Terms of Agreement - Monica Erosa

2. Term of agreement

2.1. This agreement begins on the date of its execution by all parties and continues for a period of 10 years(Term) unless terminated under clause 11.

3. Dealing with rights in the Image

3.1. The Licensee may not novate, assign, sub-licence, sub-contract, encumber or otherwise deal with any of the Licenseeʼs rights or obligations under this agreement.

4. Attribution and alterations

4.1. If the Owner created the Image, the Licensee must identify the Owner in the Merchandise and in all promotional materials that reproduce the Image as the creator of the Image as follow:
©(copyright year) Monica Erosa (http://monicaerosa.com.au/)

4.2. Except as expressly permitted under clause 1, and without limiting any moral rights that the Owner may have under the Copyright Act 1968 (Cth), the Licensee must not add, crop or other wise alter or destroy the Image or any reproduction of the Image without obtaining the Ownerʼs prior written consent

4.3. Nothing in this agreement transfers or excludes any applicable cultural rights in favour of Australian Indigenous people that may be implemented under Australian law.

5. Original proof of Image

5.1. The Owner must:

a deliver an original proof of the Image (electronic proof) suitable for reproduction to the Licen see within *[5]* calender days from the Date of agreement; and

b provide the original proof in the electronic format described in the Schedule.

5.2. The Licensee acknowledges that the delivery of an Original electronic proof under clause 5.1 does not affect the Ownerʼs rights and interests in the Original proof.

5.3. The Licensee:

a upon termination of this agreement, must 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 Owner is affiliated with, sponsored by, or otherwise in a relationship with the Licensee.

6. Ownerʼs inspection of mock-ups of Merchandise

6.1. The Licensee must deliver to the Owner free of charge at least one mock- up of:

a not less than part of the Merchandise which reproduces the Image no less than 10 calendar days before the Merchandise is manufactured; and

b each example of promotional material connected with the Merchandise that reproduces the Image within a reasonable time before the manufacturing of the Merchandise.

6.2. If the Owner is not satisfied with the quality or any other aspect of the proof provided by the Licensee under clause 6.1, the Owner may request reasonable changes to the reproduction of the Image in the Merchandise or promotional material. Clause 7.1 applies in relation to any change to the Merchandise or promotional material requested under this clause.

7. Representations, warranties and indemnities

7.1. The Owner represents and warrants that the Owner:

a is the sole author of the Image, which is original to the Owner;
b owns or has been granted all rights and interests in the Image necessary to grant the licence granted to the Licensee under this agreement; and
c has the power and capacity to enter into this agreement and to perform the Ownerʼs obligations under this agreement.

7.2. The Licensee represents and warrants that the Licensee:

a has the power and capacity to enter into this agreement and to perform the Licenseeʼs obligations under this agreement;

b will diligently manufacture, import, distribute, promote, advertise and sell the Merchandise;

c is responsible for any loss or damage to the Image, and must take out and maintain appropriate insurance for the Image while it is in the Licenseeʼs possession or control; and

d will promptly notify the Owner of any claim or suit arising out of or in relation to the Licenseeʼs use of the Image in relation to the Merchandise as authorised by this agreement, or involving any infringement of rights in the Merchandise, and the Licensee will defend any such claim at the Licenseeʼs expense.

7.3. 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 partyʼs representations or warranties under clause __ or __.

8. Payment

8.1. The Licensee must give the Owner at least *one free copy of the Merchandise.

8.2. The Licensee must pay the Owner:

a A FLAT FEE $*[Image fees]* on the Date of agreement *as a non-returnable on royalties*;

9. Goods and Services Tax

9.1. The parties agree that all amounts payable under this agreement are inclusive of Goods and Services Tax (GST).

10. Name, likeness, voice and biography

10.1. The Licensee may use and authorise others to use the Ownerʼs name, approved likeness and approved biography provided by the Licensee obtains the Ownerʼs prior written consent to any such use.

11. Termination

11.1. The owner may terminate this agreement immediately by written notice to the Licensee if the Licensee:

a goes beyond the scope of the licence granted in clause 1; or
b 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.

11.2. On termination or expiry of this agreement, the Licensee:

a loses all the rights granted under this agreement.

12. Disputes

12.1. If a dispute or disagreement (Dispute) arises between the parties in connection with this agreement:

a either party must notify the other party in writing about the Dispute; and
b each party must refrain from starting any litigation or arbitration in relation to the Dispute until the parties have complied with this clause.

12.2. The parties should meet within 14 calender days after receipt of the notice of dispute and hold good faith discussions to attempt to resolve the Dispute.

12.3. 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.

12.4. If the parties are not able to agree to a mediator or mediation process within 35 calender days after receipt of the notice of dispute, the parties must 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.

12.5. If the parties are unable to resolve the Dispute within 7 calender days of commencing mediation or such later time as may be agreed during the mediation, either party may refer the matter to arbitration or commence litigation.

12.6. The parties must continue to perform their respective obligations under this agreement despite the existence of a Dispute.

13. General provisions

13.1. The parties acknowledge that they are independent contractors and that nothing in this agreement creates any relationship of partnership or employment between the parties.

13.2. A notice required to be given under this agreement may be delivered by hand, or sent by pre-paid post or fax to the address of the party indicated at the top of this agreement. Notices are taken to have been served when received, or within 3 business days of having been sent, whichever occurs first.

13.3. Subject to clause 3.1, neither party may assign, subcontract, novate or otherwise divest this agreement or any of the rights or obligations under this agreement without the other partyʼs prior written consent.

13.4. Subject to clause 13.5, 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.

13.5. This agreement may only be modified by a written amendment signed by the parties.

13.6. 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.

13.7. This agreement is governed by the law in force in *[NSW, AUSTRALIA]*. The parties submit to the jurisdiction of the courts of that State and any court competent to hear appeals from those courts.