Product Collaboration Agreement

MK Ecco Pty Limited - Terms and Conditions

1. Agreement

(a)  These Terms and Conditions, together with the Statement of Work, constitute an agreement between MK Ecco Pty Limited (MKE) and the Talent in relation to the Talent’s supply of the Talent Services to MKE (Agreement).
(b)  The Statement of Work, together with these Terms and Conditions, constitutes an offer from MKE that is capable of acceptance by the Talent.
(c)  The Talent will be taken to have accepted the Agreement if the Talent confirms to MKE in writing that it accepts the terms of the Statement of Work.
(d)  This Agreement expires on the date that the parties agree in writing (acting reasonably) that the Product and further Product sales is not commercially viable to continue the commercial arrangement contemplated under this Agreement (Expiry Date).

    2. Definitions and Interpretation

    Definitions

    Unless the context requires otherwise, words beginning with capital letters have the meanings given to them in the Statement of Work or as defined below:

    Agreement is defined in clause 1(a).

    Product means the product that is the end-product subject of a Statement of Work and this Agreement, the description of which is set out in the Statement of Work.

    Product Sales means a transaction whereby the Product is purchased by a customer but excludes any refunds, partial or full, in respect of any returns of Product.

    Business Day means a day on which banks open for trading in New South Wales, excluding Saturdays, Sundays and public holidays.

    Carry Over Amount means $1,000.

    Claim means any claim, notice, investigation, action, proceeding, demand, cost, damage, loss, expense, liability or other outgoing of whatever nature, past and present, howsoever and whensoever arising, whether known or unknown, fixed or ascertained, actual or contingent.

    Confidential Information means all information used by or relating to MKE that is, or could reasonably expected to be regarded as, confidential to MKE, including but not limited to:

    (a)  the financial or accounting details of MKE (including any supply, cost, selling or pricing information or policies of MKE in relation to the Book);
    (b)  the personal, business or financial details relating to customers, retailers, distributors or suppliers or any prospective customers, retailers, distributors or suppliers of MKE (including their identity, and any lists, accounts or contact details, and any information relating to their usual preferences or requirements);
    (c)  the strategic, business, marketing or advertising plans and strategies of MKE;
    (d) the Intellectual Property;
    (e)  the contents of any Profit Share Statement;
    (f)  training courses and techniques, trade secrets, methods, processes, technical designs or specifications, know-how, concepts, diagrams, data, proofs or prints, computer programs, databases, drawings, graphs, formulae, plans and designs;
    (g)  the agreements and arrangements of MKE, including this agreement; and
    (h)  information disclosed or revealed in confidence to the Talent, or in circumstances which the Talent knew or should have known were confidential,

      but does not include any information that becomes readily available to the public or falls within the public domain as a result of any breach by the Talent, the Talent Representative or any other personnel of the Talent of their duties at law.

      Copyright means:

      (a)  any copyright under the Copyright Act;
      (b)  any copyright under the law of a country other than Australia; and
      (c)  rights in the nature of or analogous to the rights in (a) and (b) under the law of Australia or any other country.

        Copyright Act means Copyright Act 1968 (Cth). Deduction Costs is defined in clause 10.2(a)

        Deed Poll means the Talent Representative Deed Poll as that document appears at Schedule 1 of the Statement of Work, or in some other form as approved by MKE.

        Delivery Date means, any respect of any of the Talent Services, the date the relevant Talent Services must be performed or otherwise delivered to MKE as set out in the Statement of Work, or as otherwise reasonably determined by MKE.

        Expiry Date is defined in clause 1(d).

        Force Majeure Event means an act of God, war, any act of terrorism, epidemic, pandemic, revolution, any unlawful act against public order or authority, a strike or industrial dispute, an act or omission of a governmental agency, or any other event (whether the same or different to the events set out in this definition) that is out of a party’s reasonable control.

        Forecast Document is defined in clause 7(a).

        GST has the meaning given to it under GST Law.

