Fill and Sign the Contaminant Plume Locations Western Municipal Water District Form

1 2.19 Form: Licensor Oriented Content License Agreement AGREEMENT by and between Intellectual Property Holder ("Licensor"), a California Corporation having its principal place of business at 1605 Townsend Avenue, Los Angeles California and Multimedia Company Inc., a New Jersey Corporation having its principal place of business at 6 Wilton Circle, Newark, New Jersey ("Licensee"). WHEREAS, Licensee is in the business of developing and publishing interactive multimedia CD-ROMs; WHEREAS, Licensee desires to license from Licensor, and Licensor desires to license to Licensee, the non-exclusive right to develop, produce and publish an interactive multimedia product described on Exhibit A hereto (the "Product") for each of the next three years, utilizing materials provided by Licensor and third parties; NOW THEREFORE, the parties hereto agree as follows: 1. Definitions 1.1. Licensed Marks "Licensed Marks" means the trade names, trademarks and service marks of the Licensor identified on Schedule A hereto. 1.2. Licensed Product "Licensed Product" means the interactive, multimedia CD-ROM (in the format now known but excluding formats hereafter to become known) versions of the Product, compatible with IBM PC and Apple Macintosh platforms, produced for each period described in Schedule A throughout the Term. 1.3. Licensed Sales "Licensed Sales" means the sale or distribution of the Licensed Product directly to or for retail outlets, wholesalers to retailers, mail 2 order or catalogs, including electronic and video marketing entities. Licensed Sales do not include the sale of Licensed Products in bundled form or to OEMs form. 1.4. Licensor Content "Licensor Content" means (i) the Licensed Marks; (ii) Licensor-owned photographs provided to Licensee by Licensor; (iii) audio and video footage provided to Licensee by Licensor, which footage is provided on a quitclaim basis; (iv) the statistical information with respect to the Licensor provided to Licensee by Licensor; and (v) textual materials provided by Licensor to Licensee. 1.5. Net Sales "Net Sales" means the gross amount of Licensed Sales of Licensed Products in U.S. dollars at the invoiced selling price, net normal and reasonable quantity discounts (if given) and returns for credit (if actually made). No deductions shall be made for costs incurred in manufacturing, selling, distributing and advertising (including cooperative and promotional allowances), or for cash discounts, uncollectible accounts or any other allowances. Net Sales resulting from sales to any party directly or indirectly related to or affiliated with Licensee shall be computed based on the regular selling prices to the trade. 1.6. OEM "OEM" means a manufacturer of computer hardware (such as computer systems, sound boards, CD-ROM drives, upgrade kits or the like) which distributes CD-ROMs together with such OEMs' computer hardware as a package. 3 1.7. Related Materials "Related Materials" means all packaging, manuals, tags, labels, advertising, marketing, promotional, display, public relations and other materials with respect to the marketing, advertising, publicizing, promotion, distribution and sale of each version of the Licensed Products. 1.8. Sell-Off Period "Sell-Off Period" means ninety (90) days after the expiration of the Term. 1.9. Term "Term" means the period commencing upon the execution and delivery of this Agreement and expiring on the third anniversary thereof, unless sooner terminated in accordance herewith. 1.10. Territory "Territory" means the world. 2. License Licensor grants to Licensee a non-exclusive license (the "License") to: (i)\x11digitize the Licensor Content and combine such digitized versions of the Licensor Content with other digitized images, photographs, animation, video, audio, text, software and other content to create Licensed Products; (ii)\x11modify and re-arrange the Licensor Content as necessary or desirable to create Licensed Products; and (iii)\x11to reproduce, manufacture, market, advertise, distribute and, directly or indirectly, make Licensed Sales of the Licensed Products incorporating the Licensor Content. 4 3. Term The term of this Agreement shall commence as of the date hereof and continue for three (3) years, whereupon the Agreement shall expire unless both parties agree to an extension of the terms hereof. 4. Limitations Of License The License is subject to the following limitations: (1) Licensee shall not sell Licensed Products to OEMs, or permit OEMs to manufacture or distribute Licensed Products without, in each instance, obtaining the prior written consent of Licensor. (2) Licensee shall not distribute Licensed Products, or any portion thereof consisting of or including any Licensor Content, through any telecommunications network or by wireless transmission or by any other means now or hereafter created other than by physical delivery of the CD-ROM on which the Licensed Product resides, without the prior written consent of Licensor. (3) The License does not constitute and shall not be used to imply the endorsement by Licensor, or any of Licensor's subsidiaries or affiliates of the Licensed Products or any other product of Licensee and Licensee shall neither state nor imply that the Licensed Marks are certification marks or an indication of a particular standard of quality. (4) All rights not expressly granted to Licensee are reserved to Licensor for use without restriction. 