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Definitions and interpretation

1. In this Agreement capitalised terms shall have the meanings ascribed to them in the Artist’s Resale Right Registration Form or as set out below:

   ”Artist” means the person set out on the Artist’s Resale Right Registration Form who is the owner of the Resale Right;

   ”“Artist’s Resale Right Registration Form” means the online form found on DACS website at www.dacs.org.uk, which has been completed by the Artist for the purposes of entering into this Agreement;

   ”Artistic Work” has the meaning of a work given in regulation 4 of the Regulations;

   ”Associated Society” means a collecting society or rights administration society with which DACS has arrangements authorising each other to collect monies owed to their respective members in relation to, amongst other things, Resale Right.

   ”Distribution Policies” means the Distribution Policies in force from time to time which are available on DACS website at www.dacs.org.uk or such other web address as DACS may choose from time to time.

   ”Privacy Policy” means DACS’ privacy policy, which sets out DACS’ policy for its collection and processing of personal data relating to individuals, in force from time to time which is available on DACS website www.dacs.org.uk or such other web address as DACS may choose from time to time.

   ”Regulations” means the Artist’s Resale Right Regulations 2006 (as amended);

   ”Resale Right” has the meaning given in regulation 3 of the Regulations and relates to the Artistic Works created solely or jointly by the Artist;

   ”Resale Royalty” has the meaning given in regulation 3 of the Regulations;

2. References to “including” and “include” are to be construed as being by way of illustration or emphasis only and are not to be construed so as to limit the generality of any words preceding them;

3. The words “other and “otherwise” are not to be construed as being limited by any words preceding them;

4. A person includes all forms of legal entity including an individual, company, body corporate (wherever incorporated or carrying on a business), unincorporated association, governmental entity and a partnership and, in relation to a party who is an individual, his legal personal representatives;

5. Words in the singular include the plural, and those in plural include the singular and any gender includes other genders;

6. References to “this Agreement” includes this Agreement as amended or supplemented from time to time;

7. Clause headings shall not affect the interpretation of this Agreement. References to clause and schedules are, unless otherwise provided, references to the clauses and schedules of this Agreement.

8. Any expressions used but not defined in this Agreement, but which are defined in the Regulations shall have the meaning ascribed to them in the Regulations.

Mandate

The Artist, hereby authorises DACS exclusively to administer and manage the Resale Right as amended or varied from time to time and any right of a similar nature in any part of the world in respect of Artistic Works created (whether solely or jointly) by the Artist.

Collection of Resale Royalties and Fees

1. The Artist agrees that DACS may collect Resale Royalties arising from resales of Artistic Works created by the Artist (whether solely or jointly). The Artist further agrees that DACS may authorise its Associated Societies to collect Resale Royalties arising from resales of Artistic Works in the Associated Societies respective territories.

2. DACS shall pay the Artist any Resale Royalties collected by it subject to and in accordance with its Distribution Policies.

3. DACS shall be entitled to deduct a fee from any Resale Royalties collected by it at the percentage rate set out in the Distribution Policies prevailing at the relevant time.

4. The Artist accepts that DACS relies on its Associated Societies for the correct interpretation and application of relevant national legislation due to the territorial nature of intellectual property rights. DACS will use its reasonable endeavours to ensure that its Associated Societies will assert in their own territory of administration the rights of the Artist in the same way and to the same extent as they do for their own members and that they will apply the same fees, methods and means of collection and distribution of monies as they do for and to their own members.

5. Save as set out in Clause 3.4, the Artist accepts that DACS is not liable for the actions or inactions of any of the Associated Societies in respect of the Resale Right.

6. DACS and the Artist agree and accept that the Associated Societies shall have freedom to determine and impose whatever fees they consider necessary for administering the Resale Right in their territories. These fees shall be deducted from any monies payable to DACS by the Associated Society.

