Content License Agreement
This Content License Agreement ("Agreement"), dated as of the date hereof (the "Effective Date"), is by and between you, an individual, entity, or both (if joint authors) ("Licensor"), and Azeera, Inc., a New York corporation with offices located at 339 North Main St., New City, New York, 10956 ("Licensee").
WHEREAS, Licensee owns, operates and controls the Licensee Site (as defined below);
WHEREAS, Licensor owns or otherwise has the right to license the Licensed Content (as defined below);
WHEREAS, Licensor wishes to grant Licensee a limited license in the Licensed Content for the purposes of reproduction and the creation of derivative works of the Licensed Content;
WHEREAS, Licensee further wishes to make Licensed Content, and copies and derivative works thereof, accessible on the Licensee Site; and
WHEREAS, Licensor is willing to license the Licensed Content to Licensee, subject to all terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
- Definitions For purposes of this Agreement, the following terms have the following meanings:
- Affiliate of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
- Confidential Information means any information that is treated as confidential by a party, including, without limitation, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing and marketing.
- Content Item means each discrete creative work (for example, article, photograph or video), as designated by the Licensor, that is included in the Licensed Content.
- Derivative Work means any derivative work of the Licensed Content created by Licensee.
- Disclosing Party has the meaning set forth in Section 10.1.
- Effective Date has the meaning set forth in the preamble. For the avoidance of doubt, this date shall be the date upon which the Licensor agrees to the terms of this Agreement.
- End User means each natural person that has access to Licensed Content on the Licensee Site or Related Media.
- Law means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
- Licensed Content means any and all materials submitted by Licensor, as may be amended by the parties as set forth herein.
- Licensee has the meaning set forth in the preamble.
- Licensee Site means the website owned, operated and controlled by Licensee, located at www.azeera.com.
- Licensor has the meaning set forth in the preamble.
- Mark means any trademark, trade name, service mark, design, logo, domain name or other indicator of the source or origin of any product or service.
- Person means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
- Recipient has the meaning set forth in Section 10.1.
- Related Media means those mobile sites, mobile applications (apps), widgets, gadgets, RSS feeds, e-mail newsletters and other content delivery media owned, operated and controlled by Licensee and identified in Schedule 1.
- Term has the meaning set forth in Section 6.1.
- Territory means worldwide.
- Delivery of Content Licensor shall deliver to Licensee the Licensed Content upon execution of this Agreement.
- Content License Restrictions The license granted in Section 3.1 is subject to the following:
- Licensee shall not include Licensed Content on the Licensee Site or any Related Media other than as expressly permitted herein and in accordance with all terms and conditions of Section 4.
- Licensee shall not make the Licensed Content available, or otherwise use the Licensed Content, except as expressly licensed pursuant to Section 3.1. Any use by Licensee of the Licensed Content on any other website, mobile site or application or other media of Licensee other than the Licensee Site and Related Media as expressly provided herein requires a separate written agreement between Licensor and Licensee.
- Licensor shall not permit any use of the Licensed Content by any Person (including Licensee's Affiliates), other than as expressly provided in Section 3.1 with respect to End Users.
- Licensee shall not permit the Licensed Content to be, or appear to be, reproduced, displayed or distributed on, as part of or in connection with any website or other online (including mobile) area other than the Licensee Site and Related Media, whether by framing, in-line linking, appearing in a new window or otherwise.
- If Licensor instructs Licensee to delete or make inaccessible any Content Item because such Content Item may contain errors, is or could be subject to a third-party claim or for any other good faith reason, Licensee shall comply with such instruction as promptly as reasonably possible.
- Trademark License.
- Licensor grants to Licensee an irrevocable, limited, non-exclusive, royalty-free license during the Term to those of Licensor's Marks designated by Licensor from time to time to:
- display such Marks on the Licensee Site: (x) with the Licensed Content to provide source attribution; or (y) as links to the Licensed Content or Derivative Work; and
- comply with its express obligations under this Agreement.
- Licensee shall use the Marks solely in accordance with Licensor's trademark usage guidelines and quality control standards provided from time to time by Licensor. If Licensor notifies Licensee that any use does not so comply, Licensee shall immediately remedy to the satisfaction of Licensor or terminate such use. Licensee shall not use, register or attempt to register in any jurisdiction any Mark that is confusingly similar to or incorporates any of the Licensor's Marks. All uses of the Licensor's Marks, and all goodwill associated therewith, shall inure solely to the benefit of Licensor.
- Reservation of Rights. Neither this Agreement nor the licenses granted hereunder convey any ownership right in any of the Licensed Content or Licensor's Marks. Except for the express licenses granted in this Agreement, all right, title and interest in and to the Licensed Content and Licensor's Marks are and will remain with Licensor and its licensors.
- Content Display. Throughout the Term, Licensee shall have the right, but not the obligation, to provide the Licensed Content on the Licensee Site and Related Media solely to the extent of and within the scope of the license granted in this Agreement and otherwise in accordance with the following:
- Licensee shall not imply, directly or indirectly, including by displaying the Licensed Content together with content provided by Licensee or third parties, that Licensor provides, endorses, sponsors, certifies or approves of other content included within the Licensee Site or Related Media or any products or services advertised in or near the Licensor's Content. Licensee shall present the Licensed Content and Licensor's Marks in such manner as to avoid any likelihood of confusion as to the source of the Licensed Content and such other materials.
- Licensee shall remove each Content Item from the Licensee Site and Related Media immediately upon the expiration or earlier termination of the License Term for such Content Item.
- Required Notices. Licensee shall display with each Content Item or Derivative Work the appropriate copyright and trademark notices and any other source attribution required by Licensor, each as specified and in accordance with the requirements set forth in Schedule 4. Licensee shall not alter, remove or obstruct any such notices or attribution included with any Content Item as delivered by Licensor.
