- (i) the name (or pseudonym if applicable) of the original artist (if supplied);
- (ii) the title of the Materials (if supplied);
- (iii) to the extent reasonably practicable, a copyright notice or licensing information for the Materials; and
- (iv) in the case of a Derivative Work, a credit identifying the use of the Materials in the Derivative Work (e.g., "French translation of the Materials by original author" or "screenplay based on original Materials by original author"). This credit may be implemented in any reasonable manner. In the case of a Derivative Work or Collective Work, at a minimum this credit will appear where any other comparable artist credit appears and in a manner at least as prominent as those other comparable authorship credits. (iv) in the case of a Collective Work, at a minimum this credit will appear where any other comparable authorship credit appears and in a manner at least as prominent as those other comparable authorship credits. (iv) in the case of a Derivative Work, a credit identifying the use of the Materials in the Derivative Work (e.g., "French translation of the Materials by original author" or "screenplay based on original Materials by original author"). This credit may be implemented in any reasonable manner. In the case of a Derivative Work, at a minimum this credit will appear where any other comparable authorship credit appears and in a manner at least as prominent as those other comparable authorship credits.
5. FEES.
On or before the effective date of this agreement, On or before the date of publication by the Licensee of the Materials , any Collective Work, or any Derivative Work, or any Collective Work, or any Derivative Work, the Licensee shall pay the Licensor each month quarterly in consideration for the rights of the Licensee in and to the Materials granted under this agreement.
- (a) License Issue Fee. On or before the effective date of this agreement (as described in section 22 below), the Licensee shall pay to the Licensor a nonrefundable fee of $ (the "License Issue Fee"). The License Issue Fee is not an advance toward royalties that may become due during any calendar quarter and the Licensee shall not deduct the amount of the License Issue Fee from any royalties that may become due from the sale of a Collective Work or Derivative Work. The License Issue Fee is not an advance toward royalties that may become due during any calendar quarter and the Licensee shall not deduct the amount of the License Issue Fee from any royalties that may become due from the sale of a Collective Work. The License Issue Fee is not an advance toward royalties that may become due during any calendar quarter and the Licensee shall not deduct the amount of the License Issue Fee from any royalties that may become due from the sale of a Derivative Work.
- (b) Royalties. The Licensee shall pay to the Licensor, in addition to the License Issue Fee, a continuing royalty of % of Gross Sales of the Materials or any Collective Work or any Derivative Work , any Collective Work, or any Derivative Work sold by the Licensee or any of its subsidiaries, divisions, or affiliates. "Gross Sales" means the Licensee's billing price to customers or distributors, including the royalty amount less:
- (i) customary trade discounts actually given;
- (ii) returns; and
- (iii) transportation charges on returns.
6. MAINTENANCE OF RECORDS AND AUDIT RIGHTS.
- (a) Books and Records. The Licensee shall keep accurate books of account and records covering all transactions relating to or arising out of this agreement. The Licensor and its nominees, employees, accountants, agents, and representatives:
- (i) shall have reasonable access to these books and records during normal business hours on reasonable notice; and
- (ii) may conduct an examination of all of those books and records.
7. DELIVERY OF MATERIALS.
- The Licensor shall provide the Materials to the Licensee as follows:
- (a) Network Access. The Licensor shall store the Materials at one or more Licensor locations in digital form accessible by telecommunications links between those locations and authorized networks of the Licensee.
- (b) Physical Media. The Licensor shall provide copies of the Materials to the Licensee on physical media for use on the Licensee's network and workstations.
- (c) File Transfer. The Licensor shall provide copies of the Materials to the Licensee through electronic transfer (by means of file transfer protocol or otherwise).
8. OWNERSHIP AND USE OF MATERIALS.
- (a) Ownership of Materials. The Licensee acknowledges that the Licensor is the owner of the Materials and of all associated federal registrations and pending registrations, and the Licensee shall do nothing inconsistent with that ownership. The Licensee may not claim ownership rights to the Materials, or any derivative, compilation, sequel or series, or related work owned or used by the Licensor. Nothing in this agreement gives the Licensee any interest in the Materials other than the right to use them in accordance with this agreement.