        GST Law has the meaning given in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999.

        Insolvency Event means, in relation to a party:
        (a) any act of insolvency by that party under applicable law;
        (b) any application made to a court for that party to be wound up or liquidated;
        (c) that party ceasing to carry on business or resolving to wind itself up, or otherwise, dissolve itself, or give notice of its intention to do so;
        (d)  a person is taken to have failed to comply with a statutory demand (as defined in section 9 of the Corporations Act 2001 (Cth)) by operation of section 459F of the Corporations Act 2001 (Cth);
        (e)  the appointment of a liquidator, provisional liquidator, administrator, receiver, manager or controller in respect of that party or its assets;
        (f)  any writ of execution, garnishee order, mareva injunction or similar order, attachment or other process is made, levied or issued against or in relation to any asset of a person;
        (g)  anything analogous or having a substantially similar effect to any of the events specified in paragraphs (a) to (f) of this definition (inclusive) under the law of any jurisdiction by which that party is governed; or
        (h)  a person is or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts.

          Intellectual Property Rights means any and all intellectual and industrial property rights and interests of whatever nature throughout the world conferred under statute, common law or equity, under the laws of any jurisdiction in the world, whether existing now or at any time in the future, and includes rights in respect of, or in connection with:

          (a)  Copyright;
          (b)  designs, patterns, semiconductor, circuit layout or plant breeder rights (whether registered, unregistered or applied for);
          (c)  trade marks, service marks, trade names, business names, company names, brand names, product names or domain name;
          (d)  patent and industrial property rights;
          (e)  Confidential Information;
          (f)  ideas, concepts, formulas, algorithms, know-how, trade secrets, techniques, methods, processes, programs, designs, prototypes, systems, trade secrets and inventions (whether in writing or recorded in any form);
          (g)  any other proprietary, licence or personal rights (whether registrable or not registrable); and
          (h)  rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in paragraphs (a) to (g), whether now existing or created after the date of this Agreement.

            Minimum Sale Number means in respect of any Sale Period and any region, the minimum number of Product Sales required to be sold as agreed by the parties or in the absence of such agreement, as reasonably required by MKE.

            Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined and as set out under Part IX of the Copyright Act and any foreign corresponding rights.

            Net Revenue means revenue directly derived from Product Sales and received by us at the Product’s Recommended Retail Price (Excluding GST, VAT or similar or other taxes) less discounts, damages, returns and the cost of converting overseas sales into Australian Dollars.

            MKE Services means the services to be performed or undertaken by MKE under this Agreement, the details of which are set out in the section of the Statement of Work titled ‘MKE Services’.

            Personal Information has the meaning given to it in the Privacy Act 1988 (Cth).

            Profit Share Statement is defined in clause 10.3(a).

            Quarter is defined in clause 10.1(a)(ii).

            Sale Period means any period of time as determined by MKE from time to time and notified by MKE to the Talent in writing relating to prospective Product sales and forecasts and, in the absence of such determination, a calendar month.

            Special Conditions means any terms or conditions set out in the Statement of Work in the section ‘Special Conditions’.

            Statement of Work means a ‘Statement of Work’ issued by MKE, and accepted by the Talent, in accordance with these Terms and Conditions.

            Replacement Talent Services is defined in clause 5.4(a)(i).

            Replacement Talent Services Costs is defined in clause 5.4(a)(ii).

            Talent means person or entity identified as the ‘Talent’ in the applicable Statement of Work.

            Talent Profit means, for each Quarter, the Talent Profit calculated in accordance with clause 10 of this Agreement and the Statement of Work.

            Talent Representative means:

            (a) the person who is named as the ‘Talent Representative’ in the Statement of Work;

            (b) where the Talent is an individual and no other ‘Talent Representative’ is named in the Statement of Work, the Talent.

            Talent Services means each of the following:

            (a) the services set out in the section of the Statement of Work titled ‘Talent Services’.

            (b) any additional services and activities described in clause 5.1(b); and

            (c) any promotional services and activities described in clause 5.3.

