(Version 03/03/2008)
Agency
Agreement
entered into by and between
*
Ronald Hofstätter
“White Castle Games & Infotainment”
Quartier 21 / MQ Museumsplatz 1/6, A-1070 Vienna 7 Austria
- hereinafter referred to as [“AGENCY”] -
party of the first part
and
*
[AUTHOR]
[Address]
- hereinafter referred to as [“AUTHOR”] -
party of the second part
as follows:
(Version 03/03/2008)
1.
Subject-matter of Agreement
1.1.a “CONCEPT”
The AUTHOR has developed the concept more particularly described in Annex 1 hereto (hereinafter also referred to as “CONCEPT”).
1.1.b “GAME”
The AUTHOR has devised the GAME more particularly described in Annex 1 hereto
(hereinafter also referred to as “GAME”).
1.2
The AGENCY acting as an independent broker of ideas for games offers the latter to
potential interested parties both domestically and abroad, such as, in particular, game
publishers (hereinafter also referred to as “LICENSEES”).
1.3
The goal and purpose of the present Agreement is the brokerage of the CONCEPT / GAME
by the AGENCY. The AGENCY assumes responsibility for brokering the
CONCEPT / GAME of the AUTHOR by presenting it to LICENSEES and by exclusively
negotiating with them, the AUTHOR having instructed the AGENCY to perform exclusive
brokerage for the CONCEPT / GAME in accordance with the provisions of this Agreement,
in AGENCY’s own name and for its own account of the agency. By entering into this
AGENCY Agreement, the AUTHOR is hereby granting to the AGENCY such exclusive and
worldwide rights of reproduction and distribution of the CONCEPT / GAME as are
necessary to achieve the purpose of the Agreement, subject to the more particular
provisions of clause 4 of the present Agreement.
1.4
In order to enable the AGENCY to broker the CONCEPT / GAME pursuant to all of the
requirements of the LICENSEES, and in the event that the AGENCY deems changes to the
CONCEPT / GAME to be necessary, the AGENCY shall be free, with the express consent
of the AUTHOR, to change or modify the CONCEPT / GAME both as to its contents and as
to its visual appearance. The status of the AUTHOR as the AUTHOR of the
CONCEPT / GAME is unaffected hereby.
2
Rights and duties of the AUTHOR
2.1
The AUTHOR shall supply to the AGENCY – upon demand and where appropriate on more
than one occasion – 3 functional prototypes of the CONCEPT / GAME as needed, in order
to enable the AGENCY to compile a timely presentation thereof for purposes of brokering
the same to LICENSEES.
2.2
The AUTHOR further hereby authorises the AGENCY to conclude licence agreements in its
own name and upon such terms and conditions as are usual in the industry, with
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LICENSEES of its own choice, and to convey to the LICENCEE or LICENCEES the
unrestricted licence to exploit the work [“Werknutzungsrechte”], without limitations as to
time, subject-matter or geographical territory, as granted to the AGENCY pursuant to the
provisions of the present agreement, such that the licence grant shall also bind the
AUTHOR.
2.3
The AUTHOR hereby grants his consent to the AGENCY that it may likewise exclusively
handle other games and concepts or such enhancements as may be derived directly or
indirectly from the CONCEPT / GAME of the AUTHOR by the AGENCY or LICENSEES. A
separate agency agreement with terms and conditions of identical import shall be issued.
2.4
The AUTHOR hereby undertakes that he shall not himself offer, publish, sell or market in
any other way the rights to his CONCEPT / GAME to LICENSEES or other third parties for
the BASIC TERM of this Agreement (clause 6.1) as well as for any extended term (clause
6.2 or clause 6.3). The foregoing prohibition encompasses the activities described which
are in the corporate remit of the AGENCY, irrespective of whether the same occurs in his
own name or that of another or for his own account or for the account of another, and
irrespective of the form thereof, whether direct or indirect. Should the AUTHOR breach his
obligations under this clause 2.4, then the AUTHOR shall disgorge to the AGENCY 60% of
such revenues as he himself derives from activities he performs within the scope of this
clause 2.4 and shall provide an accounting of such activities to the AGENCY.
2.5
The AUTHOR further undertakes hereby – in particular after having received written notice
of a presentation meeting held by the AGENCY – that he shall not himself contact potential
LICENSEES nor persons who are examining and reviewing his CONCEPT / GAME in this
matter without the consent of the AGENCY. In addition, the AUTHOR hereby undertakes to
disclose to the AGENCY, no later than at the time of the execution of this Agreement, all
previous contacts he has had with potential LICENSEES pertaining to the subject-matter of
this Agreement.
