License Agreement
This License
Agreement ("Agreement") is by and between DrawCircle.com and the company
and/or individual entering into this Agreement ("Licensor").
I. LICENSE GRANT
1.1 Licensor hereby grants
to DrawCircle.com and its affiliates a nonexclusive, perpetual,
irrevocable, worldwide, royalty-free right and license to: (a) store
and archive the artwork and other materials provided by Licensor
to DrawCircle.com (the "artwork"), (b) publish the artwork,
including
the right to reproduce, market, advertise, use, publicly perform and
display, transmit and distribute (directly and indirectly) the artwork
as part of DrawCircle.com's service of providing artwork and
similar
materials to third parties (the "Service"), and (c) license and
sublicense the artwork to third parties ("Subscribers") via the Service.
1.2 Without limiting the generality of the
foregoing, Licensor acknowledges that DrawCircle.com may
sublicense Subscribers to use and publish the artwork in magazines,
greeting cards, advertisements, brochures, on the Internet and in all
other media, both in print and electronically. The only limitation
on DrawCircle.com's right to sublicense shall be
that DrawCircle.com shall include in its agreements with
Subscribers a limitation prohibiting Subscribers from publishing any
artwork on a standalone basis.
II. CONSIDERATION
2.1 There are no fees under this Agreement.
III. TERM; TERMINATION
3.1 The term of this Agreement shall continue in
effect unless and until (a) the parties mutually agree to terminate
this Agreement, or (b) DrawCircle.com terminates this Agreement in
accordance with Section 3.2.
3.2 DrawCircle.com may terminate this Agreement
immediately if Licensor breaches this Agreement.
IV. REPRESENTATIONS AND WARRANTIES; LIMITATION OF LIABILITY
4.1
Licensor represents, warrants and covenants that: (i) it has and will
have all rights, titles, licenses, permissions and approvals necessary
to perform its obligations under this Agreement and to
grant DrawCircle.com the rights granted in this Agreement and (ii)
the
artwork provided by Licensor and their use by DrawCircle.com as
contemplated by this Agreement do not and will not infringe, violate or
in any manner contravene or breach any patent, copyright, trademark,
license or other property or proprietary right or constitute the
unauthorized use or misappropriation of a trade secret of any third
party.
4.2 Licensor hereby represents and warrants that it
will not introduce any files containing computer code that: (a) would
contain any viruses or other harmful devices, or (b) would permit
Licensor or any third party to access the Service (referred to as
"traps", "access codes" or "trap door" devices).
4.3 EXCEPT AS SET FORTH ABOVE, NEITHER PARTY MAKES
ANY REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED,
WITH RESPECT TO THE ARTWORK OR THE SERVICE, THE TIMELINESS THEREOF, THE
RESULTS TO BE OBTAINED BY THE USE THEREOF OR ANY OTHER MATTER. FURTHER,
DRAWCIRCLE.COM EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES,
INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF NON-INFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4.4 IN NO EVENT SHALL DRAWCIRCLE.COM BE LIABLE FOR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL
DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOSS OF PROFITS OR
REVENUES OR OTHER ECONOMIC LOSS OF LICENSEE OR ANY THIRD PARTY),
WHETHER IN TORT, CONTRACT OR OTHERWISE, AND WHETHER OR NOT DRAWCIRCLE.COM
HAS BEEN ADVISED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED, THE
POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THE FOREGOING IS NOT
ENFORCEABLE FOR ANY REASON, DRAWCIRCLE.COM'S TOTAL LIABILITY HEREUNDER
SHALL NOT EXCEED ONE DOLLAR.
V. INDEMNIFICATION
5.1 Licensor, at its expense, will indemnify, defend
and hold harmless DrawCircle.com and its affiliates and their
officers, directors, managers and employees, (collectively, the
"Licensee Indemnified Parties") from and against any claims, losses,
damages, liabilities, costs and expenses, including, without
limitation, reasonable attorneys' fees, based on or arising out of any
claim that the Artwork or any portion thereof, or the use thereof,
constitute an infringement, violation, contravention or breach of any
patent, copyright or trademark or constitutes the misappropriation of a
trade secret of any third party.
VI. PROPRIETARY RIGHTS
6.1 DrawCircle.com acknowledges Licensor's
representation that title and ownership rights in and to the artwork
and all the rights therein and legal protections with respect thereto
remain exclusively with Licensor and that DrawCircle.com receives
no proprietary rights whatsoever in or to the artwork except for the
license granted herein. Notwithstanding the
foregoing, DrawCircle.com shall not be required (and need not
require any Subscriber) to include any copyright or other attribution
with regard to any artwork. Licensor acknowledges that title and
ownership rights in and to the photos and materials contained in the
Service and all the rights therein and legal protections with respect
thereto remain exclusively with DrawCircle.com and that Licensor
receives no proprietary rights whatsoever in or to such materials
except for the license granted herein.
VII. ASSIGNMENT
7.1
This Agreement shall not be assigned or transferred by Licensor without
the prior written consent of DrawCircle.com, and any attempt by
Licensor to so assign or transfer this Agreement without such written
consent shall be null and void. This Agreement shall be valid and
binding on the parties hereto and their successors and permitted
assigns.
VIII. RELATIONSHIP OF THE PARTIES
8.1 The parties are independent contractors. Nothing
in this Agreement will be construed to constitute or appoint either
party as the agent, partner, joint venturer or representative of the
other party for any purpose whatsoever, or to grant to either party any
right or authority to assume or create any obligation or
responsibility, express or implied, for or on behalf of or in the name
of the other, or to bind the other in any way or manner whatsoever.
IX. GOVERNING LAW; VENUE
9.1 This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without
regard to its conflict or choice of laws principles. The parties hereby
consent to the exclusive jurisdiction of, and venue in, any federal or
state court of competent jurisdiction located in the Borough of
Brooklyn, New York City for the purposes of adjudicating any matter
arising from or in connection with this Agreement.
X. NOTICES
10.1 All notices given under this Agreement must be
in writing, by certified mail (return receipt requested), overnight
courier or personal delivery.
XI. SURVIVAL
11.1 Articles 2 through 12 shall survive the
expiration or termination of this Agreement.
XII. MISCELLANEOUS
12.1 This Agreement supersedes all prior agreements
and understandings, and constitutes the complete agreement and
understanding between the parties with respect to the subject matter
hereof. No amendment or other modification to this Agreement shall be
valid or binding with respect to either party unless acknowledged and
agreed to in writing and signed by a duly authorized officer of each
party. Any forbearance or delay on the part of either party in
enforcing any provision of this Agreement or any of its rights
hereunder shall not be construed as a waiver of such provision or of a
right to enforce same for such occurrence or any future occurrence.