance arrangements identified in Schedule [3] within 4 weeks of being notified of the need for such repair. For the avoidance of any doubt where a cost is incurred as a result of removing the Campaign (Work) and re-installing it for the purpose of this clause the cost shall be borne by Isoceles.

8.2 If the Campaign (Work) needs repair or restoration during the next twenty years, Kitschen may in its reasonable opinion and to the extent practicable give Isoceles the option to conduct or supervise the restoration or repair subject to the suitable payment terms being agreed with Isoceles. All repairs or restoration should be made in accordance with recognised conservation standards.

9.0 Ownership

9.1 Isoceles will retain legal title and ownership of the Campaign (Work), excluding any materials paid for by Kitschen which are owned and are the property of Kitschen until delivery to the Curve, and receipt of the final payment, when legal title and ownership shall pass to Kitschen.

9.2 Unless otherwise agreed in writing any maquettes, models or preliminary drawings shall remain at all times the property of Isoceles.

10.0 Risk of Loss or Damage

10.1 Risk of loss or damage to the Campaign (Work) during creation, delivery and up until legal title and ownership pass to Kitschen, shall be that of Isoceles, and Isoceles shall insure the Campaign (Work) against all usual risks accordingly. In the event that the Campaign (Work) is damaged or destroyed whilst the responsibility of Isoceles, Isoceles shall replace the Campaign (Work) or if this cannot be achieved within the timescale for completion of the project refund to Kitschen the payments made to Isoceles in respect of the Campaign (Work), except the first payment which is in respect of the design work.

10.2 Kitschen shall be responsible for any risk of loss or damage to the Campaign (Work) or loss or damage to persons or property at all times after delivery to Kitschen has been completed.

11.0 Maintenance

11.1 Kitschen will be responsible for ensuring adequate future maintenance and cleaning of the Campaign (Work) in accordance with Schedule [3].

12.0 Copyright and Reproduction Rights

12.1 Copyright in the Campaign (Work) (including in any preliminary designs) shall remain at all times with Isoceles.

12.2 Isoceles hereby grants Kitschen a perpetual licence to use his/hers Intellectual Property Rights in the Campaign (Work) in accordance with this Agreement.

12.3 Kitschen shall be entitled without payment to Isoceles to make (or authorise others to make) any photograph film or video of the Campaign (Work) and to include this in any advertising, brochures, or other publicity material or film, video or television broadcast.

12.4 It shall be a condition of the Agreement that Isoceles will not infringe any Intellectual Property Rights of any third party and Isoceles shall fully indemnify and keep indemnified Kitschen against all actions, suits, claims, demands, losses, charges, costs and expenses which Kitschen or Isoceles may suffer or incur as a result of or in connection with any breach of this Condition.

13.0 Credits and Moral Rights

13.1 On installation of the Campaign (Work), Kitschen agrees to erect a suitable permanent plaque in a position and with wording to be agreed with Isoceles.

13.2 Isoceles hereby asserts his or her moral right to be identified as the creator of the Work in accordance with Section 78 of the Copyright Designs and Patents Act 1988, on all occasions when the Campaign (Work) (including any preliminary designs sketches or maquettes) or any photograph or other permitted reproduction is exhibited, published or issued to the public.

13.3 Without prejudice to Isoceles’ statutory moral rights, Kitschen undertakes not intentionally to alter, damage or destroy the Campaign (Work), or knowingly consent to others doing so, without the prior written approval of the Artist.

14.0 Relocation

14.1 Kitschen agrees to maintain on file for a minimum of 7 years a record of this Agreement and of the location of the Campaign (Work). Kitschen will endeavour to notify Isoceles of any proposed alteration of the site or relocation of the Campaign (Work) which would affect the intended character and appearance of the Campaign (Work).

14.2 If any relocation or alteration of the site takes place without Isoceles’ consent which would affect the intended character and appearance of the Campaign (Work), Isoceles may remove or have removed any notice, plaque or signature identifying Isoceles within the Campaign (Work).

14.3 Kitschen will (to the extent possible) keep Isoceles informed of the name and address of any new owner of the Campaign (Work) or of the site or of any person who takes possession of the Campaign (Work).

15.0 Termination of Agreement

15.1 This Agreement can be terminated by notice in writing (setting forth in adequate detail the grounds of such termination) in any of the following circumstances:

15.2 In the event that Isoceles is in material default of any obligation under this Agreement, Kitschen shall give written notice to Isoceles who shall first be allowed a reasonable period, not exceeding one month, to remedy the default. If the default is not remedied within such period Kitschen may terminate the Agreement by further written notice and Isoceles shall not be entitled to receive any further fees and shall refund all fees paid.

15.3 If the work is cancelled or other circumstances arise beyond the control of Kitschen which prevent the continuation of the commission, Kitschen may terminate the Agreement by written notice to Isoceles, who may receive and retain payment for all work up to until receipt of such notice. Isoceles shall if appropriate be entitled to be paid a proportion of the future instalments which would have been due if the work had been completed, based on the stage of completion which has been reached at the date of the termination.

