Terms of service
These General Terms and Conditions govern the sale of elephant sculptures (“Work(s)”) and along with the charitable contribution (“Donation”) forms the agreement (“Agreement”) between Coexistence Story Inc., a registered 501(c)3 registered in the United States of America with principal address of 130 West 79th Street, 16A, New York, New York, 10024, United States of America (the “Donee”), and the buyer (“Donor”). By purchasing a Work(s) and giving a Donation, the Donor agrees to be bound by the terms and conditions (“Terms”) set forth in this Agreement.
DEFINITIONS
In this document, the following words have the following meanings, summarized here in in addition to those within the Terms:
“The Work(s)” refers to the elephant sculptures.
“Donation” refers to the charitable contribution that forms part of the Sale Amount.
“Agreement” refers to this agreement of sale, to receive the Sale Amount, including the Donation, in exchange for The Works.
“Donee” refers to Coexistence Story Inc, who are selling the Works.
“Donor” refers to the buyer of the Work(s).
“Terms” refers to the Terms and Conditions of the Agreement of sale, constituted in this document.
“GEM” refers to The Great Elephant Migration, which is a fundraising effort exhibiting life-size elephant sculptures in various locations across the USA
“Website” refers to the The Great Elephant Migration website – www.thegreatelephantmigration.org.
“Exhibit Sculptures” refers to the sculptures that form part of the live exhibits. These sculptures exist and will be available for delivery after the exhibits.
“Collections” refers to elephant sculptures that are available the Great Elephant Migration Website. These Work(s) are either still in the process of being created or will be created post order. While the Artists will endeavor to create a replica as close as possible to the selected photograph, artistically driven deviations from the original design may be necessary to ensure the overall aesthetic of the final Works(s).
“Commissions” refers to sculptures that have been commissioned to be recreated directly with the Donee. They have not been ordered via the Collections on the Website. They do not currently exist. They will be ordered after the Donor has paid the Sale Amount to the Donee. While the Artists will endeavor to create a replica as close as possible to the selected photograph, artistically driven deviations from the original design may be necessary to ensure the overall aesthetic of the final Works(s).
“Artists” refers to the Indigenous Indian Artisans who create the elephant sculptures.
“Sale Amount” refers to the total sum payable by the Donor, namely the fair market value of the sculpture, the donation and the delivery & installation charge.
“Manner of Payment” refers to the way in which the Sale Amount can be paid, as set by the Donee and communicated to the Donor via the Website and on the invoice received by the Donor.
“Delivery Date” refers to the date at which the Work(s) will be delivered to the Donor.
“Deed of Transfer” refers to the Waiver, that will come into effect on the day of delivery, once the Donor officially agrees acceptance of the elephants, which occurs upon the Donor’s signing of the Waiver, presented by the Installers.
“Installers” refers to the Donee’s chosen Delivery and Installation Partner or Members of the Donee’s GEM team, who will deliver and install The Work(s).
“Exhibition” refers to the public display of the Work(s) at the designated venue during a specified period.
“Waiver” refers to the Donee shall provide the Donor with a waiver, which the Donor will sign at point of delivery, evidencing acceptance of the Work(s) in their delivered condition and upon payment of the Sale Amount and provision of the Receipt, title and risk of loss shall pass from the Donee to the Donor.
“Standard Installation” refers to the Standard Installation Method which is included as part of the delivery & installation cost.
1. THE WORK(S)
1.1. Description of the Work(s). The Work(s) are life-size elephant sculptures, made from a metal frame and cladded with dried lantana camera. The Work(s) are to be exhibited in the USA under the title The Great Elephant Migration (“GEM”). Each Work(s) is uniquely made.
1.2. Definition of Work(s). There is a distinction between the sale of Work(s) from sculptures featured in the live exhibits (“Exhibit Sculptures”), those from Online Collection(s) (“Collection(s)”) and those that are commissioned (“Commission”). Exhibit Sculptures already exist and will be delivered following the relevant exhibit from which they were available for sale and sold. Online Collection Orders and Commissioned Sculptures do not exist at the point of sale and will be (re)created by the Artists following Payment of the Sale Amount by the Donor. The time for creation, delivery and installation for Online Collection Orders and Commissioned Sculptures is approximately six (6) to eight (8) months from purchase.
