Licensing Agreement
lookmodelsearch
concluded between
Look Event Management GmbH [Co. Ltd.]
Company Register No. FN 78297 v,
Vienna Commercial Court Register
Xxxxxxxxxxxxx 0, X-0000 Xxxxxx,
represented by Xxxxxxx Xxxxxxx,
hereinafter referred to in short as Look,
on the one hand, and
(Company).......................
(Registration number, Register Court)..........
(Address).........................
represented by....................., CEO,
hereinafter referred to in short as "--"
on the other hand,
as follows:
Preamble
1. Look operates a renowned and internatinally active model agency and, in
addition, organizes an international competition for young, upcoming models in
various countries, called Look Model Search, the finale of which takes place
once annually in .... (place). The participants in this competition qualify in
each national elimination round for the international finale.
2. The competition's purpose and objective is to provide young talents the
opportunity to have an international modelling career and to refer this
contracts with internationally renowned model agencies. Thus, the winners of
this competition are presented with the chance of obtaining modelling
assignments for a specified minimum contractual sum.
3. Look is the owner of the trademark words LOOK MODEL SEARCH registered
with the Austrian Patent Office for the goods/service classes 3, 35, 41 and 42,
reg. no. 188, 177, patent protection commencement May 3, 2000 (hereinafter
referred to in short as the Trademark).
4. ........... operates an events agency with head offices in ............
(place), and has at his disposal comprehensive knowledge and experience in the
area of organizing PR and advertising events, and model competitions, etc.
............ fulfils all the legal, commercial, financial and technical
prerequisites necessary for the due and proper presentation of a competition for
young, upcoming models.
5. ..........is interested in organizing and implementing the national
elimination round of the Look Model Search (hereinafter referred to in short as
the Event) in ............ (place) for the international finale, availing
himself of the Trademark, as well as Look's know-how and experience. ...... is
aware that the Event is organized uniformly world-wide, especially in terms of
its image, and is equal to the most stringent standards, in particular as
regards seriousness, reputation, prestige and image.
6. Based on the above pre-assumption, the contractual partners shall
conclude this Agreement.
1.
Subject of Agreement
1. The subject of this Agreement shall be the authorisation of .........
with the organization and implementation of the Event in .......... (country)
and the granting of usage rights to the Trademark for this purpose.
2. Paragraphs 4 and 5 of the Preamble shall const9tute a commercial basis
for this Agreement.
2.
Look Model Search Event
1. Pursuant to the provisions set out in this Agreement, Look shall
commission ........ with the organization and implementation of the competition
for young, upcoming models entitled Look Model Search (the Event) in
.......(country)..........in the year ............. . ............ shall declare
his acceptance of the commission pursuant to the provisions set out therein.
2. ........ shall also be entitled to implement the Look Model Search
competition for young, upcoming models (the Event) in
.......(country)..........in the year following that set out in Clause 2.1. of
this Agreement, unless ................ declares vis-a-vis Look that he will not
implement the Event by no later than thirty days prior to the December 31st of
the event-year established in Clause 2.1. of this Agreement.
3. The event's finale (national finale) shall take place on ..... (date)
during the period between .......and ........... of each year in .........
(place).
4. The Event must in every case meet the requirements stipulated in Annex 1
(Look Guidelines).
5. As promoter,.... shall be responsible in his own name and to his own
account for the following in particular:
a) selection and rental of a suitable locale and/or premises for the
Event;
b) selection of the Event's date; c) planning and coordination of the
Event's progress: preparation of a framework program; d) application
for any and all official licenses: cooperative work with local
authorities; e) security: f) organization of advertising, sponsoring,
merchandising, PR and media handling, media reporting; g) special
guests, VIPs; h) selection and composition of the jury (cf. Clause
10.6) i) selection of participants (cf. Clause 10.6) j)
transportation, food and lodging for the participants
3.
Personal Service Obligation
1. In general,.............. shall be obligated to perform the services
forming the subject of this Agreement personally.
2. However, ............ shall be entitled to avail himself of
correspondingly suitable and qualified third parties (vicarious agents) for the
performance of parts of the services forming the subject of this Agreement.