            Talent Work means any document, product, material or deliverable delivered by or on behalf of the Talent to MKE in the course of performing the Talent Services.

            Taxable Supply has the meaning given in section 195-1 of the GST Law.

            Terms and Conditions means these terms and conditions (as may be amended from time to time).

            Third Party Infringement Issue is defined in clause 8.7(a).

            Unsatisfactory Talent Services is defined in clause 5.4(a).

            2.2 Interpretation

            (1a) The following rules apply unless the context requires otherwise:

            (a)  if the Statement of Work includes any Special Conditions, these Terms and Conditions must be read subject to those special conditions;
            (b)  headings are for convenience only and do not affect interpretation;
            (c)  a reference to a clause is a reference to a clause of these Terms and Conditions;
            (d)  a reference to time is to Sydney, Australia time;
            (e)  a reference to ‘$’ ‘AUD$’ ‘AUD’ or ‘dollars’ is a reference to the lawful currency of Australia;
            (f)  a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
            (g)  a reference to a right or obligation of any two or more persons confers that right, or imposes that obligation, as the case may be, jointly and severally; and
            (h)  the meaning of general words is not limited by specific examples introduced by including, or for example, or similar expressions.

              3. Application of Terms and Conditions

              3.1 Application and acceptance

              (a) These Terms and Conditions apply to and govern all Statements of Work, the MKE Services and the Talent Services.

              (b) By submitting a Statement of Work the Talent:

              • (i) warrants that it has the authority to accept these Terms and Conditions; and
              • (ii) confirms acceptance of these Terms and Conditions on behalf of itself and the Talent Representative (as applicable).

              (c) Each Statement of Work that is executed by the Talent will form a separate contract between MKE and the Talent in respect of the subject matter of that Statement of Work and will incorporate and be governed by these Terms and Conditions.

              (d) The Talent agrees to work with MKE on an exclusive basis in relation to the Products outlined in the Statement of Work, or similar products, for a period of 6 months. For the avoidance of doubt, exclusivity pertains to any Product category competitor.

              (e) Any new products Products not agreed via an existing Statement of Work will require a new Statement of Work unless MKE agrees to modify an existing one.

              (f) The Agreement is the entire agreement of the parties on its subject matter. The only enforceable rights and obligations of the parties in relation to the subject matter of the Agreement are those that arise out of the provisions contained in the Agreement, and:

              • (i)  all representations, communications and prior agreements in relation to the subject matter of this Agreement are merged in and superseded by the Agreement; and
              • (ii)  if the Talent provides MKE with any terms and conditions before or after the date of this Agreement in respect of the subject matter of this Agreement, the parties will not be bound to comply with any of the provisions set out in, or associated with, those other terms and conditions.
              3.2  Variation or Waiver

              (a)  These Terms and Conditions cannot be waived or varied unless the variation is

              agreed in writing by a director or secretary of MKE.

              (b)  Except as provided in clause 3.2(a), MKE is not bound by any terms and conditions contained in any documentation, terms and conditions, agreement or contract, or any instructions given as between the Talent and a third party, including for the avoidance of doubt any terms and conditions, agreement or contract between the Talent and a third party in connection with the Talent discharging any obligations under the Agreement.

              3.3  Further Statements of Work

              MKE may amend the Terms and Conditions from time to time as they apply to further or additional Statements of Work.

                4. The Talent Representative

                4.1  Delivery of executed Deed Poll

                 

                If the Talent is a corporate entity:

                (a)  the Talent must deliver to MKE a Deed Poll duly executed by the Talent Representative; and
                (b)  MKE is not required to perform any obligation under the Agreement unless and until it receives a duly executed copy of the Deed Poll.