Qualifying National and Qualifying Body

1. The Artist acknowledges that:

   1. it is a legal requirement pursuant to Regulation 10 of the Regulations that, for sales taking place in the UK, the Artist must be (or have been) a qualifying national to be entitled to receive the Resale Royalties; and

   2. in order to satisfy the nationality criteria set out at regulation 10 of the Regulations, a valid passport is the only documentation which will provide sufficient evidence of qualifying nationality. For the avoidance of doubt, permanent residency does not satisfy the nationality criteria in the UK.

2. The Artist shall provide to DACS valid evidence of the Artist’s nationality, such as a copy of a valid passport, within 30 days of a request being made by DACS.

Warranties and Indemnity

1. The Artist warrants that:

   1. the Artist has good right and full power to enter into this Agreement and is legally entitled to receive the Resale Royalties and shall provide evidence of entitlement if requested by DACS;

   2. the information provided on the Artist’s Resale Right Registration Form is accurate;

   3. the Artist is a national of the country stated on the Artist’s Resale Right Registration Form;

2. The Artist shall and does hereby indemnify DACS from and against any claims, actions, proceedings, liability, loss, damage, costs and expenses of any kind directly or indirectly incurred by DACS in connection with any breach or non-performance by the Artist of any warranty, representation or undertaking set out in this Agreement.

3. In the event that the Artist is not legally entitled to receive any Resale Royalties paid to him or her by DACS the Artist shall immediately return those Resale Royalties to DACS. This clause is in addition to the indemnity given by the Artist at clause 5.2.

Entire Agreement

The Agreement is comprised of the Artist’s Resale Right Registration Form and these Terms and Conditions. This Agreement embodies all the terms agreed between the parties relating to the Artist Resale Right and no oral representations, statements, inducements, warranties or promises by either party shall be binding and valid.

Term and Termination

1. This Agreement shall commence on the date of its execution or, where the Artist has mandated another collecting society to administer or manage the Resale Right, from the termination date of that mandate, whichever is later.

2. This Agreement shall remain in full force and effect until the expiry of not less than three (3) months’ prior written notice given by either party to the other. Where the Artist gives notice to DACS, such notice shall be addressed to the Artist’s Resale Right Manager at DACS and receipt of such notice shall be acknowledged by DACS in writing with 14 days of receipt.

3. The Artist agrees and accepts that after termination of the Agreement DACS shall be entitled to deduct the fee described at Clause 3.3 from any Resale Royalties collected by DACS which are paid to the Artist and relate to resales of Artistic Works which were completed during the term of the Agreement.

4. The Artist agrees and accepts that any ongoing acceptance of monies from DACS relating to Resale Royalties paid in accordance with DACS’ Distribution Policies shall constitute continued acceptance of these Terms and Conditions.

5. On the death of the Artist, this Agreement shall be binding on his or her successor and shall continue until:

   1. the successor gives notice of termination pursuant to clause 7.2 above; or

   2. the period ending either on 31 December in the seventh year following the year in which the Artist’s death occurred.

Severance

In the event of any term or provision of this Agreement being held for any reason to be invalid, unlawful or unenforceable this shall not affect the validity, legality or enforceability of any other term or provision of this Agreement or of the remainder of this Agreement as a whole.

No Partnership

Nothing herein contained shall be construed or deemed to constitute a partnership or joint venture between the parties hereto or to create any relationship of employer and employee between the parties hereto.

Variation

This Agreement may only be varied in writing signed by or on behalf of each of the parties.

Further Assurance

Each party hereto agrees upon request of any other party hereto from time to time promptly to execute and deliver all deeds and documents and to do all acts and things as shall be necessary, expedient or desirable to give effect to the terms and/or purpose of this Agreement.

Data Protection

Personal information provided on the Artist’s Resale Right Registration Form will be used for the purposes of entering into this Agreement and its performance. DACS’ Privacy Policy applies to all personal information supplied by the Artist.

Governing Law and Jurisdiction

This Agreement shall be construed in accordance with English law and the parties submit to the exclusive jurisdiction of the courts of England and Wales.