NYCSHS



User Agreement – Commercial

AGREEMENT made this day of , 20__ by and between THE NEW YORK CENTRAL SYSTEM HISTORICAL SOCIETY (hereinafter called, "the SELLER"), a non-profit corporation organized and existing under the laws of the State of Ohio, United States of America, and _________________(hereinafter called, "the PURCHASER"), ________________________________________________________________________________________________[1]

WHEREAS, the SELLER possesses several thousand historical engineering, assembly and construction drawings, and other historical technical data and information, relating to the equipment and facilities of the New York Central Railroad, its subsidiaries and their respective predecessors; and

WHEREAS, the SELLER has assembled, organized and systematized said historical drawings, data and information, creating copyrighted compilations thereof, and made electronic versions of said compilations for sale to others in the form of CD’s and DVD’s”; and

WHEREAS, the PURCHASER is in the business of __________________________________________________________________________________________, and

WHEREAS, the PURCHASER desires to buy from the SELLER one or more of said compilations for use in [his/its] business, and the SELLER is willing to sell them to the PURCHASER on the terms and conditions hereinbelow set forth; and

WHEREAS, the SELLER and the PURCHASER each represents that it is fully authorized to deal generally with and to make this AGREEMENT respecting the subject matter hereof.

NOW, THEREFORE, THIS AGREEMENT WITNESSETH:

ARTICLE I

DEFINITIONS

For purposes of this AGREEMENT:

A. “MEDIA” means: the CD’s and DVD’s containing copyrighted compilations of the historical engineering, assembly and construction drawings, and other historical technical data and information, relating to the equipment and facilities of the New York Central Railroad, its subsidiaries and their

B. respective predecessors, which are described in the ORDER LIST attached to this AGREEMENT and made a part hereof.

C. "SUBSIDIARY" means: a corporation or company of which a party hereto owns or controls directly or indirectly more than fifty (50) percent of the voting shares, or the maximum percentage permitted under local laws or regulations in those countries where more than fifty (50) percent ownership by a foreign entity is not permitted. Such a corporation or company shall continue to be considered a "SUBSIDIARY" only so long as the percentage ownership or control continues to be more than fifty (50) percent or said maximum percentage permitted.

D. “SUBCONTRACTOR” means: any person, not an employee of the PURCHASER, and any company or corporation, including any SUBSIDIARY or other affiliate of the PURCHASER, charged with or engaged in any way with accomplishing or assisting PURCHASER , directly or indirectly, in accomplishing, the commercial ends for which the MEDIA were acquired by the PURCHASER.

E. "COPYRIGHTS" means: copyrights (including corresponding rights under international agreements and conventions, registrations, renewals and extensions of any of the foregoing), whether or not published, whether or not registered, and whether or not containing a copyright notice, of or relating to the MEDIA.

Definitions:

For purposes of this Agreement:

The following definitions and requirements are applicable ONLY to those Commercial entities who purchase NYCSHS drawing files for the purpose of providing online and computer based product offerings that are computer software based, and those who generate products using 3D printing technology that uses NYCSHS digitized drawing files as source material.

FREEWARE

Computer programs of all types that are posted and available for download at little or no cost to the user.

GAMES

Software as the term is generally used, that permits a user an interactive experience, by accessing a website, computer address, or other electronic site, or media such as CD or DVD, generally for a fee.

HOLOGRAPH

An online computer based experience, generally using a computer but also including programs that command and control video cameras, that is generally interactive, with strong visual content that makes the user an integral part of the scene/script/action. Computer programs that can generate holograph images immerse the user in the scene. General characteristics of computer based programs that can generate holographic images include three dimensional scenes, alternate viewing points from within the scene or external to the scene, by the user, and animated action using computer generated or computer adapted wholly developed human and mechanical and structural images. These human, mechanical, and structural images are generally derived from a paper, digital, computer, film, or video tape sources.

PAYWARE

Computer software that is made available either via normal software distribution methods, such as by accessing a web address or website, or as one or more downloads. One characteristic of this software is that a fee is charged by the company, the author, or the compiler.

3D MODELING

The use of printers or other reproduction devices that can print solid or amorphous forms in three dimensions, and use as their programming computer codes and programming which is based, in turn, on paper drawings, digitized drawings, photographs, digital images, or any other original physical or imaginary form.

3D MANUFACTURING

The use of 3D printers or other devices capable of generating physical items in three dimensions for sale in a commercial, for profit, environment.

ANIMATION

The use of a computer program to impart motion.

CAD

Computer Aided Design.

SIM

Simulation, generally used to describe a computer aided software or code used to render a person or object, give that image color and motion, and permit a computer user to interact as if it were “real”.

The New York Central System Historical Society, known as “NYCSHS”, () permits the use of its drawing files, upon payment of a reasonable initial fee that will change from time to time, by purchasers for the purpose of developing computer programs and software that will be the basis for freeware, payware, 3D modeling and 3D manufacturing, and for holographic images and programs, scenes, and animation. NYCSHS requires that a notation be added or included in all paper and online advertising and promotions that the source of the original images used as a basis for these programs and products are credited to “NYCSHS”.

