TRULI MEDIA GROUP INC.
Provider LICENSE AGREEMENT
THIS LICENSE AGREEMENT (the “Agreement”) is made and entered into by and between, the signing party and/or their Organization/Company (hereinafter known as the "Supplier"), and Truli Media Group Inc., a Delaware incorporated Company, (hereinafter known as the “Company").
WHEREAS, the Supplier is the owner of all rights in and to the Licensed Content (as defined below) and therefore has the right to license the use of the Licensed Content to the Company;
WHEREAS, the Company is a website and multi-screen platform which aggregates family friendly, faith-based Christian content, media and television programming for viewing by all members on a free subscription basis;
WHEREAS, the Supplier desires to license the Licensed Content to the Company and the Company desires to obtain such license of the Licensed Content for use on the Company Website (as defined below).
NOW THEREFORE, in consideration of the promises and agreements set forth herein, and other valuable and sufficient consideration, the receipt of which is hereby acknowledged, the parties, each intending to be legally bound hereby, do promise and agree as follows:
a. The term “Affiliate” means with respect to any business entity, any other business entity directly or indirectly controlling, controlled by or under common control with the first business entity.
b. The term “Company Website” shall mean any IP based platform controlled or owned by the Company and any servers or IP addresses controlled by Company, which provides its Subscribers with access to the Licensed Content.
c. The term “Company Marks” means all trademarks, service marks and logos owned and/or controlled by the Company or an Affiliate of the Company, including those related to the corporate name and logo of the Company.
d. The term “Company Proprietary Rights” means all Intellectual Property Rights owned or controlled by the Company or an Affiliate of the Company.
e. The term “Intellectual Property Rights” means all registrations, applications for registration, renewals, continuations and extensions thereof, works of authorship and art, copyrightable materials and copyrights, and all copyright registrations, applications for registration, renewals, continuations and extensions thereof, trade secrets, mask works, and industrial rights, trademarks, service marks, trade names, logos, and trademark registrations, applications for registration, renewals, continuations and extensions thereof, rights in trade dress and packaging, goodwill, publicity, personality and privacy rights, rights of attribution, paternity, integrity and other similarly afforded “moral rights of authors” and “droit moral” rights (and/or similar or analogous rights under any applicable law of any jurisdiction), and all other forms of intellectual property and proprietary rights recognized now or hereafter by U.S. laws and other applicable foreign and international laws, treaties and conventions, and all worldwide rights and remedies against infringement or other violation of the foregoing.
f. The term “Internet” shall mean the collection of computer networks commonly known as the Internet, and shall include, without limitation, the World Wide Web.
g. The term “Law” shall mean any law, statute, code, ordinance, rule, regulation, order, or other pronouncement having the effect of law, of the United States or any other country or any domestic or foreign state, county, city or other political subdivision of any governmental authority.
h. The term “Licensed Content” shall mean: motion pictures, videos, messages, images, likenesses, audio, text or any other such content or intellectual property associated therewith that is provided to the Company by the Supplier, from time to time, at the Supplier’s sole discretion.
i. The term “Supplier Marks” means all trademarks, service marks and logos owned and/or controlled by the Supplier, including those related to the Licensed Content.
j. The term “Supplier Proprietary Rights” means all Intellectual Property Rights owned or controlled by the Supplier with respect to the Licensed Content.
k. The term “Net Revenues” shall mean any revenue generated from sale of said Licensed Content received by the Company minus any transactional costs and/or expenses incurred by the Company that include, but are not limited to, the costs associated with credit card services.
l. The term “Subscriber” shall mean a person or entity that registers for the Company’s service through the Company Website for access to the Licensed Content.
