ARTIST COLLABORATION – DISTRIBUTION SERVICE AGREEMENT
Terms and Conditions
(Last Updated: : 15 December 2023 / Version: 20231215)
These terms and conditions (the “Terms and Conditions”) shall apply and form an integral part of the Artist Collaboration Term Sheet (“Term Sheet”) entered into by and between Company/Artist (as specified in the Term Sheet) and Casetagram Limited (“Casetify”). Casetify, Company/Artist shall each be referred to as a “Party” and collectively, the “Parties”. These Terms and Conditions and each Term Sheet are together referred to as the “Agreement”.
- Term: The Agreement shall become effective from the date of signing the Term Sheet by both Parties (“Effective Date”) until the end of the Distribution Period (“Term”).
- Distribution Services: Casetify will provide the Company with the distribution services for the product collection featuring the Colab Products (“Collaboration”), including the production, manufacturing and packaging of the Colab Products, the launch and sale of Colab Products via the Distribution Channels, delivery of the Colab Products and the relevant promotional, marketing and advertising activities (“Distribution Services”).
- Distribution Channel(s): Any (online or physical/offline) stores, shops and retail/distribution channels, which are owned or operated by Casetify or its authorized distributors (including, without limitation, Casetify’s websites and apps and pop-up stores) anywhere in the world (each, “Distribution Channel”).
- Distribution Period: The period set forth in the Term Sheet, commencing on the Launch Date (as set forth in the Term Sheet), until termination in accordance with terms and conditions of this Agreement (“Distribution Period”).
- Colab Product(s): Company and Artist will use the Designs on certain “CASETiFY” branded products, which will be sold under the Collaboration in accordance with terms and conditions of this Agreement (each, “Colab Product”).
- Marketing: Company and Artist will (a) provide and deliver to Casetify any materials created by or for Artist in connection with the Collaboration for Casetify’s promotion, marketing and advertising of the Colab Products or any other purpose in connection with the Distribution Services; (b) use reasonable efforts to promote the Colab Products through its own websites and social media networks (such as Facebook, Instagram, Tiktok, YouTube, etc) and any other applicable channels as the Artist thinks fit. Suggesting to include sharing posts (with content to be agreed with Casetify) during the Time Frame as set forth in the Term Sheet; and (c) provide Casetify with free access, without restriction, to promote the Colab Products through whitelisted and/or sponsored advertisings (“Sponsored Content'') on Artist’s social media networks/pages. Casetify will be responsible for payment of all Sponsored Content.
- Design(s): Artist’s certain designs that Company will use on the Colab Products for the Collaboration (each, “Design”). Company and Artist shall submit the Designs to Casetify for approval by the Design Submission Deadline set forth in the Term Sheet. For launching, sale and distribution of the Colab Products on Casetify’s Distribution Channel, each of Company and Artist hereby acknowledges and agrees that all the Designs and types of Colab Products (such as phone cases and other tech accessories) shall be subject to Casetify’s final approval and confirmation in writing or by email. Each of Company and Artist hereby represents, warrants and undertakes that the Designs (in whole or in part, also including the artworks/designs derived from, and/or substantially similar to, the Designs) have not been used, and shall not be used, by Company, the Artist or any other third party, on any non-Casetify branded phone cases and any other tech accessories, at any time prior to, throughout, and for the first six (6) months after, the Term.
- Copyright Protection: Company and Artist hereby authorizes Casetify (but not as an obligation) to do or take any action it seems fit to protect the copyright and any other intellectual property right in the Designs or to do any acts to counteract the piracy of the Designs. Company undertakes that it shall, upon execution of the Term Sheet, provide Casetify with the Authorization Letters (in the forms set forth in Appendix B (1) and Appendix B (2) attached to the Term Sheet) duly signed by each Artist.