However, this entitlement shall be subject to the reservation that
............... inform Look thereof in each individual case, in writing and in
advance. Look shall be entitled to refuse the commissioning of vicarious agents,
should there be important grounds therefor.
3. Should Look refuse the commissioning of vicarious agents on important
grounds, .......... shall be obligated to refrain from commissioning such
vicarious agents. ............ shall be liable in every case for the comportment
of vicarious agents in the sense of Art. 1313a of the [Austrian] Civil Code, to
the same extent that he shall be liable for his own comportment. Furthermore,
........ shall undertake to select vicarious agents with care.
4.
Commercial Protective Rights, License
1. ........... shall acknowledge Look's exclusive and unrestricted rights
to the designation Look Model Search, in particular but not exclusively that to
designate perfume-shop merchandise, personal hygiene and beauty-care products,
advertising, public relations work, entertainment, especially the organization
of entertainment events and services in fashion and jewellery design.
2. Exclusively for purposes of implementing the organization of the Event,
Look shall grant .......... the authorization (license) to exploit and use the
Trademark. This license is limited in rem to the implementation and organization
of the Event, geographically to .......... (country) and, in time, to the
duration of this Agreement, however no longer than the time when the Event
concludes. The license is of a most highly personal character and is not
transferable.
3. The Trademark may only be used for purposes of implementation and
organization of the Event for announcements, event instructions, invitations,
etc., following separate prior approval by Look in each individual case.
4. ......... shall not be authorized to use the Trademark for purposes of
whatever kind other than those set out in this Agreement. ........... Without
Look's prior written consent in every individual case, ......... shall refrain
world-wide from granting rights on the Trademark of any kind to third parties.
In addition, within and without .............. (country), ............ shall
refrain from using symbols which are completely or partially identical to the
Trademark or which are similar enough thereto to be confused therewith, in
particular such as may contain the word component(s) Look and/or Model Search,
even for the purposes of designating goods or services of whatever class, in
particular but not exclusively for the designation of perfume merchandise,
personal hygiene and beauty-care products, advertising, public relations work,
entertainment, especially the organization of entertainment events and services
in fashion and jewellery design. Within and without the contractual territory,
........... shall additionally refrain to register or cause to be registered
protective rights, such as trademarks or domain names which are wholly or
partially identical to those trademark rights of Look, in particular the
Trademark, or are similar enough thereto to be confused therewith, especially
those which contain the word component(s) Look and/or Model Search.
5................. shall be obligated to use the Trademark only within the
framework of this Agreement and in compliance with Look's
instructions..........shall be obligated to refrain from any measures or actions
which could be of detriment to Look's image and good reputation, and to make
every effort to...
5.
Prosecution and Defence of Protective Rights
1. .............. shall inform Look without delay of any infringements on
the rights to the Trademark or other of Look's protective rights. Infringements
shall in particular consist in any type of imitation, independent use or
deposition of the registration as a trademark, or independent use or deposition
of the registration as a domain via third parties, as well any circulation or
offer for sale of goods or services to which the Trademark or confusably similar
symbols have been affixed by third parties.
2. ................ and Look shall reciprocally undertake to support each
other reasonably in cases of prosecution or defence of their rights to the
Trademark in each instance. Claims for financial support shall not be founded
thereby.
3. The conclusion of composition or other agreements which could
detrimentally affect Look's rights to the Trademark shall require Look's prior
written consent thereto in each case.
6.
Selection of Participants
1. A minimum of 12 participants should take part in the Event. For this
purpose and at his own risk and expense, .............. shall implement a
selection of participants in the form of at least ............... castings in
...... (country) at a time sufficiently in advance of the Event.
2. The participants must in every case fulfil the prerequisites set out in
Annex 2 (Look Guidelines for Participants).
3. .........shall ensure that each participant signs a Participation
Agreement according to the draft in Annex. . . and that the consent thereto of
legal guardians and/or competent authorities (e.g. curatorship court) has been
obtained.
4. .............. shall prepare a personal data sheet in accordance with
Annex .... for each participant in the castings and submit said sheets to Look.
Look shall decide upon which candidates will take part in the Event.
7.
Selection of the Jury
1. The winner of the Event shall be entitled to participate in the
international finale. She will be selected by a jury consisting of........
