THIS DESIGNER AGREEMENT (“Agreement”) is made as of the design submission date (the “Effective Date”).
MIRENS INC., a Canadian federal corporation having its principal place of business at 5000 Yonge St. Suite 1901, Toronto, Ontario, Canada M2N 7E9 (“Mirens”)
- and -
You the current user, a designer submitting the associated design (the “Designer”)
(Collectively referred to as the “Parties”)
WHEREAS Mirens owns and operates a crowd sourcing design platform where designers are invited to upload their design on ‘mirens.com’ (the “Website”) to be reviewed and voted upon by the members of the community;
WHEREAS when certain thresholds are met the designs will be manufactured and sold by Mirens to the general public through the Website with a percentage of the revenue going to the Designer;
AND WHEREAS the Designer’s use of the Website constitutes its agreement with the Mirens’ Terms and Conditions including but not limited to Mirens’ Intellectual Property provisions therein and the further provisions as set out below in this Agreement:
- “Intellectual Property” includes patents, inventions, copyright and related rights, trademarks, trade names, service marks and domain names, goodwill, rights to sue for passing off, design rights, database rights, rights in know-how and rights to Confidential Information, trade secrets, Moral Rights in copyright, proprietary rights and any other intellectual property rights, including improvements and modifications, in each case whether registered or unregistered, and including all applications or rights to apply for such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
- “Design” means the product design posted on the Website by the Designer and all Intellectual Property related to the product design at the time the product design is uploaded to the Website.
- “Modified Design” means the elements of the Design that are modified, altered, enhanced, improved, developed and adjusted through the collaboration of the Designer and Mirens, or by Mirens alone, or by the Mirens Community.
- “Mirens Intellectual Property” means all Intellectual Property and all right, title and interest therein owned by Mirens, and/or its officers, employees, affiliates or other related entities.
- “Related Designs” means any products developed by the Designer and/or their respective officers, employees, affiliates or other related entities during the term of the Agreement, which is connected to the subject matter of this Agreement.
- “Unrelated Intellectual Property” means any Intellectual Property independently developed by either Party, and/or their respective officers, employees, affiliates or other related entities after the Effective Date of this Agreement, and having no connection or relation to the subject matter of this Agreement or the Designer’s use of the Website, whether developed during the term of this Agreement or at a later date.
- “Pre-Sale Requirement” means the requirement that the Design or the Modified Design reach 25% of its sales target in pre-sale orders within 60 days.
2.1 All content included on the Website, including, but not limited to, text, design, graphics, logos, button icons, images, audio clips, digital downloads, interfaces, data compilations, software, and code, is the property of Mirens, its affiliates, or its content suppliers, and is protected by Canada and international copyright laws.
2.2 Intellectual Property shall be owned by the Parties in accordance with the following terms:
- All right, title and interest in the Design shall, without limitation, be owned exclusively by the Designer.
- All right, title and interest in the Modified Design shall, without limitation, be owned exclusively by Mirens.
- All right, title and interest in the Mirens Intellectual Property shall, without limitation, be owned exclusively by Mirens.
- All right, title and interest in any Unrelated Intellectual Property shall, without limitation, be owned exclusively by the party to which the development is attributable.
3.1 During the term of the Agreement, commencing on the Effective Date until termination of this Agreement in accordance with section 10 (the “Term”), the Designer hereby grants Mirens an exclusive license to use, produce, manufacture, and sell the Design (the “License”). The License will expire upon the termination of this Agreement.
3.2 Mirens represents and warrants to the Designer that all Designs sold and advertised under the License or the Modified Design will include the Designer’s name in all promotional materials and packaging (the “Credit”). However, Mirens has full discretion with respect to the form and style of the Credit that accompanies the Design or the Modified Design.
Right of First Refusal
4.1 During the Term, Mirens shall have the first right to License all Related Designs of the Designer. If Mirens elects to license the Related Designs, the Related Designs will be subject to the same terms and conditions contained in this Agreement.
4.2 The Designer agrees to provide Mirens with notice in writing of any Related Designs upon completion of the Related Design.
4.3 If Mirens elects to license the Related Design, it must notify the Designer in writing within ten (10) days of receiving notice of the Related Design.
Covenants, Representations and Warranties
5.1 The Designer agrees to take all actions and cooperate as is necessary and agrees to execute any documents that might be necessary to protect Mirens ownership of any Intellectual Property including the Modified Design.
