DESIGN COLLABORATION AGREEMENT
This DESIGN COLLABORATION Agreement (the “Agreement”) is made between The Designer and By Maria Catalina Cardozo García (Einzelfirma, Switzerland) whose principal address is Windenweg 5, 6345 Neuheim, Switzerland (“the Company”).
1. Activities of the Parties
1.1 The Company is active in the field of online sales of shoes manufactured by independent designers.
1.2 The Designer is an independent designer in the field of product design and/or shoe design.
2. Design Collaboration
2.1 During the term of this Agreement, the Designer will provide a collection with minimum three (3) designs, maximum seven (7) designs, using exclusively the online materials provided by the Company in the website under the name “Design Toolkit”, to the Company as described in Part 1 of the Appendix hereto (the “Services”).
2.2 The Designer warrants that he/she has the qualifications and the ability to properly perform the collection (Services).
2.3 The Company will work with the designer’s completed work as described in Appendix Part 3, respecting the work of the designer as a separate brand in collaboration with “By Maria”.
2.4 The designer retains copyright of their work at all times. But the designer cannot make use whatsoever of the logo-type or name “By Maria” to promote his/her own designs, outside The Company’s channels.
2.5 The collection cannot be manufactured by third parties that are not By Maria since the moment of the agreement is accepted, during 3 years after launching the collection in bymaria.ch.
3. Fees and brand
3.1. The Company shall not pay the Designer any amount for all designs the Designer sends The Company. The Company will decide whether or not to produce each design according to The Company’s internal processes and politics.
3.2. If the design continues to the prototype, marketing phase, and it is published in the website, every effective purchase will be reported to the designer at the end of the month and it will be compensated between 5% to 8%, according to The Company’s decision.
3.3. The Company will expose its name/brand in The Company’s website or social media; as well as prototypes and process.
4.1 The Designer is not authorized to incur on behalf of the Company, any expenses that are not approved by the company, and will be responsible for all expenses incurred while performing the Services, except with the prior written approval of the Company.
4.2 From Phase Three onwards the Company is responsible for all expenses incurred. The designer is not responsible for any expenses incurred for this contract.
5. Terms and Termination
5.1. The parties terminate this Agreement after three (3) years, when the rights of By Maria over the designs expire. This should happen with an official written notice.
5.2 If either party materially breaches any of its obligations under this Agreement, the non-breaching party may terminate this Agreement immediately if the breaching party fails to cure the breach within 14 days after having received written notice by the non-breaching party of the breach or default. The parties shall agree on the consequences of such termination for breach, or in case of failure to agree, the consequences shall be determined in accordance with Clause 12 (Choice of Law and Dispute Resolution).
6. Independent Contractor Status
6.1 The Designer acts as an independent contractor and will provide the Services completely independently from the Company. The Parties acknowledge and agree that the performance of this Agreement and the ensuing business relationship shall not create an employment relationship between Designer, or any of its representatives, and the Company.
6.2 The Designer shall be solely responsible for determining the method, details and means of performing the Services. The Company expressly waives its right to exercise any authority over the Designer which could lead to the existence of a link of subordination.
6.3 The Designer must comply with all legal provisions or other requirements that apply to an independent, self-employed Designer and will be responsible for the Designer’s own health, accident and liability cover and all associated social charges.
7. No Authority to Bind Company
7.1 The Designer acknowledges and agrees that the Designer has no authority to enter into contracts that bind the Company or create obligations on the part of the Company without the prior written authorization of the Company.
8. Supervision of the Designer’s Services
8.1 The Designer will report to the Company on the status of the Services performed under this Agreement. The nature and frequency of these reports will be agreed between the parties.
9.1 During this Agreement, the Designer shall treat all such information received from the Company (whether received before or after the starting date of this Agreement) as confidential information and shall use such information only to the extent necessary to carry out the Services and for the sole benefit of the Company. The Designer shall not disclose any such information to any person or entity other than to Designer’s employees or representatives who have a need to know, except with the prior written permission of the Company. The Designer will be responsible to ensure that such employees or representatives respect the confidentiality of such information in accordance with this Clause. After the termination of this Agreement, the Designer will not disclose to any person or entity, or make use of, any such information without the prior written permission of the Company. This provision shall not apply to any information that the Company has voluntarily disclosed to the public or that has otherwise legally entered the public domain.
9.3 At the end of the Agreement, The Designer will immediately return to the Company or destroy (at the Company’s option) all documents it possesses, whether in written, electronic or magnetic form, which contain information about the Company or any activity or transaction of the Company.
10. Compliance with Laws and 3rd Party Restrictions
10.1 Each party will comply with all applicable laws and regulations, including those regarding data protection.
10.2 The Designer confirms that the Designer is not under any pre-existing obligation in conflict or in any way inconsistent with the provisions of this Agreement.
