This COPYRIGHT LICENSE AGREEMENT (the "Agreement"), is made by and between an individual and DRUG POLICY ALLIANCE ("Licensor"), a District of Columbia 501(c)3 not-for-profit corporation, having its principal place of business at 131 33rd Street, New York NY 10001.
WHEREAS, Licensor is the owner of the curriculum, lesson plans, PowerPoint presentations and any other materials provided by Licensor to Licensee for use in connection with the Safety First curriculum (collectively, the “Licensed Work”) and wishes to grant to Licensee a license under those rights, and Licensee wishes to obtain a license to the Licensed Work for the uses and purposes described herein, each subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1 Copyright License Grant. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee during the Term (as defined below) a royalty-free, worldwide, non-exclusive, non-transferable, non-sublicensable license to reproduce, perform publicly, display, and distribute the Licensed Work as delivered to Licensee by Licensor for educational purposes in a manner recommended by Licensor.
1.2 Reservation of Rights. Licensor reserves all rights not expressly granted to Licensee under this Agreement. No use by Licensor of the Licensed Work in any medium or manner will be deemed to interfere with the limited permissions made to Licensee by Licensor herein.
2. Usage of the Licensed Work. Notwithstanding any other provision to the contrary contained in this Agreement:
2.1 Attribution. Licensee shall identify “Drug Policy Alliance” as the author of the Licensed Works. Licensee shall not alter or remove any marks indicating Licensor’s ownership of the Licensed Works. Attribution to Licensor is a condition to the rights being granted by this Agreement, and under no condition shall any of the Licensed Works be published, performed, reproduced, displayed, distributed or otherwise exploited in connection with the rights set forth in Section 1.1 in any media or form of communication without such an attribution.
2.2 Compliance with Licensor's Directions. The Licensed Work may be used only in the form and in such manner specifically approved in writing by Licensor in advance. If Licensor makes updated or modified versions of the Licensed Works available to Licensee, Licensee shall as soon as practicable use only the updated or modified versions of the Licensed Works. If Licensor instructs Licensee not to use all or any portion of the Licensed Works, Licensee shall immediately comply with such instruction.
2.3 Modifications. Licensee shall not translate, recast, edit, alter, modify, or create any derivative works of the Licensed Work.
2.4 Evaluations. Licensee shall annually complete all feedback and evaluation materials as requested by Licensor. Timely completion of such materials is a condition to the rights being granted by this Agreement.
3. Ownership and Protection.
3.1 Acknowledgement of Ownership. Except for the licenses expressly granted to Licensee in this Agreement, Licensee acknowledges that all right, title, and interest in and to the Licensed Work, as well as any improvements made thereto by Licensee, are owned by Licensor. If Licensee acquires any rights in the Licensed Work by operation of law or otherwise, Licensee hereby irrevocably assigns such rights to Licensor without further action by either party. Licensee agrees not to dispute or challenge or assist any person or entity in disputing or challenging Licensor's rights in and to the Licensed Work.
3.2 Protection of the Licensed Work. Licensee shall, at its sole expense, immediately notify Licensor in writing of any (i) actual, suspected or threatened infringement of the Licensed Works; (ii) actual, suspected or threatened claim that the Licensed Works infringe the rights of any third party; or (iii) any other actual, suspected or threatened claim to which the Licensed Works may be subject. Licensee shall take reasonable steps to prevent infringement of the Licensed Works. Licensor shall have exclusive control over all claims and proceedings related to any matters listed in this Section 3.2, and Licensee shall provide Licensor with all assistance that Licensor may reasonably require in the conduct of any such claims or proceedings.
4.1 Scope of Confidential Information. From time to time, Licensor may disclose or make available to Licensee information about its business affairs, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, including business operations and strategies, marketing, creative elements, artwork, visual representations, educational materials, research material and data, specifications, processes, and technical developments, whether orally or in written, electronic, or other form or media, and marked, designated, or otherwise identified as confidential (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 4.1 by Licensee; (ii) is or becomes available to Licensee on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of Licensee before being disclosed by or on behalf of Licensor; or (iv) was or is independently developed by Licensee without reference to or use, in whole or in part, of any of Licensor's Confidential Information.
4.2 Confidential Information Obligations. Licensee shall: (i) protect and safeguard the confidentiality of Licensor's Confidential Information with at least the same degree of care as Licensee would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use Licensor's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except: (A) to Licensee's officers, employees, agents, consultants, and legal advisors who need to know the Confidential Information to assist Licensee, or act on its behalf, to exercise its rights or perform its obligations under this Agreement, or (B) pursuant to applicable federal, state, or local law or regulation, or a valid order issued by a court or governmental agency of competent jurisdiction, provided that Licensee shall first provide Licensor with: (1) prompt written notice of such requirement so that Licensor may seek, at its sole cost and expense, a protective order or other remedy; and (2) reasonable assistance, at Licensor's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
5. Representations and Warranties.
5.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the laws of its jurisdiction of incorporation or organization;
(b) it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder;
(c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary action of the party; and
(d) when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
5.2 Disclaimer of Representations and Warranties. LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED PROPERTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.
