MORRISSEAU ART CONSULTING – AUTHENTICITY EXAMINATION TERMS & CONDITIONS

 

These terms and conditions set out the agreement between Morrisseau Art Consulting Inc. (“MAC”) and you (“Client”) with respect to the provision by MAC to you of authenticity examination services (the “Services”) related to the artwork(s) furnished by you and attributed to Norval Morrisseau (the “Work”). By signing below, you agree that these terms and conditions shall apply.

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1. SERVICES AND FEES. The Services include the review of the Work and other materials provided by Client, followed by the delivery to Client of: (a) in the case of a Full Authenticity Examination (as defined on the MAC website), an authenticity examination report and, possibly, a certificate of authenticity; or (b) in the case of an Express Authenticity Examination (as defined on the MAC website), a certificate of authenticity or an opinion letter. Such report, and/or certificate or letter shall be defined herein as a “Report”.

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The fees paid for the Services will be, in relation to an Express Authenticity Examination, the fee set out on the MAC website at the time the Services are ordered. In the case of a Full Authenticity Examination, the fee shall be or in the amount requested by MAC in the correspondence between MAC and Client which precedes this document.

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2. OPINIONS. All statements regarding the authenticity of artworks, including but not limited to the Work, made in a Report are statements of opinion, not fact. Reports are based on a connoisseurship approach, which involves the exercising of the knowledge, perceptions, experience, insight, reasoning and intuition of MAC at the time the Services are performed, and MAC may change its opinion over time as its knowledge and experience change. Facts, assumptions and reasons provided in a Report, if any, are not necessarily exhaustive; there may be additional facts, assumptions and reasons that MAC considered or did not consider but that are not referred to in the Report. The Services do not include any materials scientific investigation of the works, such as, without limitation, the use of surface or penetrating visual scans, chemical analysis, canvas weave comparison, dendrochronology, radioactive material detection, radiocarbon dating, etc. Similarly, MAC’s examinations do not include expert handwriting analysis, although factual contextual observations and lay comparisons may be used. MAC’s opinions on authenticity are not representations or warrantees of their conclusions.

 

3. OPINIONS. In rendering its opinion upon the authenticity of Client’s Work, MAC may conclude that the Work is authentic, fake or that its authenticity cannot be determined.

 

4. TYPE OF EXAMINATION. Reports for Full Authenticity Examinations will, unless otherwise agreed in writing, be based upon an in-person examination of Client’s Work. Reports for Express Authenticity Examinations will be based on examination by MAC of digital images provided by Client. MAC’s ability to perform the Services is conditional upon Client providing access to the Work or quality digital images of same (for Express Authenticity Examinations) and furnishing all information and documents requested by MAC.

 

5. EXPERT TESTIMONY. Appearances in court in relation to Client’s court actions, or in relation to third party actions, shall be at rate of $250 p/h plus reasonable expenses. MAC has no obligation to furnish an expert to give expert testimony in relation to any Report.

 

6. TRANSFER OF FAKES. Where, in relation to Works examined in a Full Authenticity Examination, Client elects to transfer ownership of the Work to MAC on the basis that it is a fake (a “Transferred Fake”), MAC shall reduce or refund its per artwork fee for the Services so that Client’s payment for same is $250 or less (exclusive of taxes, shipping, and insurance). This option must be exercised within 7 days of the delivery by MAC of the Report determining that the Work is fake. MAC shall then permanently and prominently mark the Transferred Fake as a fake and enter it into an archive and database of fake works to be used for the purposes of research and identification of further fakes. MAC will not represent any Transferred Fake as an authentic work. MAC shall keep Client’s identity and other personal information confidential in the event that MAC provides images or information about the Transferred Fake to any third party, or in the event that ownership of the Transferred Fake is assigned to a third party.

 

7. CLIENT REPRESENTATIONS AND WARANTEES. Client represents and warrantees to MAC that: (a) Client has the right to enter into this agreement and doing so will not violate the right of any third party; (b) Client enters into this agreement in good faith and with honest intentions, and not for any strategic legal purpose designed to cause liability for MAC or to negatively impact MAC’s reputation; (c) Client is the owner of the Work, or is the authorized representative of the owner; (d) Client has provided all of the information requested by MAC, and answered all questions posed by MAC truthfully to the best of Client’s ability and knowledge; (e) Client recognizes and accepts that MAC may conclude that a Work is not authentic, or authentic, or undetermined, and that MAC has no obligation to Client to find otherwise; (f) Client will not, regardless of the determinations of MAC regarding Client’s Work, make any disparaging statements to any third party about MAC.  

