WHOOPS!
SUBMITTING A DESIGN TO QWERTEE:
LICENCE AGREEMENT
By submitting your design to Qwertee for voting and consideration of printing you agree to the terms and conditions as laid out in this agreement. It is imperative that you read this Licence Agreement very carefully and take legal advice from an independent suitably experienced lawyer on the contents and implications of this Licence Agreement before submitting your designs to us.
Qwertee Limited (trading as Qwertee) respects the intellectual property rights of others. Accordingly, if we receive a complaint that your design infringes the intellectual property rights of a third party we will immediately remove this design from our website pending a review of the matter. We will then furnish you with details of the complaint made in respect of your design, however; the identity of the complain-ant will be kept confidential. If you believe that this complaint is incorrect or inaccurate then you will have an opportunity to file a counter notice with us which should include a clear and comprehensive statement of why the complaint is incorrect or inaccurate. With this counter notice you should enclose all documents of title, licenses, design drawings, samples and graphical and text materials relating to your design in order to satisfy Qwertee Limited (trading as Qwertee) that you have all rights, title and interest including all intellectual property rights in the design you have submitted. All decisions in relation to whether the design will be reinstated to our site are at the absolute sole discretion of Qwertee Limited (trading as Qwertee) whose decision shall be final.
This agreement is dated from the date of the submission of your design and is between
(1) Qwertee Limited (trading as Qwertee) a company incorporated under the law of Ireland with company no 476522 whose registered address is Qwertee, Block 3, Harcourt Centre, Harcourt Road, Dublin 2, Ireland, ( “Qwertee”); and
(2) You, referred to here as the “Artist”)
IT IS AGREED as follows:
1. Definitions
1.1 In this Agreement, the following terms shall have the following meanings:
(a) “Agreed Sales Period” means the period of time for which a Product is available for sale on the Website.
(b) “Acceptance Notice” means a written notice which Qwertee may send to the Artist from time to time specifying the Accepted Works which Qwertee has accepted for inclusion for sale on the Website;
(c) “Accepted Works” means the Works indicated in the Acceptance Notice which are accepted by Qwertee to be incorporated into the Products;
(d) “Intellectual Property Rights” means all intellectual property rights whether registered or unregistered, including but not limited to copyright, database rights, design rights (whether registered or unregistered), all rights in inventions (whether patentable or not), trade marks, business names and all goodwill acquired in relation to same and all rights of an equivalent nature whether registerable or not throughout the World;
(e) “Products” means the products sold by Qwertee from time to time which incorporate the Accepted Works and “Product” shall be construed accordingly;
(f) “Royalties” means the royalties calculated in accordance with clause 4.1;
(g) “Website” means site.qwertee.com owned and operated by Qwertee.
(h) “Work” means all work created by the Artist from time to time including without limitation all designs supplied by the Artist to Qwertee in accordance with the terms of this Agreement.
1.2 The singular includes the plural and vice versa and any gender includes the other gender.
1.3 The headings in the Agreement are for convenience only and shall not affect its interpretation.
2. Works
2.1 The Artist agrees to submit the Work to Qwertee for publication on the Website for a period of 14 days to enable users of the Website to vote on the Work. If the Work receives a sufficient amount of votes from users (in addition to other criteria we use for selecting designs to print) Qwertee will contact you to arrange receipt of the original artwork and put the design on sale on the Website during the Agreed Sales Period.
2.2 The Artist undertakes that he or she will, on request and at his or her cost provide to Qwertee any and all source materials created or developed in the course of creating the Work together with all documents of title, licenses, design drawings, samples and graphical and text materials relating to the Accepted Work to satisfy Qwertee that the Artist has all right, title and interest including the Intellectual Property rights in the Work.
2.3 Nothing in this Agreement shall require Qwertee to accept any Works supplied to it by the Artist and Qwertee reserves the right to reject any of the Works supplied without giving any reason. For the avoidance of doubt the Artist will only be entitled to receive Royalties for Accepted Works which are accepted by Qwertee in an Acceptance Notice.
2.4 In the event that the Work received a sufficient number of votes during the relevant voting period (in addition to other criteria we use for selecting designs to print) and Qwertee decides to use the Work, Qwertee will send the Artist an Acceptance Notice specifying the Accepted Work. From the date of Acceptance to the Accepted Sales Period the Artist agrees that they will not make the design available to any similar or competing websites.