(number) persons.
2. The members of the jury (who must in every case meet the requirements
set out in Annex 1, Look Guidelines) shall be appointed following express
separate approval by Look for each jury member.
3. Look shall be entitled to appoint the xxxxxxx of the jury, who shall
hold a veto right when decision is rendered. Furthermore, Look shall be entitled
to be represented on the jury by a minimum of two members.
8.
Sponsoring
1. ............... shall be entitled, in his own name and to his own
account, to conclude sponsoring agreements with third parties for purposes of
financially supporting the Event. However, when selecting sponsors, ...........
shall ensure that Look's image and good reputation, as well as that of the Event
itself, are in no wise detrimentally affected, and that the conclusion and
content of the sponsoring agreements does not infringe legal stipulations,
public morality or the Event's reputation.
2. However, ............. shall inform Look in advance of each case of
conclusion of a sponsoring agreement, name the sponsor to Look and submit the
sponsoring agreement to be concluded. Look shall be entitled to reject the
conclusion of a sponsoring agreement should there be important grounds therefor.
Should Look reject the conclusion of a sponsoring agreement on important
grounds, .............shall be obligated to desist from concluding said
sponsoring agreement.
3. ........ shall be entitled to grant sponsors the right to designate
themselves Official Sponsors of the Event.
4. Look shall be entitled to name sponsors who support the Event in any
manner whatever............... shall undertake to grant these sponsors the
rights and marketing options named by Look.
9.
Cooperation / Reporting
1. The contractual partners are aware that the organization and
implementation of the Event requires cooperative work in a spirit of trust.
Therefore, the contractual partners shall cooperate closely and mutually support
each other to the extent of their powers upon the performance of the services
forming the subject of this Agreement.
2. .............. shall be obligated to undertake all steps and measures to
assure the smooth and timely progress of the Event. If desired and to the extent
available, Look shall provide............documentation, data and information
necessary or useful for the fulfilment of duties assigned to................ .
3. The contractual partners shall inform each other of any and all problems
and difficulties arising during the fulfilment of the obligations set out in
this Agreement and shall take suitable action for the remedy thereof.
10.
...........'s Rights and Obligations
1. ...............shall safeguard Look's interests to the best of his
ability and fulfil the duties he is to perform with the due diligence of a
prudent businessman.
2. For the duration of this Agreement, ............... shall refrain from
implementing, organizing or otherwise supporting competing events, either in his
own name or on behalf of others, either to his own account or to that of others.
3. ............ shall undertake the best possible efforts to market the
Event optimally. ............ Following Look's consent in each case,
............ shall take comprehensive advertising, PR and marketing action, in
order to promote the Event correspondingly in ................ (country), in
particular in such media as the press, television, etc. (cf. Annex . . . .,
Marketing Plan).
4. ............. shall put together a press portfolio and submit it to
Look, in which all reports on the Event have been compiled.
5. ..............shall undertake to comply strictly with Look's regulations
and instructions during the organization and implementation of the Event. It
must especially be assured that, with regard to the professional level, that the
universally uniform standards are assured.
6. .......... shall be obligated to obtain Look's prior consent to the
following:
o selection of the jury
o selection of the Event's location
o selection of sponsors and conclusion of agreements with them
o selection of participants.
11.
Exclusivity
1. The authorisation of ............. with the organization and
implementation of the Event in accordance with Clause 2 of this Agreement shall
be exclusive.
2. Therefore, for the duration of this Agreement, Look shall refrain from
entrusting third parties with the organization and implementation of the Event
in .......... (country), and from granting usage rights on the Trademark to
third parties for this purpose.
12.
Guarantee / Liability
1. Look shall assume no guarantee for a specific profit, a specific sale or
other usability of the Event or the Trademark; ............... shall bear the
risk in this case exclusively.
2. The commercial risk of the Event shall be borne exclusively by ....... .
Therefore, with regard to any and all claims asserted by participants or third
parties on whatever legal basis, in particular claims for damages (tortious or
contractual), product liability, fulfilment, poor fulfilment and/or guarantee in
any respect, inclusive of the costs of contesting such claims and interest
charges, ............ shall indemnify Look entirely,
3. Should claims be asserted against Look in the sense of the foregoing
paragraph, .......... shall inform Look thereof without delay. In such a case,
............... shall support Look in every regard in the contestation of such
claims.