5.2 Mirens agrees to take all actions and cooperate as is necessary and agrees to execute any documents that might be necessary to protect the Designers ownership of any Intellectual Property including the Design.
5.3 The Designer shall provide to Mirens all information, data and documents relating to said Design.
5.4 The Designer represents and warrants that use of the Design by Mirens or others will not infringe any rights including the Intellectual Property rights of any third party.
6.1 The Designer shall indemnify and hold Mirens, its affiliates, and their respective officers, directors, shareholders, agents and employees harmless from and against all losses, damages or liability which Mirens may incur, in connection with the Design (including but not limited to any third party Intellectual Property rights) or in connection with any breach of any covenant, representation or warranty made herein.
6.2 If any claim is brought against Mirens or its respective directors, officers, members, employees, contractors, and agents, or against any customer or end-user (“Mirens Indemnified Parties”), on the basis of an allegation that the manufacture, use, license, marketing or sale of the Design infringes any copyright, patent or other Intellectual Property, or misappropriates any trade secret or confidential or proprietary information of a third party (“IP Claim”), subject to the terms and conditions set forth in this Agreement, the Designer will: (i) at the Designer’s expense, defend or at its option, settle such IP Claim, (ii) pay all amounts incurred by or awarded against Mirens or the Mirens Indemnified Parties relating to or arising out of such IP Claim, and (iii) indemnify and hold harmless Mirens, the Mirens Indemnified Parties, and their successors and assigns from and against any other costs incurred in connection with or arising out of such IP Claim.
6.3 If any claim is brought against the Designer or its respective directors, officers, members, employees, contractors, and agents (“Designer Indemnified Parties”), on the basis of an allegation that the manufacture or use of the Design or Modified Design has caused injuries or damages to a customer or an end-user (“Defect Claim”), subject to the terms and conditions set forth in this Agreement, Mirens will: (i) at the Mirens’ expense, defend or at its option, settle such Defect Claim, (ii) pay all amounts incurred by or awarded against the Designer or the Designer Indemnified Parties relating to or arising out of such Defect Claim, and (iii) indemnify and hold harmless the Designer, the Designer Indemnified Parties, and their successors and assigns from and against any other costs incurred in connection with or arising out of such Defect Claim.
7.1 In performing this Agreement, Mirens and the Designer may have contact with customers, suppliers, employees, and contractors of the other and their affiliates, and will acquire, obtain, or have access to confidential and/or proprietary information relating to the other and its affiliates and their respective businesses, products, customers, and suppliers, including, without limitation, (a) information, ideas, inventions, designs, plans, prototypes, concepts, know-how, research and development, techniques, technology, programs, processes, formulations, specifications, materials, samples, applications, records, and technical and statistical data related to or used in connection with the design, development, manufacture, advertising, marketing, distribution, and sale of products, and the operation of their businesses; (b) computer software, programs, applications, systems, and data, including catalogs, price lists, manuals, or other materials produced or distributed in electronic, CD ROM or other formats; (c) information relating to employees, distributors, agents, joint ventures, customers, suppliers, strategic partnerships, sources, markets, licensors, licensees, and contractors; (d) financial, pricing, marketing, operating, procurement, and other business information, programs or plans; and (e) trade secrets (collectively referred to as “Confidential Information”). Confidential Information includes not only written materials, but also information transferred orally, visually, electronically, or by other means, and includes all analyses, compilations, studies, accounts, or other documents that contain or reflect any part of such information, and all copies of the foregoing.
7.2 Each party shall hold and maintain strictly confidential all Confidential Information, and shall not at any time, whether during the Term or thereafter, furnish, divulge, communicate, or otherwise directly or indirectly disclose or use any such Confidential Information, howsoever obtained or acquired, or compile, duplicate, develop or adapt such Confidential Information for any purpose, other than strictly incidental to, and solely in furtherance and within the scope of, the Agreement. The parties will not make or retain copies of, or otherwise engage in the reproduction of, Confidential Information, or, in the case of information in the form of electronic or computer files, disks, or records, download such Confidential Information, for any purpose outside of the purposes contemplated in this Agreement without the express prior written consent of the other. The parties agree that, unless otherwise permitted, they will not, directly or indirectly create any products, parts, systems, methods, tools, dies, techniques, processes, solutions, or other technologies, ideas, items, or concepts at any time sold, marketed, used, or developed by the other or their affiliates, or any part thereof, or otherwise use any Confidential Information for commercial purposes or in any manner detrimental to the other or their affiliates.
