Photograph License Agreement

3.13 Form: Photograph License Agreement

THIS AGREEMENT by and between ("Producer"), a New York corporation, and , an Illinois corporation ("Licensor").

WHEREAS, Producer is in the business of publishing and distributing ; and

WHEREAS, Licensor has the right to grant to Producer a license to use the Photographs, as defined herein, in Producer's product, as defined herein.

Therefore, the parties hereto agree as follows:

1. Definitions

1.1. Licensed Media

"Licensed Media" shall mean computer-readable media now known or hereafter to become known.

1.2. Photographs

The "Photographs" shall mean those photographs identified in Exhibit A, and all portions or adaptations thereof.

1.3. Product

The "Product" shall mean the product described in Exhibit B which Producer shall develop and publish in any and all of the Licensed Media.

2. Delivery

Upon the execution of this Agreement, Licensor shall provide Producer with prints of the Photographs conforming to the specifications set forth in Exhibit A.

3. Grant

Subject to the limitations set forth herein, Licensor hereby grants to Producer a non-exclusive license for a period of five (5) years to: (1) reproduce, modify, and adapt the Photographs; (2) digitize such reproductions, modifications and adaptations to create "Digitizations"; (3) incorporate such Digitizations in the Products; and (4) manufacture, reproduce, distribute, broadcast or transmit the Product, incorporating part or all of the Digitizations through normal channels of commerce.

4. Reservation of Rights

The license granted by Licensor herein shall extend only to the use of the Photographs in connection with the design, development and distribution of the Product in the Licensed Media. Producer shall have no right to make any use of the Photographs, or any part thereof, other than in connection therewith. The license granted herein are non-exclusive, and Licensor reserves the right to make any use of the Photographs, or to license any rights with respect to the Photographs to any third party.

5. Right of Approval

Prior to the commencement of the manufacture of any Product, Licensor shall have a right of written review over the use of the Photographs as part of the Product, such approval not to be unreasonably withheld. Producer shall provide Licensor with one (1) copy of the design layout of the Product. Licensor shall respond in writing within five (5) days of receipt thereof with any suggestions or comments Licensor may have. Licensor shall have no right to prohibit Producer's use of any Photograph, except in the event of an alteration of the Photograph which is of such a significant nature that the Photograph, as incorporated in the Product, bears no similarity to the Photograph as originally provided.

6. Fee

Producer shall pay to Licensor the following fees, whether or not a particular Photograph or portion or adaptation thereof appears in the Product: dollars ($) per color Photograph; and dollars ($) per black-and-white Photograph. All fees hereunder are payable within thirty (30) days of receipt of the Photographs.

7. Title

The Photographs shall remain the sole and exclusive property of Licensor and Licensor shall retain all right, title and interest, including without limitation any rights under United States or foreign copyright laws, in the Photographs. Producer shall have sole and exclusive title to all components of the Product other than the Photographs, including all patents, copyrights, trademarks, trade secrets and other proprietary rights therein, and to whatever rights vest in the Photographs as part of a collective work or compilation, including without limitation the right to reproduce the Product in any or all Licensed Media.

Licensor will, upon request by Producer, promptly execute, acknowledge, or deliver any papers deemed reasonably necessary by Producer to document, enforce, protect, and otherwise perfect Producer's rights, title and interest in and to the Products.

8. Copyright Notice

All copies of the Product which include the Photographs shall bear an appropriate copyright notice.

9. Advertising

Licensor shall have the right to approve all advertising, packaging, promotional or display materials bearing Licensor's name, which approval shall not be unreasonably withheld.