 

8. LIABILITY TO THIRD PARTIES AND INDEMNITY. A Report is prepared for the client only, and not for any third party. Reports are confidential unless Client discloses, or authorizes and directs MAC to disclose, same. In the event that Client discloses a Report to any third party, Client will disclose the complete Report, without modifications, additions or deletions. Client indemnifies and saves harmless MAC in relation to any third party claims resulting from client’s use or disclosure of a Report. Client shall indemnify and hold harmless MAC, its officers, directors, employees, and/or shareholders, from and against any and all damages (whether ordinary, direct, indirect, incidental, special, consequential or exemplary), judgments, liabilities, fines, penalties, losses, claims, actions, demands, lawsuits, costs, and expenses including, without limitation, reasonable attorneys' fees, which arise out of or relate to any third party claim against MAC in relation to statements and opinions expressed in a Report prepared for Client, or for MAC’s refusal to issue a Report or to provide an opinion.

 

9. LIMITATION OF LIABILITY. MAC shall not be held liable for any statement made by MAC to Client about the Work that is made outside of the written Report, and all such external statements are specifically excluded from the statements of fact and opinions made to Client or which may be relied upon by Client. Subject to paragraph 10 (Termination) herein, Client releases MAC from all liability for negligence in relation to the provision of a Report for Client, and from any refusal of MAC to continue the Services or to furnish a Report or provide an opinion. In any event, MAC’s liability is limited to the amount of the fees paid by client to MAC for the particular Report in relation to which any dispute arises.

 

10. TERMINATION. Client may terminate this agreement only in the event that MAC fails to perform the Services in a reasonable amount of time, in which case MAC shall refund Client’s payment of fees. MAC may terminate this agreement, without any further liability to Client, at any time in the event that Client breaches any of Client’s obligations, representations or warrantees herein. MAC may also terminate this agreement in its own discretion where no such breach by Client has occurred, and in such an event MAC shall refund to client the fees paid by Client to MAC. The provisions of paragraphs 2-9 and 11-14 of this agreement shall survive any termination by either party.

 

11. WITHHOLDING INFORMATION. MAC reserves the right to not disclose sensitive information in its knowledge where, in its reasonable discretion, such information would compromise its confidential sources or clients, relationships with such sources or clients, proprietary information, or expose information that might be used by forgers.

 

12. INTELLECTUAL PROPERTY. MAC is the owner of all right, title and interest in the copyright in the Report.

 

13. DISPUTES. In the event that a dispute arises between Client and MAC regarding this agreement or any matter relating to the services provided by MAC to Client, MAC reserves the right to require said dispute to be adjudicated through binding arbitration in Ontario and pursuant to Ontario law.

 

14. MISCELLANEOUS. The inclusion of headings in this agreement is for convenience of reference only and shall not affect the construction or interpretation hereof. Each of the provisions contained in this agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision hereof. Where any provision of this agreement provides for any lesser benefit to either of the parties than is required by the law in force at the time of performance, and which required benefit thereby cannot be contracted out of, then said provision shall be deemed amended to reflect the minimum benefit required by any such law. Client represents and warrants that this agreement constitutes a legal, valid, and binding obligation of Client enforceable against it in accordance with its terms. This agreement constitutes the entire agreement between the parties pertaining to the subject matter of this agreement, except for the fees payable hereunder and the identity of the Work (which may be multiple artworks) to be examined as a part of the Services, both of which shall be set out elsewhere. This agreement supersedes and replaces all prior agreements, if any, written or oral, with respect to the Services. There are no warranties, representations or agreements between the parties in connection with the subject matter of this agreement except as specifically set forth or referred to in this agreement.  No reliance is placed on any representation, opinion, advice or assertion of fact made by MAC or its directors, officers and agents to Client, except to the extent that same have been reduced to writing and included as a term of this agreement.  Accordingly, there shall be no liability, either in tort or in contract, assessed in relation to any such representation, opinion, advice or assertion of fact, except to the extent aforesaid. This agreement shall inure to the benefit of and be binding upon the respective heirs, executors, administrators, successors, and permitted assigns of the parties hereto. No amendments to this agreement shall be valid or binding unless set forth in writing and duly executed by all of the parties hereto.  No waiver of any breach of any provision of this agreement shall be effective or binding, unless made in writing and signed by the party purporting to give the same and, unless otherwise provided in the written waiver, shall be limited to the specific breach waived. This agreement, and all rights and obligations hereunder, shall be assignable by MAC to any other affiliated company, or to any other entity for the purposes a merger, transfer, sale or consolidation of all or substantially all of the MAC’s assets.  MAC shall not assign this agreement without the express prior written consent by MAC. Words importing the singular number only shall include the plural and vice versa, and words importing the masculine gender shall include feminine and neutral genders and vice versa. Except as expressly provided in this agreement, all amounts in this agreement are stated and shall be paid in Canadian currency. This Agreement may be signed in counterparts and each of such counterparts shall constitute an original document and such counterparts, taken together, shall constitute one and the same instrument. Client's execution of this Agreement may be by written signature, electronic signature, or by confirming agreement to the terms herein by typing "yes" or any other affirmation into an order submission form through the MAC website.