AUTHORS’ SUPPLY AGREEMENT
I. Background of Agreement
A. By confirming your acceptance of this agreement this becomes a binding legal agreement between any member intending to upload data or materials onto the Site (in this agreement referred to as “you” or the “Supplier”) and My language skills S.L.U. with his brand Badges For Languages. If you are a corporation or other entity or a minor you may be subject to further filing requirements.
B. The Supplier wishes to appoint Badges For Languages as its non-exclusive agent to license, sublicense and distribute Content (as defined below) produced by the Supplier on the terms and conditions set forth in this Agreement. Upon accepting the terms of this Agreement, you may make Content available to Badges For Languages by following the ‘Upload’ procedures identified on the Site. Each upload of Content will be governed by the terms and conditions of this Agreement.
C. This is a fairly lengthy document, and it contains many important provisions that affect your rights and obligations. This Agreement remains in full force and effect until terminated in accordance with its terms. If at any time the terms and conditions of this Agreement are no longer acceptable to the Supplier, you must follow the termination procedures set forth below under “Term and Termination”.
II. Provision of Content
A. The parties acknowledge that the Supplier may, from time to time, provide information and other material to Badges For Languages using the Upload procedures of the Site or such other procedures as the parties may mutually agree (collectively, “Content”) together with other information or documents (such as model or property releases) relating to such Content or otherwise required to enable Badges For Languages to realize the commercial potential of the rights granted in the Content (“Descriptive Information”). Badges For Languages, in its sole discretion, may determine which of such Content is suitable for posting on the Site or other means of direct or indirect distribution, and only such Content as it deems suitable will be considered “Accepted Content” for the purposes of applicable provisions of this Agreement. Although Badges For Languages may permit Content to be submitted pursuant to certain applications from time to time, your ability to submit further Content to the Site shall be subject to policies and procedures outlined in the Site and such applications.
B. In addition to the terms of this Agreement, the parties acknowledge that the provision of all Content is subject to the policies and procedures outlined in the relevant portions of the Site and applications, the terms of which are incorporated by reference into this Agreement. Any breach of the rules relating to Accepted Content outlined in the Site will be deemed to be a breach of this Agreement.
III. Grant of Authority
A. The Supplier hereby appoints Badges For Languages as Supplier’s non-exclusive distributor to sell, license or sublicense Content to third parties worldwide. For all Content, Supplier grants Badges For Languages:
- The worldwide right to market and sublicense the right to copy, use, reproduce, distribute, redistribute, sublicense, publish, republish, upload, post, transmit, broadcast, crop, modify, alter, create derivative works of, package, repackage, produce and sell, publicly perform or display Content to prospective licensees in any and all media now in existence or that may in the future be introduced: (i) through the Site; (ii) through other venues owned or operated by My Language Skills or its affiliates from time to time, and (iii) through Distribution Partners (defined in Section 3(c)); and
- The right to grant perpetual, worldwide, licenses or sublicenses to end-users. Badges For Languages and its Distribution Partners will determine the terms and conditions of all licenses of Content granted by them, but will not use or license Content for uses that are defamatory, pornographic or otherwise illegal.
B. In addition to the foregoing grant Badges For Languages and its Distribution Partners may post, reproduce, modify, display, make derivative works or otherwise use any Accepted Content for their own business purposes relating to the promotion of the Site, the Content and their distribution programs, and promote the licensing of Accepted Content (including, without limitation, the use of the Accepted Content and the Supplier’s registered and unregistered trademarks for marketing, sales and promotional efforts whether on the Site or through third parties). No compensation shall be due to the Supplier for use of Accepted Content for such business purposes.
C. Accepted Content may be included in one or more current or future content collections (“Collections”) made available for licensing or distribution by Badges For Languages or third party distributors (each a “Distribution Partner”).
D. The Parties agree that all rights, including title and copyright, in and to the uploaded Accepted Content will be retained by the Supplier, and no title or copyright is transferred or granted in any way to Badges For Languages or any third party except as provided in this Agreement.
IV. Intellectual Property Matters
A. The Supplier acknowledges that Badges For Languages prohibits any Content or any other material that infringes on any patent, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be uploaded to the Site.
B. By uploading Content, you are warranting that you own all proprietary rights or are the authorized representative of the applicable copyright owner(s) of such Content, including copyright, in and to the Content with full power to grant the rights contemplated in this Agreement.
