Licensing of Intellectual Property



Licensing of Intellectual Property

Jay Dratler, Jr. [FNa]

Copyright © 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001 NLP IP Company

Law Journal Press, a division of American Lawyer Media, Inc., New York,

New York

APPENDIX A GENERAL-PURPOSE [FN1] WEB PUBLISHING AGREEMENT

(Plain Language--Silicon Valley Style [FN2] )

THIS AGREEMENT governs the use and publication of certain recorded expression ("Content") [FN3] on a specified website on the World Wide Web ("Site"). The Business Terms contain general definitions and the main business points of this Agreement. The Legal Terms that follow contain additional definitions and terms and more precise statements of some of the Business Terms. If there is any conflict or inconsistency, the Legal Terms control the Business Terms. [FN4]

Business Terms [FN5]

1. Parties to this Agreement and Signatures [FN6]

a. The provider of the Content ("Provider") will be:

Full Legal Name:

If business, type:*

Address:

E-mail address:

Website Address (URL): .

Contact person:

Telephone: ( ) Fax: ( )

* Individual, sole proprietorship, partnership, limited partnership, limited liability company, or corporation. [FN7]

Agreement accepted by: [FN8]

Signature

Name (please print):

Title (please print):

b. The publisher of the Content ("Publisher") will be:

Full Legal Name:

If business, type:*

Address:

E-mail address:

Website Address (URL): .

Contact person:

Telephone: ( ) Fax: ( )

* Individual, sole proprietorship, partnership, limited partnership, limited liability company, or corporation.

Agreement accepted by:

Signature

Name (please print):

Title (please print):

2. Content

The Content [FN9] to be published [FN10] is as follows:

a. Title: [FN11]

b. File name(s): [FN12]

c. Author(s): [FN13]

d. Copyright owner(s): [FN14]

e. Copyright registration: [FN15] Date:

Number:

f. Previously published? (yes/no): [FN16]

Where

g. Derivation (check one): [FN17]

[ ] Wholly original/new work: no predecessors.

[ ] Version/release:________ of_____________

[ ] Adapted/derived from [ ] Combination/merger of with

h. Nature of the Content: [FN18] (check all that apply)

[ ] Text [ ] Still Graphics [ ] Audio

[ ] Video [ ] Source Code [ ] Binary Code

[ ] Animation

i. Technical specifications: [FN19]

Text: Format_____ Pages______ Bytes _____ Language

Still Graphics: Format__________ Number of images

Resolution x Color scale

Audio: Format_____________ Total Duration

Dynamic Range (bits)____ Sampling Rate (bytes/sec.)

Video: Format_____________ Total Duration

Frames/sec_________ Res. x Color scale

Source Code: Language__________Annotated (yes/no)

Programmers' documentation provided

Binary Code: Bytes______________ Medium

Animation: Format_____________ Duration

Frames/sec_________ Res. x Color scale

Other:

3. Publishing Site

Publication of the Content is authorized on the following Site [FN20] on the World Wide Web (the "Site"):

Site Address (URL): .

Site Owner (if not Publisher):

Site operator (if not Publisher):

Operator E-mail address:

Telephone: (___)_______ Fax: (___)

4. Acceptance

Provider agrees to deliver the Content in compliance with the specifications in these Business Terms [FN21]and in a format, medium, and manner (including electronic transmission) reasonably satisfactory to Publisher, [FN22] by ________________________ [insert date]. [FN23] Acceptance occurs when Publisher so notifies Provider, or if Publisher fails to reject the Content by giving notice of rejection to Provider, specifying the reasons for rejection, within three (3) business days [FN24] after receiving any timely submission of the Content (in either case, "Acceptance"). If Publisher rejects any submission of the Content, Provider may resubmit it for Acceptance within business days [FN25] after receiving notice of rejection. If Provider fails to resubmit the Content in time after any proper rejection, or if Publisher properly rejects the content a second or subsequent time, Publisher may terminate this Agreement, effective immediately, by giving Provider notice of termination in or along with the notice of rejection. [FN26]

5. Permitted Activities

Subject to the definitions, conditions, limitations, restrictions and covenants in the Legal Terms, [FN27] this Agreement authorizes Publisher to engage in the following activities and no others, [FN28] with respect to the Content on or from the Site:

[The initials "AU" in any box mean that the activity is permitted but is restricted to authorized users. A check or other mark indicates no such restriction. If a box is not checked or marked "AU," the corresponding activity is not permitted. If any space for a restriction is left blank, there is no such restriction.] [FN29]

a. Downloading [FN30] for display, performance or execution on the Site [FN31] (check all activities permitted): [FN32]

[ ] on the Home Page only

[ ] on linked pages no more than _______ and no less than _______ levels (user clicks) from the Home Page (blank spaces mean no restrictions) [FN33]

b. Downloading for other noncommercial purposes (check all activities permitted): [FN34]

[ ] For copying for use

[ ] For copying for distribution

[ ] For retransmission

Special restrictions apply to source code; see Legal Terms.

