Allow for shipping delays due to COVID

Talent Partnership Agreement

STANDARD TERMS AND CONDITIONS

Part 1

1.     General

1.1   The Parties acknowledge, confirm and agree that terms and conditions in this document will incorporated by reference into the agreement between the Parties and shall constitute a full and binding legal agreement between the Parties. The definitions in these Standard Terms shall apply unless otherwise expressly agreed.

1.2   The Parties acknowledge and confirm that the Parties have read and agreed to all the terms and conditions in this Agreement.

2.     Definitions and Interpretation

2.1   The following definitions apply in this Agreement:

“Agreement”

means this agreement and any and all schedules and exhibits attached to it or incorporated in it by reference;

“Content”        

means the audio-visual content produced and developed by the Partner in relation to promoting the Goods and/or the E-Commerce Platform;

“Costs and Expenses”

means collectively, the Marketing Expenses and Production Costs;

“Subscription Fees” 

 The monthly recurring amount of money that is paid for services provided by FlashFomo as stipulated in the selected pricing plan corresponding with the amount of money for  features that are unlocked.

“E-Commerce”

means the process and practice of the sale and purchase of Goods through online consumer services hosted over the internet, and facilitated wholly though an electronic medium;

“E-Commerce Business”

means the business of creating, developing, operating, advertising and promoting https://www.flashfomo.com, including, without limitation, the solicitation and fulfilment of E-Commerce Purchases;

“E-Commerce Platform”

means “FlashFomo”, the official platform built, developed and hosted by FlashFomo designed for the facilitation of the E-Commerce Partnership Programme;

“E-Commerce Purchases”

means any orders placed by any end-consumer for any Goods sold directly or indirectly on the E-Commerce Platform;

“Force Majeure”

means any act beyond the control of the Parties which render the obligations arising under this Agreement impracticable or impossible to complete, including but not limited to:

(a)    an act of God, including fire, flood, earthquake, windstorm or other natural disaster;

(b)    act of any sovereign, including war, invasion, act of foreign enemies, hostilities (whether war be declared or not), rebellion, revolution, insurrection, military or usurped power or confiscation, nationalisation, requisition or destruction or damage to property by or under any order of any government, embargo, sanction or other similar action blockade;

(c)     labour disputes including strikes, lockouts or boycotts;

(d)    unscheduled and/or prolonged interruption or failure of utility service including electricity, gas, water or other essential services necessary for the fulfilment of the obligations arising hereunder;

(e)    failure of transportation of any personnel, equipment or machinery supply or material required for the performance of the Services; or

(f)     any other matter or cause beyond the reasonable control of the Parties;

“Goods”

means the products or merchandise developed jointly between the Partner and FlashFomo as part of the partnership programme for sale on the E-Commerce Platform;

“Marketing Expenses”

means all out-of-pocket costs, fees, expenses and payments involved in the commercialization of the Goods in the Territory, including, without limitation:

(a)   marketing, advertising, and promotional activities;

(b)   conducting marketing studies;

(c)   conducting primary and secondary market research; and

(d)   producing promotional materials.

“Media Platforms”

means the digital platforms principally offering audio and/or audio-visual sharing websites upon which Content is shared, stored and hosted, including but not limited to YouTube, Instagram, Facebook and other digital platforms as may be agreed by and between the parties from time to time;

“Net Revenue”

means the aggregate cash proceeds received in respect of all successful sales of Goods generated via the E-Commerce Platform within the Sale-period, after deduction of Recoupment;

“Partner Programme”

refers to a programme offered by FlashFomo to the Partner, where FlashFomo shall assist the Partner in creating, designing, manufacturing and selling a range of merchandise to be marketed as the Partner’s own line of products, via the E-Commerce Platform;

“Production Costs”

Means all out-of-pocket costs, fees, expenses and payments involved in the entire process from the initial development of the Goods, production of prototypes, sourcing and hiring of suitable manufacturers, production of all final Goods for sale, shipping costs and expenses involved in the running of and utilisation of the E-Commerce Platform, including any expenses incidental or ancillary thereto, including the payment of requisite taxes;

“Recoupment”

Means the clawback or recovery of the Costs and Expenses from the total revenue generated via the sale of Goods prior to distribution amongst the Parties; and

“Revenue Share Terms”

Means the percentage of the Net Revenue to be allocated between FlashFomo and the Partner, details of which are set out in item 5 of Key Terms of the Agreement;

“Sale-Period”

means the period agreed to between the Parties when a particular Goods, or collection of Goods shall be featured for sale on the E-Commerce Platform, subject always to the condition of sales and availability of the Goods.    

