Terms and Conditions Licensing Agreement
TERMS AND CONDITIONS
In compliance with the terms of the Licensing Agreement, Artist (as identified in the applicable Licensing Agreement) hereby agrees to work with, on a non-exclusive basis, for the performance of the services (the “Services”) set out in the Licensing Agreement issued by EZWRP and accepted by Artist. This Licensing Agreement shall be deemed issued and accepted only if the Agreement is signed by a duly authorized representative of each Party for the purpose hereof.
- REPRESENTATIONS & WARRANTIES
2.1 Mutual Representations and Warranties
Each Party represents and warrants to the other Party that:
(i) it is duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation or organization;
(ii) (a) it has the full right, power, and authority to enter into this Agreement and to perform its obligations and to make the declarations hereunder, and (b) the execution of this Agreement by a representative whose signature is set forth at the end of the Licensing Agreement has been duly authorized by all necessary corporate action of the Party;
(iii) it has, and throughout the Term, will retain the unconditional and irrevocable right, power, and authority to grant the rights granted hereunder;
(iv) it has not granted and will not grant any licenses or other contingent or non-contingent right, title, or interest under or relating to its Intellectual Property that is incompatible with the terms of this agreement, or will not be under any obligation, that does or will conflict with or otherwise affect this Agreement, including any Party's representations, warranties, or obligations or rights or licenses hereunder; and
(v) it is under no obligation to any third Party that would interfere with its representations, warranties, or obligations under this Agreement;
(vi) publish content that is compliant with all applicable Facebook guidelines, terms and conditions;
(vii) co-operate with and provide reasonable support to the other Party in connection with the other Party's performance of its obligations under this Agreement;
2.2 Artist Responsibilities
Artist use its Commercial Best Effort to:
(i) execute all the licenses and provide all the authorization, accesses and information necessary to allow EZWRP to perform its responsibilities under this Agreement;
(ii) upon request, provide clear and valid evidence of its permissions, rights or non-infringement in relation to the Images;
(iii) perform any other activity as may be reasonably required pursuant to this Agreement to further the intents and purposes of this Agreement;
2.3 Indemnification from Artist
Artist shall indemnify, defend, and hold harmless EZWRP and EZWRP’s wholly or partially owned
subsidiaries and its affiliates and parent companies, and each of EZWRP and EZWRP’s wholly or partially
owned subsidiaries and its affiliates and parent companies respective officers, directors, employees,
agents, successors, and assigns (each, a “EZWRP Indemnified Party”) from and against all losses, including reasonable legal fees, arising out of or resulting from any indemnified claim relating to:
(i) any breach by Artist of any representation, warranty, covenant, or obligation under this Agreement;
(ii) the gross negligence or willful misconduct, or any failure to comply with applicable Law, of any employee, agent, or independent contractor of Artist or any of its subcontractors in connection with this Agreement;
(iii) the infringement, misappropriation, or other violations of any patent rights or any intellectual property rights of any third party by EZWRP ’s performance of the Services in accordance with the terms of this Agreement;
In no event shall Artist enter into any settlement without EZWRP ’s prior written consent which consent
shall not be held unreasonably.
IN NO EVENT SHALL EZWRP AGGREGATE LIABILITY TOWARDS ARTIST OR ANY THIRD PARTY, ARISING OUT OF OR RELATED TO THIS AGREEMENT, FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT EZWRP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO ARTIST PURSUANT TO THE AGREEMENT APPLICABLE IN THE PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
3.1 Confidential Information
From time to time during the Term, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information (collectively, "Confidential Information"). Confidential Information shall not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; or (c) rightfully obtained by receiving party on a non-confidential basis from a third party.
Regarding the treatment of the Confidential Information, the receiving party undertakes to:
- use the Confidential Information for the sole purpose for which it has been disclosed;
- allow third parties to access to the Confidential Information on a need-to-know basis only;
- take appropriate steps, upon such disclosure to a third party, to protect the proprietary nature of its Confidential Information by requesting that said third party sign a non-disclosure agreement providing at least the same protection of such information as that provided hereunder;
- use all reasonable efforts as may be appropriate to restrict access to its Confidential Information;
- inform the disclosing party of any unauthorized access to, or use of, its Confidential Information by a third party;
- assist the disclosing party in any undertaking or legal proceedings required to protect its Confidential Information.
