Terrible Merch Limited
(company registration no 10009484) of Registered Office: Lower Ground, South Stables, 138 Kingsland Road, London E2 8DY
(“us, “our” and “we”)
and yourself "(“artist”,”client” “you” “your”)
Merchandising Terms of Service and Sale
This sets out an agreement (the “Agreement”) between you and us for the non-exclusive manufacture and/or distribution by us of certain merchandising products (“Products”), as instructed.
1. Term
1.1 Ongoing from the date of agreement or sale.
2. Territory
The continent of Europe and United Kingdom and any additional territories that the parties may mutually agree.
3. Rights
3.1 with purchase or by instruction you grant us the non-exclusive rights to manufacture and/or sell and/or distribute and/or otherwise exploit products as agreed, in the Territory outlined below
4. Services
4.1 During the Term in the in the Territory if instructed we shall warehouse and facilitate the distribution of Products via our D2C partner Ochre and/or via retail partners/our own subsequent distribution channels. As instructed, we will design, develop, maintain and update a secure online store (“Online Store”) for you during the Term, and we will be responsible for all customer service, credit card processing, pre-sales, and fulfilment of orders connected with online sales through the Online Store. You will provide visual assets to us which we will use to brand the Online Store as an artist or client affiliated store.
4.2 During the Term in the in the Territory we shall assist with merchandising for tour only as instructed which can include manufacture, design, logistics and reporting. Only as instructed we will design, develop, deliver products upon instruction and approval of all costs to the artist or client. We will be only responsible for credit card processing and reporting when instructed to do so. We do not employ tour merchandising staff on your behalf and we are not responsible for insurance, travel or any contractual agreements with third parties.
5. Fees
5.1 Our legacy D2C partner Ochre retains transaction and platform fees at the point of sale, amounting to eleven-and-a-half percent (11.5%) of all gross income plus a further three percent (3%) transaction fee.
5.2 Our D2C platform Shopify with terrible* retains transaction and platform fees at the point of sale, amounting to eight percent (8%) of income plus a subscription fee of £25 when monthly sales are under £1000.
5.3 For tour merchandising we retain 8% transaction and platform fees at the point of sale.
6. Charges and recoupable expenditure
6.1 Unless otherwise agreed you shall be wholly responsible for and pay for all and any costs relating to the procurement, manufacture, release, promotion, marketing, touring, staffing, sale and advertising of the Products in the Territory.
6.2 All shipping costs of Products shall be charged by us to you. These shall be recoupable from all income payable hereunder.
6.3 in the event you and we mutually agree to terms whereby we will arrange for the manufacture of certain Products, then we agree that the use of any designs, logos, or images provided by you shall be only upon merchandise items manufactured by or for us in accordance with quality and artistic standards approved by you prior to the commencement of manufacture of such Products.
6.4 Unless otherwise agreed all costs relating to manufacture of Products are payable either in advance of delivery to third-party-logistics warehousing or from income related to the sale of Products via our D2C partner Ochre and/or via retail partners/our own subsequent distribution channels.
6.5 We shall be solely responsible for and shall pay all taxes and duties of whatsoever nature (except for income taxes payable by you in respect of monies received under this agreement) and you shall have no responsibility or liability therefor. Taxes will be deducted from gross sales and these are not income.
7. Accounting
7.1 We shall be entitled to collect all monies arising from the distribution and sale of Products hereunder. We shall prepare and issue the statement setting out in reasonable detail the computation of the amount due and any relevant deducted expenses set out in the statement including available inventory (e.g., size, color, and design) of each Product item within thirty (30) days of the end of the calendar month in which the applicable Product is sold. We shall make payment to you within forty five (45) days from the end of each calendar month in which Product is sold where we have received payment.
7.2 All monies which are due to you hereunder shall be paid upon receipt of an invoice submitted to Terrible Merch Limited.
7.3 For the purpose of verifying any statement of account delivered to you hereunder, you shall have the right not more than once in every year to inspect and take copies of our books and accounts insofar as the same relate to the calculation of payments due under this Agreement. Such inspections shall be made during regular business hours upon reasonable prior written notice. Any statement of account rendered to you by us shall be deemed binding on you and not subject to objection or inspection as aforesaid later than 1 (one) years after service thereof on you. If such an inspection reveals an underpayment to you then we shall promptly make good such underpayment together. We do not cover the cost of inspection.
7.4 We may maintain reasonable reserves against anticipated returns and credits of twenty percent (20%) with respect to those sums shown due in any applicable accounting period. Each reserve established shall be liquidated within six (6) months
8. Warranties and Indemnity
8.1 You warrant that:
8.1.1 you have the full right and power to enter in to and fully perform this Agreement or sale and to grant the rights granted hereunder;
8.1.2 you have and will continue to have during the Term all such rights in the Product as are necessary to enable you to enter into this Agreement and to perform all of your obligations hereunder;
8.1.3 the distribution or exploitation of any Product hereunder in accordance with the terms hereof shall not contravene any Act of Parliament, statutory instrument, regulation, bylaw or other laws and will not infringe any trademark, copyright or any rights of any third party.
8.2 We warrant that:
8.2.1 we have the full right and power to enter into and fully perform this Agreement or sale;
8.2.2 we shall not knowingly or negligently commit any acts which would impair or which have the intention of impairing any of your intellectual property rights in and to the Product.
8.3 All parties hereby fully and effectively indemnify the other against all losses claims expenses damages and demands (including any so-called “out of house” legal fees) arising out of or as a consequence of any breach by the breaching party of any warranty undertaking representation or agreement on the part of the breaching party contained in this Agreement provided that such indemnity shall be limited to sums awarded by a final, non-appealable judgment of a court of competent jurisdiction or payable pursuant to a settlement entered into with the breaching party’s prior written consent, such consent not to be unreasonably withheld or delayed.
9. Insurance:
9.1 During the Term of this Agreement, and until we shall deliver Products to a receiver of your choice, we shall, at own expense, maintain and carry the following insurance in full force and effect with financially sound and reputable insurers: (i) our legal liability insurance in an amount of not less than the reasonable cost of goods per occurrence for the loss of or damage to the warehoused Products only, with loss payable to you; and (ii) all risk third party property insurance covering the Product in an amount of not less than the aggregate value of the cost of the Products while in our custody.
10. Termination:
After the end of the Term or upon termination in accordance with paragraph 1, you may either promptly direct us to ship all Product to a receiver of your choice and at your cost within 30 days, or have the Product destroyed at your cost and election.
11. Law & Jurisdiction:
This Agreement shall be exclusively governed by and construed in accordance with the Laws of England and the parties hereto irrevocably submit themselves to the jurisdiction of the courts of England for the determination of any dispute arising under or in connection with this Agreement. Prior to the initiation of any legal action or proceeding permitted by this agreement to resolve disputes between them, in the event a dispute arises between the parties regarding or in connection with the application or interpretation of this agreement, your representative and our representative shall use their best efforts in good faith to reach a reasonable and equitable resolution of the matter. If the parties’ respective representatives are unable to resolve the matter within 20 calendar days, either party by written notice may refer the matter for resolution by good faith negotiation between their respective senior officers with decision making power and who shall not have had substantive involvement in the matters involved in the dispute, unless the parties otherwise agree. If such senior officers cannot resolve the matter within 28 calendar days of such notice, either party may refer the dispute to an institutionalised arbitration in England in accordance with JAMS International Arbitration Rules. The Tribunal will consist of one arbitrator, and the determination of such dispute shall be binding and enforce in the territory of each respective party.