 

3. The following interpretations apply in this Agreement:


3.1
  Any reference in this Agreement to any statute or statutory provision order or regulation shall be construed as including a reference to that statute or statutory provision order or regulation as from time to time amended modified extended or re-enacted whether before or after the date of this Agreement and to all statutory instruments orders regulations and directives modifying or extending the same.

3.2   Unless the context otherwise requires words denoting the singular shall include the plural and vice versa and words denoting any one gender shall include all genders and words denoting persons shall include bodies corporate unincorporated associations partnerships and individuals.

3.3   Unless otherwise stated time shall be of the essence for the purpose of the performance of the Parties’ obligations pursuant to this Agreement. 

Part 2

Partner Programme

1.     Services

1.1   FlashFomo’s responsibilities

          FlashFomo shall be responsible to:

(a)   any and all duties related or ancillary to the running of the E-Commerce Business;

(b)   assisting the Partner in providing suggestions and advice regarding the designs and specifications for proposed products, viability of manufacture and saleability of the same;

(c)    sourcing suitable manufacturers to undertake the manufacturing process of the Goods;

(d)   creating and tailoring suitable marketing strategies to boost the sales of the Goods, including providing ideas or suggestions in relation to the creation of the Content;

(e)   building the store page featuring the Goods and submitting the same for the Partner’s approval, demonstrating the overall look and feel of the online store page prior to launching;

(f)    handling all E-Commerce Purchases, including pre-orders and store-launches;

(g)   performing comprehensive store-tracking duties throughout the Sale-Period, including use of a dedicated social-media team answering queries raised on all key social media regarding the Goods and the sale;

(h)   aligning and negotiating with the Partner on executing storewide discounts as and when necessary;

(i)    during the Sale-Period, providing full technical support to keep the store running;

(j)     providing timely comprehensive reviews and reports to the Partner regarding sales and providing suggestions to boost sales;

(k)   managing the Partner during all phases of the Partner Programme;

(l)     updating on technical issues or problems for urgent support; and

(m) handling all matter of logistics involved in the shipping of the Goods to end-consumers of successful purchases.

1.2   Mechanism of Partner Programme

(a)   The Partner Programme shall be broken down into six distinct phases to maximise its viability – Initial Recommendation, Product Scope Approval, Content Development and Scheduling, Store Launch and Store Closing.

(b)  Initial Recommendation – The Partner shall prepare detailed descriptions and ideas regarding the proposed product for sale, which upon approval, will be shortlisted for investment.

(c) Product Scope Approval – FlashFomo shall source suitable manufacturers to produce the proposed product and engage the Partner for final approval of this end-product.

(d) Content Development and Scheduling – Partner shall begin producing suitable Content, ideas and assets for the sale of the Goods on the E-Commerce Platform.

(e) Store Launch – Partner shall submit all store assets to FlashFomo at least two (2) weeks prior to launch. Once FlashFomo receives all suitable store-assets for both the pre-orders and the store launch, FlashFomo shall build the store page and share the same with the Partner for approval. The Partner must provide its approval or requests for amendment within 24 hours of receipt of request from FlashFomo.

(f) The store is launched by the Partner, permitting the audience to order the Goods.

(g) Store-launch phase will then activate.

(h) Store Closing - if either (i) the Goods run out of stock, (ii) no further sales are taking place and the Partner opts to halt all sales or (iii) the Sale-Period expires, the Store will come to an official close, and the Partner shall announce the same on the Media Platforms.

2.     Storewide Event and Targeted Sale Events

2.1   At certain selected times throughout the year, including but not limited to in anticipation of any gazetted holidays or nationwide / worldwide promotional campaign, FlashFomo may suggest that storewide sales be held, in which all products available for sale on the E-Commerce Platform at the time shall be sold at a discounted price.

2.2   Where such intention exists, FlashFomo shall communicate the same to the Partner, whose consent shall not be unreasonably withheld, and the Partner’s Goods featured on the E-Commerce Platform at the relevant time shall be offered for sale at the agreed discounted prices.

2.3   Where items had been sold pursuant to sales events, the discount shall be equally absorbed by the Parties, and the Net Revenue shall be calculated and distributed in the ordinary manner as stated above.

