Lewis Kappes

Of all the elements that go into hosting an exhibit, negotiating the exhibition agreement is one of the least enjoyable.   On occasion, your museum may be able to draft your own exhibition agreement, but frequently you will be given an exhibition agreement that you are expected to sign, and many times those agreements will be lengthy and packed with dense terms in small font.   Here are some suggestions to consider for your next exhibition agreement:

Gather Your Team Together.   Reviewing and responding to an agreement is like any other task - you need to get the right team together to address the issues involved. Your attorney, if you have one, should read the entire agreement and alert you of any issues that she or he identified.   Other members of your team should be given segments of the agreement to review. For example:

the insurance provisions should be sent to your insurance agent to make sure you can provide the required insurance, or to develop a counter-proposal if you do not have all the insurance coverage required;
your collections and facilities managers should review the environmental requirements for storage and display of any artifacts involved in the exhibition, including temperature, humidity and lighting requirements;
your finance staff should review the rental and other payment terms, as well as any requirements regarding the sale of exhibition-related merchandise (which your store manager also should review, of course);
your marketing staff should review all marketing and promotional requirements, to ensure your marketing activities align with the requirements of the exhibition, especially if there are third-party intellectual property licenses involved;
your development staff should make sure they are clear on the parameters of recognizing existing sponsors for the exhibition and finding new, local sponsors for your venue; and
your HR and security managers should review all staffing and security requirements to make sure you can provide what is required or make a counter-proposal.

Make Your “To Do” List. When you contact your team, give them specific assignments to review the provisions of the agreement most relevant to their areas and (a) note any questions they have about the agreement and (b) make a list (that they share with you) of requirements of the agreement that relate to their fields, so you can put together a checklist of things to remember (e.g., credit lines, facility condition reports, etc.)

Identify and Evaluate the Essential Components of the Agreement. If you have access to an attorney, you should give the agreement to her or him as soon as possible to allow for a thorough review. If you do not have access to an attorney, or simply want to become more equipped to spot and deal with the essential components of exhibition agreements, then I recommend you do two things:

a. Cover the Basics: A contract should answer the questions “who, what, where, when, why and how?” Who are the parties to the contract, what are you agreeing to do (provide a product, make payments, etc.), where and when will you do it, why are you doing it, and how will you do it? Make sure your agreements answer these questions, to promote clarity as you move forward under the agreement after it is signed.

b. In Addition to the Basics, Pay Attention to the Following Provisions:

Termination and Force Majeure. It may seem odd to start this list by asking how you can get out of an agreement once you sign it, but termination clauses and force majeure (literally, “superior force”) clauses have become more critical since the start of the COVID-19 pandemic. Many museums were forced to try to get out of contracts they once had every intention of fulfilling, but the realities of lockdowns, health risks and an economic downturn made it impossible to keep the agreement. In your agreements, make sure you know if and how you can terminate early, either by choice or because of an event of force majeure, like a pandemic or governmental lockdown. Also understand what happens if you terminate early, including with your payment obligations and your duties regarding the exhibition if it already is at your venue.
Contents of the Exhibition. Make sure you know exactly what you are getting in the exhibition. There should be a list of exhibition components you can review in advance, but it also is wise to visit the exhibition at an earlier venue, if possible, to actually see what these components look like and verify that they are suitable for your venue. If you want to add or remove some of the contents of the exhibition at your venue, make sure the agreement permits you to do so.
Installation and De-installation. Many agreements will contain specifications and requirements for installation and de-installation of the exhibition, including the number of trained personnel and the type of equipment needed. If you do not have the personnel and equipment needed, try to negotiate terms that you can meet - otherwise you may have to hire experienced contract labor to assist you.
Environmental Requirements. Depending on the contents of the exhibition, you may have to deal with artifacts that have specific requirements regarding temperature, humidity and lighting. Some older facilities may not be able to comply with the more specific requirements because of the nature of their HVAC systems, so having that conversation as soon as possible with your collections and facility managers is important. You may also find yourself having to deal with conditions that are good for the artifacts but problematic for your visitors, including lighting levels that make it difficult for visitors to read exhibit labels or see where they are walking.
Staffing and Security. Many agreements will contain requirements about the number of staff who must be inside the gallery while the exhibition is open to the public, as well as the number of security staff and types of security systems that must be in place. These requirements are not always set in stone, but if you have concerns about your ability to meet the requirements it is far better to discuss them before the agreement is signed.
Maintenance, Repairs and Condition Reports. Make sure the agreement clearly identifies who is responsible for performing maintenance and making repairs, and who is responsible for the related costs. Often, the creator or owner of the exhibition will require that repairs only be done by their staff or under their direction, but they may allow you to perform a certain amount of maintenance.
Crate and Storage Requirements. There have been many exhibitions that were damaged not while on display, but rather because of damaged, moldy or otherwise faulty crates. Check your agreement to see if there are any specific requirements for how the crates for the exhibition contents must be stored while the exhibition is on display, and who is responsible for packing and unpacking each crate.
Insurance. Do not leave the review of the agreement’s insurance requirements to your attorney or other staff. Rather, send the insurance provisions to your insurance agent and ask her or him to advise you whether you already carry the required insurance, or whether you would have to purchase additional insurance or negotiate a more lenient insurance requirement. Also, make sure your insurance agent is able to provide you with the certificates of insurance that you will need to provide evidence of the required coverages.
Sponsorship and Marketing. Frequently, the creators and owners of traveling exhibitions have strict requirements regarding who can be named a sponsor of the exhibition and how the exhibition can be marketed. Some even require that venues cancel their local sponsorships if a national sponsor with conflicting interests is identified. Because those requirements are sometimes imposed by third parties (e.g., the title sponsors and intellectual property rights holders), you can expect these requirements will be strictly enforced, so pay particular attention to them and raise any concerns you may have as soon as possible.
Dispute Resolution. Many attorneys reviewing dispute resolution provisions will focus on (and argue about) whether to have arbitration instead of litigation in court, which state’s laws will govern the agreement, and the city and state in which disputes must be heard. That all is necessary, but you also should ensure your dispute resolution provision requires that before any arbitration or litigation commences, the highest officers of each party (or at least staff at the VP level) have to meet to discuss the dispute and try to resolve it informally. Many disputes that otherwise could escalate to the point of litigation can be resolved simply by having the right people with decision-making authority talk to one another.

As always, it is preferable to have all agreements reviewed by an attorney working for you, who understands the specific needs and quirks of your museum, and who communicates well with you. We hope this article will help you navigate your way through your next exhibition agreement and many more to follow, and invite you to contact Brian Statz if you have any questions at bstatz@lewiskappes.com or (317) 639-1210.

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