5. Guaranteed Compensation Licensee shall pay to Licensor the Minimum Guaranteed Annual Compensation as set forth on Exhibit A hereto.___________. 6. Royalties (1) Licensee agrees to pay Royalties the percentage of Net Sales set forth in Exhibit B hereto. (2) Notwithstanding the foregoing, the Royalties payable by Licensee to Licensor for the sale of each unit of the Licensed Product shall be not less than the Minimum Per Unit Royalty set forth on Exhibit C. 5 (3) No Royalties shall be owed or paid with respect to copies of the Licensed Product distributed as "free," "complementary," or "no charge," provided that the total number of such copies distributed in any calendar quarter shall not exceed one percent (1%) of the total number of copies sold by Licensee for such quarter. (4) On or before the fifteenth day following each calendar quarter of the Term (including the Sell-Off Period, if applicable) Licensee shall submit to Licensor a full and accurate statement showing, the quantity, description and Net Sales of each of the Licensed Product sold or distributed during such month. Further, Licensee shall simultaneously remit all Royalties due on Net Sales for each such month by check or electronic funds delivered directly to Licensor or in accordance with written instructions given to Licensee by Licensor. 7. Licensed Products (1) Licensee shall produce and distribute a new Licensed Product for each period during the Term, each of which shall include all updated or new Licensed Content and statistical information regarding the prior Season. (2) During the Term, Licensor shall give Licensee access to Licensor's archives at mutually agreeable times to review Licensor Content. Licensor shall deliver copies of Licensor Content, and updates thereto, to Licensee at its request. Licensee shall maintain records of all video footage and other Related Materials (i) selected by Licensee, and (ii) used by Licensee in the Licensed Product, sufficient to identify the source of such video footage and all rights required in order to use such footage in the Licensed Product. Licensee acknowledges that use of particular Licensor Content in the Licensed Product and the Related Materials may require third party permissions, which permissions shall be the sole responsibility of Licensee. Personnel of Licensor shall be available to consult with Licensee and its personnel with respect to the Licensor Content at such times and for such periods as Licensee may reasonably request. (3) Licensee shall deliver to Licensor separate files of all digitized Licensor Content, in each case promptly after the digitization thereof. Such files shall be in the formats and shall be stored on such media as Licensor may request. Licensee acknowledges and agrees that the 6 digitized Licensor Content constitutes a derivative work and all rights therein, including copyright, shall be owned by Licensor. 8. Quality Control (1) Licensee shall, prior to any manufacturing of any Products, furnish to Licensor free of cost, for its written approval as to quality, style, and adherence to the requirements set forth in this Agreement, three (3) prototypes, layouts, or samples of each Product and their cartons, containers, and advertising, promotional, packing or wrapping materials (the foregoing referred to herein as the "Finished Product"). Licensor shall review such material and advise Licensee in writing as to any aspect thereof that it does not approve, and the reasons therefor. Licensee shall modify each version of the Licensed Product and all Related Materials to conform to Licensor's objections. After such Finished Product is approved, Licensee shall not depart therefrom in any material respect without resubmitting each element of the Finished Product for subsequent approval by Licensor. (2) All copies of each version of the Licensed Product and all Related Materials shall contain proper acknowledgments of Licensor's copyright and trademark rights in accordance with this Agreement. (3) Licensee will comply with all laws and regulations relating or pertaining to the manufacture, sale, advertising, distribution or use of the Licensed Product, shall maintain high quality and standards commensurate with the reputation of Licensor, and shall comply with any regulatory agencies which shall have jurisdiction over the Licensed Product. 