1.1 In consideration of the payments to be made to the Licensor under this agreement, the Licensor agrees to grant the Licensee an exclusive license with full power and authority to deal with the image in accordance with this agreement, including but not limited to: reproducing and incorporating the image entitled in connection with the manufacture, importation, distribution, promotion, advertising and sale of the Merchandise listed in Schedule 1.
1.2 The Licence granted here applies:
a. to the Territory as set out in Schedule 1 ;
b. only in relation to the Merchandise and in promotional materials for the Merchandise;
c. for the Term of this Agreement ( as set out in Schedule 1) under clause 2;
d. for the purpose of using the Image on Licensee website and social media platform for viewing by users in connection with the Merchandise;
e. for promoting the Licensor’s profile for Merchandise purpose; and
f. to such other terms and conditions as the parties shall agree in writing and attached hereto in Schedule 1.
1.3 Subject to the exclusive license granted by this agreement, the Licensee acknowledges that the Licensor owns all rights and interests in the Image, including the copyright in the Image.
1.4 The Licensor acknowledges and agrees that Licensee and/ or its authorized agents and nominees shall distribute, supply, promote, advertise, sell, handle and otherwise dispose of the Merchandise in the Territory.
2. TERM OF AGREEMENT
2. The Licensor shall grant the Licensee and the Licensee shall accept such license for the term ( the “ Term” ) as set out in Schedule 1 upon and subject to the terms and conditions as set out in this agreement.
3. DEALING RIGHT OF IMAGE
3. The Licensee shall be able to sub-license the Licensee’s rights under this agreement in full or in part provided that the Licensee shall ensure that the Sub-licensee shall comply with the terms of this agreement and the Licensee shall be able to novate, assign or encumber any of its rights under this agreement.
4. ORIGINAL PROOF OF IMAGE
4.1 The Licensor shall :
a. deliver an original proof and/or the original copy of the Image suitable for reproduction to the Licensee within the date as specified and agreed in Schedule 1; and/ or
b. provide the original proof in the format described in Schedule 1.
4.2 The Licensee acknowledges that the delivery of an original proof under clause 4.1 does not affect the Licensor’s rights and interests in the original artwork.
4.3 The Licensee shall:
a. be responsible for safekeeping the original proof while in its possession, However, the Licensee shall not be responsible for any loss accident or damage sustained to the original proof during the Term of this agreement nor shall the Licensor have any claim against the Licensee or its authorized agents whomsoever for the security or safekeeping of the original proof/copy for any loss or damage to such copy through no fault or negligence of the Licensee or its authorized agents ;
b. if requested to do so by the Licensor, the Licensee shall as soon as practicable to do so return the original copy/proof to the Licensor after reproducing it pursuant to the terms of this agreement or upon the termination of this agreement, whichever occurs first; and
c. upon the termination of this agreement, within 90 days or such agreed number of days between the parties of the date of termination, cease to use the Image in connection with the manufacture, importation, distribution, promotion, advertising, and sale of the Merchandise or engage in any other act which might cause anyone to believe the Licensor is affiliated with, sponsored by, or otherwise in a relationship with the Licensee.
5. REPRESENTATIONS, WARRANTIES, AND INDEMNITIES
5.1 The Licensor represents and warrants to the Licensee that he/she :
a. is the sole author of the Image, which is original to the Licensor; and/or
b. owns or has been granted all rights and interests in the Image necessary to grant the license granted to the Licensee under this agreement; and
c. has the power and capacity to enter into his agreement and to perform the Licensor’s obligations under this agreement.
5.2 The Licensee represents and warrants that it:
a. has the power and capacity to enter into this agreement and to perform the obligations under this agreement; and
b. will diligently manufacture, import, distribute, promote, advertise and sell or arrange for the sale of the merchandise; and
c. will promptly notify the Licensor of any claim or suit arising out of or in relation to the Licensee’s use of the Image in relation to the Merchandise as authorized by this agreement or involving any infringement of rights in the Merchandise.
5.3 The Licensor shall unconditionally indemnify and keep indemnified the Licensee against all losses, liabilities, costs, and expenses (including reasonable legal expenses as between solicitor and client) that the Licensee or its authorized agents incur as a result of or in relation to a breach of any of the Licensor’s representations or warranties under this clause or in relation to a breach of any of the Licensor’s agreements, obligations and responsibilities under this agreement.
6.1 The Licensee shall pay the Licensor the agreed percentage as stated in Schedule 1 of the final sale price of each piece of merchandise sold by the Licensee or by its authorized agents and nominees.
6.2 The Licensee shall provide the Licensor with royalty statements and pay royalties under clause 7.1 monthly during the Term. Those statements shall show:
a. the number of Merchandise sold;
b. the final retail price of Merchandise net of any promotional discounts applied; and
c. the amount owing to the Licensor under this agreement for the past 2 months.