                4.2  Undertaking
                If the Talent is a corporate entity, the Talent:

                (a) must procure any obligation of the Talent under the Agreement to be personally performed by the Talent Representative; and
                (b) warrants and will ensure that the Talent Representative:

                • (i) is aware of the Talent Representative’s obligations under the Agreement;
                • (ii) performs the Talent Services;
                • (iii) is not replaced by another person without the prior written approval of MKE; and
                • (iv)  does not delegate or subcontract the provision of any Talent Services to any other person or entity without MKE’s prior consent.

                5. Talent Services

                5.1 Performance and delivery

                (a) The Talent will perform or deliver to MKE (as applicable) the Talent Services as directed by MKE and in accordance with any requirements:

                • (i) set out in the Statement of Work, including but not limited performing or delivery any Talent Services no later than any applicable Delivery Date; and
                • (ii) notified to the Talent by MKE from time to time.

                (b) MKE may from time to time, notify the Talent of any additional services or activities that MKE may reasonably require the Talent to perform in relation to the Product:

                • (i) to support Product Sales; or
                • (ii) otherwise that may be in the commercial interest of both the Talent and MKE.

                5.2 Disagreement on Product development

                (a) In the event that the Talent is not satisfied with the quality or appearance of the Product post-production, MKE may determine in its sole discretion decide whether or not to sell the Product.

                (b) If MKE determines to sell the Product in accordance with clause 5.2(a), and the Talent does not agree to perform any of the Talent Services in respect of the Product:

                • (i) the Talent is released from performing all Talent Services under this Agreement;
                • (ii) MKE is entitled to all revenue generated from the Product Sales; and
                • (iii) the Talent is not entitled to any Talent Profit.

                5.3 Promotional Requirements of Talent

                (i) The Talent must perform such marketing, promotional and community engagement services for, or as directed by, MKE for the purposes of promoting the Product which:

                (a)  are specified in the Statement of Work; or
                (b)  are otherwise requested by MKE from time to time.

                5.4 Replacement Talent Services

                (a) If the Talent does not perform the Talent Services in accordance with the Statement of Work or satisfactorily as solely determined by MKE (acting reasonably) (including but not limited to Talent Services that relate to the promotion of the Product) (Unsatisfactory Talent Services), MKE:

                • (i) may perform services as a substitute for those Unsatisfactory Talent Services (Replacement Talent Services); and
                • (ii) is entitled to be reimbursed for all costs or expenses incurred in connection with the Replacement Talent Services (Replacement Talent Services Costs) by way of issuing an invoice to the Talent, or applying a set-off against any present or future entitlement of the Talent in respect of the Talent Profit, for the Replacement Talent Services Costs.

                (b) For the avoidance of doubt, MKE is entitled to undertake Replacement Talent Services or Talent Profit Reduction in accordance with clause 5.4(a) if:

                • (i) the number of Product Sales are below, or are likely to be below (as determined by MKE in its reasonable opinion), the Minimum Sale Number; or
                • (ii) MKE determines so as appropriate for the long-term commercial benefit of the parties (acting reasonably).

                6. MKE Services and discretion

                (a) Subject to the terms of this Agreement (including, but not limited to, clause 14), MKE agrees to perform the MKE Services.

                (b) Subject to clause 6(c), MKE agrees to consult the Talent in respect of the performance of the MKE Services and the production and promotion of the Product.

                (c) The Talent acknowledges that MKE has the:

                • (i) right to all final decisions and entire control over all details of the Product, including but not limited to, preparation, format, design, price, stockholding, logistics, distribution, customer service, pricing strategies, promotions and the terms of Product sales and any refunds;
                • (ii) right to make all final decisions in respect of the Talent’s Work and the Product; and
                • (iii) right to publish and sell the Product through any retailer, distributor or wholesaler, whether with or without the Talent’s approval. For the avoidance of doubt, if the Talent does not agree to the post-production version of the Product, MKE has the right to publish and sell to or via any retailer, distributor or wholesaler.

                (d) MKE may, in its sole discretion, acting reasonably and at any time (whether before or after the initial publication of the Product), refuse the initial or further production of the Product for any reason.

