The Finer Details
Last Update: June 2022
This terms in this section are applicable to Royalty or Licensing and/or equity-based arrangements.
This Agreement sets forth the services to be performed and the responsibilities of Bang Studio and Buyer concerning the Licensed Deliverables, as they are mutually understood by the parties hereto, on the terms mentioned herein. The Buyer agrees to be bound by the terms of this Agreement. This Agreement does not supersede current arrangements unless explicitly stated herein.
1.1) Agreement means the entire content of this License Agreement and all amendments made hereto by written agreement between the parties, together with any exhibits, such as the Statement of Work, and attachments hereto.
1.2) ‘Buyer’ is the ‘Lic ensee’, terms which may be used interchangeably, represents the entity and its associates that will use the Licensed Deliverable to create the Product
1.3) ‘Product’ Vs ‘Licensed Deliverable’: It is intended that a variety of products, collections of products, and solutions will be developed under this agreement. Each deliverable from Bang Design to Buyer, to be used by Buyer for sale or further development is termed as a Licensed Deliverable. “Licensed Deliverable” includes without limitation, literary works, pictorial, graphic and sculptural works, architectural works, works of visual art, mask works, and any other work that may be the subject matter of copyright protection; advertising and marketing concepts; information; data; formulas; designs; models; drawings; computer programs; including all documentation, related listings, design specifications, and flowcharts, trade secrets, and any inventions including all processes, machines, manufactures and compositions of matter, and any other invention that may be the subject of patent protection; and all statutory protection obtained or obtainable thereon including those in foreign countries. “Product” is that product or solution, developed using Licensed Deliverable, and sold by the Buyer.
1.4) Buyer Content means all concepts, drawings, graphical art, animation, documentation, materials, information, photography, writings, and other content owned, leased or licensed by the Buyer, that may be subject to intellectual property, copyright and trademark protection, authorized for use by Bang Design in the preparation of and/or incorporation in the creation of Licensed Deliverable.
1.5) Product Specifications Document: Also called as ‘product requirements document’, this document unambiguously describes the purpose, features, functionality, and behavior, of the product or solutions the Buyer wishes to build;
1.6) Statement of Work (SOW): This is a formal document that captures and defines work activities, tasks, deliverables, timelines, and commercial considerations for each Licensed Deliverable. Each SOW will be deemed a part of this Agreement upon its execution. The initial SOW is attached as Annexure A. The development and undertaking of each Licensed Deliverable by Bang Design and Buyer is pursuant to the terms in this agreement. The SOW will describe the scope of some or all of these below;
1.6.1) Formulation of the problem
1.6.2) List of Tasks: Specific piece of work or function to be performed
1.6.3) Collaborative Responsibilities: Using the RACI (Responsible, Accountable, Consulted and Informed) assignment matrix
1.6.4) Deliverables means the services and Licensed Deliverable specified in the Statement of Work to be delivered by Bang Design to the Buyer, in the form and media specified in the Statement of Work, including all creative and technical content developed or created by the Bang Design, or commissioned by Bang Design, exclusively for the Project and incorporated into and delivered as part of the Licensed Deliverable, including and by way of example, not limitation, any and all mechanical detail design information, visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Buyer Content, and Bang Design’s selection, arrangement and coordination of such elements together with Buyer Content and/or Third Party Materials.
1.6.5) Royalty is a usage-based payment made by Buyer to Bang Design for the right to ongoing use of Licensed Deliverable, typically agreed upon as a percentage of gross revenues derived from the use of Licensed Deliverable, or as a fixed price per unit sold of product or service, using Licensed Deliverable.
1.6.6) Royalty Period is the term, expressed as time or number of unit sales, after which the Licensed Deliverable ownership is transferred to the Buyer
1.6.7) Sweat Equity is the equivalent investment that Bang Design contributes in the form of labour and expertise, to the development of the product and Company
1.6.8) NRE is Non-Recurring Expense, paid to Bang Design, as an advance, or for milestones reached during the development project
1.6.9) Effective Start Date is the start of development of Licensed Deliverables
1.6.10) Ramp Up Time is the maximum time from ‘Commencement Date’ that Buyer can take to Launch product or solution in the market, using the Licensed Deliverable. If for any reason reasonably beyond its control Buyer does not begin to manufacture, launch, or sell the product, including Licensed Deliverable, within such time, then Bang Design may choose to withdraw the Licensed Deliverable from the terms of this agreement.
