Fill and Sign the Multimedia Agreement Form

Multimedia Development and Distribution Agreement This License Agreement (the Agreement ) made on the __________________ (date) , between _______________________ (Name of Licensor) , a corporation organized and existing under the laws of the state of ________________, with its principal office located at ____________________________________________________________________________ (street address, city, state, zip code) , referred to herein as Licensor , and ________________ (Name of Licensee) , a corporation organized and existing under the laws of the state of _________________, with its principal office located at ________________________________ ______________________________________________________ (street address, city, state, zip code) , referred to herein as Licensee . Whereas, Licensor is in the business of compiling, developing, writing, and publishing information in printed and pictorial form; and Whereas, Licensee is in the business of manufacturing, assembling, importing, and distributing products consisting of computer software and data; and Whereas, Licensee desires to incorporate Licensor's information into its computer products; and Whereas, Licensor wishes to provide its information to Licensee for such purpose; Now, therefore, for and in consideration of the mutual covenants contained in this agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Definitions A. The term fixed and derivative works as used herein shall have the meaning ascribed to them in Section 101 of the U.S. Copyright Act, 17 U.S.C. 101 et al. B. Code shall mean any computer programs which operate in conjunction with the Product and cause the Product to function. A multimedia work can be thought of as comprising two components: 1. The works which it embodies, i.e., the Work; and 2. Computer software used to manipulate the Work, i.e., Code. C. CD-ROM shall mean a compact-disc, read-only platter, useable in the Apple Macintosh platform. D. CD-ROM Version shall mean a copy of a Work, as defined herein, fixed on CD-ROM. E. Licensor Encyclopedia shall mean the full text, tables, and photographs described in Exhibit A hereto. F. Net Revenue shall mean gross revenues that Licensee is entitled to receive from sales; less credits, returns, shipping charges, sales taxes, and custom duties. G. Premium shall mean an item given or offered for sale, with or without a directly identifiable purchase price, as an incentive for the recipient to enter into or consider entering into a transaction. H. Product shall mean units of software and data which are manufactured, assembled, and distributed by Licensee and which incorporate CD-ROM Versions. I. Trademark shall mean Licensor's trademark and the logo of Licensor. J. Works shall mean the Licensor's Encyclopedia and any other materials and information provided by Licensor to Licensee for use in creation of the Product. 2. Grant of License. Subject to the conditions set forth herein, Licensor grants to Licensee the following: A. An exclusive, nontransferable license to convert unaltered copies of the Work into CD-ROM Versions; B. An exclusive, nontransferable license to incorporate the CD-ROM Versions into Products; C. An exclusive, nontransferable license to distribute Products to third-party distributors, retail establishments, original equipment manufacturers (OEMs), and directly to end-users; and D. An exclusive, nontransferable license to use the Trademark in the promotion, sale, and distribution of the Products. 3. Reservation of Rights. All other rights with respect to the Works, whether now existing or which may hereafter come into existence, which are not expressly granted to Licensee herein, including but not limited to print publication, electronic publication in all media and formats other than those addressed herein, and video, movie, and audio rights, are reserved to Licensor. 4. Territory Licensee's rights hereunder will be worldwide. 5. Necessary Permissions . Licensor has, or shall obtain, the rights and permissions necessary to use the Works as contemplated in this Agreement. Licensor shall provide to Licensee all attributions which must be included in the Products. 6. Licensee Responsibilities. Licensee shall perform all conversions, design, and manufacturing associated with the manufacture, sale, and distribution of the Products. 7. Marketing and Promotion. Licensee shall use best efforts to promote sales of the Products. 8. Copyright A. Licensee hereby confirms that Licensor owns the entire title, right, and interest in and to the CD-ROM Versions, the Products, the audio-visual displays generated by the Products, and the user interfaces of the Products whether or not they constitute works made for hire as defined in 17 U.S.C. Section 201(b), including, without limitation, the copyrights thereto throughout the world together with any and all renewals and extensions thereof. B. Licensee agrees to take all actions and cooperate as is necessary to protect Licensor's copyrights in the CD-ROM Versions, the Products, the audio-visual displays generated by the Products, and the user interfaces of the Products and further agrees to execute any documents that might be necessary to perfect Licensor's ownership of copyrights in such materials. C. Licensee shall cause an appropriate copyright notice to appear in each copy of the Products (or such copyright notice as Licensor may specify or as may be required by third parties in connection with rights and permissions obtained by Licensor.) 