                (e) For the avoidance of doubt, MKE may refuse the production or sale of the Product under clause 6(d) if:

                • (i) it is unsatisfied with the quality of the Product; or
                • (ii) any supervening event or circumstance or a Force Majeure Event has adversely changes the economic expectations of MKE rendering the Product of limited remunerative value (in which case clause 20 applies).

                7. Forecast Document

                (a)  MKE may determine from time to time whether a forecast document is required with respect to any Sale Period (Forecast Document).
                (b)  The form and contents of the Forecast Document is to be solely determined by MKE.
                (c) The Talent and MKE agree to consult each other over the inputs for any Forecast Document.

                8. Intellectual property ownership

                8.1  Grant of licence

                (a)  Except as provided for in this Agreement, the Talent:
                (b)  agrees that MKE is entitled, on an exclusive basis, to distribute and sell the Product containing the Talent Work anywhere in the world; and
                (c)  agrees that MKE is entitled to use the Talent's image for the purposes of promoting the Product, on any platform at their sole discretion, anywhere in the world.

                8.2  Editorial rights
                The editing of the individual contributions of one party by the other party, will not create works of joint authorship.

                 

                8.3  Moral rights waiver

                 

                To the extent that Talent has any Moral Rights in the Talent Work, and to the extent permitted by law, the Talent unconditionally and irrevocably, waives all of those Moral Rights.

                 

                 


                8.4  Infringement or threatened infringement of a third party’s Intellectual Property Rights
                (a)  Each party agrees to immediately notify the other upon becoming aware if the Product (or any Talent Services in connection with the Product) has infringed, or is likely to have infringe, upon a third party’s Intellectual Property Rights (Third Party Infringement Issue).
                (b)  In the event of a Third Party Infringement Issue, the parties will consult each other as to what action in dealing with the Third Party Infringement Issue, but the final action will be solely determined by MKE.

                 

                 

                9. Distribution and sale of Product

                (a)  MKE is entitled to distribute or sell the Product to any, distributor, retailer, sales platform or customer anywhere in the world that it may choose in its sole discretion.
                (b)  The Talent acknowledges that MKE is entitled to distribute any number the Products at or below the cost price of the Product to any customer that MKE may choose in its sole discretion, if it is in MKE reasonable opinion that such distribution would for the commercial or reputational benefit for both MKE and the Talent.

                10. Profit Share

                10.1 Payment of Talent Profit

                (a) Subject to the terms of the Agreement (including but not limited to clause 10.2):

                • (i) the Talent may be entitled to receive the Talent Profit;
                • (ii)  if the Talent is entitled to Talent Profit, MKE will pay the Talent the applicable Talent Profit to a bank account nominated by the Talent on a quarterly basis commencing on the first date the Book is made available for sale (each quarter being a Quarter); and
                • (iii) prior to receiving payment, the Talent will submit a tax invoice to MKE each Quarter matching the Profit Share Statement for the period.

                (b) For the avoidance of doubt, if the Net Revenue for any Quarter is equal to or less than $0 for a Quarter, the Talent is not entitled to any Talent Profit for that Quarter.

                10.2 Deductions from Talent Profit

                (a) The Talent acknowledges that the Talent Profit for a particular Quarter may be deducted by:

                • (i) any Replacement Talent Services Costs;
                • (ii) a Talent Profit Reduction; and
                • (iii) any other costs incurred by MKE by reason of the Talent’s default or error,(the aggregate sum of the above being, the Deduction Costs).

                (b) For the avoidance of doubt, if the Deduction Costs is greater than the Talent Profit for a particular Quarter, the Talent Profit will be nil and the Talent will be liable to reimburse MKE for any outstanding Deduction Costs.