1.6.11) Commencement Date shall mean the date the Licensed Deliverable is made accessible for use to the Buyer.
1.6.12) License Term: The term of use of each Licensed Deliverable, expressed as time or unit sales. This is applicable only where the License is non-perpetual.
1.6.13) Territory: The license and the use of the Licensed Deliverable shall be subject to the territory identified for deployment.
1.6.14) Trademark and Brand Usage: Bang Design may or may not grant permission, to Buyer, to use brand or trademark held by Bang Design in the sale of the product. These include, without limitation, Bang Design name, names of creators, and specific characters and artwork used for that purpose. Similarly, use of any part of deliverable, trade names, trademarks, brand names, intellectual property and Buyer Content associated with Buyer by Bang design on their annual reports, website, marketing platforms, sales pitches or any business media will be subject to Non-Disclosure Agreement and prior authorization by the Buyer.
1.6.15) Credit Attribution is the acknowledgement of Bang Design and/or Licensed Deliverable in every mention of the product or solution derived from Licensed Deliverable, in, without limitations, marketing and promotion material, and mentions of said product or solution, by Buyer, in public domain
1.7) Services mean all services provided to the Buyer by Bang Design as outside the scope of an SOW or Licensed Deliverable.
1.8) Change Request is a request for change initiated by Bang Design or Buyer to the prevailing SOW
1.9) Modification shall mean a change to the Licensed Deliverable, after commencement date.
1.10) Proprietary Information shall mean knowledge related to product building, business practices and known to Bang Design beforehand and not in public domain and utilized to bring out meaningful information elements in the final deliverables.
1.11) Third Party Materials means proprietary third-party materials, which are incorporated into the Licensed Deliverable, including without limitation, stock photography or illustration, 3D CAD files of parts and data and material owned, leased, or licensed by Buyer subject to intellectual property and other statutory protections.
1.12) Use shall mean directly or indirectly using any of the material contained in the Deliverables, including but not limited to applying any of the information contained therein during the production of the Product.1.8)
Signed and Delivered by The Authorized Representative of Parties to this agreement:
2.1) Subject to the terms of this agreement, the Buyer is hereby granted a non-transferable license, to the Licensed Deliverable, to use, create derived products and solutions from, and to incorporate it in other works in any form, all subject to the terms applicable as captured in the corresponding Statement of Work. The term of such License (the “License Term”) shall commence as of the date of this agreement and terminate upon the transfer of such Licensed Deliverable to Buyer as provided in Section 3.2.
2.2) Subject to the terms of this agreement, the Buyer is hereby granted the non-exclusive right to use Bang Design name, in an appropriate form defined by Bang Design, in connection with the marketing of the Licensed Deliverables, subject to the terms applicable as captured in the corresponding statement of work of individual Licensed Deliverables.
2.3) Bang Design hereby furnishes absolute guarantee that the Licensed Deliverables are the original and authentic creation of Bang Design, which, as of the date hereof and prior to the transfer thereof to Buyer, is the present owner of the Licensed Deliverables and that, other than this Agreement, there are no outstanding options, license agreements or letters of intent relating to the rights in or to the Licensed Deliverables.
2.4) Buyer shall not, during the License Term, make, have made, sell, or distribute any item or solution that materially resembles any of the unique characteristics of the Licensed Deliverables without the express written consent of Bang Design. In return, Bang Design will not replicate, permit, or license any other imitations of any or all the drawing, pattern or designs of Licensed Deliverables provided to Buyer without written consent of Buyer.
2.5) Buyer will maintain all knowledge to Bang Design’s proprietary content, process, methods and design elements contained in the Licensed Deliverables in strict confidence and not disclose to any person other than the employees and associates of the Buyer, who have a need to know such information for performance of this Agreement, or as required to any entity manufacturing production versions of such Licensed Deliverable, and shall not be used for any purpose other than performance of its obligations under this Agreement. The Buyer shall ensure that any employee with access to this knowledge on the deliverables is aware of its confidential nature and shall not expose or disclose the design elements, architecture, logic, content, data sources, processes contained within the deliverables, to any third party.
2.6) Buyer shall not, during the License Term, have the right to change, alter, copy, amend, reverse engineer, decompile, disassemble, publish, disclose, display or make available, in whole or in part, or otherwise use the Licensed Deliverables in any manner whatsoever, except as specified herein.