c. Downloading for other commercial purposes (check all activities permitted): [FN35]

[ ] For copying for use

[ ] For copying for distribution

[ ] For retransmission

Special restrictions apply to source code; see Legal Terms.

d. Modifying/adapting [FN36] (check all activities permitted): [FN37]

[ ] Changing resolution for still images and video

[ ] Changing sampling rate for audio

[ ] Changing frame or sampling rate for video

[ ] Enlarging and reducing

[ ] Cropping and cutting

[ ] Speeding up and slowing down

[ ] Presenting images/sounds out of sequence

[ ] Morphing images

[ ] Changing pitch of sound

[ ] Sampling sound

[ ] Translating text to the following language(s): [FN38]

[ ] Adding subtitles in the following languages: [FN39]

[ ] Dubbing speech in the following languages: [FN40]

[ ] Porting source code to following platform(s) [FN41]

e. Combining: (check all activities permitted): [FN42]

[ ] With similar content in periodical issue or anthology

[ ] With dissimilar content in collection or collage

[ ] To incorporate the Content as whole in:

[ ] To incorporate binary code in other programs for the following purposes:

[ ] To incorporate source code in other programs for the following purposes:

[ ] Other:

See Legal Terms for definitions, limitations and restrictions.

6. Types of Payments

If Acceptance has occurred, [FN43] Publisher agrees to pay Provider the following amounts at the following times (the absence of data indicates no payment): [FN44]

a. A lump sum of _____________ Dollars upon Acceptance ("Immediate Payment"); [FN45]

b. A lump sum of _____________ Dollars within ____________ days after Acceptance ("Initial Payment"); [FN46]

c. The amount of _____________ Dollars for each (check one) [ ] month [ [ [ [ [ [ [ ] week [ ] day [ ] hour during which the Content is accessible on the Site ("Periodic Payments"); [FN47]

d. Royalties in the amount of ______________ cents for each and every instance in which a user downloads all or part of the Content from the Site ("Per-download Royalties"); [FN48]

e. Royalties in the amount of ______________ cents for each and every instance of access to the Site, whether or not all of part of the Content is displayed, performed, or downloaded ("Per-hit Royalties"); [FN49]

f. Royalties in the amount of ______________ percent of any and all amounts received by Publisher from others with respect to the Content ("Use Royalties"); [FN50]

g. Royalties in the amount of _____________ percent of any and all amounts received by Publisher with respect to the Site, whether or not with respect to the Content ("Site Royalties"). [FN51]

7. Payment and Reporting

a. Publisher agrees to generate and keep accurate records and books to account for all payments due, and Publisher agrees to install and maintain accurate technical means for doing so. Publisher will maintain and store in durable form all records relating to any payment for at least months after that payment is due. [FN52]

b. Periodic Payments, Per-download Royalties, Per-hit Royalties, Use Royalties and Site Royalties will be reported and paid for every calendar (check one) [ ] quarter [ ] month [ ] week [ ] day (the "Accounting Period"). [FN53] A report will be sent or delivered to Provider within calendar days after the end of each Accounting Period, whether or not any payment is due. [FN54] Each report will: (i) state the Accounting Period; (ii) report the relevant number of downloads, hits or revenue received and other amounts reasonably necessary to calculate payment due, itemized as reasonably requested by Provider; (iii) calculate the amount of payment due for the Accounting Period reported; and (iv) contain the signature of an employee or officer of Publisher authorized for the purpose of certifying the report's completeness and accuracy.

c. Provider will have the right to examine and audit Publisher's technical means for generating and maintaining records, as well as Publisher's records and books relating to payment. Provider will promptly refund any overpayment by Publisher, and Publisher will promptly pay any deficiency. If any deficiency in payment by Publisher for any Accounting Period exceeds 10% of the correct amount due for that Accounting Period, Publisher will pay Provider's reasonable costs and expenses of the examination and/or audit. ________ or more instances of such deficiency within any single period of _________ months will constitute a material breach of this Agreement by Publisher, giving Provider the right to terminate this Agreement. [FN55]

d. Provider agrees to keep all information regarding Publisher's technical means, books, records, and accounting methods in confidence and to use or disclose them only insofar as necessary to enforce this Agreement. Provider agrees to instruct any others assisting Provider in any examination or audit to do the same. [FN56]

e. All payments will be made by the time the related report is due, in United States currency, and will be considered made when received by Provider in immediately available funds.

8. Exclusivity [FN57]

With respect to the Content, this Agreement will be (check one):

[ ] Nonexclusive

[ ] Exclusive until ____________________________ [FN58]

[ ] Exclusive until it expires or is terminated

[ ] Exclusive until (if ever) the payment made by Publisher to Provider for each of two consecutive Accounting Periods is less than Dollars. [FN59]

"Nonexclusive" means that Provider may exploit the Content without restriction and may grant others the right to do so.