- (b) Validity of Registrations. The Licensee admits the validity of all copyrights for the Material and all associated registrations and acknowledges that all rights that might be acquired by the Licensee because of its use of the Materials shall inure to the sole benefit of the Licensor. This subsection does not entitle the Licensor to any of the revenues from the Licensee's permitted uses under this agreement, except for the fees described in section 5 above.
- (c) Limitation on Licensee's Actions. The Licensee may not do anything inconsistent with the Licensor's ownership of the Materials, claim adversely to the Licensor, or assist any third party in attempting to claim adversely to the Licensor, with regards to that ownership. The Licensee may not challenge the Licensor's title to the Materials, oppose any registration or reregistrations of the Materials, or challenge the validity of this agreement or the grants provided under it.
9. REPRESENTATIONS.
The Licensor hereby represents that:
- (a) the Licensor is the sole owner of all interest in the Materials;
- (b) the Licensor has the right to grant permission for use of the Materials as specified in this agreement, but any citations or quotations used in the Materials may have third-party rights holders, and the Licensor does not purport to own or have the right to grant permission to republish those citations or quotations;
- (c) the Materials are original, are not in the public domain, are not plagiarized, and do not contain anything that is libelous or obscene;
- (d) the Licensor has not transferred, exclusive licensed, or encumbered the Materials or agreed to do so;
- (e) the Licensor is not aware of any violation, infringement, or misappropriation of any third party's rights or claims of rights (including existing intellectual property rights, rights of privacy, or other rights) by the Materials;
- (f) the Licensor is not aware of any third-party consents, assignments, or licenses that are necessary to perform under this agreement; and
- (g) the Licensor was not acting within the scope of employment of a third party when conceiving, creating, or otherwise performing any activity with respect to the Materials licensed in section 1.
10. DOCUMENTATION.
- (a) Recordation of Agreement. The Licensor will, as soon as is reasonably possible following a request from the Licensee, provide the Licensee with a complete copy of all documentation (in any format) relating to the Materials for the Licensee's own use, to meet record-keeping requirements of the Licensee, or to allow the Licensee to exercise its rights granted under this agreement. The Licensor will also, on request:
- (i) execute any additional papers, including any separate licenses of the Materials, reasonably necessary to record the license in the United States and throughout the world; and
- (ii) generally do all other lawful acts reasonable and necessary to record the agreement in the United States and throughout the world.
11. INDEMNIFICATION.
The Licensor shall indemnify the Licensee from: If the Materials infringes on any United States copyright of a third party not affiliated with the Licensee, the Licensor shall indemnify the Licensee against that claim if all of the following are true:
- (a) any claim by a third party that the Materials or its use or reproduction infringes or misappropriates any copyright or other intellectual property; (a) the Licensee promptly notifies the Licensor of that claim;
- (b) any claim by a third party that this agreement conflicts with, violates, or breaches any contract or other obligation to which the Licensor is a party or of which it has knowledge; (b) the Licensor controls the defense and settlement of that claim;
- (c) any claim relating to any past, present, or future use, licensing, sublicensing, distribution, marketing, disclosure, or commercialization of the Materials by the Licensor; and (c) the Licensee fully cooperates with the Licensor in connection with its defense and settlement of that claim;
- (d) any litigation, arbitration, judgments, awards, attorneys' fees, liabilities, settlements, damages, losses, and expenses relating to (a), (b), or (c) above. (d) the Licensee stops all sales, distribution, and public use of or relating to the infringing Materials , including as necessary any Collective Works or Derivative Works , including as necessary any Collective Works , including as necessary any Derivative Works , if requested by the Licensor.
If the Licensee is enjoined from further use of any infringing Materials or if the Licensee stops using any of the Materials (including as necessary any Collective Works or Derivative Works) (including as necessary any Derivative Works) (including as necessary any Collective Works) because of the Licensor's request (as described in (d) above), the Licensor shall, at its own expense and option:
- (a) obtain the right for the Licensee to continue to use the infringing Materials;
- (b) modify the infringing Materials to eliminate that infringement (if practicable); or
- (c) refund the amount paid under this agreement for the infringing Materials to the Licensee, on such terms as the parties may agree.