2.7) Bang Design, and its affiliates shall retain all right, title, copyright, patent, trademarks, trade secrets, know-how, and other proprietary and intellectual property rights in each Licensed Deliverable till the end of the License Term. During this period the Buyer does not acquire any rights in the deliverables, except as specified and granted in this Agreement, and shall not remove any proprietary, copyright, patent, trademark, design right, trade secret or any other proprietary rights legends from the deliverables.
2.8) Bang Design will maintain all knowledge of the Buyer’s operations, processes and data in strict confidence and shall not disclose to any person other than the employees of Bang Design, who have a need to know such information for performance of this Agreement. Such information shall not be used for any purpose other than the performance of its obligations under this Agreement.
2.9) Any third-party data made available to Bang Design can be integrated into the Licensed Deliverable, as per the requirements of the Buyer. Bang Design shall not have any intellectual property rights over the data so integrated. Further, all such data shall remain the proprietary and intellectual property of the either the Buyer or a third party and the Bang Design shall not attempt to copy, modify, or otherwise use such data, except as required for the purposes of integration into the application.
2.9.1) Order of Precedence: If any term in the agreement conflicts with a term in the SOW, the conflicting term in the SOW controls
3.1) It is acknowledged, subject to the exclusive license granted herein, that, during the License Term, Bang Design retains sole ownership of the entire right, title, and interest to the Licensed Deliverables, including all refinements, modifications, and improvements in and to the Licensed Deliverables developed by Buyer or by Bang Design in conjunction with the Buyer.
3.2) All rights, title, and interest in and to each Licensed Deliverable will be transferred to Buyer at the end of the License Term, and receipt of corresponding royalty payment, as captured in the corresponding SOW.
3.3) In the event of termination of this Agreement prior to the end of the License Term, Buyer will cease to develop, produce, sell, or license products that use the Licensed Deliverables provided by Bang Design.
4.1 Remuneration By Royalty Fees
4.1.1) In consideration of the non-transferable license, the Buyer shall pay to Bang Design Royalty Fee for each Licensed Deliverable, as stated in the corresponding SOW. Upon payment of all Royalty Fees in respect of a Licensed Deliverable, as provided in the applicable SOW, the License Term shall end and title to such Licensed Deliverable shall transfer to Buyer as contemplated in Section 3.2.
4.1.2) It is deemed to accrue when the Products are sold, shipped, invoiced, or used, whichever occurs first. Royalty Fee is payable within 7 days of the end of the corresponding Financial Quarter during which sales were recorded.
4.1.3) All payments shall be made by Wire Transfer to designated bank accounts.
4.1.4) Any fees not paid when due, shall accrue interest at the rate of 2% per month until the date of payment, but shall not exceed the maximum amount as allowed by law.
4.1.5) Royalty Fees and other charges described in this Agreement do not include central, state or local sales, use, property, excise, service, or similar taxes (“Taxes”) now or hereafter levied, all of which shall be to Buyer’s account. Royalty would not be paid further on Taxies, Levies, Cess, Vat, Freight, Demurrage, Duties, Shipping Costs, and other associated charges.
4.1.6) If Buyer, in lieu of production and sale, chooses to sub-license all or a portion of the Licensed Deliverables, and such an arrangement is not explicitly captured in the corresponding SOW, then Bang Design shall be paid a royalty proportional to the value added to the licensed product, and such remuneration can be negotiated on a per case basis.
4.2 Remuneration By Fees
4.2.1) During the period of the agreement, Bang Design will be compensated a partial compensation for services rendered as stated in the corresponding SOW. This is primarily towards ‘Product Design and DFMA’, as captured in Annexure A.
4.2.2) Under mutual considerations and representations made by both parties, any additional work that cannot reasonably done within the scope of the retainer, an additional fee will be charged on a per case basis mutually agreed upon
5.1) Buyer will keep true, full, and accurate accounts and records of the sales of products and activities hereunder.
5.2) During the term of this Agreement, and for one (1) year thereafter, Bang Design shall have the right, at its own expense, and on two (2) days’ notice to Buyer, to inspect the usage of Bang Design’s proprietary information and Licensed Deliverables, and books and records of Buyer, for the sole purpose of ascertaining the correctness of statements rendered by Buyer under Article 4. In the event an audit reveals that Buyer underpaid Royalty Fees, Buyer shall pay such underpaid fees based on Bang Design’s list of prices and conditions in effect at the time of the audit for the product in question.