"Exclusive" means that: (check all that apply) [FN60]

[ ] Provider will not grant others rights to exploit the Content

[ ] Provider will not exploit the Content

9. Credits, References, Links and Notices. [FN61]

a. As provided to Publisher, the Content may contain: (i) credits or references to Provider, its authors, licensors, suppliers or others; [FN62] (ii) links to Provider's or others' websites, and (iii) copyright and other legal notices. Publisher agrees not to modify or remove, and not to tamper with ordisable any automated display, performance, or execution of, any such credits, references, links or notices, without Provider's prior written consent. Provider agrees not to withhold its consent unreasonably.

b. Whether or not included in the Content provided to Publisher, Publisher agrees to provide the following: [FN63]

i. A credit in the following form:

on Publisher's (check all that apply):

[ ] Home page

[ ] First page from which the Content may be accessed

ii. A link to Provider's Website from Publishers' (check all that apply):

[ ] Home page

[ ] First page from which the Content may be accessed

10. Term, Expiration and Termination

a. Unless sooner terminated, this Agreement will expire and terminate at the close of business at 5:00 p.m. local time in __________________ [city] on [specific date]. [FN64]

b. If any Periodic Payment, Per-hit Royalties or Site Royalties are designated as required, Publisher will have the right to terminate this Agreement at any time, and thereafter to stop making those payments, for any reason or for no reason, as described in the Legal Terms. [FN65]

c. Each party will have the right to terminate this Agreement for the other's material breach or default, in the manner described in the Legal Terms. [FN66]

d. Upon expiration or termination of this Agreement, all if Publisher's rights and all of Provider's authorization of Publisher's activities with respect to the Content will cease. Publisher agrees promptly to remove from the Site and to return to Provider or (if Provider so requests, destroy) all of Publisher's copies of the Content, in whole or in part, in any form, format or medium. Unless this Agreement was terminated because of Publisher's second or subsequent rejection of the Content, nonpayment or underpayment, or use of the Content beyond Publisher's authority, Publisher may keep one copy of the Content after termination, but only in off-line storage and only for archival and evidentiary purposes. [FN67]

11. Site Access

Publisher agrees to give Provider, as well as those designated by Provider for purposes of examination and audit, access to the Site at any time, without charge, for any reasonable purpose relating to verifying Publisher's compliance with this Agreement. If necessary, Publisher will give Provider and such designates special passwords, access codes, and other access devices, as well as reasonable assistance for this purpose. Provider agrees to use reasonable effort to protect all such passwords, codes, and access devices from unauthorized use and not to permit their use for unauthorized purposes. [FN68]

12. Entirety of This Agreement

The Legal Terms that follow modify and supplement these Business Terms. Together these Business Terms and the Legal Terms constitute this Agreement, which is the entire Agreement between the parties relating to the Content and the Site. This Agreement supersedes and extinguishes all prior and contemporaneous agreements, understandings, negotiations, and communications, whether written, recorded, electronic, or oral. [FN69]

Legal Terms

The following Legal Terms modify and supplement the Business Terms, and, in the event of any conflict or inconsistency, control the Business Terms:

1. Certain [FN70] Definitions [FN71]

a. The term "person" means any individual, corporation, organization, association or other legal entity.

b. The term "access" means the receipt of any transmission of data, information, or recorded expression, directly or indirectly from or through the Site, whether for temporary use or for storage. [FN72]

c. An "access device" is an item of hardware, software or data (including a password or an access code), whether or not encrypted, that is intended to limit access. [FN73]

d. An "authorized user" is a person that: (i) is authorized by an agreement with Publisher in tangible form to have access to any part of the Site and (ii), if the Publisher restricts such access generally, is given an access device under Publisher's authority. [FN74]

e. A "user" is a person that obtains access to all or part of the Content.

f. A "general license" is a license permitting a class of persons described in general terms to engage in specified activities with respect to the Content, or material including the Content, whether on not persons in that class have any contractual or other relationship with Publisher or Provider. [FN75]

g. A "machine" is any machine or device, now known or later developed, [FN76] that can be used for access and which is operated by a single individual. The term does not include a network but includes individual processing units connected to a network. [FN77]

h. A "link" is an icon or other visual metaphor for a button appearing on a page on the Site, which the user can select and activate from a machine by mechanical means such as a mouse, other pointing device, or key, and whose activation automatically causes the Site's system to give the user access to another page on the Site or to the home page of another website, without additional steps or additional input from the user.