4. In addition, any and all liability on the part of Look for lost profit,
damage resulting from deficiencies and third-party damage shall be precluded,
and any and all liability on the part of Look shall be limited in amount to ATS
0,00 .
13.
Insurance
1. At his own risk and expense, ............. shall be obligated to take
out an insurance policy of sufficient scope with an insurance company of
excellent standing and maintain such policy for the duration of the Agreement;
the policy must cover the risk of cancellation or interruption of an Event,
inclusive of lost profit for whatever reason, but in particular due to natural
occurrences of every kind, including fire, bad weather, earthquakes and
precipitation, as well as theft, technical defects, strikes and other
circumstances which could entail cancellation or interruption of an Event.
2. .............. shall hereby irrevocably assign to Look all claims to
which he is entitled in connection with the insurance relationship to be
concluded with the insurer. ............. shall undertake all measures which may
be necessary for the effectiveness and execution of the assignment to be
concluded, such as in particular informing the insurer thereof.
3. At Look's request,........... shall be obligated to evidence the correct
maintenance of the insurance relationship and, for this purpose, to provide the
corresponding documentation (e.g. the insurance policy) in particular.
14.
Care, Referral and Marketing of Participants
1. Look shall be exclusively responsible for the care, referral and/or
marketing of the Event's participants.
2. Without Look's prior written consent in each case, ............. shall
refrain from concluding agreements with participants in the Event on their care,
referral and/or marketing, and from referring or marketing them to third parties
in whatever manner, e.g. via the Internet. Should ............. receive
inquiries about booking a participant following the conclusion of the Event, he
shall forward such inquiries to Look without delay.
3. For purposes of fortifying this contractual obligation as well as
notwithstanding other claims from Look, .......... shall be obligated to effect
payment of a contractual penalty in the amount of ATS ............. for each
individual breach of said obligation, irrespective of culpability and the
occurrence of damage. Furthermore, Look shall be entitled to demand from
............. detailed accounting as well as the surrender of profits attained
from such anti-contractual agreements.
15.
Counterperformance / Outlays
1. As counterperformance for the granting of the right to implement and
organize the Event in the sense of Clause 2 of this Agreement and for the
granting of authorization to use the Trademark in the sense of Clause 4 of this
Agreement, ............ shall be obligated to effect payment of a lump-sum fee
in the amount of USD ................ , (............... American dollars).
2. This amount shall be due for payment without deduction upon the
signature of this Agreement, by transferring the sum to the account
no................with the.............. [bank], bank
code.....................maintained in the name of......................
3. .............. shall be obligated to bear the costs of all outlays and
charges arising from or in connection with the Event - the costs set out below
in particular - and to indemnify Look therefor:
a) participants' and jury members' travel expenses (perhaps
specify according to amount, air or rail costs, 1st class,
etc.)
b) participants' and jury members' hotel and accommodation
expenses (perhaps specify)
c) transport costs
16.
Term of Agreement
1. This Agreement shall commence upon its signature by both contractual
parties and be concluded for an indefinite period of time.
2. This Agreement can be terminated by both contractual parties, by giving
.............. (..........) - month's advance notice in writing thereof, as per
the 31st of December of each calendar year, without stating reasons therefor
(due and proper termination); the dispatch of the letter of termination (post
cancellation, fax confirmation) shall be determinant for the punctuality of
termination.
17.
Premature Termination
1. Notwithstanding the option of terminating this Agreement via due and
proper termination, the contractual partners shall be entitled to terminate
[this Agreement] summarily, should there be important grounds for doing so. The
declaration of dissolution on important grounds must be made in writing to be
legally effective.
2. Important grounds entitling Look to summarily dissolve [the Agreement]
shall in particular include:
a) the instigation of insolvency proceedings, in particular
bankruptcy or composition proceedings
against................ ,
b) the rejection of an insolvency petition
against............due to the lack of sufficient assets to
cover the costs thereof,
c) a breach on the part of ...... of an essential provision as
set out in this Agency Agreement, despite written warning an
a fourteen-day period of grace, such as in particular but
not exclusively of Clauses 4, 10, 13 and 20.
