COPYRIGHT SYNDICATION AGREEMENT
This agreement is made by and between U-NEAR S.A., a Brazilian corporation with registered office at Calçada dos Lírios, 166, room 10, Barueri, São Paulo, Brazil, registered with CNPJ under No. 02.699.413/0001-31, hereinafter referred to U-NEAR
and
[licensee information], hereinafter referred to as "LICENSEE".
PREAMBLE
WHEREAS, U-NEAR grants licenses for copyright owned by U-NEAR or which are available for licensing by U-NEAR;
WHEREAS, LICENSEE desires to obtain a copyright sublicense for content with respect to which U-NEAR has the right to sublicense;
The parties have agreed to enter into this Agreement pursuant to the following terms and conditions:
1. OBJECT
1.1 The object of this Agreement is a non-exclusive, non-transferable, non-sub licensable, non-assignable, limited license by U-NEAR to LICENSEE, for use within the territory designated in Appendix I, of content as described in Appendix I attached to this Agreement ("Content"), with respect to which U-NEAR has the right to sublicense.
1.2 LICENSEE shall have the right to translate the content into the language indicated in Appendix I for use under the terms and conditions of this agreement. Any other use, modification, or adaptation, as well as the addition of any text or image to the licensed Content, shall require the prior authorization in writing from U-NEAR.
1.2.1 LICENSEE understands and agrees that, to the extent LICENSEE translates any of the Content provided by U-NEAR for publication, such translations shall be faithfully and accurately made, without material change in the substance, except such as may be deemed necessary to permit lawful publication and sale. LICENSEE shall use its best efforts to ensure such translations retain the spirit of the content although LICENSEE may make minor modifications to reflect cultural or idiomatic differences. LICENSEE shall assume full responsibility for accuracy of all translations and for all alterations, changes or additions made to the Content provided by U-NEAR. LICENSEE agrees to defend and indemnify U-NEAR against claims of infringement brought by third parties, where the claims are the result of alterations, changes or additions made.
1.3 LICENSEE shall be obliged to examine on its own all legal details according to the law of the country where the Content is published prior to any publication and to assume responsibility for such publication on its own.
1.4 The license is granted to LICENSEE exclusively for the use of the Content directly by LICENSEE as defined in Appendix I and in accordance with the terms and conditions established in this agreement.
1.4.1 Each content hereunder, as individually considered, may be used only once and in only one media, and any transfer, use or sublicensing of the Content, in any other manner, in whole or in part, is hereby prohibited, unless the prior and express authorization from U-NEAR is obtained.
1.5. Except for the license expressly granted in this Agreement, all rights, title and interest in the Content, in all languages, formats and media throughout the world, including all copyrights are and will continue to be the exclusive property of U-NEAR.
2. LIABILITY OF U-NEAR RELATING TO THE CONTENT
2.1 U-NEAR represents that it has the necessary authorizations from the holders of the property rights in the licensed Content, and that the licenses granted under this Agreement do not violate any contract or agreement with the authors of the Content and/or the holders of the property rights pertaining thereto. In the event any action is filed against LICENSEE on the ground that the licensed Content is in violation of any property rights of third parties, LICENSEE shall:
(a) immediately notify U-NEAR of such action;
(b) expressly authorize U-NEAR to assume and defend, settle or otherwise compromise such action; and
(c) provide all such assistance and furnish all such information and documents as may be required by U-NEAR to support and defend such action.
2.1.1 Failure to comply with the requirements set forth in any clauses of this Section 2.1 shall relieve U-NEAR of liability for any violation of third-party property rights arising out of the Content license.
2.2 U-NEAR hereby authorizes the use of the licensed content in strict conformance with this Agreement, and LICENSEE shall be answerable for any infringements to the provisions hereof.
2.3 The Content is provided "as is" without warranty of any kind. U-NEAR is not liable for the accuracy or timeless of the information included in the licensed Content, and disclaims any warranty, express or implied, of fitness and merchantability for any particular purpose relating to the licensed Content.
2.4 In no event shall the parties be liable for any loss of data, loss of business profits, business interruption, or other special, incidental, consequential, punitive or indirect damages arising from or in relation to this agreement or the use of the services, however caused and regardless of theory of liability. This limitation will apply even if such party has been advised or is aware of the possibility of such damages.
2.5 Under no circumstances shall the liability of U-NEAR to LICENSEE arising from operation of law or this Agreement, exceed an amount equal to the fees paid by LICENSEE under this Agreement.
3. OBLIGATIONS OF LICENSEE RELATING TO THE CONTENT
3.1 LICENSEE shall not publish the licensed Content in any Media that contain or publish any text, image or material, which is unlawful, unethical, or against good morals and decency. The licensed Content shall not be used in conjunction with any other works having pornographic, obscene, electoral, political or religious content, text or connotation, or which are in any manner disparaging, offensive or detrimental to, or in infringement of, the rights of any third parties and/or in violation of any prevailing laws.