i. The term "download" means, through access, to cause transmission of all or part of the Content from the Site to a machine for the purpose of temporary use or storage. [FN78]

j. The words "temporary use," "temporary," "temporarily" and words to similar effect refer to use of all or part of the Content in a single sitting on a machine, with the intention and expectation that any copies of the Content contained in the machine will be erased or abandoned when the machine is turned off or disconnected from the Internet, or the programs used for access are terminated. [FN79]

k. The phrase "downloading for display, performance or execution on the Site," means allowing users, through access, temporarily to: (i) display text and still graphics on machines, (ii) to perform audio, video and animation (separately or in audiovisual combination) on machines, (iii) to execute binary code on the Site, and (iii) to download all or part of the Content to machines to the extent necessary to do the foregoing. [FN80]

l. The phrase "execution on the Site" means executing binary code that is part of the Content on the Site. The phrase includes: (i) downloading all or part of that code to the extent necessary to permit a user to execute that code in accordance with its design and intended purpose, [FN81] and (ii) compiling or interpreting source code at the Site for purposes of such execution. The phrase does not include downloading any part of source code, related annotations or programmer's documentation. [FN82]

m. The phrase "copying for use" means downloading all or part of the Content and making copies or phonorecords of what was downloaded for possible display, performance, or execution at a later time. [FN83]

n. The phrase "copying for distribution" means downloading all or part of the Content and distributing to others copies or phonorecords (as defined in the Copyright Act of 1976, as amended) [FN84] of what was downloaded. If copying for distribution is restricted to authorized users, then only authorized users may download for such purpose, and they may distribute copies or phonorecords only to authorized users. [FN85]

o. The term "retransmission" means transmission of all or part of the Content, whether or not after downloading, to others by electronic or similar means. If retransmission is restricted to authorized users, then only authorized users may make such transmission, and they may do so only to authorized users. [FN86]

p. The term "noncommercial purposes" means private amusement, entertainment, study, and research for which no charge is made and no remuneration is received, paid, requested, or expected, directly or indirectly. The term does not include advertising or promotion of any kind. [FN87]

q. The term "commercial purposes" means purposes other than noncommercial purposes. [FN88]

2. General Restrictions and Notices

a. Restrictions to authorized users. If any permitted activity is designated as restricted to authorized users, Publisher agrees to use reasonable effort, consistent with the state of the art and the capabilities of commercially available hardware and software, to install and maintain technical means so to restrict that activity. [FN89] Publisher will not be liable, however, for circumvention of technical means for enforcing restrictions that are widely used at the time by other websites engaged in similar activities of similar commercial value. [FN90] In any event, Publisher agrees to notify users of all restrictions on licensed activities through notices on the Site ("Restrictive Notices"). [FN91]

b. Unrestricted activity. If any activity is not designated as restricted to authorized users, Publisher agrees so to notify users through notices or general licenses (collectively, "General License Notices") on the Site. [FN92]

c. Notices. Publisher agrees to include Restrictive notices and General License Notices prominently on the first page of the Site from which users may access any of the Content (the "First Content Page"), or on another page on the Site through a link with a conspicuous heading appearing on the First Content Page. If substantially the same Restrictive Notices or General License Notices apply to material on the Site other than the Content, Publisher may satisfy these obligations by providing a conspicuous cross-reference and link to generally applicable Restrictive Notices and General License Notices from the First Content Page. Publisher agrees to use best efforts to provide Restrictive notices and General License Notices that are brief and in plain language. Restrictive Notices and General License Notices may be combined in a single notice or document.

d. Authorized user agreements. Publisher agrees not to encourage any person other than an authorized user to engage in any activity designated as restricted to authorized users, and not to grant any such person permission to do so. [FN93] Before treating any person as an authorized user, Publisher agrees to cause that person to become legally bound [FN94] by an agreement that limits that person's activities with respect to the Content to the activities permitted under this Agreement ("Authorized User Agreement"). Publisher will cause that agreement and each person's assent to it to be recorded in tangible form, which Publisher will store and maintain for at least three (3) years after that person's then-most-recent access to all or part of the Content. [FN95]

e. Credits, reference and legal notices. Publisher agrees to include, in all of its Authorized User Agreements, Restrictive Notices and General License Notices explicit prohibitions against modifying, removing, or tampering with any credits, references, copyright notices, or other legal notices appearing in the Content as provided on the Site, as well as interfering with their respective automated display, performance, or execution, in connection with any copying for use, copying for distribution, or retransmission of the Content. [FN96]

f. Provider as third-party beneficiary. Publisher agrees to include explicit language in each Authorized User Agreement, Restrictive Notice and General License Notice, designating Provider as a third-party beneficiary of the same, but Publisher need not mention Provider by name. [FN97]

g. Translation of credits, references, and legal notices. If the Business Terms authorize Publisher to translate, subtitle or dub text or speech into additional languages, Publisher agrees also to translate, subtitle or dub all applicable Restrictive Notices, General License Notices, Authorized User Agreements, credits, references and legal notices, and to include the translated versions prominently with the English versions wherever the English versions appear or are made available to users. Publisher may satisfy this obligation by including a link to the translated versions on the same page and in close proximity to the English versions, along with a prominent legend explaining, in all the languages used for translation, that the user may view translated versions through the link. [FN98]

h. Source Code. Notwithstanding anything in this Agreement to the contrary, including designation of any activity as permitted generally or for authorized users, Publisher shall not permit any downloading, copying for use, copying for distribution, or retransmission of source code, annotations, or programmers' documentation contained in the Content. Such activities will be permitted, if at all, only by a separate addendum to this Agreement or in a separate document. However, Publisher may permit any authorized activity with respect to binary code compiled or interpreted on the Site from source code contained in the Content. [FN99]

