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.

Interpretation

(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 time is to Sydney, Australia time;
(d) A reference to currency is to AUD;
(e) A reference to a person includes a body corporate or agency;
(f) A reference to obligations on persons applies jointly and severally;
(g) 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

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 authority to accept these Terms and Conditions; and
(ii) Confirms acceptance on behalf of themselves and the Talent Representative.

(d) The Talent agrees to work exclusively with MKE on outlined or similar products for 6 months.

(e) New products not in the current Statement of Work require a new Statement of Work unless modified by agreement.

Variation or Waiver

These Terms and Conditions may only be varied in writing by a director or secretary of MKE.

4. The Talent Representative

Delivery of executed Deed Poll

If the Talent is a corporate entity, it must deliver a duly executed Deed Poll by the Talent Representative to MKE before obligations apply.

Undertaking

The Talent must ensure the Talent Representative is aware of and performs obligations under this Agreement. The Representative may not be replaced without prior written approval from MKE.

5. Talent Services

Performance and Delivery

The Talent will perform the services as directed by MKE and in accordance with the Statement of Work and delivery timelines.

Additional Services

MKE may request additional services that support Product Sales or commercial interests.

Disagreement on Product Development

If the Talent is dissatisfied with post-production, MKE may still sell the Product.
If the Talent refuses to promote, they forfeit Talent Profit.

Promotional Requirements

The Talent must carry out marketing and promotional tasks as specified or reasonably requested by MKE.

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.

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;
right to make all final decisions in respect of the Talent’s Work and the Product;
right to publish and sell the Product through any retailer, distributor or wholesaler, whether with or without the Talent’s approval.

(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) MKE may refuse the production or sale of the Product if:

it is unsatisfied with the quality of the Product; or
any supervening event or Force Majeure Event has changed the economic expectations rendering the Product of limited remunerative value.

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.

8. Intellectual Property Ownership

8.1 Grant of Licence

The Talent agrees MKE is entitled, on an exclusive basis, to distribute and sell the Product and use the Talent’s image for promotion globally.

8.2 Editorial Rights

The editing of individual contributions will not create works of joint authorship.

8.3 Moral Rights Waiver

The Talent irrevocably waives all Moral Rights in the Talent Work to the extent permitted by law.

8.4 Third-Party IP Infringement

(a) Each party must notify the other immediately if aware of any infringement on third-party Intellectual Property Rights (Third Party Infringement Issue).

(b) Final action taken on a Third Party Infringement Issue will be determined solely by MKE after consultation.

9. Distribution and Sale of Product

(a) MKE is entitled to distribute or sell the Product globally via any channel at its discretion.

(b) MKE may sell the Product at or below cost if reasonably deemed beneficial to both MKE and the Talent.

10. Profit Share

10.1 Payment of Talent Profit

The Talent may receive Talent Profit quarterly if entitled under this Agreement. Payment requires submission of a matching tax invoice. No payment is due if Net Revenue is $0 or less.

10.2 Deductions from Talent Profit

Talent Profit may be reduced by:

Replacement Talent Services Costs
Talent Profit Reduction
Other costs due to Talent’s default

If deductions exceed the Talent Profit, the Talent must reimburse MKE.

10.3 Profit Share Statement

(a) MKE will prepare a Profit Share Statement each Quarter at its discretion.

(b) The Talent is entitled to a copy after MKE prepares it.

10.4 Inspection of Accounts

The Talent may inspect relevant MKE accounts twice per year upon 10 Business Days’ notice. If a 5% underpayment is found, MKE will reimburse the cost of the inspection (excluding travel).

11. Further Products

The Talent acknowledges and agrees that:

MKE has the first right of refusal to create or develop any additional or supplementary work by the Talent or Talent Representative for future Products, on MKE’s current terms.
This right forms a material part of the consideration MKE receives under this Agreement.
Any new work will require a new Statement of Work unless MKE agrees to amend an existing one.

12. Talent Access to the Product

MKE will provide the Talent with a number of Products at no cost (as determined by MKE) to distribute to industry associates for promotional purposes.

13. Talent Restrictions

Except as expressly permitted in this Agreement, the Talent and Talent Representative must not (without prior written consent from MKE):

Engage in interviews, media appearances, or publicity related to the Product.

Any such requests must be referred to MKE.

14. Assumptions and Qualifications

(a) The terms of this Agreement are based on the following assumptions and representations made by the Talent:

All Forecast Document information is true and accurate.
MKE may rely on the information provided without verification.
No undue delays or complications in performing the Talent Services.
Scope of Talent Services remains unchanged unless otherwise agreed.
Information is provided in a suitable format for MKE to carry out its services.
Product Sales are expected to meet or exceed the Minimum Sale Number.

