The Parties Agree as Follows
1. Definitions
[1.1] In this agreement, unless the context requires otherwise:
Date of agreement means the date when the Artists agrees to these terms.
Term means the period specified in the Schedule or, by default, the duration of copyright.
Territory means the geographical region specified in the Schedule or, by default, the world.
Use of the Works means the exercise of any of the non-exclusive rights of a copyright owner in relation to the Works.
Works means the artworks created by the Artist specified in the Schedule.
2. Licence
[2.1] In consideration of the payments made to the Artist under this agreement, the Artist grants the Licensee a non-exclusive licence for the Use the Works for any purpose the Licensee deems appropriate.
[2.2] The licence under clause 2.1 applies for the Term in the Territory.
[2.3] The licence under clause 2.1 does not affect the Artist's right to reproduce any of the Works for the Artist's promotional materials, even if the licence is exclusive.
[2.4] The Licensee acknowledges that the Artist owns and will continue to own all rights and interests in the Works, including the copyright in the Works.
3. Dealing with Rights
[3.1] The Licensee may not novate, assign or encumber any of its rights under this agreement. The Licensee may sub-licence the Licensee’s rights under this agreement to a third party.
[3.2] The Licensee will unconditionally indemnify and keep indemnified the Artist against all losses, liabilities, costs and expenses (including reasonable legal expenses as between solicitor and client) that the Artist incurs as a result of or in relation to the acts, omissions or negligence of any of the Licensee’s Sub-licensees.
4. Attribution
[4.1] The Licensee must identify the Artist in relation to any Use of the Works as the creator of the Works in the manner specified in the Schedule.
5. Representations, warranties and indemnities
[5.1] The Artist represents and warrants that the Artist:
(a) is the sole author of the Works, which are original to the Artist;
(b) owns or has been granted all rights and interests in the Works necessary to grant the licence to the Licensee under this agreement; and
(c) has the power and capacity to enter into this agreement and to perform the Artist’s obligations under this agreement.
[5.2] The Licensee represents and warrants that the Licensee:
(a) has the power and capacity to enter into this agreement and to perform the Licensee’s obligations under this agreement; and
(b) will promptly notify the Artist of any claim or suit arising out of or in relation to the Licensee’s use of the Works, and the Licensee will defend any such claim at the Licensee’s expense.
[5.3] Each party will unconditionally indemnify and keep indemnified the other party against all losses, liabilities, costs and expenses (including reasonable legal expenses as between solicitor and client) that a party incurs as a result of or in relation to a breach of any of the other party’s representations or warranties under this clause.
6. Payment
[6.1] The Licensee must pay the Artist:
(a) 1% of the sale price of each item created by the Licensee by Use of the Works (Item), minus production costs, to be sent quarterly. The Licensee will send the full royalty amount, but any transaction fees will reduce the amount received by the Artists. The Licensee will make every effort to minimise the transaction cost.
(b) 1 free prototype copy of the Item, with postage and shipping paid by the Licensee.
[6.2] The Licensee must provide the Artist with royalty statements and pay royalties under clause 6.1.a within 30 calendar days of the end of every quarter during the Term. Those statements must show:
(1) the number of Items;
(2) the number of Items sold;
(3) the sale price of the Item;
(4) the production costs of the Items;
(5) and the amount owing to the Artist under this agreement for the past quarter.
7. Design
[7.1] The title, design, format and parts of the Works may not be modified by the Licensee and/or eventual sub-licenses. However, the scale and size of the Works may be modified for manufacturing purposes. Licensee shall be entitled to file and acquire any kind of intellectual or industrial property right as to the title, rules, parts/format and design/layout of the Works.
[7.2] Each copy of the Works shall bear the Artist's name somewhere within the item.
8. Commencement of commercialization and subsequent editions
[8.1] Licensee determines the date of the commencement of commercialization, the quantity of copies of the first and subsequent editions and the sale price of each edition.
[8.2] Licensee is completely free in all business matters and decisions concerning the Work.
[8.3] Licensee may also publish special editions.
[8.4] Licensee shall be entitled, but not obligated, to exploit the license under this agreement under their own publishing label. However, Licensee will use different channels of exploitation if suitable.