3.     Liquidation

3.1   If the stock has been pre-ordered and stocked at the Partners request to FlashFomo the daily average sales of any individual Goods falls below the agreed minimums of 500 units and that item has been marketed during the agreed Sale-Period, FlashFomo reserves the right to classify such Goods as a non-performing product and liquidate inventory by selling out all remaining stock of such Goods at a discounted rate. All discounts for such non-performing Goods shall initially be deducted from the Partner’s profit share.

4.     Calculation and Distribution of Sales Proceeds

4.1   FlashFomo shall collect all proceeds generated from successful sales at the point of Store Closing and shall bear the sole responsibility of calculating, disbursing and deducting from the same, all Costs and Expenses and taxes related to the sales.

4.2   FlashFomo shall render to the Partner on each Account Date a statement of account relating to the Net Revenue generated during the Sale-Period and accompanied by the payment of amount in the sum equivalent to the rate set out in item 5 of Key Terms 1 indicated to be owing by such statement, in the manner described in item 6 of Key Terms.

4.3   FlashFomo shall have the right to deduct from the Net Revenue, any sums due from the Partner under Clause 4 and any other monies owed by the Partner to the Company inclusive of ongoing subscription fees.

4.4   Where the Net Revenue should be negative after deduction of all Production Costs, neither Party shall be entitled to receive any proceeds generated.

4.5   In the event FlashFomo and the Partner jointly agree to sell the Goods to a third party (including but not limited to a retailer), FlashFomo and the Partner shall be entitled to the allotted percentage of the sale price or profits of such sale. 

4.5   The Parties agree to adopt the United States Dollar (USD) as the currency of account for all sums due under this Agreement.

Part 3

Partner’s Responsibilities

1.     Responsibilities

1.1   Under the Partner Programme, the Partner shall endorse a line of Goods produced in collaboration with FlashFomo which shall be sold exclusively on the E-Commerce Platform.

1.2   Each Goods marketed hereunder shall be designed or approved by the Partner and the Partner shall be granted the right to name such Goods or collection of Goods as the Partner’s own brand of merchandise, subject to approval by FlashFomo on a case-by-case basis.

1.3   Throughout the Term, the Partner shall:

(a)   dedicated reasonable time and effort into properly researching, gathering information and formulating viable merchandising ideas to be marketed as part of the programme;

(b)   pitch and prepare product-specification information, including a detailed description of the proposed merchandise, estimated quantities suitable for marketing;

(c)   collaborate with FlashFomo to co-create and design (including providing proper specifications and suggestions for colours, shapes, sizes and all other aspects of the proposed product, including its final design) geared to suit the preferences of the Partner’s audience in general;

(d) provide timely reviews, approvals or rejections of the designs and ideas for Goods produced or proposed by FlashFomo from time to time;

(e)      once product has been accepted for the programme, meet with selected manufacturers sourced by FlashFomo to discuss the manufacturing of the Goods for retail;

(f)    once Goods have been accepted for manufacture, participate actively and diligently in promoting the product, and funneling the Partner’s audience to the E-Commerce Platform for the purpose of purchasing the Goods, including but limited to producing Content for the purposes of making announcements on the Media Platforms regarding the launching of the Goods, making announcements regarding the status of sales (goods selling fast, etc.), producing and broadcasting “thank you” announcements and inviting greater audience participation – specifications of each of the required Content shall be delivered to the Partner on a case by case basis, depending on marketing necessity; and

(g)   create suitable “store assets” including but not limited to product-shots, product introduction videos, product text descriptions and final price points, in accordance with FlashFomo’s advice and recommendations and the deadlines set to ensure the smooth execution of the Sale-Period.

1.4   The Partner shall attend all required internal and external meeting as may be advised by FlashFomo.

1.5   The Partner agrees to actively assist in the marketing, design, promotion and distribution of the Goods, including production of all Content, as specified above, as well as, where necessary, making public appearances and interviews, subject to the Partner’s reasonable professional availability which will not be unreasonably disagreed to.

1.6   The Partner undertakes to commit to actively promote the Goods on the Partner’s official social media accounts.

1.7   The Partner shall give full commitment and cooperation to FlashFomo for the co-production projects undertaken under the programme. For the avoidance of doubt, nothing herein contained shall be deemed to limit or restrict the Partner from endorsing, promoting, selling or distributing any products or merchandise which are sold by any online or retail stores operated by third-parties, in which the Partner had no part in the design or creation thereof, and which are not branded, marketed or sold as being part of the Partner’s line or brand of merchandise.