1.3. Commissions. Commission orders are offline orders that processed directly with the GEM team, in person or via phone or email. When ordering a sculpture as a Commission, the Donee will instruct the local artisans (“Artists”) to create as close of a replica as possible to the Donor’s selected photograph from those provided in the GEM Catalogue or provided directly by the Donee. While the Artists will endeavor to create a replica as close as possible to the selected photograph, artistically driven deviations from the original design may be necessary to ensure the overall aesthetic of the final Works(s). The Donor commits to paying the Sale Amount, as outlined in 1.6 (Payment), prior to the Donee instructing the Artists to create the commissioned Work(s). Creation timelines and shipment dates can vary. The Donee will, in good faith, provide a timeline for Commission delivery dates upon completion of payment of the Sale Amount.
1.4. Collections. Collection elephants are Work(s) that are available online via the GEM Website. When ordering a sculpture from an online Collection, the Donee will instruct the local artisans (“Artists”) to create as close of a replica as possible to the Donor’s selected photograph from those shown on the GEM Website. While the Artists will endeavor to create a replica as close as possible to the selected photograph, artistically driven deviations from the original design may be necessary to ensure the overall aesthetic of the final Works(s). The Donor commits to paying the Sale Amount, as outlined in 1.6 (Payment), prior to the Donee instructing the Artists to create the Work(s). Creation timelines and shipment dates can vary. The Donee will, in good faith, provide a timeline for delivery dates upon completion of payment of the Sale Amount.
1.5. Care of the Work(s). The Donee will provide access to care instructions for the Work(s). These will be made available on the Donee’s website and updated as advice on care for the Work(s) changes. By purchasing the Work(s) the Donor acknowledges that the sculpture is made from a natural material which will decay over time. The Donor understands that any care instructions or ‘second life’ options provided by the Donee to the Donor on any communication platform or message system are for information purposes only. Providing this information, in any manner, does not constitute an agreement that the Donee will provide financial or administrative support in executing the provided options. On receipt of the sculpture, the Donor accepts full responsibility for the maintenance of the Work(s). Any additional care requirements will come at the Donor’s expense.
1.6. Payment. The total sale price is made up of the Fair Market Value of the Work(s), the Donation, and the Delivery Fee (“Sale Amount”). This shall be paid by the Donor to the Donee in the manner specified on the Donee’s website or communicated by way of an invoice, whichever is agreed to by Donor and Donee (“Manner of Payment’). The portion of the Donor contribution that is deductible for U.S. federal income tax purposes is limited to the amount of the contribution reduced by the fair market value of the Work(s) and the Delivery Fee. These will be outlined in the invoice that the Donor will receive following the delivery of the Work(s).
1.7. Donee Representations, Warranties and Covenants. The Donee represents, warrants and covenants to the Donor that:
1.7.1.The Donee, without any further action, consent or authority of any other party, and without violation of any party’s rights or claims, has full right, legal authority and capacity to enter into this Agreement, to make the covenants, representations and warranties contained in this Agreement and to execute and deliver the Deed of Transfer.
1.7.2.The Donee is the sole and absolute owner of the Work(s) and has full right to transfer title to the Work(s) to the Donor.
1.7.3.Each Work(s) is being transferred, delivered and installed to the Donor in its “as is” and “where is” condition, without any representations, guarantees, or warranties, express or implied, of any kind, arising by law or otherwise, except as expressly set forth herein. The Donor waives its right to recover from the Donee and forever releases and discharges the Donee from any and all losses, whether direct or indirect, known or unknown, foreseen or unforeseen that may arise with respect to condition of the Work(s) that are in any way connected with the environmental or other physical condition of the Work(s). Upon completion of the Deed of Transfer, the Donee shall not be liable for any damages arising for the use or misue of the Work(s), including, but not limited to, personal injury, property damage or economic loss.
1.7.4.Without limiting Section 1.7.3, the Donee shall use financially reasonable efforts to ensure that the Work(s) is delivered in good condition, taking into account the inherent characteristics of the Work(s) and any risks associated with its transport and installation.
2. CLOSING, TITLE & DELIVERY. The consummation of the transaction contemplated under this Agreement should occur as follows:
2.1. Closing. Closing will occur once the Donor pays the Sale Amount in the specified Manner of Payment outlined in Section 1.6 (Payment).
2.2. Delivery Timeline. The Donee’s chosen Delivery and Installation Partner or Members of the Donee’s GEM team (“Installers”) shall contact the Donor to coordinate delivery and installation of the Work(s). The timing of this will be dependent on whether the Work(s) purchased was an Exhibit Sculpture or a Commission/Collection Sculpture. Please reference Section 1.2 for the Definitions.
2.2.1. Exhibit Sculptures:
2.2.1.1. Exhibition. For the purposes of this Agreement, the Exhibition refers to the public display of the Work(s) at the designated venue during a specified period (“Exhibition”). The Work(s) available from these Exhibitions are known as Exhibit Sculptures.