9. Licensed Marks (1) Licensor hereby grants to Licensee the right to use and publish the Licensed Marks solely in connection with the marketing, distribution and promotion of the Licensed Product. Licensee shall add the appropriate trademark symbol or designation (i.e., ô or Æ) and shall footnote Licensor's ownership of the Licensed Marks wherever they are first mentioned in any printed materials and in the Licensed Product, or in any manner as Licensor may reasonably designate from time to time. 7 (2) Licensee may utilize the Licensed Marks for such selling, marketing, advertising, promotional and display materials for the Licensed Product as Licensee, in its judgment, determines will best promote the sale of Licensed Products, subject to the approval of Licensor. Licensee agrees that it will not use the Licensed Marks or any reproduction thereof in any advertising, promotional or display material or in any other manner without Licensor's prior written approval. (3) To the extent the Licensed Marks include the names, logos, colors, and the like of any of the various affiliates of Licensor, Licensee agrees that the Licensed Product will be designed so that the Licensed Marks of each affiliate are displayed in a substantially equal and equivalent manner. (4) Licensee shall keep appropriate records and shall advise Licensor of the date when each of the Licensed Products is first placed on sale or sold in each country of the Territory and the date of first use in each country of each different Licensed Mark on the Licensed Products and any promotional or packaging materials. With respect to those countries which require applications to register Licensee as a permitted or registered user of the Licensed Marks, or which require the recordation of this Agreement, Licensee shall execute and deliver to Licensor such applications, agreements or other documents as may be necessary. In such event, this Agreement rather than such agreements will govern any disputes between Licensee and Licensor, and when this Agreement expires or is terminated, any such other agreement shall also be deemed expired or terminated. (5) Licensee acknowledges that Licensor is the exclusive owner of the Licensed Marks. Any intellectual property rights in the Licensed Marks that may accrue to Licensee shall inure to the benefit of Licensor and shall be assigned to Licensor upon its request. Any copyright, trademark or service mark used or procured by Licensee in or with respect to or involving the Licensed Marks, or any derivations or adaptations of the Licensed Marks, or any word, symbol or design which is similar to the Licensed Marks so as to suggest association with or sponsorship by the Licensor or any of its affiliates, shall be procured for the benefit of and in Licensor's name, but at Licensee's expense, notwithstanding their creation by Licensee. All of Licensee's rights in and to any such copyright, trademark or service mark already procured or applied for is hereby assigned to Licensor. 8 (6) Licensee further agrees that it will not apply for nor seek to obtain trademark, copyright or any other property right in any of the Licensed Marks or any depictions thereof on Licensed Products or Related Materials. Licensor may, at its option, obtain in its own name any or all trademark, copyright or other property right protection for the Licensed Marks or other matter (furnished or provided by Licensee or Licensor) for the Licensed Products and Related Materials. Upon request, Licensee will furnish necessary specimens or facsimiles for such purpose free of cost, as well as evidence of the date of first shipment or sale of each of the Licensed Products in commerce. (7) Upon Licensee's request, Licensor shall undertake to procure and obtain in its own name, trademark, copyright, design patent or other property right protection of the Licensed Marks or other matter (furnished or provided by Licensor or Licensee) for the Licensed Products at Licensee's expense, including reasonable attorneys' fees. (8) If Licensee becomes aware of the manufacture or sale by anyone other than Licensee of Licensed Products or of such products as would be confusingly similar in the minds of the public and which bear or are promoted in association with the Licensed Marks under this License Agreement, or any names, symbols, emblems, designs or colors which may be confusingly similar in the minds of the public to such Licensed Marks, Licensee shall promptly notify Licensor thereof in writing. Licensor shall, in its sole discretion, take steps to enjoin any such manufacture or sale, in its own name. Upon Licensor's request, Licensee shall join in or cooperate in the prosecution of any such action as may be instituted by Licensor; all such prosecution shall be at Licensor's expense. The proceeds recovered in any such prosecution in the form of damages, profits or other recovery shall belong solely to Licensor. Licensee shall not commence any action of its own to restrain or recover damages for any alleged infringements of the Licensed Marks without obtaining Licensor's prior written consent. (9) During the Term and thereafter, Licensee will not challenge the title or right of Licensor in and to the Licensed Marks or any copyright or trademark pertaining thereto, nor will it challenge the validity of the License. (10) Licensee will not harm, misuse or bring into disrepute any of the Licensed Marks, their reputation or that of Licensor. 