7.3 The receiving party acknowledges that all Confidential Information of the disclosing party is the property of the disclosing party, and that disclosure of the Confidential Information to the receiving party does not result in the receiving party obtaining any property rights therein, or any right or license under any copyrights, inventions, patents, or other intellectual property. If the Confidential Information is encrypted or otherwise protected in a manner that requires a cost to be incurred by the receiving party, such cost shall be borne by the disclosing party.
7.4 Upon expiration or termination of the Agreement, the parties will return all property of the other party in its possession or under its control, including all property containing Confidential Information, in each case without retaining any copies, reproductions, adaptations, or compilations in any form.
8.1 Subject to the terms and conditions of this Agreement, Mirens shall pay the Designer a fee based on the revenue earned from the sale of any Design or Modified Design (“Product Revenue”). Specifically, Mirens shall, on a monthly basis, pay the Designer a percentage of all Product Revenue earned in a single month (the “Fee”) in accordance with the Fee schedule as set forth at 3% to 6%.
8.2 Mirens shall calculate its Product Revenue on a monthly basis and shall pay the Fee to the Designer on the 15th day of each subsequent month.
9.1 The Term shall commence on the Effective Date and shall continue until terminated by either party in accordance with the following termination provisions:
9.2 The Parties may terminate the Agreement, without prejudice to any other legal and equitable rights and remedies, in accordance with the following:
- The Agreement is terminated if the Design is not selected to be reviewed by the Mirens expert panel after it has been uploaded to the Website.
- The Agreement is terminated if the Design or the Modified Design does not meet the Pre-Sale Requirement.
- Mirens may terminate the Agreement at any time by providing the Designer with two (2) months’ written notice thereof.
- The Designer may elect to terminate the Agreement if the monthly average Product Revenue is below 50% of the agreed upon projected volume for a period of six (6) consecutive months during the Term. The Designer must give Mirens two (2) months’ notice of its election to terminate the Agreement pursuant to this provision.
- Either party may, upon written notice thereof, terminate this Agreement at any time where bankruptcy or insolvency proceedings are instituted by or against the other party, or the other party is adjudicated a bankrupt, becomes insolvent, makes an assignment for the benefit of creditors or proposes or makes any arrangements for the liquidation of its debts or a receiver or receiver and manager is appointed with respect to all or any part of the assets of the other party.
- If either party breaches any of the material terms, conditions, representations or warranties of this Agreement, the other party must give the breaching party thirty (30) days’ notice in writing, specifying the nature of the breach, and may terminate this Agreement if the breach is not cured by the breaching party within ten (10) days of receiving notice thereof.
9.3 Upon termination of the Agreement for any reason listed above, the License will end on the effective date of termination.
9.4 Mirens shall pay the Designer the Fee owed under this Agreement up to the effective date of the termination. Expiration or termination of this Agreement shall not relieve either party of any accrued payment obligations, or any other obligation that is of an ongoing nature.
9.5 After the effective date of Termination, Mirens may continue to sell any inventory of the Design or the Modified Design that is in Mirens possession on the date that the notice of termination is given or received by Mirens. The Designer is entitled to the Fee for all remaining Designs or Modified Designs sold by Mirens after the Agreement is terminated.
The Designer agrees that for a period of six (6) months after the effective date of termination, the Designer will not sell the Design.
All of intellectual property and intellectual property ownership provisions in this Agreement, and all provisions hereof intended to be observed and performed by the parties after the termination hereof, shall survive such termination and continue thereafter in full force and effect, subject to applicable statutes of limitations.
Nothing contained in this Agreement shall be construed to make or render the Designer a partner, employee, or agent of Mirens, nor shall the Designer hold itself out as such. The Designer has no right or authority to incur, assume, or create, in writing or otherwise, any warranty, liability, commitment, or other obligation of any kind, express or implied, in the name of, or on behalf of, Mirens. It is the intent of both Mirens and the Designer that each shall remain an independent contractor responsible for its own actions.
The Agreement and the respective rights and obligations of the parties shall be governed by and interpreted in accordance with the laws of Ontario and Canada.
The parties have caused this Agreement to be executed by their respective duly authorized representatives as of the Effective Date.