2.2.1.2. Delivery Notification – Exhibit Sculptures. The Donor will be notified, by email, no later than 7 days prior to the publicized end date of the Exhibition, of the date that The Work(s) will be delivered to the Donor (“Delivery Date”). The Delivery Date will follow the advertised end date of Exhibition, from which the Work(s) is sold.
2.2.1.3. Deadline to confirm Delivery Date for an Exhibit Sculpture. The Donor is required to confirm they can receive The Work(s), at the delivery address provided at the point of order, on the given Delivery Date. The Donor is required to confirm their delivery date no later than 5 days prior to publicized end date of the Exhibition. To avoid doubt, the end date of the Exhibition of the relevant purchase will be clearly publicized on the GEM website and will be communicated to the Donor during the purchase process.
2.2.1.4. Delivery Timeline. The Installers will complete delivery of the Work(s) no more than two (2) weeks following the end date of the exhibition. No storage fees will apply to the Donor if the deliver occurs within the Delivery Timeline provided by GEM and/or the Installers (up to 2 weeks maximum). Should the Donor be unavailable to receive their sculpture during this two (2) week window, the Donor has the right to come to an individual arrangement with the Installers to store and deliver the sculptures at a time that is convenient to the Donor. The Donor will bear all costs associated with this arrangement. This will move the Delivery relationship from the GEM team to one between the Installer and the Donor and all correspondence with this Delivery will need to be done directly between these two parties.
2.2.2. Commission & Collection Sculptures:
2.2.2.1. Delivery Notification – Commission & Collection Sculptures: The Donor will be notified at point of purchase of the estimated delivery timeline of their Commission/Collection Order. Once The Work(s) have been recreated by The Artists, the Donee will update the delivery timeline and inform the Donor. Once the Work(s) have been loaded onto a container ship, the Donee will confirm the Delivery Date with the Donor via email. The Delivery Date will depend on accurate sailing timelines and clearance of customs without delay and therefore may change.
2.2.2.2. Deadline to confirm delivery time and date for Commission & Collection Sculptures: The Donor is required to confirm they can receive The Works, at the delivery address provided at the point of order, on the given Delivery Date. The Donor is required to confirm the Delivery Date within 7 days of receiving the email from the Donee confirming the Delivery Date.
2.2.2.3. Delivery Notification: The Work(s) will be delivered after they have been created and shipped to the USA. The Donee shall provide an estimated timeframe for shipping and installation of the Work(s) to the Donor, at the point of sale. Given the Work(s) are handmade, the delivery & installation of the Work(s) is an estimation and may occur after the provided timeframe. The Donee shall endeavor to keep the Donor as up-to-date as reasonably possible. Once available, the Donor will be notified, by email, of the proposed Delivery Date.
2.3. Delivery Day Communication: As a courtesy, the Installers will contact the Donee in advance of the delivery, on the Delivery Date, to provide information of the time of arrival on-site.
2.4. Risk of Loss: For the avoidance of doubt, the Donee shall bear the risk of loss until such delivery of the Work(s) by the Donee to the Donor pursuant to this Section 2 (“Closing, Title & Delivery”).
2.5. Transfer of the Work(s). The Donee agrees to transfer the Work(s) to the Donor pursuant to the Deed of Transfer (“Deed of Transfer”). The Deed of Transfer outlined in section 2.4.1 to 2.4.6 will come into effect on the day of delivery, once the Donor officially agrees acceptance of the elephants, which occurs upon the Donor’s signing of the Waiver, presented by the Installers.
2.5.1.The Donee, subject to and effective upon his receipt of the Sale Amount and in consideration thereof, hereby irrevocably and without condition or reservation of any kind, transfers and conveys to the Donor the Work(s), good, valid and marketable title thereto, and all right to possession and all legal ownership thereof, free of all claims, to have and to hold the Work(s) unto the Donor, its successors and assigns, forever.
2.5.2.The Work(s) are transferred subject to each and all of the terms, conditions, representations and warranties contained in a an Invoice dated as of the Purchase Date by and between the Donee and the Donor (the “Agreement”) and all such terms, conditions, representations and covenants of the parties thereunder are incorporated herein by this reference as if fully set forth herein in their entirety. All capitalized terms not defined in this Deed of Transfer shall have the same meaning as set forth in the Agreement. The Donee agrees to execute and deliver to the Donor such additional documents and to take such other further actions from time to time after the date hereof as the Donor may reasonably request, to assure and confirm this transaction.