In addition, to the extent that the Content contains images of people or persons, you represent and warrant that you have obtained as part of the Descriptive Information a valid and binding model release from all required parties in substantially the same form as model release that will permit the uses for such Content contemplated in this Agreement and that you will keep the original release and provide a copy to Badges For Languages if requested. You also warrant that where required by applicable law, you have also obtained a valid and binding release in substantially the same form as property release relating to any identifiable property contained in the Content that might sensibly lead to the identity of or be required by the owner of such property to permit the broad uses, including commercial use, of Accepted Content by Badges For Languages and its Distribution Partners’ customers.
C. The Supplier agrees that neither Badges For Languages nor any of its directors, officers, employees, partners, affiliates or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Content or Descriptive Information, or any error, omission or other matter relating to a model or property release respecting Content or Descriptive Information.
D. Using the member name supplied by you, Badges For Languages shall use commercially reasonable efforts to credit you as the source of Accepted Content, but shall have no liability for lack of credit. You acknowledge and accept and therefore waive any right to object to the fact that it is common business practice for commercial uses that the creator of Content is not credited, that Content may be modified, used in connection with sensitive topics and may be used or modified in ways that may be controversial or unflattering.
You acknowledge and agree that you will be responsible for each and every access or use of the Upload portions of the Site that occurs in conjunction with your Member Name and such passwords, and that Badges For Languages is authorized to accept your Member Name and password as conclusive evidence that you wish to upload Content pursuant to this Agreement. Badges For Languages shall have no liability or responsibility to monitor the provision of Content under your member name and password.
VI. Managing Content
A. Badges For Languages has policies and processes which must be adhered to prior to Content being posted on the Site or otherwise being offered for sale or license. Notwithstanding that some qualitative standards are required to be met, Badges For Languages does not and cannot review all Content or Descriptive Information uploaded to the Site and is not responsible for the content, quality, or consequences of your uploading such Content or Descriptive Information. Notwithstanding the foregoing, Badges For Languages reserves the right to delete, move, refuse to accept or edit any Content that it may determine, in its sole discretion, violates or may violate this Agreement, the intellectual or proprietary rights of others, any of its policies or is otherwise unacceptable in its discretion, and you hereby agree to forfeit any fees payable in respect of such Content to Badges For Languages or as it may direct. Badges For Languages shall have the right but not the obligation to correct any errors or omissions in any Content or Descriptive Information, as it may determine in its sole discretion. You acknowledge that any screening of Content or Descriptive Information performed by Badges For Languages to determine Accepted Content is done as a courtesy only.
NOTICE: You acknowledge that the Content you provide pursuant to this Agreement that becomes Accepted Content may be purchased or licensed by members of the Site or Distribution Partner sites with the intention that they will adhere to the terms of the applicable license agreement.
B. Notwithstanding the foregoing, you acknowledge and agree to the possibility of Content being used in a manner that is not contemplated in this Agreement, and you agree that notwithstanding any rights you may have to pursue the licensees of such Content at law, Badges For Languages shall have no liability to you or any person claiming through you for any breach by a licensee of the terms of any agreement respecting Accepted Content. Badges For Languages will use commercial efforts to assist in the protection of your intellectual property rights, at your request and expense.
VII. Confidential Information
A. The Supplier acknowledges that the Confidential Information (defined below) which it obtains through the entering into of this Agreement, the use of the Site and the provision of Content constitutes valuable, confidential, proprietary information of Badges For Languages and its licensors, and agrees that during the term of this Agreement and thereafter it shall not, without the express written consent of Badges For Languages, use or disclose to any other person any such Confidential Information, except as specifically authorized under this Agreement.
B. For the purposes of this Agreement, “Confidential Information” means any and all data, information, documents, software or materials relating to the business and management of Badges For Languages, its members, affiliates, licensors or licensees, that is designated as confidential or ought reasonably to be considered confidential, including but not limited to: their business model and operations, processes, products, designs, pricing, promotions, business plans, business opportunities, alliances, Content, graphics, documentation, finances, research, development, know-how, trade-secrets, training materials, personnel, identities or personal information of any kind pertaining to members, clients, methodologies, Site content belonging to others and other intellectual property.
