USER-GENERATED CONTENT KIt LICENSE AGREEMENT
CLASSIC MEDIA, inc., AN ENTERTAINMENT RIGHTS GROUP COMPANY
This End User License Agreement (the “Agreement”) for the “Find Waldo™” user-generated content kit is a legal agreement between user (“You” or “Your”), and Classic Media, Inc., an Entertainment Rights group company (“Company”), for the use of the “Find Waldo™” user-generated content kit provided to You by Company (“UGC Kit”). The UGC Kit includes, among other things, material and content owned, controlled and/or developed by Company. By accessing, downloading, copying, or otherwise using the UGC Kit, You acknowledge that You have read this Agreement, understand it, and agree to be bound by its terms and conditions. If You do not agree to the terms and conditions of this Agreement, click the “CANCEL” button and do not access or use the UGC Kit. Company will not and does not license the UGC Kit to You unless You agree to the terms of this Agreement. Any updates and/or upgrades to the UGC Kit shall be governed by the terms and conditions of this Agreement.
In consideration of the promises and covenants described below, and other good and valuable consideration, You agree as follows:
1. License Grant and Limitations. Subject to the terms and conditions hereof, Company grants You a non-exclusive, non-commercial limited license to use the UGC Kit as follows (“License”): You may: (a) modify, adapt, translate and make derivative work(s) based on the UGC Kit (the “Derivative Work(s)”), and (b) copy, distribute and display copies of Your Derivative Work(s), in whole or in part, to any third party, provided that You do so under the same terms and conditions of this Agreement. Except as specifically provided herein, You may not, in whole or in part, grant or attempt to grant other rights to the UGC Kit and/or Your Derivative Work(s) to third parties, and You may not offer the UGC Kit and/or Your Derivative Work(s) in a commercial manner. You agree to grant Company a royalty-free, unrestricted, world-wide, perpetual, irrevocable, non-exclusive and fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Derivative Work(s) based on the UGC Kit (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed.
2. Proprietary Rights and Confidentiality. The UGC Kit is owned and/or controlled by Company and is protected by copyright and trademark laws. You will take those reasonable steps necessary to protect Company’s proprietary rights in the UGC Kit related to Your use and possession of the same. All design elements of the UGC Kit, including but not limited to the design, text, graphics, interfaces and the selection and arrangement thereof, are protected by copyrights and trademarks owned by Company. ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED TO COMPANY.
3. No Responsibility. Company, including its parent companies, subsidiaries, assigns, affiliates and the officers, directors, employees, consultants and agents of each (collectively, “Company Affiliates”), will not be liable for losses or damages arising from or in any way related to the UGC Kit.
4. Your Warranty to Provider. You warrant that all individuals having access to the UGC Kit will observe and perform all the terms and conditions of this Agreement. You agree to immediately notify Company in writing of any misuse, misappropriation or unauthorized display or copying of the UGC Kit that may come to your attention. You further warrant that Your Derivative Work(s) will not contain any material that is libelous, slanderous, disparaging, tortious, offensive, pornographic, profane, vulgar, containing sexually explicit graphical descriptions or accounts of sexual acts, racist, bigoted, hateful, threatening, harassing (advocating harassment), harmful, false, misleading, fraudulent, invasive of anyone's publicity or privacy rights or that otherwise violates any law or any right of a third party or which will violate, infringe upon, or give rise to any adverse claim with respect to, any common law right, statutory right, or other right (including, without limitation, any copyright, trademark, trade name, service mark, literary, dramatic, musical or motion picture right, or contract right) of any person or organization. You agree to indemnify and hold harmless Company and Company Affiliates from any and all claims resulting from your use of the UGC Kit or breach of this Agreement.