10. Indemnification

Licensor warrants and represents that Licensor has all rights in the Photographs necessary to grant the licenses granted herein, and has secured all necessary waivers of rights of privacy and publicity from persons depicted in the Photographs. Licensor, at its own expense, shall defend, indemnify and hold harmless Producer, its licensees, employees and agents, from any claim, demand, cause of action, debt or liability (including attorneys' fees) to the extent it is based on a claim that the Photographs infringed or violated the copyright, license or other proprietary right of a third party, or that the Photographs violated a third party's right of publicity and/or privacy, provided Licensor is notified promptly of such claim. Producer may, at its expense, assist in such defense if it chooses. Licensor shall have the right to control the defense in any such action. This obligation shall survive the termination of this Agreement for any reason.

Notwithstanding the foregoing, no obligation of indemnification shall arise in the event of a third party claim based solely on alterations or modifications to the Photographs performed by Producer or at Producer's direction.

Producer warrants that the Photographs as provided shall not be used in conjunction with or made a part of any Product which is libelous, slanderous or obscene. Producer, at its own expense, shall defend, indemnify and hold harmless Licensor, its licensees, employees and agents, from any claim, demand, cause of action, debt or liability (including attorneys' fees) assert a claim based solely on Producer's production and distribution of the Product.

11. Limitation of Liability

NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12. Termination

Either party shall have the right to terminate this Agreement upon written notice to the other party upon: (i) a material breach by the other party of any provision of this Agreement, which material breach remains uncured thirty (30) days after written notice thereof has been provided to the breaching party; (ii) an unauthorized assignment of this Agreement; (iii) termination of the business of the other party; (iv) insolvency of the other party; or (v) an assignment for the benefit of creditors or the filing of a petition in bankruptcy against the other party, which petition is not dismissed within sixty (60) days from the date of filing.

13. Arbitration

Any dispute, controversy or claim relating to this Agreement or any breach or default in the performance of the terms and conditions thereof shall be settled by arbitration in the City of New York in accordance with the then-existing arbitration rules promulgated by the American Arbitration Association. The decision of the arbitrators shall be final and binding on the parties, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Any arbitration award shall include attorneys' fees for the prevailing party.

14. General

14.1. Entire Agreement

This Agreement including Exhibit A sets forth the entire agreement between the parties in connection with the subject matter hereof and it incorporates, replaces, and supersedes all prior agreements, promises, proposals, representations, understandings and negotiations, written or not, between the parties in connection therewith. The making, execution, and delivery of this Agreement have been induced by no representations, statements, warranties or agreements other than those expressed herein.

14.2. Notice

All notices will be in writing and will be delivered personally or sent by confirmed facsimile transmission, overnight letter or United States certified mail, proper postage prepaid at the addresses specified below:

if to Licensor at:

if to Producer at:

Either party may change the person or the address to which notices are directed by giving written notice to the other party. Personally delivered or confirmed facsimile notices will be deemed given when delivered. Notices sent by United States certified mail, return receipt requested, will be deemed given four (4) business days after dispatch. Notices sent overnight letter will be deemed given on the next business day after dispatch. Notwithstanding the foregoing, notices of change of address will be deemed given only upon receipt by the party to whom it is directed.

14.3. Choice of Law

This Agreement has been entered into in the State of New York and will be governed by those laws of the State of New York which are applicable to contracts entered into and performed entirely within the State of New York without regard to conflict of laws principles. Any disputes which arise under this Agreement, even after the termination of this Agreement, that cannot be resolved through good faith discussions, will be heard only in the State or Federal courts located in New York County, New York and both parties hereby consent to such jurisdiction.

14.4. Modification

No modification, amendment, supplement to or waiver of any provision of this Agreement shall be binding upon the parties hereto unless made in writing and duly signed by both parties.

14.5. Waiver

A failure of either party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder.

14.6. Severability

Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. Any unenforceable provision will be replaced by a mutually acceptable provision which comes closest to the intention of the parties at the time the original provision was agreed upon.

14.7. Headings

The headings in this Agreement are for purposes of reference only.

14.8. Survival

All provisions hereof relating to assignment of rights to Producer shall survive termination of this Agreement.

IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized representatives as of the date hereof.