2.     Ownership of Designs of Goods

2.1   The Partner agrees that ownership of designs relating to the Goods, including those created by the Partner during its participation in the Partner Programme shall vest in each of the Parties in equal 50% shares for the entire duration of copyright, design rights or other intellectual property rights subsisting in the same, inclusive of all renewals, revivals and revisions.

2.2   The Parties agree, however, that they shall each use the designs solely in relation to the marketing of the same under the Partner Programme and the sale of the Goods in accordance with the terms set forth in this Agreement, unless otherwise first agreed to by the other Party.

2.3   In the event the Partner or FlashFomo terminates this Contract by mutual agreement in accordance with Part 4, clause 2.4, the Partner or FlashFomo (as the case may be who is selling their interest in the Goods) must sign all documents and do all things necessary to transfer or assign their 50% share of ownership of designs relating to the Goods (including, but not limited to rights to copyright, design rights and intellectual property rights) to the other party. Valuation by independent valuer shall be binding on both parties.

3.     Grant of rights

3.1   The Partner grants to FlashFomo:

(a) subject to the terms in Schedule 1, a royalty-free license for use of the Content and authorizes FlashFomo to distribute exploit the Content in any reasonable manner as FlashFomo in its sole opinion and discretion considers necessary and appropriate in the Territory during the Term, including without limitation to store, host, publish, display, transmit, modify and make available the Content on the Media Platforms and on the E-Commerce Platform in the Territory during the Term; and

(b)   a non-exclusive, perpetual (surviving termination or expiry for any reason), royalty free and worldwide right and license to use all its means any images, artwork, brands, trademarks, trade names, designs, logos, copyrighted materials of the Partner pertaining to the Content, including but not limited to combining the same with the whole or any part of any other work to any extent that FlashFomo may desire, for the purpose of promotion of FlashFomo’s business;

(c)   a non-exclusive, perpetual (surviving termination or expiry for any reason), royalty-free, transferable right and licence to (a) use and exploit (including but not limited to altering, changing, revising, deleting from, adding to, and/or rearranging) the whole or any excerpt, clip or still image from the Content (b) editing, dubbing and/or subtitling the Content including but not limited to combining the same with the whole or any part of any other work to any extent that FlashFomo may desire, for the purpose of promotion of FlashFomo’s business;

(d)  a non-exclusive, royalty free and worldwide right and license to use the Partner’s name, sobriquet, autograph, likeness, photograph, portrait, caricature, silhouette, and voice in connection with the Content or any part of it and/or in connection with any exploitation of the Content in connection with the Goods provided that the Partner shall not be depicted as endorsing any commercial product publicised independently of the Content where such product is not featured as a special element in the Content.

(Collectively, “Rights”)

4.     Liquidated damages for Failure to Perform Obligations

4.1   In the event that the Partner fails to market the Goods in accordance with the content plan agreed by the Partner and FlashFomo and the daily average sales of any individual Goods falls below the fixed amount agreed by the parties in the agreed content plan during the Sale-Period, the Partner agrees that it shall be liable to FlashFomo, without any demand or prior notice, for liquidated damages in a sum equivalent to fifty per cent (50%) of the difference between the Net Revenue and the Cost and Expenses. 

5.     Exclusivity

5.1   The Partner agrees, throughout the Term, that it shall not cooperate with, assist in, license to, render any services to, nor authorise the use of the Content, directly or indirectly, to develop or manufacture, distribute, sell, promote, endorse, market or advertise any personalised merchandise or collection thereof other than the Goods produced under the Programme.

5.2   Where any unauthorised third-party’s use of the Partner’s name and/or likeness in connection with any such products or merchandise, including those strikingly similar to the Goods, comes to the attention of the Parties, the Partner agrees to cooperate and to provide to FlashFomo reasonable assistance in ceasing all such unauthorised use, endorsements or promotions.

5.3   For the avoidance of doubt, nothing herein contained shall restrict the Partner’s right to wear or showcase any products or merchandise of any type included within the Goods, either alone or in conjunction with the Partner showcasing the Goods themselves, so long as no agreement exists between the Partner and any third-party which detracts from or impinges the rights of FlashFomo as granted hereunder.