3. Modifying, Adapting and Combining

If modifying, adapting, or combining are designated as permitted activities, the following will apply:

a. Using the Results. Any person permitted to make a modification, adaptation, or combination may engage in any other activities in which that person is permitted to engage with respect to the result of the modification, adaptation, or combination (the "Resulting Work"). For example (and without limiting the foregoing), if authorized users are permitted both to make combinations and to download for copying, an authorized user who combines all or part of the Content with other material as permitted may download the Resulting Work for copying. [FN100]

b. Agreements and notices. Publisher's obligations with respect to Authorized User Agreements, Restrictive Notices, and General License Notices will apply to any Resulting Work prepared by Publisher to the same extent as to the Content. [FN101] In addition, if all or part of the Content is included in the Resulting Work in such a way that an ordinary, reasonable user familiar with the Content would be likely to recognize it in the Resulting Work, [FN102] Publisher agrees to: [FN103]

i. Include the following notice in the Resulting Work: "Derived from [insert title of Content] by [authors] and licensed from [insert full legal name of Provider]" (the "Derivation Notice"), along with the copyright notice provided in the Content as delivered by Provider;

ii. Cause the Derivation Notice and such copyright notice to be included, displayed, performed and executed as part of any and all notices regarding credits, references, copyright and other legal matters that Publisher provides or is required to provide for or in the Resulting Work; and

iii. Provide a link to Provider's Website on the first page on the Site from which a user may access the Resulting Work, or on another page with a cross- reference from such page.

c. Derivative work. Publisher understands and agrees that any Resulting Work will be a derivative work of the Content within the meaning of copyright law and will be subject to all of Provider's rights in derivative works. [FN104]

4. Copyright Ownership and Registration

a. Copyright ownership. Except to the extent that this Agreement is exclusive, [FN105] nothing in this Agreement will give Publisher any ownership interest in the Content or its copyright. [FN106]

b. Copyright Registration. Provider will have the right to register the copyright in the Content in its own name. [FN107] If this Agreement is exclusive, [FN108] Publisher will have the right to register the copyright in Provider's name, or to register Publisher's exclusive rights alone, and to record the grant of exclusive rights to Publisher under this Agreement. [FN109] If this Agreement is nonexclusive, [FN110] and if Provider has not submitted an application for registration of copyright in the Content within sixty (60) days after receiving Publisher's request to do so, Publisher may register the copyright in the Content in Provider's name and at Publisher's expense. [FN111]

5. Confidential Information [FN112]

a. What is confidential. From time to time either party may disclose to the other technical, product, financial, marketing or business information [FN113] that is marked or otherwise designated as confidential, proprietary, or trade secret ("Confidential Information"). [FN114] Publisher acknowledges and agrees that any source code, annotations, and programmer's documentation [FN115] included in the Content are Confidential Information whether or not otherwise designated as such. Each party agrees the other's product and marketing plans, to the extent not yet publicly disclosed, constitute Confidential Information. [FN116] Either party may by electronic or written form designate information already received by the other party as Confidential Information, as long as the other party has not already innocently released that information. [FN117]

b. Obligations with respect to Confidential Information. Each party agrees: [FN118]

i. Not knowingly or deliberately to disclose or release the other's Confidential Information to any third party, and not knowingly to post the other's Confidential Information on any website, whether or not restricted to authorized users; [FN119]

ii. To take all reasonable care, [FN120] but in no event less care than that party takes to protect its own Confidential Information of similar importance, [FN121] to avoid unauthorized disclosure or release of the other party's Confidential Information; and

iii. To bind all that party's employees, contractors, and agents who may have access to the other party's Confidential Information to protect the same in accordance with written covenants substantially similar to the covenants of this Agreement relating to Confidential Information. [FN122]

c. Exceptions. Confidential Information does not include any information that: (i) the party claiming protection has posted on any website, including the Site, whether or not that Website is restricted; [FN123] (ii) the receiving party can demonstrate through tangible records was in its possession before the other party's disclosure and was not then subject to any restriction on disclosure; (iii) is or becomes generally available without fault on the part of the receiving party; or (iv) the disclosing party regularly provides to third parties without restriction on disclosure. [FN124]

6. Provider's Representations and Warranties

Provider represents and warrants that:

a. Right to license. Provider is the owner of copyright in the Content, or the owner of such copyright has directly or indirectly authorized Provider to authorize all activities permitted under this Agreement. [FN125]

b. Noninfringement. Performance of all activities permitted under this Agreement will not infringe any copyright or constitute misappropriation of any trade secret [FN126] and, to the best of Provider's knowledge and belief, will not infringe any patent or trademark or constitute unfair competition. [FN127]

c. Defamation. Nothing in the Content is libelous or otherwise defamatory. [FN128]

d. Rights of publicity and privacy. Publication of the Content as this Agreement contemplates will not infringe or violate the right of publicity or privacy of any individual, living or dead. [FN129] Provider has obtained all necessary permissions and releases from all individual and groups recognizably depicted or described in the Content. [FN130]

e. Indecency, obscenity, and pornography. Publication of the Content as this Agreement contemplates will not violate any constitutionally valid [FN131] laws relating to indecency, obscenity, or pornography.