VIII. Representations and Warranties
A. The Supplier hereby represents and warrants as follows:
1) The Supplier has the legal capacity and authority to enter into this Agreement and perform its obligations hereunder and that it will comply with all applicable laws, is the sole and exclusive owner of the Exclusive Content or is the authorized representative of the applicable copyright owner(s) of such Content, has the right to grant all of the license rights contemplated to be provided under this Agreement, and has not granted any rights or licenses to any Content or any other intellectual property or technology that would conflict with this Agreement;
2) No portion of the Content as delivered to Badges For Languages from time to time, contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement, and all Content will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the Site or the Content or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Content or the Site in any way;
3) the Content will include all necessary Descriptive Information to enable its effective marketing on the Site, which Descriptive Information will be complete and accurate in all material respects, and will not include false, misleading or inapplicable metadata intended to or which has the effect of keyword ‘doping’ or improperly altering search results that would otherwise be applicable to such Content;
4) the Content delivered to Badges For Languages hereunder represents original creations and expressions of subject matter, and no Content or Descriptive Information infringes any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party, or defames or casts into disrepute in any manner any third party; and
5) the Content has not been obtained in any unlawful manner, whether civil or criminal, and is not subject to any applicable accreditation terms or access condition that might be breached by the Content being used by Badges For Languages, its customers or distributors as contemplated under this Agreement.
6) You represent and warrant that you shall not: (i) license your own Content (except occasionally and then only for legitimate creative purposes); or (ii) predominately license the Content of only a few contributors. You agree that you will not collude with another Badges For Languages member to have that member do either of (i) or (ii) above for your benefit.
You acknowledge that genuine subscription customers typically license files from many contributors and you agree that your subscription licensing behavior will conform to this typical conduct. In addition to any other available remedies, if you breach this paragraph Badges For Languages may immediately terminate this Agreement and/or, if applicable, cancel your subscription package without any refund to you. You further agree to forfeit any Royalties earned by you in connection with your misconduct.
A. You agree to indemnify, defend and hold Badges For Languages and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Content (collectively, the “Badges For Languages Parties”) harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any Badges For Languages Party as a result of or in connection with: (i) any use or alleged use of the Site or provision of Content under your Member Name by any person, whether or not authorized by you; (ii) or resulting from any communication made or Content uploaded under your Member Name; (iii) any breach by you of this Agreement; or (iv) any claim threatened or asserted against any Badges For Languages Party to the extent such claim is based upon a contention that any of the Content used within the scope of this Agreement infringes any copyrights, trade secrets, trademarks, right of privacy, right of publicity or other intellectual or other property rights of any third party.
B. Badges For Languages reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Badges For Languages’s defense of such claim.
C. The Supplier agrees that Badges For Languages shall have the right to determine whether and to what extent to proceed against a licensee or other third party (an “Infringer”) for any violation of a license agreement or alleged infringement of other rights of the Supplier. The Supplier hereby releases Badges For Languages from any and all claims the Supplier might have, either directly or indirectly, arising out of or in connection with a determination by Badges For Languages to proceed or not to proceed against any Infringer in any instance. Badges For Languages hereby agrees that any monetary recovery it receives as a result of any legal or enforcement action taken against any such Infringer, to the extent such monies are intended to compensate Badges For Languages for lost licensing fees or statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, reasonable counsel and experts’ fees and disbursements on a solicitor and client basis) incurred by or on behalf of Badges For Languages in connection with such action, be divided between the Supplier and Badges For Languages. In the event Badges For Languages elects not to proceed against an Infringer, the Supplier shall have the right to proceed against such Infringer for such license violation or infringing action. The Supplier hereby agrees that any monetary recovery it receives as a result of any legal action taken against any such Infringer, to the extent such monies are intended to compensate the Supplier for lost licensing fees or include statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, reasonable counsel and experts’ fees and disbursements on a solicitor and client basis), be divided between the Supplier and Badges For Languages.
X. Term and Termination
A. This Agreement is effective until terminated. You may terminate this Agreement at any time by giving thirty (30) days written notice to Badges For Languages using email@example.com or such other means of written notice acceptable to Badges For Languages which enables confirmation of your identity and your intention to terminate. Badges For Languages may also terminate this Agreement for any reason by giving you thirty (30) days notice by e-mail at the last address contained in your membership information. If Badges For Languages terminates your membership pursuant to the terms of the Membership Agreement, such termination shall be deemed to be notice of termination of this Agreement with respect to all Content, as well.