                10.3  Profit Share Statement

                (a)  MKE will prepare and compile profit share statements for each Quarter, the form of which will be in MKE’s sole discretion (Profit Share Statement).
                (b)  The Talent is entitled to receive a copy of the Profit Share Statement for each Quarter after MKE has prepared the Profit Share Statement.
                (c)  If, in respect of any Quarter, the Talent Profit due to the Talent is less than the Carry Over Amount, MKE may decide in its sole discretion to carry forward the Carry Over Amount to the subsequent Quarter. For the avoidance of doubt, the Talent is entitled to the Carry Over Amount except to the extent that the Carry Over Amount is reduced to nil by any applicable Deduction Costs in the subsequent Quarter.

                10.4  Inspection of accounts

                (a)  The Talent will have the right, on 10 Business Days prior written notice to MKE, to examine the books of account of MKE in so far as they relate to the Product.
                (b) The examination referred to in clause 10.4(a):

                • (i) will be carried out during normal business hours and not more than twice in any calendar year; and
                • (ii) will be at the sole cost of the Talent unless it reveals an underpayment to the Talent of 5% or more of the total sums paid to the Talent, in which case in addition to payment of the underpayment to the Talent, MKE will pay the reasonable costs incurred by the Talent of such examination (excluding travel costs).

                (c) The Talent will have the right to examine any statement of account for a period of 2 years only following receipt after which the statement of account will be deemed accepted.

                11. Further Products

                (ii) The Talent acknowledges and agrees that:

                • (a) MKE is entitled to the first right of refusal to create and develop (whether on its own or jointly with any third party) any supplementary or additional work by the Talent or Talent Representative (as applicable) in respect of any future Product or contributed to by the Talent or Talent Representative, in accordance with MKE then-current standard terms;
                • (b) the obligations of the Talent and Talent Representative under this clause 11 form a material part of the consideration being received by MKE under this Agreement; and
                • (c) will require a new Statement of Work unless MKE agrees to modify and existing one,

                 

                12. Talent access to the Product

                The Talent is entitled to receive from MKE a number of the Product (for the Talent to distribute to close industry associates for the purposes of promoting the Product) that MKE determines in its sole discretion at no cost to the Talent.

                13. Talent Restrictions


                Except as expressly permitted by the Agreement, the Talent and the Talent Representative must not, without MKE’s prior written consent:

                  (a) consent to any interviews, media appearances or any other publicity relating to the Product. The Talent agrees to refer any requests made to the Talent for such publicity to MKE.

                  14. Assumptions and qualifications

                  (a) The Talent acknowledges and agrees that the terms of the Agreement, including but not limited to, the calculation of the Talent Profit, are based upon the assumptions and representations provided by the Talent to MKE. Those assumptions and representations include that:

                  • (i) the information that is contained in each Forecast Document is true and correct;
                  • (ii) MKE will not check or verify the information it receives from the Talent, and will rely on such information, including but not limited to, information contained in any Forecast Document;
                  • (iii) there are no undue complications or significant delays to the Talent performing any Talent Services;
                  • (iv) there is no material change to scope of the Talent Services as a result of any action, omission or request by the Talent, and the Talent Services is the same as those which are outlined in the Agreement; and
                  • (v) information provided to MKE is sufficient and in an appropriate form so as to enable MKE to undertake the MKE Services;
                  • (vi) the number of Product Sales are above, or are likely to be above (as determined by MKE in its reasonable opinion), the Minimum Sale Number.

                  (b) Any obligation of MKE to perform the MKE Services will no longer apply in respect of any Sale Period where:

                  • (i) the Minimum Sale Number has not been satisfied; or
                  • (ii) MKE have determined that it will not procure the Replacement Talent Services (acting reasonably). 

                  (c) MKE is entitled to modify or amend any term of the Agreement, including the calculation of the Talent Profit, if:

                  • (i) any of the assumptions or qualifications listed in clause 14(a) are incorrect; or
                  • (ii) the Talent fails to perform the Talent Services in accordance with the Agreement, including but not limited to, by performance of the Talent Services by any applicable Delivery Date. 