f. Other violations of law. To the best of Provider's knowledge and belief, neither publication of the Content as this Agreement contemplates nor the parties' performance of this Agreement in other respects will result in any other violation of law or of the rights of any third party, including the United States government. [FN132]

g. No conflicting agreements. Provider's entering into and performing this Agreement will not cause a breach or default of any other agreement or instrument to which Provider is a party or render performance of any such agreement or instrument impossible. [FN133]

h. No prior publication. Except as disclosed in the Business Terms, Provider has not licensed any prior Publication of the Content, in whole or in part. [FN134]

i. Authority. All necessary steps have been duly and properly taken to authorize the signatories on behalf of Provider to execute this Agreement on behalf of Provider. [FN135]

7. Publisher's Representations and Warranties

Publisher represents and warrants that:

a. Operational Site. Publisher owns the Site or has authority from the owner to publish the Content from the Site and otherwise to exercise Publisher's rights and perform Publisher's obligations under this Agreement. The Site is operational and currently capable of publishing the Content, in full, throughout the World Wide Web. [FN136]

b. No publishing conflicts. Publisher is not publishing, has not agreed to publish, and has no present plans to publish any material sufficiently similar to the Content as (i) to impair Publisher's incentive to exercise its rights under this Agreement or (ii) to reduce significantly the benefit that Provider expects from Publisher so doing. [FN137]

c. Violations of law. To the best of Publisher's knowledge and belief, neither publication of the Content as this Agreement contemplates, nor the parties' performance of this Agreement in other respects, will result in any violation of law or of the rights of any third party, including the United States government. [FN138]

d. No conflicting agreements. Publisher's entering into and performing this Agreement will not cause a breach or default of any other agreement or instrument to which Publisher is a party or render performance of any such agreement or instrument impossible. [FN139]

e. Authority. All necessary steps have been duly and properly taken to authorize the signatories on behalf of Publisher to execute this Agreement on behalf of Publisher. [FN140]

8. Publisher's Obligations in Exchange for Exclusivity

If this Agreement is exclusive, Publisher agrees: [FN141]

a. Promotion. To promote and market the Content and its commercial exploitation from the Site with reasonable diligence and in accordance with industry standards; [FN142]

b. Nondiscrimination. To promote and market the Content and the Site with no less diligence and zeal than Publisher displays in promoting other commercially comparable material on the Site and other commercially comparable websites that Publisher may own or operate; [FN143] and

c. Mutual exclusivity. While this Agreement remains exclusive, not to publish on the Site, or on any other website owned or operated by Publisher, any material sufficiently similar to the Content as to be likely significantly to impair the demand for, or commercial success of, publication of the Content. [FN144]

9. Infringement by Third Parties

a. Notification and consultation. If either party suspects that there is any infringement of any copyright, trademark, or patent or misappropriation of any trade secret in the Content (collectively, "Infringement") on the part of any third party, then the party having such suspicion will so notify the other party promptly and will consult with the other party in good faith to assess the best response to the Infringement. [FN145]

b. Nonexclusivity. If this Agreement is or has become [FN146] nonexclusive, or if the Infringement is not within Publisher's exclusive rights under this Agreement, then Provider will have the option, at Provider's sole discretion, to: (i) bring an action or proceeding (including any alternative dispute resolution process) to enjoin the Infringement, to recover damages for it, or both; (ii) license the third party causing the Infringement; or (iii) grant Publisher, in writing, the authority to bring such an action or proceeding in Provider's name and for mutual benefit. If Provider chooses option (i) or (ii), Provider will bear all related costs and expenses and retain all proceeds of that option and will have the right at its sole discretion to make any settlement or compromise with the third party. If Provider chooses option (iii), then Publisher will bear all costs and expenses and retain all proceeds of that option, but the excess, if any, of proceeds over costs and expenses will be considered revenue of Publisher subject to any Use Royalties or Site Royalties designated in the Business Terms, and Publisher will not conclude, settle or compromise any such action or proceeding without Provider's prior written consent, which Provider will not unreasonably withhold. [FN147]

c. Exclusivity. If and while this Agreement is exclusive, [FN148] and to the extent the Infringement is within the scope of Publisher's exclusive rights, [FN149] then Publisher will have the option, at Publisher's sole discretion, to: (i) bring an action or proceeding (including any alternative dispute resolution process) to enjoin the Infringement, to recover damages for it, or both; (ii) license the third party causing the Infringement; or (iii) grant Provider, in writing, the authority to bring such an action or proceeding in Publisher's name and for mutual benefit. If Publisher chooses option (i) or (ii), Publisher will bear all costs and expenses and retain all proceeds of that option and will have the right at its sole discretion to make any settlement or compromise with the third-party, but the excess, if any, of proceeds over costs and expenses will be considered revenue of Publisher subject to any Use Royalties or Site Royalties designated in the Business Terms. If Publisher chooses option (iii), then Provider will bear all costs and expenses, and retain all proceeds of that option, but Provider will not conclude, settle or compromise any such action or proceeding without Publisher's prior written consent, which Publisher will not unreasonably withhold. [FN150]