10.3 The Designer will not knowingly infringe upon any copyright, patent, trade secret or other property right of any former Company, employer or third party in the performance of the Services.
11.1 Unless otherwise agreed upon in writing by Company, Company’s maximum liability for all Services performed during the term of this Agreement shall not exceed the amount of fees received by the Designer.
11.2 The Designer will not be liable for any loss of profits, indirect and consequential damages, to the extent permitted by applicable law.
12. Choice of Law and Dispute Resolution
12.1 The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of Switzerland, excluding its conflict of laws principles.
12.2 Any dispute arising out of or in connection with this contract shall first be submitted to mediation in accordance with the Mediation Rules of the Swiss Chamber of Commercial Mediation.
12.3 If any dispute has not been resolved within 45 days of either party submitting it to mediation, then either party shall be entitled to commence legal proceedings in the Commercial Court of Zurich, which shall have exclusive jurisdiction.
13.1 Amendments. Any term of this Agreement may only be amended by written agreement of both parties.
13.2 Entire Agreement. This Agreement, including the Appendix hereto, constitutes the entire agreement of the parties and supersedes all oral negotiations and prior writings with respect to the subject matter hereof.
13.3 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or by overnight courier or sent by email or fax (upon customary confirmation of receipt), or forty-eight (48) hours after being sent as registered mail with postage prepaid, addressed to the party to be notified at such party’s address or fax number.
13.4 Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
Name: By Maria Catalina Cardozo García (einzelfirma, Switzerland)
Title: Founder & CEO
Place and Date: Windenweg 5, 6345 Neuheim, Switzerland
Place and Date: _____________________________________
DESCRIPTION OF SERVICES AND FEE SPECIFICATIONS
The Services implied in this Agreement are part of the stage of proof of concept of the business model of The Company. Within this process, Designers are asked to collaborate in three phases as stated here:
First Phase: Designers will receive the “By Maria Design Toolkit” (set of digital documents and materials), and get all explanations about its contents through a skype or in presence meeting.
Second Phase: Designers will design a shoe collection for women based on the resources provided on the “By Maria Design Toolkit”, following the instructions and using the formats provided. The collection must contain at least 3 and maximum seven designs and should be delivered to The Company. Once the collection is upload and the prototypes have been manufactured, the profile of the designer would be visible.
Third Phase: with the collections made by all Designers participating in this proof of concept, The Company will develop, at its own expenses and at its own process criteria (including sizes and other determinants), the prototypes of the pairs approved, in its workshops in Colombia, a photo shooting for website and social media exposure, and handle the expenses of sending them to Switzerland or to present the results to the Designer, through email (photos) or in presence meeting.
The Company will follow the designer requirements related to its designs, as long as production processes can support them; otherwise The Company will contact the designer via email to clarify uncertain details before starting prototyping processes.
The services that concern the present agreement will be considered and terminated at the end of the third phase mentioned above.
In order to state a possible future relationship with the designer, The Company exposes the next phase (fourth phase) in this document just as a reference that does not imply any obligations for the parts signing the present agreement.
Fourth Phase: The Designer will discuss with The Company upon the prototypes whether or not he/she will agree upon a new agreement document (the Affiliate Designer Agreement), to continue the process with the Company and determine if his/her collection will be produced in totality or in part to be part of the collections exposed on the Company’s online marketplace, in order to obtain pre-orders. Once the prototypes and conditions stated are approved, they will be photo-shouted and exposed on the website www.bymaria.ch.
A short interview of around 15 minutes at the end of the process will be performed to all Designers participating, whether or not their collections were put onto production phase, to evaluate the experience, and its contents will be used for research purposes.
2. PAYMENT OF FEES
DESIGN SERVICES: For Services rendered by the Designer under this Agreement, the Company shall not pay the Designer any amount, all designs a Designer sends to the Company within the process contemplated within this Agreement will be free of charge. After the proof of concept process ends, third phase, The Company will decide whether or not to celebrate a new contract (Affiliate Designer Agreement) which could be celebrated between The Company and the Designer, where all conditions regarding the production and affiliation phase (fourth phase) will be stated. If the designer does not celebrate this new agreement with the Company, the Company will not reproduce its designs/products, will not expose its name/brand in By Maria website or social media; nevertheless, prototypes and process, will be used as a research results.
The designer retains copyright of his/her work at all times, as long as he/she makes no use whatsoever of By Maria logotype or logo. Don’t use By Maria name to promote those designs.
This includes but is not limited to images of shoes designed by you using our shoe designer, and photographs of shoes custom made for and sold to you