“Artist”, “Artwork”, “Territory”, “Period”, “Licensed Goods”, “Licensed Use”, “The Customer”, “Fee”, “Royalty” “Delivery Date”, “Return Date”, and “Credit Line” have the meanings given to them in the Particulars of the Invoice issued to the client. “The Agency” means Illo Agency Limited (company number 10751187),, trading as Illo and acting as sole and exclusive agent for the Artist.
2.1 Subject to the payment of the Fee/ Royalty (if specified in the Particulars) by The Customer to The Agency when due, The Agency grants to The Customer a non-exclusive/exclusive licence (as specified in the Particulars) to reproduce the Artwork solely for the purposes of the manufacture, distribution and sale of the Licensed Goods or for the purposes of the Licensed Use (as detailed in the Particulars) in the Territory for the Period, or until earlier termination of this licence in accordance with the provisions of clause 9 below.
2.2 If, at any time during the Period the Artwork has not been exploited by The Customer by way of manufacture, distribution and sale of the Licensed Goods or for the purposes of the Licensed Use for a consecutive period of 12 months, The Agency may serve a written notice upon The Customer terminating the licence granted under clause. 2.1 In respect of the Artwork which notice shall take effect upon delivery or as stated in the particulars.
2.3 If the particulars state “WORK FOR HIRE” then (for the avoidance of doubt) provisions detailed here in shall not apply. 2.2, 4.2, 5.1, 5.2.
2.4 In the case of a licence to manufacture Licensed Goods, the licence also includes the right to reproduce the Artwork in advertising and promotional material for the Licensed Goods.
3.Delivery of Artwork:
3.1The Agency shall use its reasonable endeavours to procure the delivery of the Artwork to The Customer by the Delivery Date. Time shall not be of the essence for the purpose of this clause and The Agency shall not be liable for any loss (including without prejudice to the generality of foregoing any consequential loss or loss of profits) incurred by The Customer if delivery of the Artwork is not made by the Delivery Date.
4.1 The Customer shall pay the Fee to The Agency by the end of the calendar month following the month in which The Agency’s invoice is issued. If the Fee shall be on account of Royalties due to The Agency (if this is an agreed remuneration) as 4.2.
4.2 If agreed The Customer shall pay to The Agency the Royalty which shall be calculated as a percentage of the Net [Wholesale][Retail] Price of all the Licensed Goods sold or otherwise disposed of by The Customer during the Period. The Net [Wholesale][Retail] Price of the Licensed Goods shall be the [wholesale][retail] price, excluding Value Added Tax, at which the Licensed Goods are sold [by The Customer to the retailer][to the public]
4.3 The Customer shall pay interest to The Agency on any late payments of the Fee or Royalty at the rate of 4% per annum over Barclays Bank PLC base rate from time to time from the date such payment fell due until receipt by The Agency of the full amount due, whether before or after judgement.
4.4 All payments to be made under this licence shall be exclusive of TAX and any applicable TAX shall be paid in addition to such payments upon production of a valid TAX invoice.
4.5 Credit Terms can be extended by agreement in advance only.
5.Records and Inspection for Royalty Payments:
5.1The The Customer shall keep true and accurate accounts and records of the sale and disposal of all Licensed Goods and the aggregate Net Retail Price received in respect thereof together with any other information relevant to the computation of the Royalty. The Customer shall within 14 days of the end of each [calendar month/quarter] during the Period send to The Agency a full statement showing the number of Licensed Goods sold or otherwise disposed of during that period, and the aggregate Net Retail Price in respect thereof, together with a remittance for the Royalty due to The Agency.
5.2 The Customer shall, on request, allow The Agency, or its auditors, to inspect, audit and take copies of The Customer’s accounts and records insofar as necessary to verify sales and other disposals of the Licensed Goods and the aggregate of the Net Retail Price in respect thereof and the Royalty due to The Agency. If the sums paid by The Customer to The Agency are less than the amount certified as due by such auditors, The Customer shall pay the outstanding balance and (if the said balance exceeds £1,000 or 10% of the amount due, whichever is the smaller) the auditor’s fees to The Agency within seven (7) days of the date of the auditors ‘certificate.
5.3 All sums shall be paid in full without deductions except only for such tax as The Customer is legally bound to withhold. The Customer shall provide official tax receipts in respect of such deductions and shall provide all documentation in relation to the withholding that The Agency requires in order to recover the withheld tax.
6.Return of Artwork:
6.1 The Customer shall return original/ physical Artwork to The Agency by the Return Date.
7.Loss of Artwork:
7.1 Risk in the Artwork shall pass to The Customer at the time of despatch from The Agency or the Artist (as applicable). The Artwork shall remain at The Customer’s risk until it has been returned to and received by The Agency in accordance with the terms of clause 6.
8.Quality of Licensed Goods:
8.1 The Customer shall ensure that any reproductions of the Artwork for the Licensed Use shall be of first class technical and pictorial quality and that the Licensed Goods are manufactured to a high standard of quality and shall, if requested by The Agency, submit samples of the Licensed Goods to The Agency for their approval prior to any distribution, sale or disposal of any Licensed Products. If such approval is requested, no Licensed Goods shall be distributed or sold by The Customer without such prior written approval.
8.2 The Customer shall comply with all applicable laws, safety standards, codes and regulations relating to the manufacture, sale, distribution or other dealing with the Licensed Goods in the Territory.