3.
Rights and duties of the AGENCY
3.1
The AUTHOR hereby charges the AGENCY with the brokerage of the CONCEPT / GAME
to LICENSEES.
3.2
The AGENCY shall have free discretion in conducting negotiations, in undertaking
presentations of the CONCEPT / GAME – in particular on the password protected web site
of the AGENCY – as well as in establishing contractual agreements with LICENSEES in
respect of the CONCEPT / GAME. The AGENCY shall thus also be permitted to agree with
LICENSEES that the rights to the CONCEPT / GAME (clause 4.2) may be granted or
conveyed to Sub-LICENSEES. The AGENCY shall be entitled to enter into relevant license
agreements with LICENSEES with a minimum licence fee of 3% of the distributor´s price.
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The prior written consent of the AUTHOR shall be required in the event the AGENCY
should wish to conclude such license agreement at a lower licence fee rate. The AGENCY
tries for selling the GAME/CONCEPT. The AGENCY shall have no further or other duties
vis-à-vis the AUTHOR, in particular none requiring it to successfully conclude contracts with
LICENSEES.
3.3
The AGENCY shall be obliged to inform the AUTHOR regarding the conclusion of a
contract between the AGENCY and a LICENSEE in respect of the CONCEPT / GAME. It
shall do so by forwarding a “CONTRACT DATA SHEET” ([Model in Annex./3.3]) (containing
the basic information on the agreement reached with the LICENSEE). The AUTHOR shall
not be entitled to any further disclosure beyond the foregoing as to agreements with
LICENSEES. In addition, the AGENCY shall forward to the AUTHOR annual reports on its
brokerage activities.
4.
Rights to the CONCEPT / GAME
4.1
The AUTHOR hereby represents that he is the sole creator and owner of the rights to the
CONCEPT / GAME he has submitted to the AGENCY and that his CONCEPT / GAME
does not infringe on any rights of third parties. The AUTHOR further hereby represents that
his CONCEPT / GAME is not an imitation or close modification of concepts or games which
already exist. If the latter is the case, then the AUTHOR shall be obliged to communicate
this no later than at the time of submitting his CONCEPT / GAME to the AGENCY. The
AUTHOR hereby undertakes fully to indemnify and hold harmless the AGENCY in the
event of legal disputes arising from claims asserted by third parties in this context, to the
extent the AUTHOR bears responsibility for the infringement of third party rights.
4.2
The AUTHOR hereby grants to the AGENCY the transferable, exclusive licence to exploit
the work (“Werknutzungsrechte”) as to the CONCEPT / GAME, unlimited as to time or
geographical scope, for all such manners of exploitation as are currently known or may in
future be created, in conjunction with the right of corporeal and incorporeal, initial and
repeated, communication thereof to the public. The rights to exploit the work
(“Werknutzungsrechte“) granted to the AGENCY encompass all forms of realisation and
exploitation known at the time of concluding this Agreement, including, in particular, the
publication and marketing of the CONCEPT / GAME for all forms of retail trade, e.g. as an
advertainment game, in addition for commercial use in the form of mega games as well as
for the book, newspaper and periodical rights, rights for theatre, music, film, TV, video,
DVD/CD/CDI/CD-ROM, audio and radio play, software, internet versions, merchandising
etc. The licence rights to exploit the work further include the rights to create images
(photos, videos) of the CONCEPT / GAME and to reproduce and disseminate the same. In
addition, the uploading of images of the CONCEPT / GAME into online networks and/or
networks or databases, such as, in particular, the internet und intranets, is included. The
grant of rights further additionally encompasses the processing thereof in each and any
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form and by each and any technical process, to the extent such processing does not
constitute interference with the creator's personality rights (“Persönlichkeitsrechte“).
4.3
The AUTHOR hereby grants his express consent for the AGENCY or, in the free discretion
of the AGENCY, one of the LICENSEES selected by the AGENCY, to register intellectual
property rights over the CONCEPT / GAME in their own name, the selection of which
intellectual property rights are appropriate (trademarks, design, utility models, patents, etc.)
being left to the discretion of the AGENCY or the respective LICENSEE. In the event the
Agreement is terminated (clause 6.), neither the AGENCY nor the LICENSEES shall be
obliged to transfer intellectual property rights within the meaning of this clause to the
AUTHOR.
4.4
The AGENCY shall exercise its best efforts to refer to the AUTHOR as the creator of the
CONCEPT / GAME. The AUTHOR hereby gives his consent that the AGENCY may, in
terms of advertising, be referred to in connection with selling and marketing the
CONCEPT / GAME.