6.     Representations and Warranties

6.1   Partners Representations and Warranties

The Partner, as a material inducement to FlashFomo entering into and performing this Agreement irrevocably warrants, agrees and undertakes with FlashFomo that:

(a)   the Partner has the right to enter into and perform this Agreement and grant to FlashFomo all of the Rights and the Partner has not entered into and shall not enter into any arrangement or do any act or thing which would cut down, inhibit, restrict or impair the free and unrestricted exercise by FlashFomo of the Rights;

(b)   the Partner controls, and throughout the Term, shall control on an absolute, unencumbered basis as the legal and beneficial owner all rights necessary to grant to FlashFomo the Rights granted in this Agreement;

(c)    nothing contained in the Content is obscene, libellous, blasphemous or defamatory;

(d)   the exercise by FlashFomo of the Rights shall not infringe any rights of copyright, moral rights, performers’ rights, right of privacy, right of publicity or other right whatever of any third party;

(e)   FlashFomo shall not incur any liability whatever in connection with the exploitation by FlashFomo of the Rights except as expressly provided by this Agreement;

(f)    the execution and delivery of this Agreement by the Partner and the performance of the obligations hereunder do not and will not conflict with or result in a breach of or a default under any other agreement (including any endorsement agreement), instrument, order, law or regulation by which the Partner may be bound;

(g)   this Agreement has been duly and validly executed and delivered by the Partner and constitutes a valid and legally binding obligation, enforceable in accordance with its terms; and

(h)   all designs (including in terms of specifications for colours, shapes, sizes and other aspects) provided by the Partner for the Goods does not infringe any patent, trademark, service mark, copyright or other right of any other person.

6.2   The Partner acknowledges and agrees that FlashFomo makes no warranty, expressed or implied, as to the degree of success to be achieved by reason of the marketing of the Goods on the E-Commerce Platform, nor shall the Partner seek to hold FlashFomo liable with respect thereto. FlashFomo has not made, and does not hereby make, any representation or warranty with respect to the level of sales and revenue to be derived as a result of the marketing of the Goods. FlashFomo recognises and acknowledges that the level of the revenue from the sales is purely speculative. Therefore, the Partner agrees that it shall not make any claim, nor shall it seeks to impose any liability upon FlashFomo based on any claim that more sales, revenue or exposure could have been obtained or better business terms or business opportunities could have been obtained.

6.3   Further, FlashFomo makes no guarantee, warranty or undertaking in relation to the accessibility or running of the E-Commerce Platform. Though every reasonable endeavour shall be applied to ensure smooth E-Commerce Business activities, FlashFomo hereby expressly acknowledges that the E-Commerce Platform is provided for use on an “as is, where is” basis only and the Partner’s remedies for any and all claims relating to the “downtime” of the same shall be limited solely for corresponding extensions being granted to the Sale-Period.

6.4   The Parties further agree and acknowledge that FlashFomo  and/or its affiliates, subject to its obligations and the restrictions contained herein, may manufacture, market, distribute, and/or sell similar or different, possibly competitive products as part of collaborations with other Creators, utilising the same marketing channel and mechanism described above.

6.5   Should there be any breach of the warranties set in this Agreement by the either Party, the other Party shall have the right to, at its sole option, to terminate this Agreement with immediate effect without penalty.

7.     Indemnification and Limitation of Liability

7.1   The Parties undertake to indemnify each other and keep each other at all times fully indemnified from and against all actions, proceedings, claims, demands, costs (including without prejudice to the generality of this provision the legal costs of the non-defaulting Party on a solicitor and own client basis) awards and damages caused by the defaulting Party to be suffered by the non-defaulting Party, however arising directly or indirectly or in any way associated with:

(a)   the development, production and sale of the Goods in the manner specified above;

(b)   the Content or the use of Content;

(c)    either Parties’ breach of representations and warranties or failure to fulfil its obligations; or

(d)   negligence wilful intentional action, omission to act, wrongful act in breach of any law or other obligation of any kind of either Party or any persons acting for and on behalf of such Party.

7.2   FlashFomo shall have the right at any time to set off any amount owed by the Partner to FlashFomo.

7.3   Under no circumstances and in no event shall either Party be liable to the other for direct indirect, consequential, exemplary, special, punitive damages or loss of revenue in any amount arising out of performing its obligations provided, where such loss or damage cannot be attributable to any fault or default or the other Party.