[8.5] Licensee may grant sub-licenses, including all types of enterprises doing business in the media area. Licensee agrees to inform the Artist about such agreements concerning third party agreements.
[8.6] If the Works will be sublicensed pursuant to Commencement of Commercialization, the Artist will receive 1% of licensing fees or royalties paid to the Licensee by the Sub-Licensee.
9. Termination
[9.1] The Artist may terminate this agreement immediately by written notice to the Licensee if the Licensee:
(a) is more than 30 calendar days late in making any payment under clause 6;
(b) goes beyond the scope of the licence granted in clause 2; or
(c) becomes insolvent, has a liquidator appointed, goes into administration (voluntary or otherwise), announces an intention, or has become subject to, a scheme of arrangement or a personal insolvency agreement; is declared bankrupt, ceases to carry on business or threatens to do so.
[9.2] Provided that the enforcement of the right to terminate under clause 9.1.c is subject to the provisions of the Corporations Act 2001 (Cth), if the Licensee is a company to which a managing controller (including a receiver and manager) has been appointed or that the company has either announced an intention, or has become subject to, a voluntary administration, substantial receivership or scheme of arrangement as described in Chapter 5 of the Corporations Act 2001 (Cth).
[9.3] On termination or expiry of this agreement, the Licensee:
(a) loses all the rights granted under this agreement. Clause 9.3.c is reserved;
(b) must pay the Artist all amounts payable to the Artist under this agreement; and
(c) may sell any Item provided the Licensee pays royalties to the Artist under clause 6.
10. Disputes
[10.1] If a dispute or disagreement (Dispute) arises between the parties in connection with this agreement:
(a) one party must notify the other party in writing about the Dispute (Notice of Dispute); and
(b) Neither party may start any litigation or arbitration in relation to the Dispute until the parties have complied with this clause.
[10.2] The parties should meet within 14 calendar days after receipt of the Notice of Dispute and hold good faith discussions to attempt to resolve the Dispute.
[10.3] If the Dispute is not resolved within 28 calendar days after receipt of the Notice of Dispute, the parties agree to submit the Dispute to mediation according to the Arts Law Centre Mediation guidelines current at that time (Guidelines). These Guidelines are part of this agreement.
[10.4] If the parties are not able to agree to a mediator, the Arts Law Centre must appoint a mediator.
[10.5] The parties must continue to perform their respective obligations under this agreement despite the existence of a Dispute.
[10.6] Nothing in this clause 10 will impact on either party’s rights to terminate under clause 9 of this agreement.
11. General Provisions
[11.1] The parties acknowledge that they are independent contractors and that nothing in this agreement creates any relationship of partnership or employment between the parties.
[11.2] A notice required to be given under this agreement may be delivered by hand, or sent by pre-paid post or email to the usual business address or email address used by the recipient of the notice. Notices are taken to have been served when delivered by hand or within 2 calendar days of having been sent by pre-paid post, or if sent by email, when the email enters the recipient’s mail server, whichever occurs first.
[11.3] This agreement is the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to this subject matter is replaced by this agreement and has no further effect.
[11.4] The failure of any party to exercise, or the delay in exercising any right or remedy, does not operate as a waiver or an election to abandon the right or remedy. No waiver of a right or remedy under this agreement is effective unless it is in writing and signed by the party waiving the right or remedy.
[11.5] This agreement is governed by the law in force in Queensland. The parties submit to the jurisdiction of the courts of that State and any court competent to hear appeals from those courts.
[11.6] A person signing this agreement on behalf of a party to the agreement warrants, by that signing, that they have all the necessary authority from that party to sign this agreement on their behalf.
12. Schedule to Agreement
[12.1] Works Name: Tiny Tome
[12.2] Term: Contract expires after 1 year of non-production or sale of the Work.
[12.3] Territory: Worldwide.
[12.4] Royalty rate: 1% of sale price minus production costs.
[12.5] Royalty payment date: End of each quarter.
[12.6] Advance amount: None.
[12.7] Sublicense royalty: 1%.
[12.8] Artist attribution text: As submitted below.