8.3 If manufactured products are to be supplied, these must be sent to the Artist directly and not to The Agency.
9.Termination and Consequences of Termination:
9.1 The Agency may terminate the Licence immediately by notice in writing at any time to The Customer if:
(a) The Customer commits a material breach of any of the terms or conditions of this Licence unless such breach is remedied (if capable of remedy) within fourteen (14) days of notice given by The Agency requiring The Customer to do so;
(b) If The Customer enters into a deed of arrangement or commits an act of bankruptcy or compounds with its creditors or if a receiving order is made against The Customer or if (being a company) an order is made or a resolution is passed for the winding up of The Customer or for the appointment of an administrator to manage The Customer’s affairs, business and property or if a receiver is appointed of any of The Customer’s assets or undertaking or if circumstances arise which entitle the Court to make a winding-up order.
9.2 Upon the termination or expiration of this Licence for any reason all Royalty and other monies accrued due hereunder shall become immediately due and payable to The Agency, The Customer shall cease to manufacture, distribute, advertise or sell the Licensed Products.
9.3 Upon termination or expiration of this Licence subject to any rights or obligations which have accrued prior to termination and to the continued existence and validity of the rights and obligations of the parties under those clauses which are expressed to survive termination and any provisions of this Agreement necessary for the interpretation or enforcement of this Agreement, neither party shall have any further obligation to the other under this Agreement.
9.4 Upon termination or expiration of this Licence other than in accordance with the provisions of clause 9.1, The Customer shall be entitled for a period of up to 6 months following such termination or expiration, to distribute, sell and deal any Licensed Goods in its possession and manufactured prior to the date of termination or expiration. For the avoidance of doubt, Royalties shall be due to The Agency on any Licensed Goods sold or otherwise disposed of during this period.
10.1 The Customer shall not in any way modify, alter, amend or adapt the Artwork or permit the Artwork to be altered, amended, adapted or modified in any way.
10.2 The Customer shall not use the Artwork in anything other than its original form save that The Customer may overprint text on reproductions of Artwork and apply colour enhancement to reproductions of the Artwork.
10.3 The Customer shall not plagiarise the Artwork or allow the artwork to be copied in the theme of.
11.1 The Customer hereby acknowledges that The Agency has been appointed as the Artist’s sole agent in respect of the exploitation of the Artwork and all and any other artistic works created by the Artist and The Customer hereby agrees that if The Customer wishes to acquire an additional licence to reproduce and exploit such Artwork and other artistic works of any kind The Customer shall acquire such a licence from The Agency and not from the Artist directly unless such time as The Agency informs The Customer they may do so.
12.1In the case of a non-assignable licence, this licence is personal to The Customer, and The Customer shall not assign its rights or obligations hereunder to a third party save that if The Customer is a company, this licence may be assigned to another company within the same group. For purposes of this clause, “group” has the same meaning as in Section 42 of the Landlord & Tenant Act 1954. In case of an assignable license, The Customer may assign the benefit of this Licence to a third party.
13.Liability and Indemnity:
13.1 The Agency shall not be liable to The Customer for any loss or damage suffered or incurred by The Customer as a result of the Artwork or the Licensed Goods breaching any copyright, intellectual property rights or any other rights of any third party.
13.2 The Customer shall indemnify The Agency and hold it harmless against any costs, claims, damages, demands, liabilities or expenses (including legal expenses) awarded against or incurred or paid by The Agency arising out of or in connection with any breach by The Customer of any of its obligations under this Agreement.
14. Export Duties:
14.1 The Customer is responsible for any customs, duties or local taxes in whatever form incurred, and The Agency does not accept any liability for these charges.
15.Credit Line and Copyright Notice:
15.1 The Customer hereby agrees that the Credit Line shall be included on all Licensed Goods. The Agency hereby asserts on behalf of the Artist, the Artist’s right to be identified as the author of the Artwork in accordance with Sections 77 and 78 of the Copyright, Designs and Patents Act 1988. 15.2 Each and everyone of the Licensed Goods including the packaging, advertisements and other related material shall contain such copyright notices as shall be required and/or approved by The Agency.
16.1 to the best of its limited knowledge and belief The Agency warrants:
(a) to the best of its knowledge and it is the exclusive Licensee of the Artwork and entitled to enter into this licence;
(b) does not infringe the copyright or any other right of any other person;
(c) does not contain any defamatory or obscene statements or matter; and
(d) it has not previously licensed, assigned, granted or encumbered the Artwork so as to derogate from the licence hereby granted.
16.2 The Customer herby confirms understanding that with those warranties specified in 16.1 there remains approximately a 1% chance some licences will have concurrent licence terms that contravene the particulars stated above and in the licence terms granted to the client.
16.3 The Customer herby confirms understanding that unavoidable considering The Agency’s business model, if there is any claim arising from this understanding for the avoidance of doubt The Agency shall be Indemnified as clause 13.
16.4 It is usual that The Agency will refund the fee to the client.
17.1 If any provision of these terms and conditions is declared by court of competent
jurisdiction to be invalid for any reason, such invalidity shall not affect the remaining
18.Entire Agreement and Variation:
18.1This Agreement supersedes all prior agreements, negotiations and discussions between the parties relating thereto. No amendment or other variation to this Agreement shall be effective unless it is in writing and is signed by or on behalf of each of the parties.
19.1All notices required or permitted under this Agreement shall be in written form and shall be sent to the addresses set out in the Particulars to which these Terms and Conditions are attached and shall be given by personal delivery or post. If sent by post shall be deemed to have been delivered (in the case of internal UK/US post) 48 hours after despatch and in proving the fact of despatch it shall be sufficient to show that the envelope containing such notice was properly addressed stamped and posted, if delivered personally shall be deemed to have been. If sent via email, they shall not be deemed as delivered unless confirmed by a non- automatic reply email.
20.1This Licence shall be governed by and construed in accordance with the laws of England and the parties submit to the jurisdiction of the English Courts.