                  15. Warranties

                  (1b) The Talent undertakes and warrants to MKE that:

                  • (a)  the Talent has full power and authority to enter into this Agreement and to give the warranties and indemnities contained in this Agreement;
                  • (b)  the person giving instructions to MKE for the performance of the Talent Services warrants that they are authorised by the Talent to do so;
                  • (c)  the Talent is the sole owner of all rights, title and interest in the Talent Work licensed to MKE in this Agreement and have not licensed those rights to any third party previously in a manner which conflicts with the rights granted to MKE;
                  • (d)  the Talent Work and the use and exploitation of the Talent Work by MKE or any of MKE’s sub-licensees will not infringe the Copyright or any other Intellectual Property Rights of any third parties;
                  • (e)  it will abide by and preserve the Intellectual Property of MKE;
                  • (f)  the Talent Work contains nothing which, to the knowledge of MKE, is obscene, offensive, libelous, defamatory, a contempt of court or unlawful and will not expose either parties to any civil or criminal proceedings;
                  • (g)  electronic versions of the Talent Work delivered to MKE will be free from viruses or similarly destructive programs;
                  • (h)  the representations made by the Talent prior to entering this Agreement are true;

                  16. Indemnities and liability for Claims

                  (a) The Talent indemnifies, and will keep indemnified, MKE and each of its directors, officers, employees, agents, subsidiaries and related bodies corporate (the Indemnified) against all actions, Claims (including all legal costs on a solicitor- client basis) incurred or owed by MKE or made against the MKE (or any of the Indemnified) arising out of or relating to any breach or alleged breach of the warranties given by the Talent in clause 15 or otherwise a breach of this Agreement by the Talent.
                  (b)  In the event of a Claim that is inconsistent with the Talent’s warranties in clause 15, MKE may retain any sums due to be paid to the Talent under this Agreement or any other agreement between the parties until final determination of any such claim, and such sums retained by MKE may be used by MKE to set off any liability of MKE to the Talent.
                  (c)  The Talent must notify MKE upon it becoming aware of any Claim relating to the Product.

                  17. Termination or expiration of a Statement of Work or Agreement

                  17.1 Termination or expiration

                  (a) No Statement of Work may be terminated by the Talent except with Marion Kitchen’s prior written consent.

                  (b) If the Talent terminates all or any part of a Statement of Work other than in accordance with clause 17.1(a), the Talent indemnifies MKE against any and all liability MKE may suffer as a result of such termination.

                  (c) MKE may terminate the Agreement by providing the Talent notice upon the occurrence of any of the following events:

                  • (i) the Talent breaches a material term in this Agreement such as a warranty, which in MKE’s reasonable opinion, cannot be remedied;
                  • (ii) the Talent breaches a material term in this Agreement, which has not been remedied by MKE within 20 Business Days after receiving notice of the breach;
                  • (iii) an Insolvency Event occurs in respect of the Talent or the Talent Representative; or
                  • (iv) the Talent commits fraud or an act of serious or wilful misconduct.

                  (d) Upon termination or expiration of the Agreement, any and all amounts payable by the Talent to MKE in respect of any period prior to termination or the Expiry Date, including for any Deduction Costs provided but not yet invoiced, must be paid to MKE within 20 Business Days after the date of termination.

                  (e) On termination or expiration of this Agreement for any reason, MKE may destroy of the Product in its possession, power or control.

                  17.2 Clauses surviving termination

                  Clauses 2, 14, 15, 16, 17, 18, 19, 21, 22 and 23 survive termination or expiration of the Agreement.

                  18. Personal Information

                  Where MKE discloses Personal Information to the Talent, the Talent must ensure it has, on behalf of MKE, obtained from the person to whom the Personal Information relates consent for the Talent to collect, use and/or disclose the Personal Information to provide the Talent Services. To the maximum extent permitted by law, the Talent indemnifies MKE and its officers, employees and contractors against all Claims that arise from or are connected with the provision of any Personal Information by MKE to the Talent.

