CONTENT SUBLICENSE AGREEMENT
This agreement is entered into by and between U-NEAR S.A., a company organized and existing under the laws of Brazil, with registered office at Calçada dos Lírios 166, suite 10, Barueri, São Paulo, enrolled with the National Registry of Legal Entities (CNPJ) under No. 02.699.413/0001-31, hereinafter referred to as U-NEAR; and [sublicensee information], hereinafter referred to as SUBLICENSEE, together with U-NEAR referred to as parties.
WITNESSETH:
(i) WHEREAS U-NEAR is engaged in licensing content owned by third parties;
(ii) WHEREAS U-NEAR has acquired the right to sublicense such content;
(iii) WHEREAS SUBLICENSEE wishes to sublicense content in order to make it available in such media or vehicles identified in Exhibit I hereto (Media).
NOW, THEREFORE, the parties hereto enter into this Agreement based on the terms used and defined herein and in the Exhibit hereto, and pursuant to the following terms and conditions:
SECTION 1 - SUBLICENSE
1.1. Subject to full payment of the fees and other conditions set forth herein, U-NEAR grants to SUBLICENSEE a personal, non-exclusive and non-transferable sublicense of the content described in Exhibit I hereto (Content).
1.2. This sublicense is granted solely for direct use by the SUBLICENSEE of the sublicensed Content in the Media described in Exhibit I, according to the terms and conditions set forth herein and in the Exhibit hereto.
1.3. SUBLICENSEE shall not at any time:
1.3.1. Transfer the Content to third parties;
1.3.2. Use the Content through any means other than those described in this agreement;
1.3.3. Sublicense the Content to third parties, totally or partially.
1.4. Each Content individually considered shall only be used once and only in the Media expressly set out in Exhibit I, except as otherwise expressly provided for in Exhibit I.
1.5. SUBLICENSEE shall use the sublicensed Content strictly as received, and no other form of use whatsoever shall be allowed, including, but not limited to, change, translation or adaptation, inclusion of any text, sound or image to the sublicensed Content, except if the authors and/or holders of the rights to the Content give prior authorization to effect such changes.
1.6. This Agreement grants SUBLICENSEE no right whatsoever to the Content, except the non-exclusive sublicense to use the Content within the restrictions expressly provided for herein.
1.7. Once SUBLICENSEE receives the Content by downloading it from U-NEAR website on the Internet or by any other means agreed upon by the parties, or once the package containing the Content is opened or the Content is used, whichever occurs first, the sublicense granted herein shall become binding and SUBLICENSEE shall be obliged to fully comply with the terms and conditions set forth herein, on an irrevocable and irreversible basis.
SECTION 2 - RESPONSIBILITY OF U-NEAR WITH RESPECT TO CONTENT
2.1. U-NEAR hereby represents that it has all necessary authorizations from the holders of the rights to the Content and that the sublicense(s) granted pursuant to this Agreement does(do) not violate any agreement or contract with the authors of the Content and/or the holders of the rights to the Content, subject to the SUBLICENSEE's compliance with clause 3.4 hereof.
2.2. In case any claim is brought against SUBLICENSEE on the grounds that the sublicensed Content violates third parties' economic rights, the SUBLICENSEE shall:
2.2.1. Immediately notify U-NEAR of any such claim;
2.2.2. Expressly authorize U-NEAR to control and conduct the defense of the claim, enter into agreements and/or any other form of settlement;
2.2.3. Provide all assistance, information and documents as required by U-NEAR in connection with the defense.
2.3. Any failure to comply with section 2.2 and its paragraphs thereof shall release U-NEAR from any liability whatsoever for the violation of third party economic rights related to the Content sublicensing.
2.4. U-NEAR authorizes the use of the sublicensed Content strictly in conformity with the terms and conditions set forth in this Agreement. SUBLICENSEE shall be liable for any breach of the conditions herein and shall use its best efforts to prevent any type of violation to the Content by third parties, including violations that may result in the reproduction of the Content.
2.5. U-NEAR shall not be liable for the authenticity or accuracy of the information contained in the sublicensed Content and in no way guarantees, whether expressly or implicitly, that the sublicensed Content will be suitable for any specific use.
2.6. None of the parties shall be liable to the other for loss of profits or indirect damages.
2.7. Any liability of U-NEAR to SUBLICENSEE shall not, under any circumstance whatsoever, whether by virtue of law or this Agreement, exceed the amount paid by SUBLICENCEE to U-NEAR under this agreement.
SECTION 3 - OBLIGATIONS OF SUBLICENSEE REGARDING THE SUBLICENSED CONTENT
3.1. SUBLICENSEE shall ensure that the Media used for exhibition of the sublicensed Content does not contain or exhibit any text, image or material that may be illegal, unethical or contrary to moral and good conduct principles. The sublicensed Content shall not be used in connection with any work that has any pornographic, obscene, political, factionary or religious content, substance or connotation, or which is in any way derogatory, offensive, harmful or violates any third party rights and/or applicable laws.
