1. Defined Terms In these Terms and Conditions, “Artist”, “Artwork”,
“Territory”, “Period”, “Licensed Goods”, “Licensed Use”, “Customer”, “Fee”, “Royalty”“Delivery Date”, “Return Date”, and “Credit Line” have the meanings given to them in the Particulars [overleaf] [to which these Terms and Conditions are attached]. “Illo” means Illo Agency Limited (company number 10751187), trading as Illo and acting as sole agent for the Artist.
2. License 2.1 Subject to the payment of the Fee and the Royalty by the Customer to Illo when due, Illo grants to Customer a non-exclusive/ exclusive license 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 appropriate) in the Territory for the Period, or until earlier termination of this license in accordance with the provisions of clause 9 below. In the case of a license to manufacture Licensed Goods, the license also includes the right to reproduce the Artwork in advertising and promotional material for the Licensed Goods. 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, Illo may serve a written notice upon the Customer terminating the license granted under clause 2.1 in respect of the Artwork which notice shall take effect upon delivery. For the avoidance of doubt Licensed Goods as stated in the particulars will relate to traditional retail models and unless stated as such excludes electronic sales and bespoke publishing via print on demand.
3. Delivery of Artwork Illo 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, Illo 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. Payment 4.1 The Customer shall pay the Fee to Illo by the end of the calendar month following the month in which Illo's invoice is issued which Fee shall be on account of Royalties due to Illo under clause .4.2 In addition to the payment of the Fee, the Customer shall pay to Illo 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 Illo 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 Illo of the full amount due, whether before or after judgement.4.4 All payments to be made under this license shall be exclusive of VAT and any applicable VAT shall be paid in addition to such payments upon production of a valid VAT invoice.
5. Records and Inspection5.1The 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 Illo 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 Illo.5.2 The Customer shall, on request, allow Illo, 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 Illo. If the sums paid by the Customer to Illo 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 Illo 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 Illo requires in order to recover the withheld tax.
6. Return of Artwork The Customer shall return the Artwork to Illo by the Return Date.
7. Loss of Artwork 7.1 Risk in the Artwork shall pass to the Customer at the time of despatch to you from Illo or the Artist(as applicable). The Artwork shall remain at the Customer’s risk until it has been returned to and received by Illo 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 Illo, submit samples of the Licensed Goods to Illo 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.
9. Termination and Consequences of Termination 9.1 Illo may terminate the license 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 license unless such breach is remedied (if capable of remedy) within fourteen (14) days of notice given by Illo 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 license for any reason all Royalty and other monies accrued due hereunder shall become immediately due and payable to Illo and, subject to clause 10.1, the Customer shall within thirty (30) days deliver to Illo or otherwise dispose of in accordance with the directions of Illo the Artwork, all Licensed Goods, samples thereof and any advertising, promotional or sales material relating to the Licensed Products then in the possession of the Customer. The Customer shall cease to manufacture, distribute, advertise or sell the Licensed Products. 9.3 Upon termination or expiration of this license 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 license 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 Illo on any Licensed Goods sold or otherwise disposed of during this period.
10. Alterations 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.
11. Artist. The Customer hereby acknowledges that Illo 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 license to reproduce and exploit such Artwork and other artistic works the Customer shall acquire such a license from Illo and not from the Artist directly.
12. Assignability. In the case of a non-assignable license, this license 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 license 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 license to a third party.
13. Liability and Indemnity 13.1 Illo 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. 13.3 The Customer shall indemnify Illo and hold it harmless against any costs, claims, damages, demands, liabilities or expenses (including legal expenses) awarded against or incurred or paid by Illo arising out of or in connection with any breach by the Customer of any of its obligations under this Agreement. We cannot guarantee 100% the license is wholly exclusive, if it is deemed as not, we will reimburse the whole fee.
14. Export Duties. The Customer is responsible for any customs, duties or local taxes in whatever form incurred, and Illo 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. Illo 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 Illo.
16. Warranties 16.1 Illo states: to the best of its knowledge and belief (a) it is the exclusive Licensee of the Artwork and entitled to enter into this license;(b) the Artwork does not infringe the copyright or any other right of any other person;(c) does not contain any defamatory or obscene statement or matter; and(d) it has not previously licensed, assigned, granted or in any way encumbered the Artwork so as to derogate from the license hereby granted.
17. Severability 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 provisions.
18. Entire Agreement and VariationThis 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. Notices All 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, post or transmitted by facsimile and if sent by post shall be deemed to have been delivered (in the case of internal UK 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 delivered when it is received and in the case of notices sent by facsimile, when it has been successfully transmitted.
20. Governing Law This license shall be governed by and construed in accordance with the laws of England and the parties submit to the jurisdiction of the English Courts.