5.3) Bang Design and their representatives shall not disclose to any other person, firm or corporation, any information acquired because of any such examination. However, nothing herein contained shall be construed to prevent Bang Design and/or their representatives from testifying in any court with respect to the information obtained in any action instituted to enforce the rights of Bang Design under the terms of the Agreement.
6.1) Buyer agrees to undertake any further necessary developments of the Licensed Deliverables until such Licensed Deliverables are ready for, without limitation, manufacture using appropriate materials and finish specifications, as captured in the corresponding statement of work, product specifications document, and final deliverables. To this end Buyer would also produce samples, models, and prototypes of the Products, developed using Licensed Deliverable, for approval and sign-off from Bang Design.
6.2) Bang Design will provide a complete set of assets, as detailed in corresponding Statement of Work, and will do all reasonably necessary to assist in bringing such design and development to a successful conclusion for product launch including but not limited to – consulting, assist and suitably guide the Buyer and their agents with the process of fabrication, specification, finishes, design integrity and quality control for the Licensed Deliverables. To this end Bang Design makes themselves available to travel to Buyer’s facilities at Buyer’s cost and expense.
6.3) Bang Design will not provide a similar licensed deliverable, for another licensee in the territory, for a period of 1years from the end of the applicable License Term for each Licensed Deliverable, or as captured in the corresponding SOW, whichever is later.
6.4) Buyer shall, during the License Term, furnish, quarterly, to Bang Design, a Price List of the Products sold during the same period. Buyer reserves the right to reconsideration and modification of prices for the Products.
6.5) Bang Design may subcontract the performance of services to be provided hereunder with the advance prior consent of Buyer (including review by Buyer of the applicable subcontract(s).
7.1) Bang Design and Buyer agree to take all reasonable steps and the same protective precautions to protect the other party’s Proprietary Information from disclosure to third parties as with its own proprietary and confidential information. Neither party shall, without the other party’s prior written consent, disclose any of the Proprietary Information of the other party to any person, except to its bona fide individuals whose access is necessary to enable such party to exercise its rights hereunder, and then only as long as such individuals (whether employees, officers or owners of Bang Design, subcontractors or otherwise) are bound by confidentiality obligations at least as stringent as those provided for hereunder.
7.2) Each party agrees not to disclose any Proprietary Information of the other party to any third party, unless warranted by law.
7.3) The Buyer hereby expressly undertakes to not make any modifications / alterations to the Licensed Deliverables during the License Term. Any modifications to the application during the License Term shall be carried out only after re-negotiations of the commercial terms, solely executed by Bang Design, under the umbrella of a modified SOW. The Buyer agrees to execute those documents reasonably necessary to secure Bang Design rights in the foregoing.
7.4) Bang Design retains the right to independently develop enhancements to, derivatives of, and products similar to the Deliverables, subject to the terms and conditions of this Agreement. Buyer has the first right to refusal of such enhancements and derivatives. Upon refusal, Buyer agrees not to take any action that would limit Bang Design sale, assignment, licensing or use of its own deliverables or modifications or enhancements thereto, provided such sale / assignment / licensing is carried out outside the territory to which this Licensed Deliverable pertains.
8.1) Bang Design represents that any information, deliverables, or intellectual property furnished in connection with this contract shall be true and accurate, non-infringing upon any other persons intellectual property rights and free from defects to the best of its knowledge and belief, but Bang Design shall not be held to any liability for unintentional errors or omissions therein.
8.2) Both parties agree that the service, and deliverables within, are provided “as is”. Bang Design makes no further representations or warranties or covenants, expressly or impliedly, in respect of the deliverables including implied conditions of merchantability, or fitness for a particular purpose.
8.3) Unless specified otherwise, defects during the License Term will be fixed at no additional cost, and updated releases will be made with recorded change notifications.
8.4) To ensure ‘Freedom to Produce’ and/or ‘Freedom to Operate’, Buyer should conduct independent IP infringement search. In case the Licensed Deliverable infringes on third party rights, then Bang Design will modify the Licensed Deliverable, till such time Buyer is able to obtain such freedom.
9.1) In no event will Bang Design, its affiliates or their licensors, service providers, employees, agents, officers, or directors be liable for damages of any kind, under any legal theory, arising out of or in connection with Buyer’s use of, or inability to use, services obtained from, or information or intellectual property disclosed or provided by Bang Design, Bang Design or any services or items obtained through Bang Design Website, any websites linked to it, including any direct, indirect, special, incidental, consequential or punitive damages, including but not limited to, personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
10.1) This Agreement and the license granted hereunder shall become effective as of the date first set forth above, and shall continue in effect thereafter unless terminated upon the earliest to occur of the following.