5.
Compensation
5.1
If the AGENCY concludes licence or usage agreements with one or more LICENSEES for
the CONCEPT / GAME created by the AUTHOR, the AUTHOR shall receive, as a royalty,
a 60% share of the net revenues derived by the AGENCY from the LICENSEE(S). “Net
revenue” shall be deemed to be the compensation paid by the LICENSEE(S) to the
AGENCY with respect to the CONCEPT / GAME (revenue volume) net of VAT and net of
all discounts and bank charges.
5.2
Entitlement to royalties shall arise on the merits if and to the extent the net proceeds have
been received in AGENCY’s bank account. Settlement of commission accounts vis-à-vis
the AUTHOR shall be effected pursuant to the licence agreements concluded with the
LICENSEES. The AUTHOR’s bank details applicable for the AGENCY’s purposes are set
forth in Annex 3 hereto.
5.3
The AUTHOR is obliged to review the royalty accounting without delay and to communicate
any objections thereto in writing within 4 weeks of the date it has been forwarded to him by
the AGENCY; otherwise the account is deemed to have been approved by the AUTHOR.
5.4
All financial claims of the AUTHOR are deemed to be fully and finally compensated by
payment of the royalties pursuant to clause 5.1 hereof. The AUTHOR thus has no claim
vis-à-vis the AGENCY for reimbursement of expenses he may have incurred or may incur
in connection with the creation of the CONCEPT / GAME.
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5.5
The AUTHOR shall comply with the tax and social contribution obligations applicable to him
and shall himself ensure that any reports or returns that may be necessary vis-à-vis the tax
authorities and social insurance entities are given and any required contributions are paid.
6.
Inception and term of Agreement
6.1
Basic Term: This Agreement enters into force on [xx.xx.xxxx] when executed by both
parties and is hereby made for an 18 month term, to the end of the agreement on
[xx.xx.xxxx] (hereinafter also referred to as “BASIC TERM”).
6.2
If during the BASIC TERM, the AGENCY has concluded a licence agreement with a
LICENSEE and has furnished evidence thereof to the AUTHOR by forwarding to him a
CONTRACT DATA SHEET (Annex 2), then the term of the present Agreement shall be
extended by such contractual term of the licence agreement as is apparent from the
CONTRACT DATA SHEET transmitted to the AUTHOR, but for no less than an 18 month
term calculated from the end of the BASIC TERM.
6.3
If, during the BASIC TERM, the AGENCY has concluded licence agreements with
multiple LICENSEES, then the term of the present Agreement shall be deemed extended
by the term of the licence agreement with the longest term (pursuant to the CONTRACT
DATA SHEET), but, here, as well, in no event for less than 18 months. After the contract
period the author´s rights go automatically back to the author.
6.4
As to the end of contractual periods, in all cases this shall be deemed to occur at 11.59
pm on the last day of the month.
6.5
The right of extraordinary termination of this Agreement for good cause [“aus wichtigem
Grund“] remains unaffected hereby. Good cause [“wichtiger Grund“] shall, in particular, be
deemed to exist where one party has breached a material provision of this Agreement, in
particular where a party has otherwise failed to comply with a contractual duty and – to the
extent a cure or cessation of this failure to comply or breach of material contractual
provision is possible - the failure to comply or the breach of a material contractual provision
has not been eliminated within ten working days from the date the other party has made a
demand therefor.
6.6
Should the brokerage of the CONCEPT / GAME to LICENSEES turn out to be impossible
to achieve due to circumstances attributable to the CONCEPT / GAME, then the AGENCY
shall, in addition, be entitled to exercise a right of early termination of the Agreement upon
one month’s notice, stating the grounds therefore. No notice of termination shall be valid
unless given in writing by registered post/return receipt or confirmation of receipt.
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6.7
Contracts the AGENCY has already concluded with LICENSEES at the time the Agreement
comes to an end (also taking into account any extended term pursuant to clauses 6.2 or 6.3
hereof) shall continue to be valid notwithstanding the expiry or termination of this
Agreement. The provisions of this Agreement shall continue to apply in unamended form to
post-contractual revenues of the AGENCY from contracts that were already concluded prior
to the time this Agreement ceased to be valid.
7.
Non-disclosure / Confidentiality
7.1
The Parties hereby undertake to treat as strictly confidential the contents of this Agreement
as well as everything they have, in the scope of their collaboration under this Agreement,
learned or may in future learn (in particular including all technical, financial and commercial
information, such as for example, information pertaining to products, methods, techniques
and processes, statistics, software, systems, as well as information on the business of the
other party, information as to customers, prices, financial matters, planning, technical
facilities, research, business and trade secrets, know-how and all other technical, financial
or commercial information, whether in written, oral, physical or non-physical form).