9 10. Ownership Subject to the Licensor's rights in the Licensor Content, Licensor and Licensee agree that Licensee shall retain all right, title and interest to the Licensed Products and all ideas, concepts, software, interfaces, designs, text, plans and other copyrightable material that are created by or for Licensee pursuant to this Agreement, with all rights therein, including copyright, being Licensee's property and such rights shall include the exclusive right to own and register the copyright in Licensee's name. Licensor agrees to execute such documents and instruments as Licensee may reasonably request to evidence Licensee's ownership of all copyrightable material pursuant hereto. 11. Distribution of Licensed Products to Licensor Licensee undertakes to sell Licensed Products to retail outlets owned or operated by Licensor: (i) at the lowest minimum quantities; (ii) at the lowest prices charged by Licensee to any other third party; and (iii) at the most advantageous credit terms and return privileges offered by Licensee to any other third party. Licensee also agrees to deliver new versions of Licensed Products to retail outlets owned or operated by Licensor on a prompt and timely basis, and in no event later than to outlets not owned or operated by Licensor, provided orders have been placed with Licensee for said new versions by said Affiliate outlets on as timely a basis as those orders placed by other outlets. 12. Goodwill. Licensee recognizes the great value of the reputation and goodwill associated with the Licensed Marks and, in such connection, acknowledges that such goodwill exclusively belongs to Licensor; that Licensee's use of the Licensed Marks will inure to the benefit of Licensor; and, that the Licensed Marks have acquired a secondary meaning in the mind of the purchasing public related to Licensor, the Licensor. 10 13. Representations and Warranties of Licensor Licensor hereby represents and warrants to Licensee that: (1) The Licensed Content will not violate the intellectual property rights of any third party, and (2) Licensor has the power and authority to enter into this Agreement and to perform its obligations hereunder and, upon execution and delivery hereof, this Agreement shall constitute the valid and binding obligations of Licensor enforceable in accordance with its terms. 14. Representations and Warranties of Licensee Licensee hereby represents and warrants to Licensor that: (1) Licensee has the power and authority to enter into this Agreement and to perform its obligations hereunder and, upon execution and delivery hereof this Agreement shall constitute the valid and binding obligations of Licensee enforceable in accordance with its terms; and (2) The Licensed Products and Related Materials will not violate the rights of any third party and will not give rise to any claim of such violation, including, without limitation, claims of libel, slander, defamation, copyright infringement, infringement of moral rights, trademark infringement, false designation of origin, disparagement, violation of privacy, publicity, identity or other proprietary rights, violation of patent or shop rights, piracy or plagiarism. 15. Indemnity; Insurance (1) Licensee hereby indemnifies and agrees to hold harmless Licensor, affiliates and their agents, servants, employees, officers, directors and other officials (collectively, the "Indemnified Parties") from any loss, liability, damage, cost or expense (including reasonable attorneys' fees), arising out of the manufacture, distribution, advertising, marketing, promotion, offering for sale and sale of the Licensed Products including, without limitation, any lawsuits against any of the Indemnified Parties by reason of or alleging any (i) acts or omissions of Licensee, (ii) breach of any representations, warranties or covenants of Licensee under this Agreement, (iii) unauthorized or infringing use by Licensee of any patent, process, trade secret, copyright, trademark, or publicity right or other similar property rights (other than the 11 Licensed Marks covered by this Agreement) or (iv) any alleged defects (design, manufacturing, handling or other) or inherent dangers in said Licensed Products or the use thereof. (2)Licensee agrees to obtain, at its own expense, an Errors and Omissions insurance policy covering the Licensed Products and Related Materials on an occurrence basis from an insurer licensed to do business in the State of _____________ with a Best's rating of not less than _______ providing protection for Licensor, its affiliates, agents, servants, employees, officers, directors and other officials and Licensee against any such claims or suits in amounts no less than $1 million per claim or suit. (3) The Indemnified Parties shall notify Licensee promptly of any claim hereunder as to which such Indemnified Party is seeking indemnification; provided, that Licensor shall have the right to control the defense of any claim and no such claim shall be settled without the approval of Licensor. 