- Artist Materials: Artist shall retain all rights in the Designs and any other intellectual property(ies) and materials provided for the Collaboration under the Agreement (“Artist Materials”). For the purpose of using Casetify’s Distribution Services, each of Company and Artist acknowledges and agrees to allow the Casetify to use the Artist’s name, photographs, images, likenesses, voices and biographical information, as approved by Artist, and the Artist Materials, in connection with the Collaboration. This clause shall survive termination or expiration of the Agreement.
- Casetify Materials: All materials provided by Casetify under the Agreement and Casetify Marks (collectively, “Casetify Materials”) shall remain at all times the property of Casetify. “Casetify Marks” shall mean any trade names, trademarks, logos and any other copyright materials from time to time owned, used, licensed or developed by or for Casetify.
- Net Residual Distribution: Company/Artist may check the outstanding amount of Net Residual Distribution, and request for payout through Casetify’s portal. Net Residual Distribution will be settled and paid once per month when the Company or Artist requests for a payout by the end of a month, the outstanding amounts up to the payout month will be transferred to the Company’s or Artist’s PayPal account registered with Casetify by the fifth (5th) day of the next month. Any failure by Company/Artist to provide accurate payment information or update any changes to the payment information may result in delays in payment. If Casetify makes a payment to an incorrect account due to Company’s/ Artist’s failure to provide accurate payment information, Casetify shall be deemed to have made such payment in full to Company and Artist. Casetify will not have any further obligation or responsibility towards the Company/Artist with regard to such payment. Company undertakes that, where necessary, it shall pay all amounts owed to Artist and any other relevant third party in connection with this Agreement or the Collaboration. Should there be any dispute between Company and Artist (or the relevant third party) regarding the amounts received from Casetify, Casetify shall not be held responsible or liable for Company, Artist (or the relevant third party) in any respect. If Casetify discovers, or reasonably suspects, that Company fails to pay all or any part of such amounts when due, notwithstanding any other provision of this Agreement, (a) such failure shall constitute Company’s material breach of this Agreement, and (b) without prejudice any other rights and remedies available to Casetify under this Agreement or at law, Casetify may, at its sole and reasonable discretion, but not as an obligation, split the applicable amounts and pay such amounts directly to Artist (or the relevant third party), with the net amount to be paid to Company. Casetify’s election to make such payment directly to Artist (or the relevant third party) will not constitute a waiver of Casetify’s right to exercise its termination right and any available remedies in connection with Company’s material breach. Each of Company and Artist is responsible for income tax and all other taxes imposed on them under applicable laws and arising as a result of or in connection with this Agreement or the transactions contemplated by this Agreement. “Net Residual Distribution” means Net Sales less all costs, charges and expenses in connection with the distribution of the Colab Products (including, but not limited to, manufacturing, production, packaging, shipping and delivery, online and offline retail, promotion, marketing and advertising, and any other related distribution and selling overheads, costs, expenses and charges), the net amount of which is set forth in the Term Sheet. “Net Sales” means the gross dollar amount billed and received by Casetify for Colab Products sold via Distribution Channels during the Term, less bona fide returns, allowances, and discounts. Net Sales shall not include sales to Company/Artist (if any).
- Sales to Company/Artist: Company or Artist may purchase the Colab Products from Casetify for gifting/reselling, provided that the purchase price, minimum ordering quantity and any other details shall be mutually agreed by the Parties in advance in writing.
- Confidentiality: This Agreement and its contents and all non-public information and materials provided and disclosed by a Party under this Agreement (“Confidential Information”) are confidential. Neither Party (for Company, including the Artist) shall disclose the disclosing Party’s Confidential Information to any third party without the disclosing Party’s consent. The confidentiality and non-disclosure obligations of this Agreement shall not apply if disclosure is required by a judicial or regulatory order or decree of governmental law or regulation, provided that the receiving Party shall provide the disclosing Party with prompt written notice to the extent possible so that the disclosing Party may seek an appropriate protective order.