9. Trademark A. Licensee shall not use or authorize the use of the Trademark in connection with the Products or the advertising and promotion thereof except in such manner as Licensor shall have approved in each instance. B. Each Product shall bear the Trademark in its title as Licensor may in its discretion specify. C. Licensee agrees that all use by Licensee of the Trademark shall inure to Licensor's benefit. In those countries where Licensor, in its sole opinion, deems it necessary, Licensee will be recorded as a registered user of the Trademark at Licensor's control and expense and Licensee will cooperate with Licensor to effect such recording. D. In the event that Licensee learns of any infringement, threatened infringement, or passing-off of the Trademark, or that any third party claims or alleges that the Trademark is liable to cause deception or confusion to the public, Licensee shall notify Licensor giving particulars thereof, and Licensee shall provide necessary information and assistance to Licensor in the event that Licensor decides that proceedings should be commenced or defended. The Licensor shall have the sole right to commence an action against an infringer and such action shall be at its own cost and expense. Any recovery received by Licensor as a result of such action shall be retained solely by the Licensor. 10. Right of Approval A. Licensee acknowledges that if the Products manufactured, distributed, or sold by it are of inferior quality in image, design, material, or workmanship, the substantial good will which Licensor has built and now possesses in the Works and in the Trademark will be impaired. For those reasons, and to protect all rights in and to the Works which Licensor has now or may in the future acquire, Licensor will have the full and final right of written approval, not to be unreasonably withheld, concerning Licensee's use of the Works and the manufacture, distribution, and sale of the Products produced pursuant to this Agreement. B. Licensee, prior to the manufacture, distribution, and sale of the Products, will submit to Licensor for its written approval two samples of each of the Products. Licensor shall exercise its rights of approval in its sole discretion, and Licensee acknowledges and agrees that Licensor will have final editorial control over the Products and their contents. Licensee shall, thereafter, at least once during each year during the Term of this Agreement provide Licensor with samples of the Products for approval. 11. Selling Price and Terms. The price or prices at which the Products are offered for sale shall be determined by Licensee in consultation with Licensor. 12. Royalties A. Royalty Payments: Retail Royalties will be paid for each Product which is distributed through retail channels. The royalty shall be ___ percent (___%) of Net Revenue for each Product shipped. B. Royalty Payments: Direct Sales Royalties will be paid for each Product sold directly to end-user customers. The royalty shall be ___ percent (___%) of Net Revenue for each Product shipped. C. Royalty Payments: Premiums Royalties will be paid for each Product which is distributed as a Premium. The royalty for Premiums shall be $__________ for each Product shipped. D. Royalty Payments: Copies Royalties shall not be paid on any copies of Products which are returned, or furnished free of charge for promotion, display, or similar purposes. 13. Advances . Licensee shall pay to Licensor as a nonrefundable advance against royalties with regard to the sales of Products $__________ to be paid to Licensor by Licensee upon the first shipment of Products. Royalties earned after this payment for the sale of Products shall first be applied against this advance and thereafter paid to Licensor. 14. Accounting; Timing of Payments; Statements; Audits A. Licensee shall keep accurate records of all transactions relating to the Products. Such records shall clearly and separately set forth all relevant information by Product type; including, without limitation, the number of units shipped and the number of units furnished free of charge for promotion. B. Licensee shall allow Licensor or its agent or agents, upon five (5) days' written notice, to inspect, audit, and analyze all of Licensee's records as described herein. 15. Term of Agreement. This Agreement shall continue in force for ______ (number) years from the date hereof (the Initial Term ). 16. Representations and Warranties; Indemnity Obligations A. Licensor represents and warrants to Licensee that Licensor has the full right, power, and authority to enter into this Agreement, and to grant the rights granted to Licensee hereunder. B. Licensee warrants and represents that: (1) the Products shall not contain any libelous material; C. The Code and any user interfaces which it generates shall be of the highest quality; and D. The Code shall not infringe any trademark, copyright, patent, trade secret, or any other intellectual property right of any third party. E. THE WARRANTIES STATED ABOVE ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES MADE BY THE PARTIES. BOTH PARTIES WAIVE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. F. Licensor shall indemnify Licensee and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorney fees and all related costs and expenses) incurred by Licensee as a result of any claim, judgment, or adjudication against Licensee in which it is alleged that the duplication or distribution of the Licensor Encyclopedia provided by Licensor hereunder infringes any trademark, copyright, right of publicity, trade secret, or any other intellectual property right of any third party, provided that Licensee (a) promptly notifies Licensor in writing of any such claim and gives Licensor the opportunity to defend or settle any such claim at Licensor's expense and (b) cooperates with Licensor, at Licensor's expense, in defending or settling such claim. G. Licensee shall indemnify Licensor and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorney fees and all related costs and expenses) incurred by Licensor as a result of any claim, judgment, or adjudication against Licensor arising from: 1. Any breach or allegation which, if true, would constitute a breach of any of Licensee's obligations hereunder; 2. The actions or omissions of Licensee, its officers, directors, employees, agents, or assigns in connection with the exercise of their rights hereunder; 3. Any modifications to the Licensor Encyclopedia by Licensee (other than modifications approved by Licensor); 4. An allegation that the Code infringes any trademark, copyright, right of publicity, trade secret, or any other intellectual property right of any third party; 5. Any allegation based on the failure of the Product or on injury, death, or damage caused by such Product; or 6. Any representation or warranty made by Licensee in connection with this Agreement or the marketing or distribution of the Products, provided that Licensor (i) promptly notifies Licensee in writing of any such claim and gives Licensee the opportunity to defend or settle any such claim at Licensee's expense and (ii) cooperates with Licensee, at Licensee's expense, in defending or settling such claim. 