For those programs and products offered for sale, NYCSHS requires that payment of a modest annual fee be made to NYCSHS in order to further the mission and

goals of NYCSHS. The negotiated user fee will be between 1% and 5% of retail sales, which is customary in this industry.

ARTICLE II

PURCHASE/SALE OF MEDIA

The SELLER agrees to sell to the PURCHASER, and the PURCHASER agrees to buy from the SELLER, the MEDIA identified by the Buyer on the ORDER LIST, in the quantities indicated by the PURCHASER, at the corresponding postpaid US Dollar prices set forth on the ORDER LIST, plus applicable sales tax. All payments will be made in US Dollars.

The SELLER agrees to ship the MEDIA to the PURCHASER or to the PURCHASER’s order promptly after receipt of full payment.

ARTICLE III

COPYRIGHT

The PURCHASER acknowledges that certain MEDIA, as indicated in the order list, are protected by copyrights owned by the SELLER, and that neither the PURCHASER, nor the PURCHASER’s heirs, successors or assigns, is licensed or otherwise authorized by the SELLER to reproduce, revise, recast, enhance, transform or adapt the copyrighted MEDIA.

Notwithstanding the foregoing, as and to the extent reasonably necessary in order for the PURCHASER and its SUBCONTRACTORS to view, print and use the contents of the MEDIA in accomplishing, the commercial ends for which the MEDIA were acquired by the PURCHASER, and provided that said commercial ends are not the reproduction and sale of the MEDIA or any compilation imbedded therein in the same or any other form or format, the PURCHASER shall have the right to reproduce, revise, recast, enhance, transform or adapt the MEDIA, or any compilation imbedded in the MEDIA.

ARTICLE IV

TRADEMARKS AND TRADE NAMES

In selling or promoting the sale of any product or service, the PURCHASER shall not use or refer to the trademarks or trade name of the SELLER or to trademarks or trade names similar thereto. However, provided that the PURCHASER has first received written approval therefor from the SELLER, the PURCHASER may state, in connection with the labeling, advertising or sale of products or services in the creation, design manufacture or use of which MEDIA were employed, that the PURCHASER is grateful to the SELLER for furnishing drawings, data and information.

ARTICLE V

WARRANTY AND LIMITATION OF LIABILITY

A. To the extent permitted by applicable law, the SELLER warrants only that the MEDIA is in good working condition, BUT MAKES NO FURTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The SELLER shall not be liable for any damages (including, without limitation, direct, indirect, special or consequential damages). The SELLER shall be obligated only to replace the MEDIA that is defective, or to refund the purchase price. This obligation shall apply only to defects discovered and brought to the SELLER’s attention in writing during the thirty (30) day period that begins on the date of shipment by the SELLER to the PURCHASER of the MEDIA that is defective.

B. The PURCHASER agrees not to assert any claim against the SELLER arising directly or indirectly from the manufacture, use or sale of any products or service by PURCHASER, or arising from the use of any MEDIA.

C. The PURCHASER agrees to hold the SELLER harmless from and against all third party claims asserted against the SELLER arising directly or indirectly from the manufacture, use or sale of any products or services by the PURCHASER or arising from the use of any MEDIA.

D. The SELLER makes no representation to the PURCHASER that any MEDIA or any use thereof will not infringe the COPYRIGHTS or other intellectual property rights owned or controlled by third parties in any country, and accordingly the SELLER shall not be liable, either directly or as an indemnitor of the PURCHASER (or SUBCONTRACTORS or vendees of the PURCHASER), as a consequence of any infringement of any such COPYRIGHT or other intellectual property right.

ARTICLE VI

APPLICABLE LAW

This Agreement shall be construed and the legal relations between the parties hereto determined in accordance with the laws in effect in the State of Ohio, United States of America, excluding, however, its conflicts of laws rules.

ARTICLE VII

ENTIRE AGREEMENT AND AMENDMENTS

This instrument contains the entire and only agreement between the parties respecting the subject matter hereof and supersedes and cancels all previous

negotiations, agreements, commitments, representations and writings in respect thereto.

IN WITNESS WHEREOF, each of the parties hereto has caused this AGREEMENT to be executed in duplicate, as of the date first written above, by its duly authorized officers or representatives.

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[1] Insert the appropriate legal description of the BUYER, e.g., “an individual doing business as ________________________, with a business address at _______________________ _________________________”, or “a limited liability company [or “a corporation”] organized and existing under the laws of _______________________________.”

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The PURCHASER

_______________________________________

By ___________________________________

Signature

_______________________________________

Name

_______________________________________

Title

_______________________________________

Address (1)

_______________________________________Address (2)

_______________________________________City, State, Zip

_______________________________________

Country

email: ______________________________

Phone: _____________________________

The SELLER

THE NEW YORK CENTRAL SYSTEM HISTORICAL SOCIETY

By ________________________________________

Signature

____________________________________________

Name

___________________________________________

Title

POSTAL ADDRESS:

_______________________________________________________________________________________________________________________________________

email: _____________________________________

Phone: ____________________________________

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In order to avoid copyright disputes, this page is only a partial summary.

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