Part 4

Standard Terms

1. Force majeure

1.1   FlashFomo shall not be liable to the Partner for any failure to supply or procure the supply of the features under Schedule 2 as a result of any circumstance beyond the control of FlashFomo and FlashFomo shall not incur any liability for any expenses or losses direct or consequential or otherwise whatever which may be suffered by the Partner.

2.     Termination

2.1   By the Partner

Termination by Default: The Partner shall be entitled to terminate this Agreement by giving to FlashFomo notice in writing of such intention for termination if:

(a)   FlashFomo fails to pay any amount due under this Agreement in full within 14 days of its due date and such failure is not remedied within 14 days of receipt of written notice; and

(b)   FlashFomo shall abandon or announce that it intends to abandon the E-Commerce Business.

2.2   By FlashFomo

Termination by Default: FlashFomo shall be entitled to terminate this Agreement by giving the Partner notice in writing of such intention for termination if any of the Partner’s representations shall prove to have been incorrect when made or become materially incorrect and FlashFomo’s rights and entitlements under this Agreement are materially and adversely affected.

2.3   By Either Party

(a)   Termination by Default: Where either Party (in this clause referred to as “the Party in default”):

(i) for any reason whatever suspends its performance of all or any part of the obligations; or

(ii) fails to proceed regularly and diligently to perform its obligations; or

(iii)  shall go into liquidation whether compulsory or voluntary (except for the purposes of a bona fide reconstruction or amalgamation with the consent of the other Party to this agreement such consent not to be unreasonably withheld); or

(iv)  shall have an administrator, administrative receiver or receiver appointed over any part of its assets or undertaking,

(b)   then the other Party (in this clause “the Party giving notice”) may give but shall not be obliged to give a notice to the Party in default specifying the default. If the Party in default shall continue such default for fourteen (14) days (or such other period as may be agreed between the Parties) or shall at any time thereafter repeat such default, then without prejudice to any other rights of the Parties the Party giving notice may by notice immediately determine this agreement.

2.4   Termination by Mutual Agreement and Buy Out:

(a)   Either party may propose to terminate this Agreement by mutual agreement by written notice to the Partner on terms requiring:

(i)    FlashFomo to purchase the Partner’s ownership and interest in the Goods (including all Rights in relation to the Goods) for a nominated price, or pursuant to a valuation to be conducted by an independent valuer;

(ii)   the Partner to purchase FlashFomo’s ownership and interest in the Goods (including all Rights in relation to the Goods) for a nominated price, or pursuant to a valuation to be conducted by an independent valuer.

(b)   The party receiving the written notice referred to in paragraph 2.4(a) may at its sole discretion accept, reject or make a counter offer in response to the said notice within 14 days from the date of receipt of the said notice.  

(c)    If a party wishes to accept the offer (or counter offer, as the case may be) to mutually terminate this Agreement and to accept a buy-out, such acceptance must be in writing, and the terms of the agreement to mutually terminate this Agreement buy-out shall be immediately binding and enforceable on the parties.  If a party fails to respond to the said notice, such failure shall not be deemed to be acceptance of the offer contained in the notice.

(d)   If the parties agree to a valuation, but are unable to agree on the identity of an independent valuer to undertake the valuation, the parties may appoint the Resolution Institute in Victoria to appoint a valuer for the purposes of conducting the valuation.

(e)   The parties agree that any valuation shall take into account, among other things, (1) the value of goodwill of the brand (design, sourcing products, and e-commerce platforms), (2) the value of stock or inventory.

(f)    The parties shall act in good faith and in accordance with the reasonable directions of the valuer.

(g)   The parties shall be entitled to make submissions to the valuer for the purposes of the valuation.

(h)   The parties will agree to share the cost of the valuation equally.

3.     Effect of Termination

3.1   Upon termination of this Agreement, FlashFomo shall pay to the Partner any outstanding sum already accrued as at the date of termination, fourteen (14) days from the date of termination, and liquidation sales shall then take place.

3.2   While the Partner shall not be expected to perform any further obligations under this Agreement, including the production of any additional Content, the Partner shall not be entitled to retract the Rights granted to FlashFomo in relation to any Content already delivered to or distributed by or otherwise published by FlashFomo while this Agreement was in full force and effect for any reason whatsoever; neither shall the Partner retrospectively object to the use or featuring of the Content for the purposes of concluding the sales of the available Goods.