7.2
The parties hereby expressly undertakes to allow third parties no access to this Agreement
and all documents pertaining to the contractual relationship as well as data access rights
received within the scope of the parties’ collaboration, except where warranted by the
contractual purpose.
7.3
This duty of non-disclosure/confidentiality does not apply to confidential information that
becomes public knowledge where that disclosure demonstrably took place through no
action of the parties. The duty of non-disclosure/confidentiality shall furthermore not apply
to information that was demonstrably already known to the parties prior to the time it was
made available by the respective other party, as well as to information that comes to the
knowledge of the parties without any breach of this duty of non-disclosure/confidentiality
having occurred.
7.4
The obligations under this clause 7 shall survive the termination of the Parties’ contractual
relationship for a period of 5 years calculated from the date this Agreement comes to an
end.
8.
Final provisions
8.1
Severability clause: If a provision of this Agreement should be or become invalid or
incapable of performance or if this Agreement should contain a gap, then the validity of the
remaining provisions hereof shall remain unaffected hereby. In place of the invalid or
missing clause, such valid clause shall be deemed to have been agreed as is commercially
appropriate and most closely approximates the intention of the Parties.
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8.2.
Amendments: This Agreement, together with the Annexes thereto, contains the entire
contractual agreements of the parties comprehensively, and it supersedes any and all
agreements between the parties with respect to the subject-matter of this Agreement that
have or may have heretofore existed. No ancillary agreements have been made, whether
oral or otherwise. Unless otherwise provided by this Agreement, no amendments,
modifications or alterations to this Agreement, and no declarations associated with the
termination of this Agreement shall be valid unless made in writing (confirmed email, fax or
registered letter) and signed by both Parties. This requirement of a writing shall also apply
with respect to any waiver of this provision.
8.3.
Choice of law and court of jurisdiction: Austrian law shall govern all legal relationships
attributable to this Agreement, excluding the provisions of the CISG as well as excluding
the choice of law/renvoi norms of private international law. The proper forum for any and all
disputes arising from this Agreement is the court in Vienna, Innere Stadt district, with
subject-matter jurisdiction thereof.
8.4
Annexes: All of the Annexes to this Agreement constitute integrated parts thereof, the latest
version of each as agreed by the parties being determinative. In the event of any
substantive discrepancies/contradictions, the text of this Agreement shall in all cases rank
higher in priority to that of the Annexes; later addenda and amendments to the Annexes
shall only effect an amendment to the contents of this Agreement if and to the extent they
have been agreed in writing by the Parties.
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8.5
Counterparts: This Agreement is made in two counterparts, one for each Party.
8.6
Costs: Each Party shall bear its own costs incurred in connection with the preparation of
this Agreement, including the costs of legal advice. The postage costs for transmission of
the Counterparts of the Agreement to the AGENCY shall be borne by the AUTHOR.
........................, dated .......................
.........................., dated.......................
__________________________
Ronald Hofstätter
___________________________
[xxxxx]
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ANNEX 1
Gama Data Sheet:
GAME/CONCEPT Name:
………………………………………………………………………………………………………………
GAME/CONCEPT Description:
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
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ANNEX 2
(only necessary when a contract with an editor is established)
Contract Data Sheet Licence Arrangement:
Title of GAME:
Publisher:
Licensor:
……………………………………………
……………………………………………
White Castle Games
AUTHOR’s notation for GAME: ……………………………………………
Contract Term:
……………………………………………
Territory of use:
……………………………………………
Languages:
……………………………………………
Planned date of publication: ……………………………………………
Advance (net of expenses): ……………………………………………
Licence fee as percentage of wholesale price: …………………………
or
One-time compensation for rights of production and marketing:
……………………………………………………………………………….
Accounting period of publishing house: …………………………………
Specimen copy for AUTHOR: ……………………………………………
Account from the publisher: ………………………………..…………..
Number sold/year:
(figures per year from the publishing company)
……………………………………………………….
……………………………………………………….
……………………………………………………….
……………………………………………………….
……………………………………………………….
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ANNEX 3
AUTHOR – Bank details:
Title of Game:
……………………………………………
The AUTHOR is registered for VAT in
……………………………………..(COUNTRY):
YES/NO
Licence fee to be transferred to account: ……………………………….
Account holder: …………………………………………………………….
BANK: ………………………………………………………………………
IBAN: ……………………………………………………………………….
BIC: …………………………………………………………………………
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