3.3 Legal Disclosure
If the receiving party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify disclosing party of such requirements to afford disclosing party the opportunity to seek, at disclosing party’s sole cost and expense, a protective order or other remedy.
3.4 Return or Destruction
On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic or other form or media, of the disclosing party's Confidential Information, or destroy all such copies and, upon request, certify in writing to the disclosing party that such Confidential Information has been destroyed.
4.1 Force Majeure
Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by:
(i) acts of God;
(ii) flood, fire, or explosion;
(iii) war, terrorism, invasion, riot, or other civil unrest;
(iv) embargoes or blockades in effect on or after the date of this Agreement;
(v) national or regional emergency;
(vi) strikes, labor stoppages or slowdowns, or other industrial disturbances;
(vii) any passage of law or governmental order, rule, regulation, or direction, or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition; or
(viii) national or regional shortage of adequate power or telecommunications or transportation facilities each of the foregoing, a "Force Majeure"), in each case, provided that (i) such event is outside the reasonable control of the affected Party; (ii) the affected Party provides prompt notice to the other Party, stating the period of time the occurrence is expected to continue; and (iii) the affected Party uses diligent efforts to end the failure or delay and minimize the effects of such Force Majeure event.
4.2 Further Assurances
Each Party shall, upon the reasonable request of the other Party, promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement. The Party that is in default shall assume all cost associated to give a full effect to the terms of this Agreement.
4.3 Independent Contractors
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.
Unless otherwise agreed herein, all notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) shall be sufficient in writing and addressed to the other party by e-mail or similar forms of communication. Notices requires by law to be mailed shall be sent to the address set forth in the header of the applicable in the Agreement. Each party shall notify the other Party of any changes to its address.
This Agreement shall 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. Any Schedules referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
4.6 Privileged Communications
It is expected that, in furtherance of this Agreement, the Parties will, from time to time, disclose to one another privileged communications with counsel, including opinions, memoranda, letters, and other written, electronic, and verbal communications. Such disclosures are made with the understanding that they shall remain confidential and that they are made in connection with the shared community of legal interests existing between the Parties, including the community of legal interests in avoiding infringement of any Third Party Intellectual Property protection of both Party’s Intellectual Property. Notwithstanding such disclosure, each party acknowledges that no such disclosure shall be a waiver of attorney/client privilege of any other communications.
4.7 Entire Agreement
This Agreement, together with all Schedules and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
Artist shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of EZWRP. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Artist of any of its obligations under this Agreement. EZWRP may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of EZWRP’s assets.
4.9 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.
4.10 Amendment; Modification; Waiver
This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party hereto. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the waiving Party. 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.
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 a 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.
4.12 Governing Law
This Agreement, including all schedules, attachments and appendices attached to this Agreement, and all matters arising out of or relating to this Agreement or any Statement of Work resulting from this agreement, are governed by, and construed in accordance with, the laws of Delaware.
4.13 Submission to Jurisdiction
Each Party irrevocably and unconditionally agrees that any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all Statements of Work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, and all contemplated transactions, to elect the judicial district of Newark, Delaware, USA and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation 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, litigation or other proceeding brought in any such court. Each Party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
4.14 Equitable Relief
In any claim for equitable relief, each Party acknowledges that a breach by the other Party of this Agreement may cause the non-breaching Party irreparable harm, for which an award of damages would not be adequate compensation and, in the event of such a breach or threatened breach, the non-breaching Party shall be entitled to equitable relief, including in the form of a restraining order, orders for preliminary or permanent injunction, specific performance, and any other relief that may be available from any competent court. These remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available under this Agreement at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail, or other means of electronic transmission (to which a PDF copy is attached) shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.