3. Licence
3.1 Should the design be selected to be printed the Artist grants to Qwertee for a period of 10 days from the beginning of the agreed sales period a non-exclusive, transferable, sub-licensable, irrevocable, worldwide licence to display and publish the Work on its Website and to use all Intellectual Property Rights in the Accepted Work, whether such Intellectual Property Rights are in existence at the date of this Agreement or whether such rights come into existence in the future, and to incorporate any Accepted Work into the Products and to commercially exploit such Products and to authorise others to do any and all acts in relation to the Accepted Works throughout the world.
3.2 The Artist grants Qwertee a non-exclusive, transferable, sub-licensable, irrevocable, perpetual, worldwide licence to display and publish the Accepted Work and any representations of any Products incorporating the Accepted Work on its Website in the “Previous Tees Section” and to use the Accepted Work and any representation of any Products incorporating the Work for promotional purposes.
3.3 The Artist also waives any moral rights and therefore grants to Qwertee total and unlimited rights to use, modify and adapt the Works for all purposes (such as if we need to change colours in the design, size etc) and in any manner it thinks fit for a period of 10 days. Qwertee agrees to use reasonable endeavours to identify the Artist as the creator of any Works and Accepted Works.
3.3 The Artist acknowledges and agrees that the licences in clause 3 are intended to be an effective licence of all rights in the Works. In the unlikely event that further documents are necessary to perfect the rights granted to Qwertee hereunder, the Artist shall, at the direction and expense of Qwertee, execute any and all further agreements, forms, deeds and any other documents of whatever nature, and do all such acts necessary to give full effect to the licence granted under clause 3.1 above and to provide such assistance as is necessary in the enforcement, exploitation and securing of such Intellectual Property Rights in any jurisdiction as required by Qwertee.
4. Royalties
4.1 In consideration of the rights granted under clause 3 of this Agreement, Qwertee shall during the continuance of this Agreement pay to the Artist the Royalties calculated at the rate of €1 (or USD equivalent) per item (tee/hoodie/sweatshirt/print etc) sold during the first 24 hour period of sale. If Artist's design is popular during its initial sale period Qwertee may decide to print extra products (normally tees) to put on sale in our tee shop. If Qwertee decides to do this we will pay you an additional €300 in commission at time of initial payment as commission for these extra products. This grants Qwertee a 1 year nonexclusive licence to sell your design. At the end of the 1 year period Qwertee can decide to either renew this agreement or not. If Qwertee does not renew this agreement they will continue to sell what stock remains in your design but not reprint it again after this. Commission for prints is paid at 10% of the sale price of the print, ie if print sells for €10, Artist receives commission of €1, if it sells for €5, Artist receives €0.50 etc. Commission for prints is paid on a monthly basis. If total sales are <€20 for the month this figure will be rolled over to the following month. With all products sold (tees, hoodies, sweatshirts, prints etc) Qwertee will also produce a certain % extra of products when printing (normally circa 5-10%) that are used as replacements for products that go missing in the post or products that are returned for exchange/store credit etc. Commission is not paid for these products. The Artist also agrees to Qwertee selling any remaining products of their design at a future date in a Sale format or other format of Qwertee's choosing along with other remaining stock from other designs.
4.2 Payments due under clause 4.1 shall be made within 72 hours of the cessation of the sale of the Product on the Website.
4.3 The Artist will be furnished with a screenshot of the sales page of the Website which shows how many Products were sold during the Sale Period.
4.4 Qwertee reserves the rights to withhold any payment of the Royalties to you in circumstances where it has to cease production for any reason whatsoever of Products incorporating the Accepted Work or where Qwertee has to withdraw from circulation a Product containing the Accepted Work for any reason whatsoever. In circumstances, where the Royalty Payment has already be paid to the Artist, the Artist shall, upon being requested to do so by Qwertee, immediately refund to Qwertee any Royalties payment which the Artist has received in respect of the Accepted Work in circumstances where Products containing the Accepted Work have, for whatever reason, had to be withdrawn from circulation.
5. Manufacturing and Marketing
5.1 For the avoidance of doubt all manufacturing and marketing decisions pertaining to the Work and Products are within the sole discretion of Qwertee.
5.2 Qwertee reserves the right to make any amendments to the Work in order to conform the Work to manufacturing requirements.
5.3 Qwertee reserves the right to make any and all decisions pertaining to the ink, colours, sizing, placement, application or embroidery contained in the Work.