d. Cooperation. Each party agrees to cooperate with the other and to provide the other with reasonable assistance and information by mail or telecommunication, free of charge, in connection with any Infringement and prosecution of it. Each party further agrees, as requested by the other but subject to reasonable availability, to appear, and to cause its principals and employees to appear, as witnesses in any deposition, trial or other proceeding related to Infringement, as long as the requesting party promptly pays reasonable travel and living expenses incurred by such principals and employees in so doing.

10. Infringement of Third Parties' Rights

If any third party claims in writing that Publisher's performance of any activity permitted under this Agreement constitutes Infringement, then Publisher will have the option, as its sole discretion, to:

a. Modify the Content (whether or not modification is designated as a permitted activity) to the extent reasonably necessary to eliminate the claim of Infringement;

b. Defend, settle or compromise the claim in any manner, as long as Publisher pays all costs and expenses of so doing and pays the amount of any damages, costs, and expenses awarded or agreed;

c. Procure a license from the person claiming Infringement; or

d. If in Publisher's reasonable opinion the claim is not frivolous, terminate this Agreement and receive a refund of ________ percent of any Immediate Payment, Initial Payment or Periodic Payments made within the preceding __________ months.

Publisher will bear all cost and expenses of options (a) through (c), including the risk than any modification may provoke new claims of infringement. The foregoing remedies will be the exclusive remedies for any third-party claim of Infringement, except upon proof that one or more of Provider's representations and warranties set forth in this Agreement were false when made. [FN151]

11. DISCLAIMER OF WARRANTY

THE WARRANTIES SET OUT IN PROVIDER'S REPRESENTATIONS AND WARRANTIES ARE THE ONLY WARRANTIES MADE BY PROVIDER. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED. EXCEPT AS EXPLICITLY PROVIDED ABOVE, THE CONTENT IS PROVIDED "AS IS," AND PROVIDER EXPRESSLY DISCLAIMS: (a) ANY IMPLIED WARRANTY OF NONINFRINGEMENT, (b) ANY WARRANTY OF VALIDITY OF COPYRIGHT OR ANY OTHER RIGHT IN THE CONTENT; (c) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; AND (b) ANY PROMISE THAT THE CONTENT WILL MEET PUBLISHER'S REQUIREMENTS, WILL OPERATE WITHOUT INTERRUPTION, OR WILL BE ACCURATE, COMPLETE, OR ERROR FREE. EXCEPT AS EXPLICITLY PROVIDED ABOVE, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT IS WITH PUBLISHER; SHOULD THE CONTENT PROVE DEFECTIVE, PUBLISHER (AND NOT PROVIDER OR ITS LICENSORS OR SUPPLIERS) MUST ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICE, REPAIR, OR CORRECTION.

Some states do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. This Limited Warranty gives you specific legal rights, and you may have other rights which vary from state to state. [FN152]

12. EXCLUSION OF CERTAIN LIABILITIES

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, OR FOR LOST PROFITS, ARISING OUT OF THE USE OF OR INABILITY TO USE THE CONTENT, OR OUT OF ANY PERMITTED ACTIVITY WITH RESPECT TO THE CONTENT, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. IN NO EVENT WILL PROVIDER OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR ANY CLAIM BY ANY PERSON NOT PARTY TO THIS AGREEMENT. THE FOREGOING EXCLUSIONS OF LIABILITY APPLY, WITHOUT LIMITATION, TO CLAIMS BASED UPON STRICT LIABILITY OR THE NEGLIGENCE OF PROVIDER AND ITS LICENSORS AND SUPPLIERS. [FN153]

Some states do not allow the exclusion of liability for incidental or consequential damages, so the above exclusion may not apply to you. [FN154]

13. Term and Termination

a. Term. Unless sooner terminated as provided herein, this Agreement will expire on the date set forth in the Business Terms. [FN155]

b. Termination. [FN156] This Agreement may be terminated: (i) by Publisher upon properly rejecting the Content a second or subsequent time, [FN157] (ii) by Publisher at will if Periodic Payments, Per-hit Royalties or Site Royalties are designated as required; [FN158] (iii) by Provider if there is a deficiency in payment for the specified number of Accounting Periods (or more) within the specified time; [FN159] (iv) by Publisher in the event of a specified claim of Infringement against Publisher; [FN160] and (v) by either party in the event of any other material breach of this Agreement by the other. [FN161] Termination for the reasons (i), (ii) and (iii) will be effective immediately upon the giving of notice of termination by the party having the right to terminate. Termination for reasons (iv) and (v) will become effective sixty (60) days after the party having the right to terminate has given notice to the other of the intent to terminate, specifying the reason for termination. However, the other party may avoid termination by curing the reason for termination before expiration of the notice period or, if termination before then is not practicable, by taking substantial steps to effect a cure before then and diligently and continuously pursuing the cure thereafter. Even if the party desiring to avoid termination takes such substantial steps, however, the party desiring termination nevertheless may terminate this Agreement immediately by giving the other notice to that effect at any time at which the first party's diligent and continuous efforts have ceased or it has become obvious that such efforts have no reasonable chance of success.