3.2 LICENSEE shall prevent and refrain from making any alteration to the licensed Content, except with the express authorization from U-NEAR.
3.3 LICENSEE must publish, together with the licensed Content, any copyright and ownership notices furnished by U-NEAR. LICENSEE will not remove, conceal or alter any copyright notices contained in the Content nor shall take any actions, which may, in any manner, make any such reference not noticeable or inconspicuous.
3.4 LICENSEE is fully responsible for obtaining at its own cost any necessary rights clearances from third parties relating to the content of a Photograph prior to publishing the Photograph, including (by way of example only) clearances from people whose images appear in the Photograph and/or clearances in respect of works of art, and/or other inanimate objects which appear in the Photograph and which may be protected by copyright or privacy rights. LICENSEE will provide U-NEAR with evidence that these clearances have been obtained at U-NEAR's request.
4. LICENSE FEES
4.1 In consideration for the license granted under this Agreement, LICENSEE shall pay to U-NEAR the fees specified in Appendix I, in the dates and conditions stipulated therein.
4.1.1 Such fees shall be paid through a transfer of funds to an account of U-NEAR, in Brazil, to be designated in writing by U-NEAR to LICENSEE.
4.2 Should the LICENSEE fail to pay any of the fees due under this agreement at due date, then the Licensee shall pay interest to U-NEAR at a rate of 2% per month, accruing daily, on the amount due.
4.3 All applicable taxes and/or duties assessed on any payments arising out of this Agreement, including any withholding tax or any tax or duty incident upon the transfer and/or remittance of funds to Brazil, shall be the responsibility of LICENSEE.
5. TERM AND TERMINATION
5.1 This Agreement will be effective for the period necessary for the fulfillment of the obligations assumed hereunder by the parties.
5.2 This Agreement shall be terminated, without prejudice to all other legal and contractual penalties, in the following events:
(a) automatically, in the event of noncompliance by LICENSEE with the terms governing the use of the Content;
(b) in the event of a delay in payment which is not cured by LICENSEE within 20 days from notice given by U-NEAR.
5.3 Upon any termination or expiration of this Agreement, LICENSEE shall promptly cease any and all use of the licensed Content.
6. GENERAL PROVISIONS
6.1 Any communications between the parties may be made by telephone, telecopy or e-mail (in the latter case, addressed as follows: atendimento@conteudoexpresso.com.br , if to U-NEAR, and [buyer's e-mail address], if to LICENSEE). Nevertheless, all notices to be given pursuant the terms of this Agreement shall be sent by mail with return receipt requested or telecopied with a copy sent by mail with return receipt requested.
6.2 This Agreement and the rights and obligations relating thereto shall not be assigned by either party, without the prior and express authorization from the other party, except if assigned to any subsidiaries and/or affiliates of either party.
6.3 This Agreement shall be binding on the parties and any successors thereof.
6.4 Any failure by either party to require compliance with any term or condition set forth in this Agreement shall not be deemed a waiver or revocation or novation thereof, and shall not impair the right to require compliance therewith at any time.
6.5 The parties warrant and represent that they have the power and authority to enter into this agreement and perform the obligations hereunder and that the persons executing the agreement on their behalf are empowered to do so.
6.6 This Agreement shall be governed by the laws of Brazil.
6.7 The parties agree that venue regarding all disputes, which may arise out of this Agreement, shall be in the Judicial District of the Capital City of São Paulo, and hereby waive any other venue, regardless of how privileged it is now or may hereafter be. Should an action be filed, the losing party shall bear all litigation costs, including lawyers' fees on the basis of 20% of the judgment amount.
São Paulo, [Date].
APPENDIX I
1.Description of the sublicensed Content:
[description of the sublicensed Content]
2. Purpose and form of use:
[purpose and form of use]
3. Territory:
[territory]
4. Language(s):
[language(s)]
5. Remuneration (fees):
amount:_____________
XXXXXXXXXX, net of any taxes, fees or any charges assessed on the payment of such license fee and/or transfer thereof to Brazil.
6. Copyright and ownership notices: LICENSEE must publish, together with the licensed content, copyright and ownership notices as herein defined:
6.1 Texts of Editora Abril
a) without an identified author, with modification as permitted exclusively in accordance with the terms of Paragraph 1.2: "Based on material published in (magazine title), of Editora Abril".
b) without an identified author, without modification: Magazine title/Editora Abril.
c) with an identified author, without modification: Author's name/Magazine title/Editora Abril.
6.2. Photographs of Editora Abril:
LICENSEE must publish, together with the licensed Content, copyright and ownership notices as herein defined. Clearances to be obtained by LICENSEE as per article 3.4.
a) without an identified author: Editora Abril.
b) with an identified author: Author's name/Editora Abril.