XXX CONTENT LICENSE AGREEMENT
This Content License Agreement (the "Agreement") sets forth terms under which Owner will license to XXX certain content described on the attached Exhibit B (the "Content") for XXX' use on its consumer web sites and related publications.
WIKIPEDIA ("Owner") XXX, INC. ("XXX") Address: _____________________ 555 12th Street, Suite 500 _____________________________ Oakland, CA 94607
Print Name: Print Name:
Term of Agreement: [12 months] Effective Date: March __, 2005
1. Delivery of Content. Commencing as of the Effective Date, Owner will use its best efforts to deliver and maintain access to the Content (as set forth on Exhibit B hereto) to XXX. XXX has the right to approve any Content for appropriateness. XXX may at its discretion use the Content on the URLs set forth on Exhibit A (collectively, the "Sites"). XXX is under no obligation to use the Content.
2. Payment. XXX shall pay Owner the amounts and at the times set forth on Exhibit C.
5. Owner grants XXX a worldwide, non-exclusive right to: (i) use, reproduce, perform, display, archive, transmit and distribute the Content (including any trademarks, tradenames and logos in the Content) in electronic form in connection with the Site, (ii) allow users of the Site to use, search, copy, download and transmit the Content, and (iii) modify and reformat the Content, but solely to the extent necessary and for the purposes of: (a) conforming to the format and "look and feel" of the Site, and (b) creating snippets, headlines or teasers consisting of selected lines or sections from the Content to be displayed on the Site (or displayed on other websites owned by XXX for the purposes of directing traffic to the Site).
6. Restrictions and Requirements. Owner shall use its best efforts to maintain the Content and provide XXX with unlimited access thereto throughout the term of this Agreement.
7. Ownership. Owner or its licensor(s) owns, and will retain ownership of, the Content and Owner's website (the "Owner Site"). XXX owns, and retains ownership of, the Sites and any derivative works based upon, or modifications made to the Content (but not the underlying Content itself). XXX has the right to perpetually utilize such derivative works and modifications. Nothing in the Agreement shall be deemed to grant to one party any right, title or interest in or to the other party's trademarks or brand features. At no time shall one party challenge or assist others in challenging the trademarks or brand features of the other party or the registration thereof by the other party, nor shall either party attempt to register any trademark, brand feature, or domain name that is confusingly similar to those of the other party.
TERM, LIMITATION OF LIABILITY, INDEMNIFICATION, ETC.
8. Term and Termination. This Agreement remains in effect until the expiration of the Term set forth above. Following expiration, this Agreement will renew for successive terms of the same length unless a party gives notice of termination to the other party sixty (60) days prior to the expiration of the term. XXX may terminate this Agreement at any time by giving Owner thirty (30) days written notice. Either party may terminate this Agreement thirty (30) days after the other party's receipt of notice that such party is in material breach of any of the terms or conditions set forth in this Agreement, unless such party cures such breach within such thirty (30) day cure period. Following termination or expiration, Sections 5, and 8, 9, 10 and 11 will survive.
9. Representations and Warranties. Owner represents and warrants to XXX (a) that the Content is an original work of Owner, (b) XXX will not need to obtain any other license from a third party to use the Content as contemplated in this Agreement; (c) the Content or its use does not violate any right of publicity or privacy; and (d) the Content or its use does not infringe any patent, copyright, trademark or other intellectual property right of a third party or misappropriate any third party trade secret.
10. Indemnity. Owner agrees to indemnify, defend and hold harmless XXX and XXX' directors, employees and agents and consultants from and against any and all liabilities, damages, loss, demands, fees, expenses, fines, penalties and costs (including without limitation reasonable attorneys' fees, costs and disbursements) incurred as a result of any breach of the warranties of Section 7.
11. Limitation of Liability. NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR OWNER'S OBLIGATIONS UNDER SECTION 8 AND A BREACH OF SECTION 7 OR 10 OF THE AGREEMENT, IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT PAID BY XXX TO OWNER IN THE TWELVE MONTHS PRECEDING THE LIABILITY OR $100,000, WHICHEVER IS GREATER. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT. THE PARTIES ACKNOWLEDGE THAT THIS SECTION IS AN ESSENTIAL ELEMENT OF THE AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
12. Confidential Information. Each party ("Receiving Party") acknowledges and agrees that in performing its obligations under and during the term of this Agreement, it may come into possession of, or be exposed to, confidential and proprietary information of the other Party ("Disclosing Party"). The Receiving Party agrees that it shall not use such Confidential Information of the Disclosing Party except as is strictly necessary to further the goals of this Agreement. The Receiving Party agrees that it shall not disclose Confidential Information to any third parties without the Disclosing Party's prior written consent, and that it shall safeguard such Confidential Information as it would its own proprietary information, but in no event with anything less than reasonable care. "Confidential Information" as used in this Agreement shall mean any information or materials of the Disclosing Party which the Disclosing Party clearly marks as confidential, or which the Receiving Party knows or has reason to know may be confidential by the very nature of the information or the method by which such information was transmitted. Confidential Information shall not include information: (i) which the Receiving Party had obtained under no obligation of confidentiality prior to the Effective Date; (ii) which is or becomes available to the general public through no wrongful act or omission of either party; or (iii) made available by a third party with no obligation of confidentiality to the Disclosing Party. The use and disclosure restrictions of this Section 5 shall not apply where a Receiving Party is under court or government order to disclose such Confidential Information, provided that the Receiving Party informs the relevant authority of the confidential nature of the requested information, seeks a protective order for the same, and promptly notifies the Disclosing Party of the disclosure order.
13. Miscellaneous. Each party hereto is an independent contractor of the other and neither is an employee, agent, partner or joint venturer of the other. Neither party shall make any commitment, by contract or otherwise, binding upon the other or represent that it has any authority to do so. This Agreement is not assignable or transferable by Owner without the prior written consent of XXX and any attempt to do so shall be void. XXX may assign this Agreement in connection with any sale of the part of the Sites using the Content. Any notice, report, approval or consent required or permitted under this Agreement shall be in writing to the address specified above. Any waiver by either party of any breach of this Agreement, whether express or implied, shall not constitute a waiver of any other or subsequent breach. No provision of the Agreement will be waived by any act, omission or knowledge of a party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving party. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California without regard to conflicts of laws provisions thereof. Any suit or proceeding arising out of or relating to this Agreement shall be commenced in the courts located in the State of California, and each party irrevocably submits to the jurisdiction and venue of such courts. Any waivers or amendments shall be effective only if made in writing signed by a representative of the respective parties authorized to bind the parties. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties, and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
EXHIBIT A TO CONTENT LICENSE AGREEMENT
WWW.XXX.COM, and any other web site owned or operated by XXX, Inc. EXHIBIT B TO CONTENT LICENSE AGREEMENT
Description: [All databases currently or in the future created by Owner]
Format: [Feed access from the Owner Site]
EXHIBIT C TO CONTENT LICENSE AGREEMENT
Two thousand dollars ($2000) per monthy payable on a quarterly basis.
XXX shall pay Owner thirty (30) days after receipt of invoice.