All use of materials licensed hereunder is subject to the following terms and conditions:
1. RIGHTS GRANTED. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Licensor hereby grants to Licensee, during the Term of this Agreement (defined below), a worldwide, non-exclusive, non-transferrable, and non-sub-licensable license to use the Materials of Licensor described above or as may be further identified in Exhibit A attached hereto. The rights granted herein include the right to use excerpts and/or stills from the Materials alone and/or in combination with other materials and/or elements thereof. Without limiting the above, Licensor reserves all rights not expressly granted to Licensee under this Agreement.
a. USE OF PERSONA. Licensor hereby grants to Licensee the limited right to use its corporate name, logo, and professional information (including information Licensor provides to Licensee and any other information about Licensor that is publicly available) in connection with the Materials, including to advertise and promote the same or any good or service that features or includes at least one of the Works, in whole or in part, as provided by Licensor.
2. TERMS OF USE. Licensee must exercise the rights granted under this Agreement in such a way that: (a) fulfills, directly or indirectly, Licensor’s charitable purposes, namely, to promote the regeneration of land and soil through education, media, and advocacy; (b) does not violate, or cause Licensor to violate, 26 U.S.C. § 501(c)(3) or any rule or regulation promulgated thereunder, as may be determined by Licensor in its sole discretion after reasonable independent evaluation; and (c) solely in and in connection with the production, distribution, exhibition, and other exploitation of the Project identified above. No other use of the Materials is permitted without the express written consent of Licensor. Licensee shall not depict the Materials in any manner or in any materials that would tend to denigrate, disparage, tarnish, present in a false light, or otherwise reflect negatively on the Licensor or any goodwill associated with its name or any of its trademark(s), whether registered or unregistered. Licensee shall have the right not to use or exploit the Works and to exercise the rights under this Agreements through any of its employees, agents, or independent contractors
3. MODIFICATIONS. Licensee acknowledges and agrees that the rights and license granted to it under this Agreement expressly do not include Licensee’s rights to modify, edit, or create derivatives of the Materials, in whole or in part (each, an “Adaptation”). Licensor will own and retain all right, title and interest in and to all Adaptations of the Works made by Licensee, or by any third party for the benefit of, Licensee, and such Adaptions shall not be subject to the terms of this Agreement.
4. TERM AND TERMINATION. This Agreement and the license granted herein shall expire at midnight of the last day of the License Period identified above, unless terminated earlier. Licensor may terminate this Agreement at any time upon 15 days’ prior written notice to Licensee. If either party breaches this Agreement, and does not cure such breach within 15 days’ notice from the other party, the non-breaching party may terminate the License at an earlier time by written notice to the other party. Upon the expiration or termination of this Agreement, all rights licensed under this Agreement revert to Licensor, and Licensee shall, immediately after such expiration or termination, cause to be inactivated and erased all digital copies of the Materials in its control and possession and return or, at Licensor’s written request, destroy, any other tangible copies of the Materials.
5. REPRESENTATIONS AND WARRANTIES. Licensor hereby represents and warrants that it has all rights necessary, either as owner or as agent of the owner, to grant to Licensee the rights granted herein (including, without limitation, all releases from all persons appearing in the Materials, all rights to all music and images contained in the Materials). Accordingly, Licensee agrees it will not sue, and irrevocably and unconditionally releases, waives and forever discharges, Licensor and its past, present and future parents and related companies, subsidiaries (whether or not wholly-owned), affiliates, divisions, officers, agents, representatives, employees, successors and assigns, jointly and individually, and all entities and persons associated with the Project (collectively, “Releasees”), from any and all manner of liabilities, claims and demands of any kind or nature, whatsoever, in law or equity, whether known or unknown, suspected or unsuspected (including, but not limited to, for invasion of any rights of privacy, right of publicity or personality, infringement of copyright or violation of any other right), which arise out of or relate to the use of the Materials as set forth herein, which Licensor (or the Licensor’s assigns, agents and/or representatives) ever had, now has, or in the future may have against the Releasees. Licensee agrees that it shall be liable for any attorneys’ fees and costs incurred by Licensor and/or the Releasees in connection with any claim or lawsuit brought in violation of this agreement. The provisions of this paragraph will survive termination of this Agreement.
6. INDEPENDENT CONTRIBUTOR. Licensee understands, acknowledges, and agrees that they are an independent contributor and not an employee, agent, joint venturer, or partner of Licensor, and that nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Licensee and Licensor. Licensee agrees that they are solely responsible for all taxes, workers’ compensation insurance, social security payments, unemployment insurance, and other withholdings, contributions and statutory obligations relating to this agreement and the compensation set forth herein.
7. CONFIDENTIALITY. Licensee acknowledges that all information about the Materials, together with any other elements of the Project and the subject matter of this Agreement (collectively, “Confidential Information”) is the sole and exclusive property of Licensor, and the undersigned will not make, print, authorize or otherwise disclose, divulge or disseminate to any third party at any time (whether by oral, written, social media or any electronic or other means) any Confidential Information.
8. INDEMNIFICATION. Licensee shall indemnify, defend, and hold harmless Licensor, its successors, licensees, and assigns (and their respective employees, officers, directors, and agents) from and against any and all liability, damages, costs, and expenses (including reasonable outside attorneys' fees) in connection with any third-party claim or action arising out of any breach of Licensee’s representations, warranties, and/or agreements herein, or by Licensee’s exhibition of the Materials pursuant to this Agreement. The provisions of this paragraph will survive termination of this Agreement.
9. DISCLAIMER OF WARRANTIES. LICENSOR HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW
10. LIMITED LIABILITY. EXCEPT FOR PAYMENT OBLIGATIONS AND BREACHES OF A CONFIDENTIALITY AGREEMENT, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOST REVENUE, LOST DATA, COST OF COVER, OR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. EXCEPT FOR PAYMENT OBLIGATIONS, A PARTY’S MAXIMUM LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT IS LIMITED TO THE AGGREGATE OF FEES PAID AND PAYABLE HEREUNDER. IF LICENSEE IS A CALIFORNIA RESIDENT, THEY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
11. GENERAL. The laws of California will govern all matters arising out of this Agreement. Neither party shall be responsible or liable for performance delays or an inability to perform any of its obligations hereunder (with the exception of any obligation to pay money) to the extent that such delays or inability result from any cause or causes beyond the reasonable control of the party whose performance is affected. This agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings and other communications with respect to such subject matter. Licensor may freely assign this agreement and any or all of its rights hereunder (including, without limitation, its rights to the Materials) upon written notice to Licensee; Licensee may not assign this agreement without Licensor’s prior written consent.
12. DISPUTE RESOLUTION. If a dispute arises from or relates to this contract or the breach thereof, and if the dispute cannot be settled through direct discussions, the parties agree to make a good faith effort to settle the dispute through mediation. Any settlement through mediation shall be binding upon the parties. Upon failure to resolve the dispute through mediation, the remaining dispute shall be settled by binding arbitration administered by an arbitrator through a reputable arbitration association such as the American Arbitration Association. All disputes shall be mediated and arbitrated in Los Angeles County and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
EXHIBIT A
MATERIALS LICENSED
