WEB CONTENT LICENSE AGREEMENT

 

By filling in and submitting the form titled "JiggleStar: Web Content License Agreement" found at www.lostmedia.co.uk/jigglestar-onboarding you hereby agree to the following conditions in full effect without limitation.

It is hereby understood that information you submit on the aforementioned form shall be used to assign and officiate this Agreement.


This WEB CONTENT LICENSE AGREEMENT (“Agreement”), dated ______ (the “Effective Date”), is by and between Ik Tek, LLC, a New York limited liability corporation, having an office and place of business at 13 Bonticou View Drive, New Paltz, NY 12561 (“Licensee”) and _____________, an individual having an address of _____________________ (“Licensor”).  Licensor and Licensee are individually referred to as a “Party” and collectively as the “Parties.”

Recitals

  1. Licensee is the owner and operator of one or more Platforms and/or mobile applications which display content (“Content”) to Users (as defined below), whether for no charge or on a membership basis (collectively, the “Platform”), which Content may be developed by or for Licensee or licensed from third parties.

  2. Licensee desires to obtain visual and audio Content for display on the Platform.

  3. Licensee has or will develop Content.

  4. Licensor is willing to grant to Licensee a license to and under the Licensor’s Content (“Licensed Content”) under the terms and subject to the conditions set out in this Agreement.

Terms and Consideration

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein and the Recitals set forth above which are incorporated by reference, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

  1. Certain Definitions. 

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” for purposes of this Agreement means the direct or indirect ownership of more than fifty percent (50%) of the voting securities of a Person, and “controlled by” and “under common control with” have correlative meanings.

“Confidential Information” means all non-public, confidential or proprietary information of a Party, or its Affiliates or Representatives, whether in oral, written, electronic or other form or media, whether or not such information is marked, designated or otherwise identified as “confidential” and includes the terms and existence of this Agreement and any information that, due to the nature of its subject matter or circumstances surrounding its disclosure, would reasonably be understood to be confidential or proprietary.

“Derivatives” will include, but not be limited to, any modification or refinement to the Licensed Content made by Licensee.

“Governmental Authority” means any federal, state, national, supranational, local or other government, whether domestic or foreign, including any subdivision, department, agency, instrumentality, authority (including any regulatory authority), commission, board or bureau thereof, or any court, tribunal or arbitrator.

“Harmful Code” means any: (a) virus, trojan horse, worm, backdoor or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems or software; or (b) time bomb, drop dead device, or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of any person or entity, or otherwise deprive licensee of its lawful right to use such software.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

“Losses” means all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Proprietary Rights” means all intellectual property rights including, but not limited to, trade secrets, confidential information, technical and non-technical know-how, copyrights, works of authorship, text, graphics, drawings, plans, computer code and mask work rights, patents and other intellectual property rights recognized by the laws of any country, whether copyrightable or patentable or not. 

“Representatives” means a party’s employees, officers, directors, consultants and legal advisors.

“Users” means a Person who visits the Platform to view Content.

  1. Content License.

    1. Grant.  Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee and its Affiliates during the Term a worldwide, exclusive, transferrable, sublicenseable right and license to the Licensed Content to display, modify, alter or otherwise reformat the Licensed Content on the Platform, including without limitation for the display to Users and the creation of Derivatives.  Licensor will remain the owner of all Proprietary Rights in and to the Licensed Content.

    2. Exclusivity.  For the purpose of clarity, nothing in this Section 2 will limit Licensor’s ability to make, have made, use, sell, have sold or otherwise distribute content other than to Licensee, however, Licensor will not license, sell, display or otherwise distribute the Licensed Content other than to Licensee.

    3. Derivatives.  Licensee will be the owner of all Proprietary Rights in and to all Derivatives made by or for Licensee.  

  2. Licensor Covenants.  Licensor will supply Licensee with Licensed Content which shall not contain any Harmful Code, personally identifiable information of any Person, or any material which would be considered unlawful, threatening, offensive, annoying, malicious, harmful, misleading, defamatory, abusive, socially or politically sensitive, unethical or material that could give rise to any civil or criminal liability or otherwise be prohibited for distribution under any applicable Law or Governmental Authority. 

  3. Right to Refuse.  Licensee reserves the right to review and approve all Content submitted by Licensor.  If Licensor determines, in its sole discretion, that the submitted Content contains any material in any manner that Licensee deems to have breached any of the terms and conditions of this Agreement or which is likely to subject Licensee to unfavorable action, contravene any Law, or infringe the rights of any Persons, or subject Licensee to liability for any reason, Licensee will inform Licensor of the determination, which may occur before or after publication on the Platform.  Even if previously accepted as Licensed Content, Licensee may, for any reason or no reason, remove such Licensed Content from the Platform.

    1. Taxes.  Fees and other sums payable under this Agreement are exclusive of taxes. Licensee will be responsible for all sales, use, excise and value added taxes and any other similar taxes, duties and charges of any kind imposed by any federal, state or local Governmental Authority on any amounts payable by Licensee hereunder and will pay all such royalties and other sums payable hereunder free and clear of all deductions and withholdings whatsoever, unless the deduction or withholding is required by law. If any deduction or withholding is required by law, Licensee will pay to Licensor such sum as will, after the deduction or withholding has been made, leave Licensor with the same amount as it would have been entitled to receive without any such requirement to make a deduction or withholding. 