3. Important grounds entitling............to summarily dissolve [the
Agreement] shall include
a) the instigation of insolvency proceedings, in particular
bankruptcy or composition proceedings, against Look,
b) the rejection of an insolvency petition against Look due to
the lack of sufficient assets to cover the costs thereof,
c) a breach on the part of Look of exclusivity in accordance
with Clause 11 of this Agreement.
4. Premature dissolution of this contract shall not affect any claims,
especially for damages, fulfilment or non-fulfilment. The non-exercise of
dissolution right, despite important grounds therefor, shall not result in any
entitlements or claims, even if only merited, in particular those for
fulfilment, guarantee and/or damages, for either contractual partner.
18.
Procedure upon Cessation of Agreement
1. In the case of cessation of this Agreement, for whatever reason,
........ shall be obligated to refrain from further exploitation and use of the
Trademark without delay.
2. Furthermore, in the case of cessation of this Agreement, for whatever
reason, ........... shall be obligated to eradicate and/or remove without delay
the Trademark from all merchandise and objects to which it had been affixed.
Should it not be possible to eradicate and/or remove the Trademark from the
merchandise or objects to which it have been affixed, the merchandise and
objects bearing the Trademark must themselves be removed.
3. The provisions set out in clause 19 (Competition Prohibition) and 20
(Confidentiality), shall remain unaffected by the cessation of this Agreement,
for whatever reason it has been terminated.
19.
Competition Prohibition / Contractual Penalty
1. For a period of one year following the cessation of this Agreement,
...... shall be obligated not to promote or organize any model competitions,
neither independently nor non-independently, neither in his own name nor on
behalf of third parties.
2. Payment of a contractual penalty in the amount of $50,000.00 shall be
agreed for each violation on the part of ............. against of the
obligations set out above and/or breach of the competition prohibition in
accordance with Clause 19.1 of this Agreement. This contractual penalty shall
constitute a minimum restitution and shall be independent of culpability.
20.
Confidentiality
1. Look and ........... are aware that both the subject and the existence
of this Agency Agreement, the documentation, data and documents of whatever kind
related to or in connection with this Agency Agreement, as well as any and all
information provided are to be handled strictly confidentially.
2. Therefore, Look and ......... shall handle in strict confidence any and
all information, documentation, data, data carriers, etc., in whatever form,
(hereinafter referred to in short as confidential information) provided to them
or becoming known to them in whatever manner in connection with or arising from
this cooperation
3. Look and ............ shall be obligated in particular to refrain from
imparting confidential information to third parties or providing them with such,
either directly or indirectly, to make use of such confidential information in
any other manner, and from making duplicates, copies or reproductions thereof,
in whole or in part.
4. For the duration of this confidentiality obligation, LOOK and
.................... shall make every effort necessary to fulfil said
obligations during the term of this Agreement. This shall also apply if
confidential information is no longer secret because either of the contractual
partners or third parties acting on his/her behalf have acted in contravention
to their confidentiality obligations. This latter shall apply not only during
the contractual partners' cooperative work but also following termination
thereof, for whatever reason, and also to all future cooperative work, even if
this should not be expressly agreed upon in each individual case.
21.
Amendments / Supplements
1. Apart from this Agency Agreement, no ancillary arrangements exist,
either oral or written which would be in contravention to this Agency Agreement.
Any and all arrangements reached prior to the conclusion of this Agency
Agreement which are in contravention to this Agency Agreement shall cease to be
valid as of the conclusion of this Agreement.
2. Amendments and supplements to this Agency Agreement must be made in
written form in each individual case, otherwise, they shall not be legally
effective. Dispatches sent via fax sufficiently constitute written form. These
provisions shall also apply if written form is dispensed with.
22.
Notification
1. Unless stipulated otherwise in this Agency Agreement or another form is
mandatorily prescribed by law, all notifications are to be directed to the
following address:
for Look: Xxxxxxxxxxxxx 0, X-0000 Xxxxxx
Fax: x00 (0) 000 00 00
for........: ...................... ,.....................