- Content Hosting and Support; User Complaints. Throughout the Term, Licensee has the right to host, operate, maintain and make accessible to End Users the Licensed Content on the Licensee Site. The service level standards and procedures used by Licensee with respect to the Licensed Content, including but not limited to those regarding End User requests and communications, will be consistent with those it employs with respect to other content on the Licensee Site. Without limiting the foregoing, if Licensee receives any notice claiming that the Licensed Content infringes or otherwise violates any intellectual property or other third-party right, Licensee shall:
- immediately notify Licensor in writing (which may include e-mail), including such detail as is available and necessary for Licensor to evaluate and address such complaint; and
- fully cooperate with Licensor in addressing such claims.
Term and Termination
- Term. The term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any express provision of this Agreement, shall continue in perpetuity.
- Either party may terminate this Agreement, effective upon written notice to the other party, if the other party:
- materially breaches this Agreement, and such breach is incapable of cure or, if capable of cure, fails to cure such breach within ten (10) days after receiving written notice thereof.
- Either party may terminate this Agreement by written notice to the other party if the other party: (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
- Effect of Expiration or Termination. Upon any expiration or termination of this Agreement:
- All licenses granted under this Agreement shall also terminate, and Licensee shall immediately delete from its systems and servers all Licensed Content, Licensor's Marks and any other materials provided by Licensor. Upon Licensor's written request, Licensee shall promptly provide Licensor with written certification of such deletion.
- Licensor shall promptly pay all unpaid fees due to Licensee for that relate to the period prior to the effective date of expiration or termination.
- Surviving Terms. The provisions set forth in the following Sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 5.3, this Section 5.4, Section 6, Section 7, Section 8, Section 9 and Section 10.
Representations and Warranties
- Mutual Representations and Warranties. Each party represents and warrants to the other party that:
- it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder;
- the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party, if required; and
- when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
- DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, (A) EACH PARTY HEREBY DISCLAIMS ANY WARRANTY, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, UNDER THIS AGREEMENT; AND (B) LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
- By Licensor. Licensor shall indemnify, defend and hold harmless Licensee against all Losses arising out of or resulting from any claim, suit, action or proceeding (each, an "Action") by an unaffiliated third party related to or arising out of a claim that the Licensed Content, Derivative Works, or Licensor's Marks, or Licensee's use thereof solely in compliance with this Agreement, infringes a U.S. intellectual property right of any third party or violates any U.S. Law.
LIMITATIONS OF LIABILITY
- No Consequential or Indirect Damages. LICENSEE WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL OR EXEMPLARY DAMAGES OR PENALTIES, INCLUDING WITHOUT LIMITATION, LOSSES OF BUSINESS, REVENUE OR ANTICIPATED PROFITS, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Cap on Monetary Damages. LICENSEE'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO LICENSEE FOR THE WORK FOR WHICH LICENSEE PERFORMS FOR LICENSOR.
- Obligation of Confidentiality. Each party (the "Recipient") acknowledges that in connection with this Agreement such party may gain access to Confidential Information of the other party (the "Disclosing Party"). As a condition to being furnished with Confidential Information, the Recipient agrees, during the Term of this Agreement, to:
- not use the Disclosing Party's Confidential Information other than in connection with performing its obligations under this Agreement and shall make no use of any such Confidential Information, directly or indirectly, in any manner to the detriment of the Disclosing Party or in order to obtain any competitive benefit with respect to the Disclosing Party; and
- maintain the Disclosing Party's Confidential Information in confidence and, subject to Section 9.2 below, not disclose any of the Disclosing Party’s Confidential Information without the Disclosing Party's prior written consent; provided, however, that Recipient may disclose the Disclosing Party's Confidential Information to its officers, employees, consultants and legal advisors ("Representatives") who: (i) have a "need to know" for purposes of the Recipient's performance under this Agreement, (ii) have been apprised of this restriction; and (iii) are themselves bound by nondisclosure restrictions at least as restrictive as those set forth in this Section 9.1.
The Recipient shall be responsible for ensuring its Representatives' compliance with, and shall be liable for any breach by its Representatives, of this Section 9. The Receiving Party shall employ the same efforts it uses with respect to its own confidential information to safeguard the Disclosing Party's Confidential Information from use or disclosure to anyone other than as permitted hereby.
- Confidential Information does not include information of the Disclosing Party that:
- is already known to the Recipient without restriction on use or disclosure prior to receipt of such information from the Disclosing Party;
- is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Recipient; or
- is received by the Recipient from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
- If the Recipient becomes legally compelled to disclose any of the Disclosing Party's Confidential Information, the Recipient shall:
- provide prompt written notice to the Disclosing Party notice so that the Disclosing Party may seek a protective order or other appropriate remedy or waive its rights under this Section 9; and
- disclose only the portion of Confidential Information that it is legally required to furnish.
If a protective order or other remedy is not obtained, or the Disclosing Party waives compliance, the Recipient shall, at the Disclosing Party's expense, use reasonable efforts to obtain assurance that confidential treatment will be afforded the Confidential Information.
- Further Assurances. Upon a party's request, the other Party shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further actions, necessary to give full effect to the terms of this Agreement.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party's Marks, in each case, without the prior written consent of the other party, which shall not be unreasonably withheld or delayed.
For purposes of this Agreement, (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
- Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
- Entire Agreement. This Agreement, together with the Terms and Conditions of the Licensee Site, as well as the [LIST SERVICES AGREEMENT] and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments and appendices and [LIST SERVICES AGREEMENT], this Agreement shall govern.
- No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
- Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Governing Law; Sumbission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of New York. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and County of New York, and each party irrevocably submits to the [exclusive] jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.