6.3 The payments accrued to the Licensor shall be made within 45 days of the date of the statement, or on the next Business Day if such day is a Saturday, Sunday, or public holiday in Hong Kong. The payments to the Licensor shall be net of any bank charges or remittance charges of the Licensor’s banks which shall be payable by the Licensor or its nominee.
6.4 The Licensee shall keep adequate books and records in relation to the reproduction and distribution of the Image in accordance with this agreement.
6.5 If any error to the benefit of the Licensor under the clause is revealed. The Licensee shall reimburse the agreed amount to the Licensor within 90 days of the date of the agreement between the parties.
7.1 Each party shall be responsible for their respective tax payment in all relevant and applicable tax jurisdictions of that party.
8. NAME, LIKENESS, AND BIOGRAPHY
8.1 When so requested by the Licensee, the Licensor shall provide ( or the Licensor shall procure that the relevant Artist(s) shall provide) an accurate, correct and not misrepresented nor misleading biography of the Licensor ( or the relevant Artist(s)) for the purpose of execution of the transactions intended under this agreement.
8.2 The Licensee shall use and/ or authorize others to use the Licensor’s ( or the relevant Artist’s(s’)) name, approved likeness, and approved biography in connection with the Merchandise in any reasonable or lawful way.
8.3 The indemnity in clause 5.3 above shall apply in the event of any claim, action or proceedings costs, claims, and demands arising out of the use of such information provided by the Licensor hereof against the Licensee or its authorized agents or nominees.
9.1 Subject to clauses 9.2 and 9.3 below, this agreement shall be terminated upon the expiry of the Term.
9.2 Without prejudice to clause 10 below, it is hereby expressly agreed that should either party fail to perform its obligations or be in breach of the terms of this Licence and did not remedy the same within fourteen (14) days of the written notice of the other party to do so, each party shall have the right to terminate this agreement in writing.
9.3 Each party shall be able to terminate this agreement immediately by written notice to the other party if the other party :
a. becomes insolvent, is declared bankrupt, has a liquidator appointed or goes into administration, voluntary or otherwise, or ceases to carry on business or threatens to do so; or
b. commits a material breach of its obligations and/or the transactions contemplated under this agreement.
9.4 On termination or expiry of this agreement, the Licensee:
a. loses all the rights granted under this agreement, but Clause 9.4 d is reserved;
b. shall. At the Licensee’s expense, return the original proof / copy to the Licensor unless already returned, as well as any other copies of the Image that the Licensee possesses or controls;
c. shall pay the Licensor all amounts payable to the Licensor under this agreement; and
d. may finalize the sale of any stock of the Merchandise provided the Licensee pays royalties to the Licensor under clause 6.
10.1 If a dispute or disagreement arises between the parties in connection with this agreement:
a. one party must notify each/or/the other party in writing about the 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 contact 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 or the parties shall terminate this Agreement pursuant to clause 10 above.
10.4 Nothing in this clause 10 will impact 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 fax or email to the address or email address of the party indicated at the top of this agreement. Notices are taken to have been served when (a) if given or made by letter, when actually delivered to the relevant address, or within 2 business days of having been sent locally and within 7 business days of having been sent internationally, whichever occurs first and (b) if given or made by fax, when despatched subject to receipt of a machine- printed confirmation of error-free despatch and (c) if made by email upon 24 hours of despatch.
11.3 Subject to clause 12.5, this agreement ( including the Schedule (s)) is the entire agreement between the parties hereto as to the matters contained herein. Any previous understanding, agreement, representation, or warranty relating to this subject matter is replaced by this agreement and has no further effect.
11.4 This agreement may only be modified or amended by a written amendment signed by the parties.
11.5 Invalidity of any clause of this agreement will not affect the validity of any other clause except to the extent made necessary by the invalidity.
11.6 Each party shall be responsible and pay its own legal costs and disbursements for this agreement.
11.7 Save as required for professional advice or for the purpose of execution of the agreement between the parties pursuant to the terms and conditions of this agreement or as required by law or regulation, court order, regulatory body, or by any stock exchange, none of the parties shall at any time disclose or make public ( whether by way of announcement or otherwise) any of the terms or conditions of this agreement without the express consent of the other party/ parties to this agreement nor disclose any secret, confidential, professional or trade information belonging to or concerning the other which it has acquired by reason of its entering into this agreement and will not use to the detriment of the other or its business any information which it has obtained in the course of or as a result thereof.
11.8 The parties shall do and execute or procure to be done and executed all such further acts, deeds, documents, and things as may be necessary to give full effect to the terms of this agreement.
11 .9 This agreement shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region and each party agrees to submit to the non-exclusive jurisdiction of the courts of the Hong Kong Special Administrative Region as regards any claim or matter arising under this agreement..