6.1 Indemnification. Licensee shall indemnify, defend, and hold harmless Licensor its affiliates, officers, directors, employees, consultants, advisors or representatives (each, a “Licensor Party”) from and against any and all liability to third parties (including, without limit, all related damages, third party claims, demands, costs, judgments, losses or reasonable attorney’s fees), relating to or arising out of any actual or alleged breach by Licensee of its obligations hereunder, or the gross negligence or willful misconduct of Licensee or any of its affiliates, officers, directors, employees, consultants, advisors or representatives (each, a “Licensee Party”).
6.2 Indemnification Procedure. The indemnified party shall promptly notify the indemnifying party upon becoming aware of a third-party claim under this Article 6. The indemnifying party shall promptly assume control of the defense and investigation of such third-party claim, with counsel reasonably acceptable to the indemnified party, and the indemnified party shall reasonably cooperate with the indemnifying party in connection therewith, in each case at the indemnifying party's sole cost and expense. The indemnified party may participate in the defense of such third-party claim, with counsel of its own choosing and at its own cost and expense. The indemnifying party shall not settle any such third-party claim without such indemnified party's prior written consent (which consent shall not be unreasonably withheld, conditioned, or delayed). If the indemnifying party fails or refuses to assume control of the defense of such third-party claim, the indemnified party has the right, but no obligation, to defend against such third-party claim, including settling such third-party claim after giving notice to the indemnifying party, in each case in such manner and on such terms as the indemnified party may deem appropriate. Neither the indemnified party's failure to perform any obligation under this Section 6.2 nor any indemnified party's act or omission in the defense or settlement of any such third-party claim will relieve the indemnifying party of its obligations under this Section 6.2, except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result thereof.
7. Term and Termination.
7.1 Term. The term of this Agreement commences as of the Effective Date and, will remain in force until terminated as provide herein (the "Term").
7.2 Termination. Either party may terminate this Agreement at any time without cause by providing at least sixty (60) days' prior written notice to the other party.
7.3 Effect of Termination. Upon the expiration or termination of this Agreement for any reason, all rights licensed under this Agreement will revert immediately to Licensor and Licensee shall cause to be inactivated and erased all digital copies of the Licensed Work in its control and possession and return or, at Licensor's written request, destroy, any tangible copies of the Licensed Work.
7.4 Surviving Rights. Any rights or obligations of the parties in this Agreement which, by their nature, should survive termination or expiration of this Agreement will survive any such termination or expiration, including the rights and obligations set forth in Article 3 (Ownership and Protection), Article 4 (Confidentiality), Article 5 (Representations and Warranties), Article 7 (Term and Termination), Article 8 (Remedies) and Article 9 (General).
8.1 Equitable Relief. Licensee acknowledges that a breach by Licensee of this Agreement may cause Licensor irreparable damages, for which an award of damages would not be adequate compensation, and agrees that, in the event of such breach or threatened breach, Licensor will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which Licensor may be entitled at law or in equity. Such remedies are not exclusive but are in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
8.2 Limitation of Liability. LICENSOR WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT TO THE MAXIMUM EXTENT PERMITTED BY LAW INCLUDING FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL, OR EXEMPLARY DAMAGES OR PENALTIES, INCLUDING LOSSES OF BUSINESS, REVENUE, OR ANTICIPATED PROFITS, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1 Entire Agreement. This Agreement, including and together with any related attachments, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
9.2 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect the enforceability of any other term or provision of this Agreement, or invalidate or render unenforceable such term or provision in any other jurisdiction.
9.3 Assignment. Licensee shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Licensor. Any purported assignment or delegation in violation of this Section 9.3 is null and void. Licensor may freely assign or otherwise transfer any of its rights or delegate any of its obligations under this Agreement. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
9.4 Choice of Law; Venue. This Agreement and all matters arising out of or relating to this Agreement are governed by the laws of the State of New York, without giving effect to any conflict of laws provisions thereof. Either party may institute any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or state courts in each case located in Manhattan, New York and each party irrevocably submits to the exclusive jurisdiction of such courts in any legal suit, action, or proceeding.
9.5 Relationship of the Parties. This relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party has authority to contract for or bind the other party in any manner whatsoever.
9.6 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any third party any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
9.7 Amendment and Modification. No amendment or modification to this Agreement is effective unless it is in writing and signed by an authorized representative of each party.
9.8 Waiver. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
9.9 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
IN WITNESS WHEREOF, Licensor and Licensee have caused this Agreement to be executed as of the date first written above by their respective duly authorized officers.