5. Disclaimer of Warranties and Indemnification. COMPANY IS LICENSING THE UGC KIT ON AN “AS IS” BASIS TO YOU. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, AND ACCURACY, FOR ANY PURPOSE, OF THIS UGC KIT, ITS OPERATION OR THE CONTENT CONTAINED HEREIN. COMPANY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING THE UGC KIT, ITS OPERATIONS, AND ITS CONTENT AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT FOR ANY MATERIAL CONTENT CONTAINED IN THE UGC KIT.
6. Limitation of Liability. IN NO EVENT SHALL COMPANY OR COMPANY AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR OTHER RELATED OR SIMILAR DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE CONNECTED WITH THE USE OF OR INABILITY TO USE THE UGC KIT, AND FOR ANY CAUSE OF ACTION, INCLUDING CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME TERRITORIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU UNDER THE LAWS OF THOSE TERRITORIES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF ANY TRANSACTION UNDER THIS AGREEMENT, MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER YOU HAVE KNOWLEDGE OF THE OCCURRENCE WHICH GIVES RISE TO THE CAUSE OF SUCH ACTION.
7. Copyright / Trademark Notice. Any uses of the UGC Kit (including as the UGC Kit, in whole or in part, appears and/or is used within Your Derivative Work(s)) must bear the following Company-approved copyright and trademark notice:
TM & © 2008 Entertainment Rights Distribution Limited. All rights reserved.
8. Indemnity. You agree to indemnify and hold harmless Company and Company Affiliates and anyone providing information, content, material or software used in the UGC Kit from any and all claims resulting from or incidental to Your use of the UGC Kit or operation of the UGC Kit.
9. Termination. Company may immediately terminate this License and Agreement, and exercise any other rights it may have, if (a) You breach this Agreement, (b) Company terminates or suspends its business operations, or (c) Company determines, in its sole discretion, that anything contained in Your Derivative Work(s) or Your use of the UGC Kit is: (i) libelous, slanderous, disparaging, tortious, offensive, pornographic, profane, vulgar, containing sexually explicit graphical descriptions or accounts of sexual acts, racist, bigoted, hateful, threatening, harassing (advocating harassment), harmful, false, misleading, fraudulent, invasive of anyone's publicity or privacy rights or that otherwise violate any law or any right of a third party, (ii) constitutes the promotion or advertising of any commercial enterprise or transaction, or an offer to engage in any such commercial enterprise or transaction, or (iii) does or may contain any virus, worm, or other similar component that could be harmful or a burden to Company’s computer system or to any other third party's computer system. Any sections that may be reasonably interpreted to, or are intended to, survive this Agreement will survive this Agreement.
10. Governing Law. This Agreement shall be governed by the laws of the State of New York in the United States, without giving effect to the State of New York’s conflict of law principles. Venue for any action under this Agreement shall lie in New York County, New York. If any action is brought to enforce, or arises out of, the Agreement or any term, clause, or provision hereof, the prevailing party shall be awarded its reasonable outside attorney’s fees together with expenses and costs incurred with such action.
11. Acknowledgment of Understanding – Entire Agreement. You acknowledge that You have read this Agreement, understand it and agree to be bound by its terms and conditions. You also agree that this Agreement is the complete and exclusive statement of the Agreement between Company and You and supersedes all representations, oral or written, and any other communications between Company and You relating to the subject matter of this Agreement. This Agreement may be amended from time to time by Company.
12. Severability. You agree that the terms and conditions stated in this Agreement are severable. If any paragraph, provision, or clause in this Agreement shall be found or be held to be invalid or unenforceable in any jurisdiction, the remainder of this Agreement shall be valid and enforceable and the parties shall use good faith to negotiate a substitute, valid and enforceable provision which most nearly effects the parties' intent in entering into this Agreement.
13. Injunctive Relief. You agree that, because of the unique nature of the UGC Kit, Company may suffer irreparable injury in the event You fail to comply with any of the terms of this Agreement, and that monetary damages would be inadequate to compensate Company for any such breach by You. Accordingly, You agree that Company will, in addition to any other remedies available to it at law or in equity, be entitled to injunctive relief, without posting a bond, to enforce the terms of this Agreement.