c. Survival of certain provisions after termination. The following rights, limitations and obligations, and no others, [FN162] will survive expiration or termination of this Agreement for any reason: (a) the parties' obligations with respect to each other's Confidential Information; [FN163] (b) the right, if any, of Publisher to keep and maintain, off line, one archival copy of the Content; [FN164] and (c) Publisher's obligations to retain in original form all credits, references, links, and legal notices contained in the Content as delivered to Publisher. [FN165] The parties' obligations with respect to Confidential Information, however, will terminate upon the later of: (i) the expiration of _______ years after expiration or termination of this Agreement, and (ii) the following date: _________________. [FN166]

d. Nonexclusive remedy. Except to the extent this Agreement explicitly provides otherwise, termination of this Agreement in accordance with its terms will be a nonexclusive remedy and will not prejudice any other remedy available to the terminating party under this Agreement, in equity, or at law. [FN167]

14. Miscellaneous [FN168]

a. Assignment or Transfer. Publisher may assign and transfer all of its rights and obligations under this Agreement, in full, to any transferee of all or substantially all of its business relating to the Site. [FN169] Otherwise, Publisher may not assign, transfer or sublicense any rights, or delegate any duties, under this Agreement, and any attempt so to assign, transfer, sublicense, or delegate without Provider's prior written consent will be void. [FN170] Subject to the foregoing, this Agreement will inure to the benefit of, and will bind, the parties and their respective heirs, personal representatives, legatees, and assigns.

b. Compliance with Law. In connection with this Agreement, the parties agree at all times to comply with all applicable laws, rules and regulations of all jurisdictions in which they operate. Without limiting the foregoing, both parties agree to comply with the export control laws of the United States, and not to export or authorize the exportation therefrom of any data, programming, information or other material to any restricted person or destination without first obtaining all necessary licenses and approvals from the United States government. [FN171]

c. Notices. All notices and other communications permitted or required under this Agreement will be in writing and will be effective upon: (i) personal delivery, (ii) mailing by prepaid certified or registered mail, or (iii) transmission by facsimile, electronic mail, or other electronic means, if confirmed in a writing mailed by prepaid certified or registered mail within seven days thereafter--in each case if addressed to the receiving party as specified in the Business Terms, or to any other address that the intended recipient may have provided the sender by such notice. [FN172]

d. Amendment. The provisions of this Agreement may be amended or modified by written agreement executed and delivered by the parties or their duly authorized representatives, and in no other manner. [FN173]

e. Waiver. No waiver of any term, covenant, or condition of this Agreement shall be effective unless in a writing, signed or authenticated by the party to be charged therewith or its authorized representative. No waiver shall be implied from conduct, whether or not prolonged or repeated; nor shall any waiver of one term, covenant, or condition be considered a waiver of any other term, covenant or condition.

f. Choice of Law and Forum. This Agreement shall be construed and interpreted under the laws of the State of _________ and applicable federal law, as applied to contracts executed and performed within that state. The parties agree to bring any action or proceeding relating to this Agreement, its interpretation, performance or breach, in the federal or state courts located within that state and in no other forum.

g. Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the remaining provisions of this Agreement shall not be affected, and that provision shall be enforced to the maximum extent permitted by law. To this end, the provisions of this Agreement are declared severable.

h. Execution and Delivery. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Delivery of this Agreement shall be effective upon reciprocal receipt of facsimile signatures or electronic authentication, if confirmed by the sending of signed copies of this Agreement within ten (10) calendar days.

i. Attorneys' Fees. In any action relating to this Agreement, its performance or breach, the prevailing party shall be entitled to recover from the other its reasonable costs and reasonable fees of attorneys, accountants and expert witnesses, including such costs and fees upon appeal.

j. Further Assurances. Each party agrees, promptly upon request, to provide further assurances and to execute further documents at the other party's reasonable request for the purposes of evidencing, confirming, effecting, perfecting, preserving, or enforcing the rights and obligations under this Agreement and giving the public notice thereof.

k. Independent Contractors. Provider and Publisher are independent contractors. Nothing in this Agreement shall be construed to create a relationship or partnership, joint venture, employment or franchise between the parties, or to require either party to provide payment or benefits to the other parties' employees, agents, or contractors. [FN174]

l. Pronouns. Neuter pronouns include the masculine and feminine, and each gender includes the other, so that every pronoun may cover any person, as defined. [FN175]

m. Signatures. Provider and Publisher have executed this Agreement through the signatures of their duly authorized representatives set forth in Paragraph 1 of the Business Terms. [FN176]

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