- Representations, Warranties and Undertakings: Each Party hereby represents, warrants and undertakes that (a) it is free to enter into this Agreement without violation of any applicable laws or contractual obligations; and (b) it shall have the sole and exclusive ownership of all rights in the Artist Material/Casetify Materials (as the case may be) and all necessary right clearances, consents, permissions and image/appearance releases are obtained for the use of the Artist Materials/Casetify Materials (as the case may be) in this Collaboration without infringing third party’s intellectual property and other rights, or giving rise to a claim of slander or libel, or violation any contractual or confidentiality obligations or laws/regulations, or being considered as defamatory or obscene. For avoidance of doubt, Casetify’s approval of the Designs shall not be considered as, and shall not release Company’s and Artist’s obligations to ensure that the Designs comply with this sub-clause (b) above;; and (c) each Party (for Company, including the Artist) shall not engage in any conduct which would materially harm the other Party’s reputation or image, including, without limitation, any conduct which may bring the other Party into disrepute, make or cause or permit to be made any untrue, derogatory or misleading statement about the other Party, its brand and products, or expose the other Party, and its brand and products, to liability. Each of Company and Artist represents, warrants and undertakes that at any time throughout the Term and within the first six (6) months after the Term, there shall be no collaboration, endorsement, partnership, sponsorship arrangement or any other arrangement or cooperation in any nature with any third party which is similar to or is a competitor of Casetify’s business(es). Notwithstanding any other provisions in this Agreement, upon Casetify’s request, each of Company and Artist shall cease the use of Casetify Materials, including, but not limited to, removing and stopping the publishing/distribution/posting of any content which contains any Casetify Material. Company’s or Artist’s failure to comply with any of the above shall be considered as a material breach of this Agreement by Company and the Artist. This clause shall survive termination or expiration of this Agreement.
- Injunctive Relief and Indemnity: In addition to any other remedies at law or in equity that either Party may have, either Party shall be entitled to equitable relief, including injunctive relief or specific performance or both, to prevent or cure any breach of the Agreement by the other Party (for Company, including the Artist) without the posting of any bond or other security. Each Party agrees to indemnify and keep the other Party indemnified and harmless from and against all actions, claims, liabilities, losses, demands, costs and damages arising from or in connection with any breach of the Agreement by the indemnifying Party (for Company, including the Artist), subject to Section 19 below. This clause shall survive termination or expiration of the Agreement.
- Force Majeure: If the performance of this Agreement by a Party is prevented or delayed by a Force Majeure Event then that Party shall be excused from such performance to the extent that it is necessarily prevented or delayed thereby during the continuance of such Force Majeure Event, and the other Party shall also be released from its respective payment or other obligations under the Agreement unless and until the Party affected by the Force Majeure has resumed its relevant performance. “Force Majeure” means any event or cause not within the control of a Party affected by it and not caused by the wrongful act, neglect or default of that Party, including but not limited to act of God, endemic/pandemic, flood, earthquake, storm, fire, war, riot, rebellion, civil commotion, any act, order, direction or regulation of any government or any public, local or regulatory authority.
- Termination: Either Party may terminate the Agreement (a) with immediate prior written notice to the other Party in the event of any breach of the Agreement by the other Party (for Company, including the Artist); or (b) by 14-day prior written notice to the other Party if a Force Majeure event continues consecutively for more than 60 days. Casetify may terminate this Agreement by 30-day prior written notice to Company and/or Artist. If the Agreement is earlier terminated, any monies paid in advance will be calculated on a pro-rata basis based on the remaining period of the Term and shall be refunded to Casetify, provided, however that, if the termination is due to default or material breach of Company or Artist, Casetify may at its reasonable discretion request Company and Artist to immediately refund and return to Casetify the monies paid by Casetify under the Agreement. Nothing in this clause shall however prejudice Casetify from its rights and remedies under the Agreement or at law.
- Assignment: Unless with Casetify’s prior written approval, neither Company or Artist shall assign or transfer all or any part of the Agreement to any third party.