    2. Payment Terms.  Licensee will pay Licensor the following amounts for submission of Licensed Content:

      1. Approved Content.  Licensor will provide one (1) profile still image, feature still images and one video clip of Licensed Content at no charge to Licensee.  The Platform includes an internal currency in denominations of “stars.”  Stars are earned by obtaining appropriate User feedback and/or payments.  Licensee will pay Licensor a “Fee” of one quarter ($0.25) dollar per one hundred (100) stars earned for each approved video image of Licensed Content.  Star fees for each video image of Licensed Content will be negotiated on a case by case basis as between Licensor and Licensee.  Licensee is not required to accept any Licensed Content and will have the discretion to set the star value for any such Licensed Content.

      2. Refused or Removed Content.  No Fees will be due, owing or paid for refused or removed Licensed Content.

 

  1. Confidentiality.

    1. No Confidentiality of Licensed Content. The Parties agree and acknowledge that any material or other Content submitted by Licensor to Licensee is not Confidential Information of either Party.  

    2. Confidential Information of Licensee.  The terms of this Agreement and any Fees paid to Licensor, together with any other information of Licensee designated as confidential will be Confidential Information of Licensee.

  2. Representations and Warranties.

    1. Mutual Representations and Warranties. Each party represents and warrants to the other party that as of the date of this Agreement: 

      1. 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, organization or chartering; 

      2. it has, and throughout the Term will retain, the full right, power and authority to enter into this Agreement and to perform its obligations hereunder;

      3. the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary organizational action of the party; 

      4. it is not in default with respect to any Law, administrative rule, regulation, judgment, decision, order, writ, injunction, decree or demand of any court or any governmental authority; 

      5. the consummation of the transactions contemplated herein will not conflict with, or constitute a breach of or default under any agreement to which it is a party; and

      6. when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of that party, enforceable against that party in accordance with its terms.

    2. Licensor’s Representation and Warranties. Licensor represents and warrants:

      1.  that it has not received any notice or threat of any claim, suit, action or proceeding, and has no knowledge or reason to know of any information which creates any Proprietary Rights in Licensed Content not owned by Licensor or any claim by any other Person to the Licensed Content.

      2. that it is the owner of all right, title, and interest in and to the Licensed Content and has the full and unencumbered right to grant the licenses contemplated by this Agreement.  

      3. that it has provided all information necessary to Licensee for Licensee to perform its obligations and exploit the licenses granted herein and is not in violation of any covenant or obligation herein.

      4. that when used in accordance with this Agreement and according to the disclosures made as part of the Licensed Content, the Licensed Content does not or will not infringe, misappropriate or otherwise violate any Proprietary Right of any third party.

TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER OR ANY OTHER PERSON FOR ANY INJURY TO OR LOSS OF GOODWILL, REPUTATION, BUSINESS, PRODUCTION, REVENUES, PROFITS, ANTICIPATED PROFITS, CONTRACTS OR OPPORTUNITIES (REGARDLESS OF HOW THESE ARE CLASSIFIED AS DAMAGES), OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE OR ENHANCED DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE (INCLUDING THE ENTRY INTO, PERFORMANCE OR BREACH OF THIS AGREEMENT), REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR THE PARTY AGAINST WHOM SUCH LIABILITY IS CLAIMED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

  1. Indemnifications.

    1. Licensor Indemnification.  Licensor will indemnify, defend and hold harmless Licensee and its officers, directors, employees, shareholders, legal representatives, agents, successors and assigns, from and against all Losses arising out of any breach of this Agreement, including all obligations and covenants; any third party claims arising from a claim that the Licensed Content infringes any Proprietary Rights or right of privacy of a third party.

    2. Licensee Indemnification.  Other than as indemnified by Licensor, or action or inaction subject to the obligations of Licensor, Licensee will indemnify, defend and hold harmless Licensor from and against all Losses, arising out of any breach of this Agreement, including all obligations and covenants; resulting from the display of the Licensed Content on the Platform.  

    3. Right to Defend.  As a condition to each Party’s indemnity obligations under this Agreement, the Party claiming indemnification will provide the indemnifying Party with prompt written notice of the claim, permit the indemnifying Party to control the defense or settlement of the claim, so long as the indemnifying Party does not admit fault on the part of the indemnified Party without the indemnified Party’s prior written approval, and provide the indemnifying Party with reasonable assistance in connection with such defense or settlement. The indemnified Party may employ counsel at its own expense to assist it with respect to any such claim.  The indemnified Party may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

  2. Term and Termination.

    1. Term. This Agreement will commence on the Effective Date and, unless terminated earlier, remain in force for so long as Licensor’s Licensed Content is available on the Platform (the “Term”).  

    2. Termination for Cause. Either party has the right to terminate this Agreement immediately by giving written notice to the other party if the other party breaches this Agreement and such breach is incapable of cure or if capable of cure, fails to cure such breach within ten (10) days of written notice of such breach. 

    3. Termination for Convenience.  Licensee may terminate this Agreement at any time.

  3. Miscellaneous.

    1. Force Majeure. Neither party will be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder, except for Licensee’s payment obligations, where such failure or delay is due to any cause beyond its reasonable control, including strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property or any other circumstances or causes beyond such party’s reasonable control.

    2. Further Assurances. Each party will, upon the reasonable request of the other party, promptly execute such documents and take such further actions as may be necessary to give full effect to the terms of this Agreement.

    3. Independent Contractors. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will 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 will have authority to contract for or bind the other party in any manner whatsoever.

    4. Entire Agreement. This Agreement 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.

    5. 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 will 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 will operate or be construed as a waiver thereof; nor will 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.

    6. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will 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 will 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.

    7. Governing Law. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of New York, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York.

    8. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will 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) will be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date above by their respective officers thereunto duly authorized.