10.1.1) Thirty days after Buyer gives Bang Design written notice of Buyer’s desire to terminate this Agreement, for any reason, but only after payment of all Fees then due and owing (other than those being disputed in good faith);
10.1.2) Thirty days after Bang Design gives Buyer notice of Buyer’s material breach of any provision of the Agreement (other than Buyer’s breach of its obligations which shall result in immediate termination), including but not limited to, more than thirty days delinquency in Buyer’s payment of any money due hereunder, unless Buyer has cured such breach during such thirty-day period.
10.1.3) Thirty days after Buyer gives Bang Design notice of Bang Design’s material breach of any provision of the Agreement, or non-delivery of Licensed Deliverables in form, media and timeline as agreed herein along with Statement of Work.
10.1.4) Immediately, if either Party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors.
10.2) Upon any termination hereunder, either Party shall immediately cease Use of all Proprietary Information and data of the other party, including, during the License Term, Licensed Deliverables, Third-party data, Licensed information, business and trade secrets and other Proprietary Information shared as part of the Project during the period prior to the Termination. Within thirty (30) days of termination during the License Term, the Buyer shall cease the use of Licensed Deliverables in the production of the product, remove the files containing the Licensed Deliverables and its components, any residual data from the Buyer’s Servers Machines. The Buyer also agrees not to use the deliverables or its data in case Bang Design overlooks the removal of its files or its components from any Database, whether digital or physical.
11.1) During the term of this agreement and for a period of two (2) years thereafter, neither party (nor its affiliates involved) will, directly or indirectly, solicit, induce, persuade to terminate their relationship with, or recruit any employee of the other who: (a) is involved in this Project or (b) is otherwise identified to the other party during the course of the parties’ collaboration, except as duly stated in Statement of Work under Capacity Building. However, nothing in this Section shall prohibit the use of a general solicitation in a publication or by other means.
If any dispute arises between the Parties hereto during the subsistence of this agreement or thereafter, in connection with or arising out of this agreement, the dispute, or the grounds for termination thereof shall be resolved as follows: The senior management of both parties shall meet to attempt to resolve such disputes. If the disputes cannot be resolved by the senior management, either party may make a written demand for formal dispute resolution and specify therein the scope of the dispute. Arbitration shall be held at Singapore, under the commercial arbitration rules of the International Chamber of Commerce. The proceedings of arbitration shall be in the English language. The arbitrator’s award shall be final and binding on the Parties.
13.1) Each Party represents to the other that (i) it has the authority to enter into and perform its obligations under this Agreement, (ii) when executed, its obligations under this agreement will be binding on it; and (iii) execution and delivery of, and performance by it of its obligations under this agreement will not result in breach of any applicable law.
13.2) No clause in this agreement shall be deemed to create any exclusive trading rights between Parties and each party is free to enter into other agreements with other concerns.
13.3) Neither party shall have the power to bind the other with third parties
13.4) This Agreement constitutes the complete and exclusive understanding between the Parties, and it may be amended only by a written agreement signed by each of the Parties.
13.5) If one Party fails to enforce any provision of this Agreement, it shall not be precluded from enforcing the same provision at another time.
13.6) All notices, requests and demands, and other communications required or permitted under this Agreement shall be in writing and delivered either personally, or via email to authorized representatives, or sent to the official address of the Party through recognized courier service. Either Party may change its address by delivering notice of such change of address to the other Party.
13.7) In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision shall be deemed modified the minimum extent necessary to render the provision enforceable in a manner that most closely represents the original intent of the Parties. In such event, the remaining terms and conditions of this Agreement will remain in full force and effect and enforceable.
13.8) Neither Party shall be responsible for delays or failures in performance resulting from acts beyond its control. Such acts include but are not limited to acts of God, labor conflicts, acts of war or civil disruption, governmental regulations imposed after the fact, public utility out failures, industry wide shortages of labor or material, or natural disasters.
IN WITNESS WHEREOF the Parties hereto have entered into this Agreement the day and year herein above written.
Signed and Delivered by The Authorized Representative of Parties to this agreement:
Zetsy was established in 2012 and is the largest provider of unlimited product development services in the known universe
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Zetsy was established in 2012 and is the largest provider of unlimited product development services in the known universe