The Licensor shall have no other obligations or liability if infringement occurs, and shall have no other obligation of indemnification relating to infringement. The Licensor shall not be liable for any costs or expenses incurred without its prior written authorization and shall have no obligation of indemnification or any liability if the infringement is based on:
- (a) any changed form of the Materials not made by the Licensor; or
- (b) the laws of any country other than the United States of America or its states.
12. TERMINATION.
- (a)Termination Procedures. The agreement will terminate immediately, without notice, if:
- (i) before publication, the Licensee has not complied with this agreement;
- (ii) the Licensee attempts to transfer any of the rights granted to the Licensee in connection with this agreement without obtaining the Licensor's prior written consent;
- (iii) the Licensee uses the Materials in a manner not expressly permitted by this agreement;
- (iv) no Collective Work, Derivative Work, or Collective Work or Derivative Work or reproduction of Materials is published within one year of the effective date of this agreement, unless extended by written permission of the Licensor;
- (v) the copyright and acknowledgment notices are not printed as specified in section 4; or
- (vi) a Collective Work, Derivative Work, or Collective Work or Derivative Work or or reproduction of Materials is published and remains out of print for a period of at least six months.
13. GOVERNING LAW.
- (a) Choice of Law. The laws of the state of govern this agreement (without giving effect to its conflicts of law principles).
- (b) Choice of Forum. Both parties consent to the personal jurisdiction of the state and federal courts in County, .
14. AMENDMENTS.
No amendment to this agreement will be effective unless it is in writing and signed by a party or its authorized representative.
15. ASSIGNMENT AND DELEGATION.
- (a) No Assignment. Neither party may assign any of its rights under this agreement, except with the prior written consent of the other party. All voluntary assignments of rights are limited by this subsection.
- (b) No Delegation. Neither party may delegate any performance under this agreement, except with the prior written consent of the other party.
- (c) Enforceability of an Assignment or Delegation. If a purported assignment or purported delegation is made in violation of this section, it is void.
16. COUNTERPARTS; ELECTRONIC SIGNATURES.
- (a) Counterparts. The parties may execute this agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument.
- (b) Electronic Signatures. This agreement, agreements ancillary to this agreement, and related documents entered into in connection with this agreement are signed when a party's signature is delivered by facsimile, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.
17. SEVERABILITY.
If any one or more of the provisions contained in this agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this agreement, but this agreement will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this agreement to be unreasonable.
18. NOTICES.
- (a) Writing; Permitted Delivery Methods. Each party giving or making any notice, request, demand, or other communication required or permitted by this agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this agreement: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email.
- (b) Addresses. A party shall address notices under this section to a party at the following addresses:
- If to the Licensor:
- If to the Licensee:
- (c) Effectiveness. A notice is effective only if the party giving notice complies with subsections (a) and (b) and if the recipient receives the notice.
19. WAIVER.
No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this agreement will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
20. ENTIRE AGREEMENT.
This agreement constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties' agreement about the subject matter of this agreement. All prior and contemporaneous communications, negotiations, and agreements between the parties relating to the subject matter of this agreement are expressly merged into and superseded by this agreement. The provisions of this agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither party was induced to enter this agreement by, and neither party is relying on, any statement, representation, warranty, or agreement of the other party except those set forth expressly in this agreement. Except as set forth expressly in this agreement, there are no conditions precedent to this agreement's effectiveness.
21. HEADINGS.
The descriptive headings of the sections and subsections of this agreement are for convenience only, and do not affect this agreement's construction or interpretation.
22. EFFECTIVENESS.
This agreement will become effective when all parties have signed it. The date this agreement is signed by the last party to sign it (as indicated by the date associated with that party's signature) will be deemed the date of this agreement.
23. NECESSARY ACTS; FURTHER ASSURANCES.
Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.
[SIGNATURE PAGE FOLLOWS]
Each party is signing this agreement on the date stated opposite that party's signature.
Date:______________________________ By:____________________________________________________________ Name:
Title:Date:______________________________ By:____________________________________________________________ Name:
Title:[PAGE BREAK HERE]
EXHIBIT A
(Attach copy of Materials)