3.2. SUBLICENSEE shall prevent and refrain from making any change whatsoever to the sublicensed Content, except as expressly provided for in section 1.5.
3.3. SUBLICENSEE shall publish together with the licensed Content all references of authorship and ownership thereof as provided by U-NEAR, and agrees not to take any step that may in any way conceal or hinder the possibility of others seeing such references.
3.4. SUBLICENSEE shall be responsible for obtaining all authorizations needed for using the image of people, work of art and/or other objects within the Content, and shall be responsible for all payments due in connection with the granting of such authorizations and licenses, undertaking to indemnify and hold U-NEAR and the holders of the economic rights to such sublicensed Content arising out of any third party claim caused by SUBLICENSEE'S breach of this provision.
3.4.1 SUBLICENSEE shall be solely responsible for all payments regarding the right to execute any musical compositions contained in the sublicensed Content.
SECTION 4 - PRICE AND PAYMENT CONDITIONS
4.1. In consideration for the sublicense provided for herein, SUBLICENSEE shall pay U-NEAR the amount described in Exhibit I, on such dates and according to such terms as set forth therein.
4.2. In the event of payment delay, the following shall be added to the due amounts:
4.2.1. A fine equivalent to ten per cent (10%) of the unpaid amount, or the maximum limit provided for by law, when applicable;
4.2.2. In virtue of the delay, interest of 2% per month, up to the limit set forth in law, from the due date until the day of actual payment;
4.3. SUBLICENSEE shall be responsible for all taxes and charges applicable to any payment hereunder.
SECTION 5 - TERM AND TERMINATION
5.1. This Agreement shall be effective during such term needed for attaining the subject matter described in Exhibit I.
5.2. Without prejudice to any other penalties available in law or contract, this Agreement shall be terminated in the following cases:
5.2.1. Immediately, in case of breach of the conditions of use of the Content by SUBLICENSEE;
5.2.2. In case of late payment if not cured or justified by SUBLICENSEE within ten (10) calendar days from the receipt of the notice of failure sent by U-NEAR.
5.3. Upon termination or expiration of this Agreement, SUBLICENSEE shall immediately cease to use the sublicensed Content in any manner whatsoever and shall return the sublicensed Content to U-NEAR or destroy it if authorized to do so.
5.3.1. In case of violation of the provisions under item 5.3, SUBLICENSEE shall pay U-NEAR a daily fine of one per cent (1%) of the amount of this Agreement per day of non-authorized use of the Content, in addition to U-NEAR'S right to indemnification.
SECTION 6 - MISCELLANEOUS
6.1. All communications between the parties shall be made by telephone, facsimile or electronic means (the latter to the following addresses: if to U-NEAR, atendimento@conteudoexpresso.com.br ; if to SUBLICENSEE, [buyer's e-mail address]). Notwithstanding the foregoing, all notices to be made under this Agreement shall be delivered by mail, return receipt requested, in person or transmitted by facsimile followed by mail postage of a copy thereof, return receipt requested.
6.2. No party shall assign this Agreement and any rights or obligations hereunder without prior and express authorization of the other party.
6.3. This Agreement shall be binding upon the parties hereto and their heirs and successors.
6.4. Any failure by either party to require the performance of any provision or condition hereof shall be considered as mere tolerance and shall not constitute revocation thereof or novation; and the right to request performance thereof at any time shall survive.
6.5. No amendment to the provisions of this Agreement or extension of the term of effectiveness hereof shall be valid unless made in a separate Addendum, describing its purpose.
6.6. This agreement is available at www.contentxp.com under "Licensing Agreement."
6.7. This agreement is governed by the laws of Brazil. The parties hereto choose the central courts of the capital of the State of São Paulo to hear and solve any dispute that may arise out of this agreement, and waive any other court as privileged as it may be. In case of a lawsuit, the losing party shall be responsible for all costs relating thereto, including attorneys' fees equal to twenty per cent (20%) of the amount set forth in the court decision.
São Paulo, [Date].
EXHIBIT 1
1. Description of Content and License Fees:
[description of content and license fees]
2. Payment terms: Wire transfer, according to Invoice n° [invoice number]
3. Territory:
4. License Period:
5. Credit for the content should read: GLOBO COMUNICAÇÕES E PARTICIPAÇÕES S.A.
6. Audio and Subtitle Language(s):
[description of audio and subtitle language]
6.1. In the event LICENSEE is granted the right to translate the Content (as specified above), LICENSEE acknowledges and agrees that (i) such translation will be at LICENSEE's sole expense; (ii) no other modification, adaptation or addition of any text, audio or image to the licensed Content is authorized other than the translation described above, and (iii) translations shall be faithfully and accurately made, without material change in the substance, except such as may be deemed necessary to permit lawful use of the Content.
6.2. 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 assign to U-NEAR all rights to the translation, including but not limited to copyrights, retaining a license to use the translation under the same terms the Content was licensed.
6.3. 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.
7. Restrictions of Use:
In addition to other provisions of the Agreement, LICENSEE may not use the Content in any marketing or sponsorship campaign or material, except as may be authorized by U-NEAR in writing.