3.3 Upon termination of this Agreement, the Partner agrees to assign, and take all necessary actions to effect that assignment, of its 50% ownership of designs relating to the Goods, including those created by the Partner during its participation in the Partner Programme, to the Company.

4.     Assignment

4.1   The Partner shall not be entitled to assign this agreement or any of his rights and obligations under it except with the approval in writing of FlashFomo and on terms that the assignee shall covenant with that other Party to perform all the obligations of the assignor under this agreement.

4.2   FlashFomo shall have the right to sub-licence or sell the whole of its Rights provided its obligations to the Partner shall not be relieved.

5.     Tax

FlashFomo shall be entitled to deduct from the net revenue generated, prior to subdivision of the remaining sum in accordance to Item 5 of Key Terms for onward remittance to the Partner, any and all remittance, withholding and similar taxes in connection with the remittance of any money due to the Partner.

6.     Notice

6.1   Any notice required or authorised to be given by either Party under this Agreement to the other Party shall be in writing and shall be sent by recorded delivery post or electronic mail to the other Party at the address as may be specified by the Parties by notice to the other from time to time.

6.2   Any such notice shall operate and be deemed to have been served shall be deemed to have been received by the addressee within 48 hours of posting to the address of the addressee or within 24 hours if sent by electronic mail to the correct electronic mail address of the addressee.

7.     Dispute Resolution

7.1   The Parties shall make a good faith attempt to resolve any and all claims and disputes by submitting them to mediation in Australian Disputes Centre (“ADC”) before resorting to arbitration or any other dispute resolution procedure. The mediation of any claim or dispute must be conducted in accordance with the then-current ADC procedures for the resolution of disputes by mediation. If the Parties fail to agree with the appointment of a mediator, then the mediator will be selected by the director of ADC.

7.2   If the Parties fails to resolve such claims and disputes via mediation, such claims and disputes shall be referred to and finally resolved by arbitration administered by the Australian Centre for International Commercial Arbitration (“ACICA”) in accordance with the Arbitration Rules of the ACICA for the time being in force, which rules are deemed to be incorporated by reference in this clause.

7.3   The number of arbitrators shall be one person; or in the event the Parties fail to agree with the appointment of such arbitrator, then the arbitrator will be selected by the director of Australian Centre for International Commercial Arbitration.

7.4   The seat of arbitration shall be Australia.

7.5   The language to be used in the arbitral proceedings shall be English.

8.     Confidentiality

8.1   The Parties to this agreement will at all times keep confidential information acquired in consequence of this agreement, except for information which they may be entitled or bound to disclose under compulsion of law or where requested by regulatory agencies or to their professional advisers where reasonably necessary for the performance of their professional services.

9.      Survival

9.1   The following clauses shall survive expiry or termination of this agreement:

(a)   Clause 6 (Notice);

(b)   Clause 7 (Dispute Resolution); and

(c)    Clause 8 (Confidentiality).

10.      Miscellaneous

10.1 Severance If any provision of this Agreement shall be prohibited by or adjudged by a court to be unlawful void or unenforceable such provision shall to the extent required be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement and shall not in any way affect any other circumstances or the validity or enforcement of this Agreement.

10.2    Whole Agreement

Save as otherwise provided in this Agreement, this Agreement contains the full and complete understanding between the Parties and supersedes all prior arrangements and understandings whether written or oral appertaining to the subject matter of this Agreement and may not be varied except by an instrument in writing signed by all of the Parties to this Agreement.

10.3  Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of Victoria, Australia and the Parties irrevocable submit to the non-exclusive jurisdiction of the courts of State of Victoria, Australia.

10.4  No Waiver

No failure or delay on the part of any of the Parties to this Agreement relating to the exercise of any right power privilege or remedy provided under this Agreement shall operate as a waiver of such right power privilege or remedy or as a waiver of any preceding or succeeding breach by the other Party to this Agreement nor shall any single or partial exercise of any right power privilege or remedy preclude any other or further exercise of such or any other right power privilege or remedy provided in this Agreement all of which are several and cumulative and are not exclusive of each other or of any other rights or remedies otherwise available to a Party at law or in equity.

10.5  No Partnership

This Agreement shall not be deemed to constitute a partnership or joint venture or contract of employment between the Parties.

10.6  Counterparts

 This Agreement may be executed in one or more parts by the Parties on separate counterpart each of which when so executed by any Party shall be an original but all executed counterpart shall together when delivered constitute but one agreement.

English
x