Fax: +.... (..).....................
Dispatches sent via fax shall sufficiently constitute the requisite written
form.
2. Each of the contractual partners shall be obligated to notify the other
contractual partner without delay of changes of address; otherwise, dispatches
sent to the address most recently given in writing according to the above
paragraph shall be deemed to have been received with legally binding effect.
Unless expressly stipulated otherwise in this Agency Agreement, the date of
mailing (postal cancellation, fax confirmation) shall be determinant of timely
receipt of notifications.
23.
Severability Clause
1. The nullity or ineffectiveness of individual provisions in this Agency
Agreement shall not affect the validity of the remaining contractual provisions.
2. Should a provision or parts thereof as set out in this Agency Agreement
be ineffective or null and void, this shall not entail the forfeiture of the
entirety of such provision(s), rather those provisions shall then be deemed to
be agreed which are legally effective and/or permissible, and which come closest
to the purpose of the null or ineffective provisions and to the intention of the
[contractual] parties. The same shall apply in the case of loopholes in the
Agreement.
24.
Arbitration Clause / Applicable Law / Place of Fulfilment
1. Any and all disputes arising from or in connection with this Agency
Agreement, in particular but not exclusively concerning its fulfilment, poor or
non-fulfilment, breach, validity, nullity, dissolution, etc., and which cannot
be settled amicably shall be ruled upon exclusively and definitively by a court
of arbitration in accordance with the Arbitration and Conciliation Ordinance of
the International Court of Arbitration, Austrian Chamber of Commerce in Vienna
(Vienna Regulations).
2. The court of arbitration shall be comprised of three arbitrating
magistrates, each of the disputing parties nominating one arbitration
magistrate. The two latter magistrates nominated in this manner shall then
appoint a presiding magistrate. Should one of the disputing parties not avail
him/herself of his/her right of nomination, or should he/she fail to do so
within a period of four weeks following written request by the other party to do
so, the magistrate already nominated shall nominate the second upon request by
the other party to do so.
3. The place of arbitration shall be Vienna; the language to be used during
arbitration proceedings shall be German. The arbitration ruling shall be made in
writing and shall be final. Legal recourse against the arbitration court's
ruling shall be precluded.
4. Austrian material law shall apply exclusively, under preclusion of those
provisions leading to the applicability of a foreign law.
5. Look's head offices at (currently) Xxxxxxxxxxxxx 0, 0000 Xxxxxx, shall
be agreed as the place of fulfilment for any and all liabilities and obligations
arising from or in connection with this Agreement.
25.
Miscellaneous
1. In the sense used in this contract, a third party shall be deemed to be
every natural or legal entity who is different from the contractual partners in
the legal sense, even if legal and/or business relations of whatever kind may
exist with such third party.
2. ..................'s representative(s) shall expressly declare his/their
entitlement, with no restrictions of whatever kind, to sign this Agency
Agreement with legally binding effect. In this connection, the representative(s)
shall indemnify Look entirely and in every respect.
3............ shall not be entitled to set off claims against Look, either
in or out of court, by any counterclaims of whatever type........ may have
against Look.
4. Liability on the part of Look for simple negligence shall be precluded.
5. Look shall be entitled to transfer any and all rights and obligations in
connection with this Agreement at any time to a legal entity, an unincorporated
firm under commercial law, a registered commercial company or other legal entity
in which Look has holdings of a minimum of 25%, or to a company within the Look
group or to Xx. Xxxxxxxx Xxxxxxx. Transfer shall be carried out by unilateral
declaration to ...... and shall become effective as per the time of receipt of
the notification in .....'s sphere of influence. Upon notification thereof, Look
shall withdraw from the contractual relationship, whereas the third party
simultaneously shall enter into the contract by way of assumption thereof.
6. Any and all costs, fees and charges in connection with the preparation
and implementation of this contract shall be borne by the contractual partners
in the proportion of one half each; any and all costs of legal counsel or
taxation consultation shall be borne by each of the contractual partners
themselves.
Vienna, dated.......................
Annexes:
1. Look Guidelines
2. Draft Participants' Agreement
3. Marketing Plan
..............................
............................... ..............................
Look Event Management GmbH ....................