- Limitation of Liability: Notwithstanding any provision to the contrary, in any event (a) Casetify’s aggregate cumulative liability under the Agreement shall not exceed the total amount paid under the relevant Term Sheet, whether in contract or tort (including negligence or breach of statutory duty) or otherwise arising out of or in connection with the Agreement; and (b) Casetify shall not be liable to Company and Artist for any loss or suffering, including but not limited to any incidental, consequential, special or punitive damages or loss of profits, howsoever arising out of the Agreement.
- Non-union Agreement: This is a non-union Agreement. The Parties acknowledge and agree that the Agreement and all services and deliverables provided by Company or Artist hereunder shall not be subject to the terms of any collective bargaining agreement (e.g., SAG, AFTRA). Each of Company and Artist hereby acknowledges that Casetify is not a signatory to any collective bargaining agreement covering such services and deliverables.
- Notices: Any notice or other communication (“Notice”) given or made under this Agreement must be (a) to a Party’s last known address that the Party notifies the other Party from time to time during the Term; (b) in writing and signed by a person duly authorized by the sender; (c) delivered by prepaid post if local posting (and effective 2 days thereafter) or registered airmail if overseas posting (and effective 7 days thereafter) or by hand or courier (and effective when delivered); and (d) deemed as effective on next business day if its actual effective day of delivery is on a day which is not a business day or is later than 4pm in the place where the recipient is located. Notwithstanding the foregoing, Notice for ordinary operation and communication in connection with the Collaboration and payment arrangement could be given by email.
- Entire Agreement: The Agreement (including each Term Sheet and any other appendix(es) and schedule(s) attached thereto) supersedes all prior or contemporaneous agreements and understandings between the Parties regarding its subject matter. A person or entity which is not a party to the Agreement shall have no rights to enforce any term of the Agreement.
- Amendments, Severability and Relationship: No amendment to the Agreement will be valid unless confirmed in writing and signed by both Parties. Any provision of the Agreement that is unenforceable in a jurisdiction is ineffective as to that jurisdiction to the extent of the unenforceability, but that does not affect the validity or enforceability of that provision in any other jurisdiction nor invalidate the remaining provisions of the Agreement. The Agreement does not amount to any employment, partnership or agency relationship between the Parties.
- Electronic Signature: The Agreement may be executed in counterparts and/or via PDF and/or by using electronic signature, each of which shall be deemed an original, but all of which shall constitute the same Agreement, and shall be legally binding.
- Dispute Resolution: Any dispute between the Parties in connection with this Agreement, which the Parties fails to resolve within 30 days from notice thereof from the notifying Party, shall be submitted to arbitration in Hong Kong SAR under the auspices of the Hong Kong International Arbitration Centre (“HKIAC”) in accordance with the International Chamber of Commerce’s Rules of Arbitration (“ICC Arbitration Rules”) and the arbitration shall be conducted in the English language. The costs of any arbitration carried out pursuant to this paragraph shall be borne by the Party which HKIAC ruled against. Unless otherwise agreed between the Parties, the Parties agree not to commence any court proceedings in relation to the dispute until they have exhausted the arbitration channels of this clause and such arbitration has either terminated or failed. Nothing in this clause shall however prejudice either party from its rights and remedies under the Agreement or at law.
- Governing Law: The Agreement and the subject collaboration shall be governed by the laws of Hong Kong SAR (without giving effect to choice of law or conflict of law principles), and subject to Section 25 above, the Parties agree to submit to the exclusive jurisdiction of the courts of Hong Kong SAR, provided, however, notwithstanding the foregoing, each Party shall be entitled to the issuance of appropriate equitable relief regarding the other Party’s breach or alleged breach of this Agreement in any court of competent jurisdiction in any country in which such breach or alleged breach occurs.
*All content and texts of these Terms and Conditions are copyrighted works and may not be copied reproduced or appropriated, in whole or in part, in any manner without Casetify’s written permission.