                  19. Events beyond party’s control

                   


                  To the maximum extent permitted by law and without limiting any other provision of these Terms and Conditions, the parties will not be liable for any delay or failure to perform the MKE Services or Talent Services (as applicable) or any other obligations resulting from any Force Majeure Event. In such circumstances the affected party will be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non- performance continues for 8 weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving one weeks’ written notice to the affected party.

                  20. Confidentiality

                  (i) In respect of the Confidential Information:

                  (a) the Talent must, at all times:

                  • (i) keep any Confidential Information secret and confidential, except to the extent that it is required by law or authorised by MKE to disclose it;
                  • (ii) only use the Confidential Information for authorised purposes for the benefit of MKE, and not in any way that will directly or indirectly injure or cause loss to MKE or may be likely to do so;
                  • (iii) abide by all directions of MKE in relation to the Confidential Information;
                  • (iv) take all action to ensure that material on which Confidential Information is recorded is secure and protected from any unauthorised use or disclosure;
                  • (v) not make, reproduce, copy, retain or exploit any Confidential Information to any degree other than as required by the Services and their duties and responsibilities under the agreement; and
                  • (vi) promptly notify MKE if it suspects or becomes aware of any use or disclosure of the Confidential Information that is contrary to law or to its duties and responsibilities under this agreement. 

                  (b) If there is any uncertainty as to whether any information is Confidential Information or lawfully within the public domain for the purposes of this agreement, the information will be taken by the Talent to be Confidential Information and not within the public domain unless advised in writing to the contrary by MKE.

                  21.Talent costs

                  The Talent is liable to bear its own costs in relation to the performance of the Talent Services, except as expressly provided for in this Agreement.

                  22. General

                  22.1 Assignment

                  (a) The Talent must not assign or transfer its rights or obligations under this Agreement to any other party without the prior written consent of MKE (which may be withheld in its absolute discretion).

                  22.2 Notices
                  (a) Any notice required or permitted to be delivered to any party under these Terms and Conditions must be in writing and is deemed properly delivered, given and received:

                  • (i)  when delivered by hand;
                  • (ii)  if sent by registered mail, one Business Day after being sent;
                  • (iii)  if sent by overnight delivery via a national courier service, one business day after being sent; and
                  • (iv)  on the day sent by email, provided that the sender has not received a transmission error as of or prior to 5:00 p.m. local time of the intended recipient on such day,

                  and in each case is sent or delivered to a party’s last known address or email address, as applicable.

                  (b) The Talent must notify MKE in writing of any change to its address, phone number or email address within 10 Business Days of any such change.

                  22.3  No partnership or other relationship

                  Nothing in the Agreement will, or is intended to, establish a relationship of partnership, agency or employment between MKE and the Talent, or MKE and any Talent Representative or other person engaged by the Talent to perform the Talent Services, and it is the intention of the parties that any such relationship is expressly denied.


                  22.4  Further action
                  Each party must use reasonable efforts to do all things necessary or desirable to give full effect to this Agreement.

                   

                   


                  22.5  Severability

                  Part or all of any provision of the Agreement that is illegal or unenforceable must be severed from the Agreement and will not affect the continued operation of the remaining provisions of the Agreement.

                   

                   


                  22.6  Continuing obligations

                  The termination of this agreement or the Talent Services will not affect in any way the obligations that are expressed in the Agreement, or are by their nature intended, to be binding on the parties after the termination.

                   

                   


                  22.7  Waiver

                  A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

                   

                   


                  22.8  GST
                  Except as the parties otherwise agree, all amounts payable under this Agreement do not include GST. If any amount payable under this agreement is the consideration for a Taxable

                  Supply, then GST must be paid in addition to the amount specified in this Agreement, provided that the Talent is registered for the purposes of the GST Law and the Talent provides MKE with an invoice in the form of tax invoice required by the GST Law.


                  22.9
                  Governing law and jurisdiction

                  These Terms and Conditions and each Statement of Work are governed by and to be construed in accordance with the laws in force in the State of New South Wales and each party submits to the non-exclusive jurisdiction of the courts of that State.