17. Service and End-User Support. Licensee agrees it will provide to any customers to whom it distributes the Products written notice that Licensee will provide customer service and end-user support, and Licensee agrees to provide service in response to any customer questions arising from the use of the Products. Notwithstanding the foregoing, Licensee shall refer all customer calls related to the content of the Works to Licensor. 18. Limitation of Liability. With the exception of indemnification obligations, or a breach of the provisions of the Trademark restrictions herein, neither party shall in any circumstances be liable for any loss of business or profits, or for any consequential, incidental, punitive, or similar damages, or, other than as set forth herein, for the claims of damages made by any third party for any cause whatsoever, regardless of the form of action, whether in contract or in tort, including negligence, even if it has been advised of the possibility of such damages. 19. Right to Terminate for Breach. Should either party materially breach any terms or conditions of this Agreement, in addition to all other legal rights and remedies available to the nonbreaching party, the nonbreaching party may terminate this Agreement after thirty (30) days' written notice of said breach has been delivered to the breaching party, unless said breach will have been remedied within said thirty (30) days. In the event of Licensor's termination of the Agreement based on Licensee's breach, in addition to any other rights and remedies available to Licensor, Licensor shall be entitled to keep all advances paid hereunder. 20. Obligations of Licensee on Termination. Upon expiration of, or termination of, this Agreement for any reason, Licensee shall return all copies of the Works in all media, and shall erase or destroy any Work or portion thereof contained in all types of computer memory, and so warrant in writing to Licensor within thirty (30) days of termination or expiration of this Agreement. Notwithstanding the foregoing, in the event of a termination of this Agreement prior to expiration for a reason other than Licensee's non-payments under this Agreement, Licensee may distribute Products in its possession at termination for a period of thirty (30) days, and shall pay royalties for such distribution as provided herein. 21. Effect of Termination. Neither termination of this Agreement nor waiver of any right to terminate under this Agreement shall impair or limit any additional rights or remedies that either Licensor or Licensee may have at law or in equity. 22. Bankruptcy. Either party may terminate this Agreement, effective immediately upon written notice, if (1) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver, or to a trustee in bankruptcy; (2) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within sixty (60) days; or (3) the other party is adjudged bankrupt or insolvent. Upon such termination by either party, all rights granted to Licensee herein shall terminate. 23. Status of Parties Licensee acknowledges and agrees that Licensee is an independent contractor, and is not an employee, agent, or partner of Licensor. 24. Severability The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision. 25. No Waiver The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. 26. Governing Law This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of _______________. 27. Notices Unless provided herein to the contrary, any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement. 28. Attorney’s Fees In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees. 29. Mandatory Arbitration Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect. 30. Entire Agreement This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement. 31. Modification of Agreement Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party. 32. Assignment of Rights The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party. 33. Confidentiality Contractor and Employer both acknowledge that all information and materials furnished from the Employer Broker concerning this Agreement and the performance of it is confidential and may not be used for any purpose other than in connection with this Agreement. 34. Counterparts This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. 35. Compliance with Laws In performing under this Agreement, all applicable governmental laws, regulations, orders, and other rules of duly-constituted authority will be followed and complied with in all respects by both parties. 36. Necessary Acts and Further Assurances The parties shall at their own cost and expense execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to evidence or carry out the intent and purposes of this Agreement or to show the ability to carry out the intent and purposes of this Agreement. 37. In this Agreement, any reference to a party includes that party's heirs, executors, administrators, successors and assigns, singular includes plural and masculine includes feminine. WITNESS our signatures as of the day and date first above stated. __________________________ ___________________________ (Name of Licensor) (Name of Licensee) By:____________________________ By:_______________________________ _________________________ ____________________________ (P rinted Name & Office in Corporation) (P rinted Name & Office in Corporation) _________________________ ____________________________ (Signature of Officer) (Signature of Officer)