15.4 Isoceles may terminate the Agreement by notice in writing if Kitschen is more than 30 days late in making any payment due under the Agreement and has failed to remedy the breach within a further 30 days following receipt of a notice specifying the said breach or is in material default of any other obligation under this Agreement, provided that in the latter case Kitschenis first allowed a reasonable period not exceeding one month, to remedy the default. Isoceles shall be entitled to receive and retain payment for all work done until the receipt of the termination notice and shall if appropriate be paid a proportion of the future instalments which would have been due if the Campaign (Work) had been completed, based on the stage of completion of the Campaign (Work) which had been reached at the time of termination.

15.5 If this Agreement is terminated under the above provisions Isoceles shall retain ownership and copyright of the Campaign (Work) excluding all materials which are owned and are the property of Kitschen and Isoceles shall have the sole right to complete, exhibit and sell the Campaign (Work) subject to payment in full to Kitschen in respect of any such materials.

15.6 If materials are paid for by Kitschen they shall remain the property of Kitschen and ownership and property in the materials shall not pass from Kitschen on incorporation into the Campaign (Work) but the risk in the materials shall be borne by Isoceles from the date of delivery of the materials.

15.6.1 Should the Agreement be terminated any such materials not included in the Campaign (Work) will remain the property of Kitschen.

15.7 This Agreement will terminate automatically on the death or incapacity of Isoceles whereupon Isoceles (or his/her estate) will receive all payments due up to the death or incapacity and Kitschen may if it wishes keep the Campaign (Work) in progress and any preliminary designs for the purpose only of completing the Campaign (Work) using an artist acceptable to Isoceles or his/her estate. If Kitschen does not wish to have the Campaign (Work) completed, the work in progress and all preliminary designs, models, etc shall belong to Isoceles or his/her estate provided that Kitschen is given a refund of any payments already made in respect of the Commission.

15.8 Isoceles will not be treated as being in default under this Agreement if any delay in completing the Campaign (Work) is due to any cause beyond Isoceles’ reasonable control.

15.9 Any notice given under this Agreement shall be in writing addressed to the other party at the address given above and either party shall notify the other of any change in his or its address as soon as possible after that change occurs.

16.0 General

16.1 No variations or additions to this Agreement or the Schedules may be made without the written consent of both parties.

16.2 This Agreement contains the entire agreement and understanding between the parties as to the commission and the Campaign (Work).

16.3 Isoceles may subcontract or delegate all or part of the fabrication or execution of the Campaign (Work) but Isoceles shall personally supervise the design and execution of the Campaign (Work) and shall retain responsibility for the fabrication and execution of the Campaign (Work).

16.4 This Agreement is binding upon the parties, their assigns and all other successors in title.

16.5 Isoceles and any employee or sub-contractor authorised by Isoceles shall keep confidential any all information in respect of the design and the Campaign (Work) under the Agreement and shall not divulge the same to any third party without the consent in writing of Kitschen.

16.6 Isoceles shall comply with all statutory requirements and legislation in providing the Campaign (Work) including but not limited to the Prevention of Corruption Acts, Race Relations Act 1976, Sex Discrimination Act 1976, Disability Discrimination Act 1995, Health and Safety at Work Act 1974, Data Protection Act 1998 and any subsequent re- enactments or amendments at any time.

17.0 Dispute Resolution

17.1 The parties will use their best efforts to negotiate in good faith and settle any dispute that may arise out of or relate to the Contract.

17.2 If the dispute is not resolved at the meeting of Isoceles and Kitschen, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure (‘the Model Procedure’).

18.0 Payments

18.1 Kitschen agrees to pay Isoceles in accordance with the Programme for Payment of Milestones attached hereto in Schedule [4].

18.2 Isoceles shall invoice Kitschen for the above payments on or before the date when the instalment is due for payment and payment shall be made within 30 working days of receipt of a valid invoice.

18.3 If Isoceles incurs any reasonable additional costs or expenses which are caused as a direct result of amendments to the agreed designs or other additional requirements or conditions requested by Kitschen, Kitschen will reimburse these on production by Isoceles of receipts or other evidence of the costs of expenses incurred.

18.4 It is the Artist’s responsibility to inform Kitschen if Isoceles is registered for VAT purposes and to supply an itemised VAT invoice.

19 Contract (Rights of Third parties) Act 1999

19.1 None of the provisions of this Agreement are intended to or will operate to confer any benefit (pursuant to the Contracts (Rights of Third Parties) Act 1999) on a person who is not named as a party to this Agreement.

Signed by ____________________________________________(the Artist) in the presence of: ______________________________________________

Signed by _____________________________________(the Commissioner) Authorised Signatory: ______________________________________________