2.5.3.If any provision of this Deed of Transfer, or the application thereof to any person or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Deed of Transfer and such term, provision, covenant or condition as applied to other persons or circumstances shall remain in full force and effect.
2.5.4.The terms and provisions of this Deed of Transfer shall be binding upon the Donee and his successors, assigns and legal representatives and shall inure to the benefit of the Donor and his successors, assigns and legal representatives.
2.5.5.The benefits of the representations, warranties and covenants contained in the Agreement and this Deed of Transfer shall survive completion of the transaction contemplated by the Agreement and this Deed of Transfer, including without limitation the transfer of the Work(s) to the Donor.
2.5.6.This Deed of Transfer shall be governed by and shall be construed and enforced in accordance with the internal laws of the State of New York, without regard to conflict of laws principles.
2.6. Delivery Waiver. The Donee shall provide the Donor with a Delivery Waiver evidencing acceptance of the Work(s) in their delivered condition (“Waiver”) and upon payment of the Sale Amount and provision and acceptance of the Waiver, following the Donees’ signing of the Waiver, title and risk of loss shall pass from the Donee to the Donor.
2.7. Installation Charges and Delivery Requirements. The charges for delivery and installation are based on delivery from a specific point of origin to specific states, with a clear set of delivery requirements, including easy access to the installation site and an installation site suitable for the Installers to carry out a Standard Installation of the Work(s). Standard Installation is defined in Clause 2.8.
2.8. Standard Installation Method ("Standard Installation"). The Standard Installation shall include the following:
2.8.1.1. Positioning the Work(s): At a location within the delivery site as designated by the Donee, but no more the 300ft from the point to which a 40ft trailer can reach the installation site.
2.8.1.2. Stabilizing the Work(s): Utilizing steel bars which are inserted through the fittings located on the feet of the Work(s). If the weather permits and the ground is soft enough, steel bars will be additionally secured into the ground by means of corkscrew ground anchors.
2.8.2. Installation Conditions: The Standard Installation necessitates soft ground conditions, including but not limited to earth, soil, grass, or lawn, with a minimum depth of 2ft. The surface must be sufficiently flat and level to permit the corkscrew ground anchors to adequately secure the Work(s) to the ground. This installation method is expressly unsuitable for solid surfaces (e.g., stone, concrete, etc.), sand, artificial turf, dusty or loose soil, or any other surface that does not constitute soft ground, earth, soil, grass, or lawn. The anchors must be capable of being screwed into the ground beneath the Works, and the ground must provide sufficient resistance to prevent the anchors from becoming loose.
2.9. Non-Standard Installation. If the installation site does not meet the requirements for a Standard Installation, third-party specialists shall be required. Under such circumstances, The Installers shall deliver the Work(s) and stabilize it at the designated location using stabilizing bars.
2.10. Extreme Weather Areas. The Standard Installation method is designed for use in areas with typically settled weather conditions. It is not suitable for installation in areas that frequently experience high winds. If the Work(s) are intended to be installed in an area prone to high winds, such installation shall fall outside the scope of the Standard Installation, and the Donee is advised to consult with an engineer to determine the appropriate method to secure the Work(s) in the Donor’s desired location..
2.11. Responsibility. The Donor shall be responsible for arranging and covering all costs associated with any installation that falls outside the scope of the Standard Installation.
3. REFUNDS:
3.1. Exhibit Sculptures: The portion of The Sale Amount eligible for refund is the Sale Price of the Sculpture, and the Delivery & Installation cost. The Donation is not eligible for refund at any point. Refunds on The Sale Price and Delivery & Installation Cost are available within 30 days of the Donor paying the Sale Amount, or up to two weeks prior to the exhibit’s publicized close date, whichever comes earlier. After this window, refunds will not be available. All deposits paid through the website are non-refundable as they constitute part of the Donation.
3.2. Online Collections: The portion of The Sale Amount eligible for refund is the Sale Price of the Sculpture, and the Delivery & Installation cost. The Donation is not eligible for refund at any point. Refunds on The Sale Price and Delivery & Installation Cost are available within 30 days of the Donor paying the Sale Amount, or up to four weeks prior to the start of the estimated Delivery Timeline/Delivery Date, whichever comes earlier. After this window, refunds will not be available. All deposits paid through the website are non-refundable as they constitute part of the Donation.
3.3. Commissions: The portion of The Sale Amount eligible for refund is the Sale Price of the Sculpture, and the Delivery & Installation cost. The Donation is not eligible for refund at any point. Refunds on The Sale Price and Delivery & Installation Cost are available within 30 days of the Donor paying the Sale Amount, or up to four weeks prior to the start of the estimated Delivery Timeline/Delivery Date, whichever comes earlier. After this window, refunds will not be available. All deposits paid through the website are non-refundable as they constitute part of the Donation.