(b) MKE is not required to continue its services in a Sale Period if the Minimum Sale Number is not met, or if MKE chooses not to procure Replacement Talent Services.

Any assumptions above are incorrect; or
The Talent fails to meet performance obligations or deadlines.

15. Warranties

The Talent undertakes and warrants to MKE that:

They have full authority to enter into and comply with this Agreement.
Any person instructing MKE on their behalf is duly authorised.
They solely own all rights in the Talent Work and have not granted conflicting rights to others.
The Talent Work does not infringe any third party Intellectual Property Rights.
They will preserve MKE’s Intellectual Property Rights.
The Talent Work does not contain unlawful, offensive, or defamatory content.
Electronic versions of the Talent Work will be virus-free.
All pre-contract representations are true and correct.

16. Indemnities and Liability for Claims

(a) The Talent agrees to indemnify and hold harmless MKE and its directors, officers, employees, agents, subsidiaries, and related entities (Indemnified Parties) against all actions, claims, losses, and costs (including legal fees on a solicitor-client basis) that arise from:

Any breach or alleged breach of the warranties in clause 15;
Any breach of this Agreement by the Talent.

(b) If a claim is made that contradicts the Talent’s warranties, MKE may withhold payments due under this or any other agreement and use the funds to offset liability.

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

17.1 Termination or Expiration

(a) The Talent may not terminate a Statement of Work without MKE’s prior written consent.
(b) Unapproved termination will require the Talent to indemnify MKE for resulting losses.
(c) MKE may terminate this Agreement upon:
- Breaches of material terms by the Talent;
- Failure to remedy a breach within 20 Business Days of notice;
- An Insolvency Event involving the Talent;
- Fraud or serious misconduct.
(d) All outstanding amounts owed by the Talent to MKE must be paid within 20 Business Days after termination.
(e) Upon termination or expiration, MKE may destroy any Products in its possession.

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 shares Personal Information with the Talent, the Talent must obtain necessary consent to use or disclose that information in providing Talent Services.

The Talent indemnifies MKE against any claims arising from misuse or mishandling of shared Personal Information.

19. Events Beyond a Party’s Control

If a Force Majeure Event delays or prevents performance of obligations under this Agreement, the affected party is entitled to a reasonable extension of time.

If the event continues for more than 8 weeks, the unaffected party may terminate the Agreement with one week's written notice.

20. Confidentiality

The Talent must:

Keep MKE’s Confidential Information secret and only use it for authorised purposes;
Protect the confidentiality and prevent unauthorised use or disclosure;
Follow MKE’s directions in handling Confidential Information;
Report any suspected breach or misuse of Confidential Information.

Any uncertainty about whether information is confidential must be treated as such unless stated otherwise by MKE in writing.

21. Talent Costs

The Talent is responsible for covering all costs incurred in relation to performing the Talent Services, unless expressly provided otherwise in this Agreement.

22. General

22.1 Assignment

The Talent must not assign or transfer its rights or obligations under this Agreement to any third party without MKE’s prior written consent. MKE may withhold this consent at its sole discretion.

22.2 Notices

Any notice under this Agreement must be in writing and is considered received when:

Delivered by hand;
Sent via registered mail, one Business Day after posting;
Sent via overnight courier, one Business Day after dispatch;
Sent via email, provided no transmission error is received before 5:00 p.m. local time of the recipient.

The Talent must inform MKE of any change in address, phone, or email within 10 Business Days.

22.3 No Partnership or Relationship

This Agreement does not create a partnership, agency, or employment relationship between MKE and the Talent or any Talent Representative. Any such relationship is expressly disclaimed.

22.4 Further Action

Both parties agree to take all reasonable steps necessary to give full effect to this Agreement.

22.5 Severability

If any part of this Agreement is found to be illegal or unenforceable, it will be severed without affecting the remaining provisions.

22.6 Continuing Obligations

Any obligations intended to survive the end of this Agreement will remain binding after termination or expiry.

22.7 Waiver

Failure or delay in exercising a right does not constitute a waiver. Any waiver must be in writing and signed by the waiving party.

22.8 GST

Unless otherwise agreed, all amounts payable under this Agreement exclude GST. If GST is applicable, it must be paid in addition to the amount due, provided the Talent is registered for GST and provides a valid tax invoice.

22.9 Governing Law and Jurisdiction

This Agreement is governed by the laws of New South Wales, Australia. Both parties submit to the non-exclusive jurisdiction of the courts of New South Wales.