B. Either party may terminate this Agreement upon written notice effective immediately upon being sent to the last address included on the Site, if the other party (i) liquidates all or substantially all of its assets, dissolves as a corporation other than through inadvertence, or otherwise ceases to do business in a material way, or (ii) makes an assignment for the benefit of creditors, or (iii) files a petition in bankruptcy, petitions or applies for a receiver or trustee for all or any substantial part of its property and such receiver or trustee is appointed, or commences, or has commenced against it, a proceeding under any bankruptcy, reorganization, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, any of which shall remain in force for a period of thirty (30) days or more, or (iv) is adjudicated insolvent or bankrupt, or (v) is in breach of this Agreement.
C. In addition, Badges For Languages may deem an account to be terminated and may off-set any fees or credits contained in such account against its costs of administration if there has been:
(i) in the reasonable opinion of Badges For Languages, any material misrepresentation made as to the capacity, identity or copyright ownership of Content or the Supplier provided hereunder; or
(ii) no log-in or other activity in the account for 24 months despite reasonable commercial efforts to contact Supplier based on the information provided through the Site as part of the account profile of such Supplier.
XI. Effect of Termination
A. Upon the termination of this Agreement, the grant of authority given to Badges For Languages shall cease subject to the following conditions: (i) Badges For Languages shall remove Accepted Content from the Site and Distribution Partners within ninety (90) days of the termination of this Agreement; (ii) notwithstanding termination, Badges For Languages and its Distribution Partners shall have the right to continue licensing Accepted Content until it is removed from the Site or other sites where Accepted Content is distributed and for up to (1) year following termination where such Accepted Content has previously appeared in Badges For Languages’s promotional materials, or Distribution Partner marketing programs;
B. Notwithstanding any other provision in this Agreement, the termination or expiration of this Agreement shall not alter or affect the rights granted to licensees or sub-licensees by Badges For Languages pursuant to this Agreement.
XII. DISCLAIMER OF WARRANTIES
A. THE SITE, INCLUDING ANY CONTENT CONTAINED THEREIN, ARE PROVIDED BY Badges For Languages “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Badges For Languages DOES NOT REPRESENT OR WARRANT THAT THE SITE OR THE CONTENT WILL BE MADE AVAILABLE FOR SALE OR LICENSE OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE.
B. Badges For Languages DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY CONTENT AVAILABLE FOR DOWNLOADING THROUGH THE SITE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
XIII. LIMITATION OF LIABILITY
A. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED THEREIN.
B. IN NO EVENT SHALL Badges For Languages OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SITE, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF Badges For Languages HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
C. IN ANY EVENT, Badges For Languages’S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE SITE OR THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES COLLECTED BY Badges For Languages FOR THE CONTENT THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED ONE THOUSAND (1,000.00 €) EUROS.
D. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF Badges For Languages OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
V. Applicable law
A. This Agreement will be governed in all respects by the laws of Valencia, Spain, without reference to its laws relating to conflicts of law. Any disputes arising from or related to this Agreement or its enforceability, or the business relationship between the parties, shall be finally settled by binding, confidential arbitration by a single arbitrator. The arbitration proceedings shall be conducted in Spanish and all documentation shall be presented and filed in Spanish. The decision of the arbitrator shall be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, Badges For Languages shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against you in the event that, in the opinion of Badges For Languages, such action is necessary or desirable. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any proceeding within the scope of this paragraph shall be commenced within two years of the acts, events, or occurrences giving rise to the claim.
B. You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time you are first granted access to the membership portions of the Site. You agree to waive any right you may have to (i) trial by jury; and (ii) to commence or participate in any class action against Badges For Languages related to the Site, this Agreement or any agreements contemplated hereby.
C. If Badges For Languages is obligated to go to court or arbitration to enforce any of its rights, or to collect any fees, you agree to reimburse Badges For Languages for its legal fees, costs and disbursements if Badges For Languages is successful.
Badges For Languages reserves the right to disclose any information you provide in order to respond to claims or protect the rights, property or safety of itself, its related companies, Distribution Partners and their employees, customers or the public.
If and to the extent you are submitting Content to Badges For Languages as an authorized representative of the applicable copyright owner(s), you acknowledge and agree that (a) you will ensure that such copyright owner(s) comply with the terms of this Agreement where necessary; and (b) to the extent Royalties are paid to you in such capacity, you will be solely responsible for compensating the copyright owner(s) where applicable.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF Badges For Languages AGREEING TO PROVIDE A MEANS FOR THE SALE OR LICENSE OF YOUR ACCEPTED CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND Badges For Languages, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND Badges For Languages RELATING TO THE SUBJECT OF THIS AGREEMENT.