4. TAX. The Donor and Donee intend that the portion of the Sale Amount exceeding the fair market value of the Work(s) and excluding the Delivery & Installation Charges shall be treated as a charitable donation from the Donor to the Donee in support of the Donee’s charitable activities. The amount of the Donation and the fair market value of the Work(s) will be sent in the confirmation email to the Donor. The Donor acknowledges and agrees that it shall pay any state sales, use or other similar taxes arising in connection with the transfer of the Work(s).
5. INTELLECTUAL PROPERTY. All intellectual property rights in the Work(s), including the copyright in the Work(s) are, as between the Donor and the Donee, exclusively owned and retained by the Donee. No license is granted herein, either expressly or by implication, estoppel or otherwise under this Agreement with respect to the Work(s), and no assignment or transfer of any intellectual property right, title or ownership interest in or to the Work(s) is conveyed pursuant to this Agreement.
6. COMMISSION. The Donee shall not be responsible for and shall not pay any commissions or fees due any person acting on behalf of or representing the Donor as a result of the transaction contemplated by this Agreement. The Donor shall not be responsible for and shall not pay any commissions or fees due any person acting on behalf of or representing the Donee as a result of the transaction contemplated by this Agreement.
7. DONEE’S INTEREST. The Donee acknowledges that following the consummation of the transaction contemplated under this Agreement, the Donee shall not have any right, title or interest in and to the Work(s).
8. CONFIDENTIALITY. The Donor acknowledges that the Donee may publicize the fact of the contribution and the amount or approximation thereto on its website and other public materials relating to its activities provided however, that upon written request of the Donor, the Donee may attribute such donation to “anonymous”.
9. MISCELLANEOUS.
9.1. This Agreement (including the Exhibits attached hereto) represents the entire understanding of the parties with respect to the subject matter hereof, supersedes any and all other and prior agreements between the parties with respect to the subject matter hereof and declares all such prior agreements between the parties null and void. The terms of this Agreement may not be modified or amended, except in a writing signed by the party to be charged. This Agreement shall inure to the benefit of, and shall be binding upon, the successors, heirs, executors and administrators of the parties hereto. This Agreement and all matters relating to it shall be governed by the laws of the State of New York. Any dispute arising hereunder shall be resolved in the courts of the State of New York, or the United States federal courts located in the State of New York, and the parties hereto consent to the personal jurisdiction of such courts; provided, however, that the parties hereto agree that they will make concerted efforts to settle any dispute between them in an amicable manner without the necessity of litigation. This Agreement shall not be interpreted for or against a party because such party or such party’s legal counsel drafted such provision.
9.2. From time to time, upon request, whether upon or after the consummation of the transaction under this Agreement, and without further consideration, each of the parties agrees to and shall execute and deliver such further instruments and take such further actions as the requesting party may reasonably require to fulfill the purposes of this Agreement.
9.3. Neither Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Donor to make payments to the Donee), when and to the extent such failure or delay is caused by or results from acts beyond the reasonable control of the impacted Party (“Impacted Party”), including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, other potential disaster(s) or catastrophe(s), such as epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party.
9.4. Notwithstanding anything contained herein to the contrary, other than with respect to fraud, gross negligence or willful misconduct, (i) in no event shall the Donee, its affiliates or its or their respective directors, officers, employees, shareholders, representatives or agents be liable for any (A) special, indirect, punitive, exemplary, incidental or consequential damages or (B) damages arising from the loss of profits, business, anticipated savings, goodwill or reputation or loss of or damage to data, and (ii) the liability of the Donee, its affiliate(s) and/or its or their respective directors, officers, employees, shareholders, representatives or agents under this Agreement for any claim or related series of claims in connection with this Agreement shall be limited to an amount equal to the Fair Market Value.
9.5. If any term, provision, covenant, or condition of this Agreement, or the application thereof to any person or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and such term, provision, covenant, or condition as applied to other persons or circumstances shall remain in full force and effect. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
9.6. The provisions of this Agreement may only be waived if the waiver is in writing and is signed by the party making the waiver. No delay or omission in exercising any right under this Agreement will operate as a waiver of the right on any further occasion. No waiver of any rights will be deemed a continuing waiver of the same right with respect to subsequent occurrences that give rise to it.
9.7. The titles used in this Agreement are for the convenience of the reader and shall not be given substantive meaning.