5.4 Qwertee reserves the right in its sole discretion to cease the sale of Products.
6. Warranties and Indemnities
6.1 The Artist warrants that he or she is over the age of eighteen.
6.2 The Artist warrants that the Works supplied to Qwertee under this Agreement are his or her own work and if any part is not that the Artist has all relevant consents and assignments in place. For the sake of clarity the Artist also warrants that he or she is and will be entitled to licence to Qwertee the Intellectual Property Rights in the Works on the terms stated in clause 3.
6.3 The Artist warrants that the Work does not infringe any intellectual property rights of any third party.
6.4 The Artist warrants that the Work was not created in the course of his or her employment.
6.5 The Artist warrants that the Work-
6.5.1 Is not obscene, discriminatory or racist
6.5.2 Is not libelous, slanderous or defamatory;
6.5.3 Will not infringe upon any rights to privacy;
6.6 The Artist warrants that the Work supplied is not subject to any third part agreement, arrangement or right (registered or unregistered) which would interfere with the licence being granted by the Artist to Qwertee in clause 3.
6.7 The Artist agrees to indemnify and hold indemnified Qwertee against all liabilities, costs, claims, damages and expenses which Qwertee may suffer or incur in the event that he or she breaches clause 5.1 above including but not limited to any liabilities, costs, claims, damages and expenses which Qwertee may suffer or incur arising out of or in connection with any infringement action brought against Qwertee due to the Artist’s breach of clause 5.1.
7. Confidentiality and Non Competition
7.1 The Artist agrees to:
7.1.1 keep all Information (written or oral) concerning the business and affairs of Qwertee that he or she shall have obtained or received as a result of the discussions leading up to or the entering into or performance of this Agreement (Information);
7.1.2 use the Information solely in connection with the production and supply of the Works and not for his or her own benefit or the benefit of any third party.
7.2. The provisions of clause 7.1 above shall not apply to the whole or any part of the Information to the extent that it is trivial or obvious already in the other’s possession other than as a result of a breach of this clause or in the public domain.
7.3. The Artist agrees that during his or her work with Qwertee he or she will not breach the terms of the licence granted under clause 3 or grant any licence or assignment in respect of the Work which would otherwise conflict with the licences granted in clause 3 or otherwise interfere with Qwertee’s commercial interests;
7.4. The Artist agrees that during the term of this Agreement he or she shall not use the Website or any part thereof to directly or indirectly promote any competitor of the Qwertee namely any other website or business which licenses the Work or any similar works.
7.5. Nothing in clause 7 will prevent the Artist incorporating the Works in their own portfolio and using the Works in respect of products produced by the Artist.
8. Termination
8.1 This Agreement shall continue until terminated in accordance with this clause 8.
8.2 This Agreement may, by written notice, be terminated immediately by either party if the other party:
8.2.1 commits a substantial breach of any of its obligations under this Agreement and has not remedied the breach within 12 hours of receiving a written notice of the breach from the other party; or
8.2.2 has become bankrupt or entered into liquidation except for the purpose of amalgamation or reconstruction while solvent or had received and/or manager or examiner or administrator appointed in respect of its assets or any part thereof or it enters into any composition or arrangement with creditors generally or anything analogous under the laws of any country where the Artist is incorporated or resides or is domiciled.
8.3 Qwertee may terminate this Agreement at any time at its absolute discretion by giving 24 hours notice in writing.
9. General Provisions
9.1 This Agreement shall inure to the benefit of and be binding on the Artist’s heirs, successors in title executors and assigns.
9.2 This Agreement constitutes the whole and entire agreement between the parties and supersedes all prior oral and written representations, arrangements and understandings.
9.3 This Agreement shall not be varied or amended and no provision shall be deemed waived by any act, omission or acceptance of either party except in writing signed by both parties.
9.4. The Artist agrees that while working with Qwertee he or she will be engaged on a freelance independent contractor basis and will not be a partner or employee. Nothing in this Agreement constitutes a partnership or agency agreement between the parties.
9.5. If any term of this Agreement shall be found illegal, unenforceable or otherwise invalid, then, notwithstanding any such invalidity, the Agreement shall remain in full force and effect and such term shall be deemed to be deleted.
9.6 This Agreement shall be governed by and construed in accordance with Irish law and the parties submit to the non exclusive jurisdiction of the Irish courts.
9.7 The Artist acknowledges that he or she has been advised by Qwertee to take and has taken advice from an independent suitably experienced lawyer on the contents and implications of this Agreement.
9.8 The Artist agrees that he or she will be responsible for paying his or her own taxation or any other impost or levy. Further the Artist agrees to indemnify and hold harmless Qwertee against all or any costs, taxes, claims or charges imposed by any taxation authority upon it in respect of its business relationship with him or her.