16. Audits. Licensee shall keep accurate books of account and records covering all transactions relating to the License (including, but not limited to, sales of Licensed Products). Licensor and its authorized representatives shall have the right, at all reasonable hours of the day and upon reasonable prior notice to examine and audit such books of account and records and all other documents and materials in Licensee's possession or under its control (including records of Licensee's parents, subsidiaries, affiliates and third parties, if they are involved in activities which relate to this Agreement) relating to this Agreement. Licensor shall have free and full access for such purposes and for the purpose of making extracts and copies. Should an audit by Licensor establish a deficiency of more than five percent (5%) between the amount found to be due and the amount actually paid or reported, Licensor's actual out-of-pocket costs of the audit will be paid by Licensee together with the amount of the deficiency, plus interest at the rate of one and one-half percent (1Ω%) per month from the date such amount became due until the date of payment. Licensee shall pay such amount within thirty (30) days. All such books of account and records shall be kept available for at least three (3) years after the termination of this Agreement. 12 17. Default and Termination (1) In the event Licensee violates, breaches or defaults in performing any of the provisions of this License Agreement and does not fully cure such violation, breach or default within ten (10) days notice from Licensor, this License Agreement shall automatically terminate, and Licensee shall pay Licensor within thirty (30) days without further demand all amounts then due Licensor and also shall pay therewith as liquidated damages all amounts still due Licensor as Minimum Guaranteed Compensation for the remainder of the Term. If such payments are not remitted when due, Licensee consents to the entry of judgment for such amount by a court having jurisdiction over Licensee or any of its assets. In addition, Licensor shall be entitled to sue for injunctive relief and other consequential damages, including reasonable attorneys' fees incurred by Licensor as a result of any such violation, breach or default by Licensee. The rights and remedies provided herein shall not be exclusive and are in addition to any other rights and remedies provided by law or this Agreement. (2) Without prejudice to any other rights Licensor may have pursuant to this Agreement or otherwise, Licensor shall have the right to terminate this Agreement at any time if: (i) Licensee shall not have begun the bona-fide distribution and sale of the Licensed Products in accordance with this Agreement on or before __________________; (ii) If Licensee shall be unable to pay its debts when due, or shall make any assignment for the benefit of creditors, or shall file any petition under the bankruptcy or insolvency laws of any nation, jurisdiction, county or place, or shall have or suffer a receiver or trustee to be appointed for its business or property, or be adjudicated a bankrupt or an insolvent; (iii) Licensee shall exhibit a pattern of frequent failure to make timely delivery of the Licensed Products to its resellers, distributors or retail accounts; (iv) If Licensee shall attempt to assign or transfer any interest in the License or this Agreement; or (v) If there is a change in more than fifty percent (50%) ownership or 13 controlling interest of Licensee or a material change in management of Licensee. (3) If any payments to Licensor are not remitted on the due date thereof, Licensee shall pay interest thereon at the rate of one and one- half percent (1.5%) per month from such date until payment thereof is made to Licensor. 18. Rights and Obligations on Expiration or Termination Upon the expiration or prior termination of the Term: (1) Licensee shall deliver to Licensor, as soon as practicable, a statement indicating the number and description of Licensed Products on hand, and Licensor shall have the right to conduct a physical inventory in order to ascertain or verify such inventory or statement; provided, that in the event Licensee refuses to permit Licensor to conduct such physical inventory, Licensee shall forfeit any right it may have hereunder to dispose of such inventory and, in addition to such forfeiture, Licensor shall have recourse to any and all other legal remedies available to it; (2) Licensee will refrain from further use of the Licensed Marks or any further reference to all or each of them, direct or indirect, or any simulation of the Licensed Marks; (3) Licensee shall immediately cease the reproduction or manufacture of Licensed Products; (4) Licensee shall have the right to continue to sell or otherwise dispose of copies of the Licensed Products which are in Licensee's inventory on the date of expiration (but not the prior termination) of the Term, but only in the normal course of business and at regular selling prices, such right to continue for the Sell-Off Period; provided Licensee continues to pay Royalties thereon to Licensor; provided that at the end of the Sell-Off Period, Licensee shall destroy any remaining inventory and shall provide to Licensor a certificate attested to by an executive officer of Licensee that all such inventory has been destroyed. (5) Licensee shall be entitled to retain copies of the Licensed Products for support of OEMs and End-Users, and for internal use. (6) The provisions of this Agreement shall survive to the extent necessary to carry out the purposes and intentions of this Agreement. 14 19. Consents and Approvals (1) Whenever Licensor's consent or approval is required hereunder, such approval or consent shall be given in the sole discretion of Licensor, and no such approval or consent shall be implied or deemed given unless in writing in each instance. (2) Licensee agrees that in the event it should enter into any agreement with respect to CD-ROM products with any other professional business similar to that of Licensor (including any licensing or marketing affiliate), on financial terms and conditions more favorable to such other party than those set forth herein, Licensee shall promptly so notify Licensor and, concurrently with the execution of such other agreement this Agreement shall be deemed amended to reflect such modified terms and conditions. 20. Notices All notices, demands, solicitations of consent or approval, offers, acceptances and other communications hereunder required in writing shall be deemed to have been given when personally delivered by courier or overnight mail service, with signed receipt, or when deposited in the United States mail and sent postage prepaid by registered or certified mail, return receipt requested, addressed to the following addresses, or to such other address which any party shall have given to the other parties for such purpose by notice hereunder: To Licensor:______________________ To Licensee:______________________ 21. No Assignment, Pledge or Encumbrance The License is personal to Licensee and Licensee shall not assign, transfer or sub-license any or all of the rights granted herein to any third party without the prior written consent of Licensor. Licensee shall not pledge or encumber the License or any of the Licensed Products as security or collateral for any obligation of Licensee. 15 22. No Partnership or Joint Venture This Agreement, intended solely as a license agreement, does not constitute and shall not be construed as constituting a partnership, joint venture or agency between Licensee and either the Licensor. Neither party shall have any right to obligate or bind the other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third persons. 23. Entire Agreement; Modification This Agreement represents the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all previous representations, understandings or agreements between the parties hereto. No waiver, modification or cancellation of any term or condition of this Agreement shall be effective unless executed in writing by the party charged therewith. 24. Binding Effect Subject to the limitations herein before expressed, this Agreement will inure to the benefit of and be binding upon the parties their successors and permitted assigns. 25. No Endorsement by Others Neither this Agreement nor any actions, omissions, approvals, consents, or the like carries with it any right to use the name, likeness, reputation, good will, persona, or any other aspect of the right of privacy, personality or publicity of any individual or group. 26. Governing Law; Attorneys' Fees (1) This Agreement shall be construed and controlled by the laws of the State of New York of the United States of America applicable to contracts negotiated and to be fully performed within the State of New York. (2) If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled 16 to recover reasonable attorneys' fees and costs, including expert witness fees. 27. Jurisdiction, Venue and Arbitration. Any dispute or disagreement between the parties hereto may be determined in any forum of Licensor's choosing, and Licensee hereby consents to venue and personal jurisdiction in the Supreme Court of the State of New York or any United States District Court within the State of New York. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the dates indicated below. Licensor: _____________________ By:__________________________ Title:________________________ Licensee: _____________________ By:__________________________ Title:_________________________