2. LICENSED RIGHTS
a. Subject to the terms and conditions of this Agreement, the Supplier hereby grants the Company a non-exclusive license to use the Licensed Content on the Company Website and other service related servers for the purpose of electronically distributing such content on a commercial basis, which may include but is not limited to, streaming to any Internet capable device (the “Licensed Rights”). The Licensed Rights shall specifically permit display of the Licensed Content on any device, monitor or television screen, via integrated broadband transmission.
a. In consideration for the licensed granted hereunder, the Company agrees to provide the Licensed Content to its clients via the Company servers and agrees to pay the Supplier Fifty percent (50%) of the revenue generated from the sale of Licensed Content. Content can also be offered free to the viewers. Supplier has sole discretion and can select what is “free to viewer” content and what is content to be offered on a Pay Per View or content for purchase basis.
The Company agrees to pay the Supplier, per the terms in Sec. 5(a), for the previous month's earnings. In order to receive payment, Supplier must accrue at least $50.00 USD in revenue. If this amount is not accrued in a single month, Company will accrue earnings until the threshold amount reaches $50.00 USD or more and will pay Supplier, per the terms of Sec. 5(a), after that occurs. Payouts are to be calculated by the Company in its sole discretion taking into consideration the relative usage it may have during such period. Supplier shall be solely and exclusively responsible for the payment of any and all taxes arising, or that may arise, out of Suppliers performance of its obligations hereunder including, but not limited to, any sales, use, access and business taxes.
4. ACCOUNTING STATEMENTS
a. Within forty-five (45) days after the end of each month, the Company shall perform an estimated accounting to the Supplier of the Supplier’s Participation. At such time, the Company shall deliver payment of such Participation owed to the Supplier accompanied by an accounting statement. All Participation amounts to be paid to the Supplier shall be calculated by the Company based on the above Participation formula.
b. The Supplier will be given a password by the Company, which will allow the Supplier access to reporting of purchase history of the Suppliers content, including transactions and purchase price.
5. AUDIT RIGHTS
a. The Supplier shall have the right to have a certified public accountant pre-approved by the Company in writing (Big 3 are hereby pre-approved) audit the Company’s books and record with respect to the Licensed Content once per year (and only once with respect to any particular records and/or statements) at the Supplier’s sole cost and expense; such audit shall take place during normal business hours and at a location to be determined by the Company and shall not unreasonably interfere with the Company’s regular course of business.
6. INTELLECTUAL PROPERTY MATTERS
a. Company’s Ownership Rights. As between the Company and the Supplier, the Company owns and/or controls the Company Website and all of the Company Proprietary Rights and the Supplier shall not have or acquire any right, title, or interest therein or thereto. The Supplier shall not make any representation or act in any manner that indicates that the Supplier has any right, title or interest in or to the Company Proprietary Rights. The Supplier acknowledges that nothing contained in this Agreement shall give the Supplier any continuing right, title or interest in or to the Company Proprietary Rights. The Supplier shall not contest the validity of the Company's ownership of the Company Proprietary Rights. Nothing contained in this Agreement grants the Supplier any ownership rights in or to the Company Proprietary Rights.
b. Supplier’s Ownership Rights. As between the Company and the Supplier, the Supplier owns and/or controls all rights in and to the Supplier Proprietary Rights, and the Company shall not have or acquire any right, title, or interest therein or thereto, except under the licenses and rights granted to the Company set forth in this Agreement.
c. Company Marks Goodwill. The Supplier acknowledges: (a) the Company's goodwill in the Company Marks, as well as Company's exclusive ownership thereof, and (b) such goodwill and any other rights and interests that may accrue due to any use or exploitation of the Company Marks will inure solely to the benefit of the Company.
d. Supplier Marks Goodwill. The Company acknowledges: (a) the Supplier's goodwill in the Supplier Marks, as well as the Supplier's exclusive ownership thereof, and (b) such goodwill and any other rights and interests that may accrue due to any use or exploitation of the Supplier Marks will inure solely to the benefit of the Supplier.
7. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATIONS
a. The Supplier represents, warrants and covenants that: (1) the Supplier is free to enter into this Agreement and is capable of fully performing its obligations under this Agreement; (2) the Supplier owns or controls all Intellectual Property Rights in and to the Licensed Content and the Supplier Proprietary Rights, and has the unencumbered right to grant the Licensed Rights hereunder; (3) nothing contained in the Licensed Content or in any other materials to be delivered by the Supplier to the Company under this Agreement, nor any exercise of the rights granted or licensed to the Company hereunder in accordance with the terms of this Agreement: (i) violate, infringe or conflict with any personal or property right of any person or entity, (ii) result in any liability, monetary or otherwise, to the Company, or (iii) violate any third party's droit moral or any comparable right; (4) there is presently no suit, action, proceeding or other claim pending or threatened against the Supplier, and to the best of its knowledge, no fact or circumstance exists which may be the basis of any such action, suit, proceeding or other claim, with respect to this Agreement or which could have a material adverse effect on the Supplier or the Licensed Content; (5) the Supplier has or will acquire, and will maintain throughout the Term all necessary third party rights, licenses and authorizations from all appropriate licensors and third parties required to grant the rights to the Licensed Content as provided under this Agreement; and (6) all persons, fictional or otherwise, depicted in any portion of the Licensed Content have executed legally binding releases granting all rights in the depictions to the Supplier, prior to appearing in the Licensed Content, and that such releases have been voluntarily executed with full knowledge and capacity by each such person (each a “Release” and together, the “Releases”). The Supplier agrees to make copies of the Releases available to the Company, upon request.
b. The Company represents, warrants and covenants that: (1) the Company is free to enter into this Agreement and is capable of fully performing its obligations under this Agreement, is validly existing and duly organized in the state of its formation; (2) the Company owns or controls all Intellectual Property Rights in and to the Company Website and the Company Proprietary Rights; and (3) there is presently no suit, action, proceeding or other claim pending or threatened against the Company, and to the best of its knowledge, no fact or circumstance exists which may be the basis of any such action, suit, proceeding or other claim, with respect to this Agreement.
a. Company Indemnities. The Company agrees to, and does hereby, indemnify, defend and hold harmless the Supplier from and against any and all claims, demands, actions, damages, liabilities, costs and expenses (including reasonable outside attorney’s fees) arising out of or relating to a breach of a representation, warranty or covenant of the Company set forth in this Agreement. In no event shall the Company be liable under any theory of liability (including without limitation, breach of contract, breach of warranty, negligence or strict liability) for any indirect, incidental, special, punitive or consequential damages of any kind, including without limitation, lost sales or loss of profits (collectively, “Indirect Damages”), even if the Company has been advised or should know of the possibility of such Indirect Damages.
b. Supplier Indemnities. The Supplier agrees to, and does hereby, indemnify, defend and hold harmless the Company and its Affiliates, and each of their shareholders, officers, directors, employees, agents, representatives, and successors and assigns, from and against any and all claims, demands, actions, damages, liabilities, costs and expenses (including reasonable outside attorney’s fees) arising out of or relating to a breach of an representation, warranty or covenant of the Supplier set forth in this Agreement.
c. General Indemnity Matters. The foregoing indemnities will be contingent upon: (a) the party seeking to enforce the indemnity against the other party giving written notice to the other party of any claim, demand or action for which indemnity is sought; (b) the full cooperation of the parties in the defense or settlement of any such claim, demand or action; and (c) the prior written agreement of the indemnifying party to any settlement or proposal of settlement being obtained. In addition, each party will respond to requests for indemnity within fifteen (15) business days of its receipt of a request for indemnity. If an indemnifying party either refuses to indemnify its indemnitees for the matters set forth above, or fails to respond to the request for indemnity within the time-period set forth above, then the indemnitee may (but will not be required to) manage the matter in its sole and absolute discretion with counsel of its own choosing.
a. In addition to all other rights and remedies available to the parties, either party may terminate this Agreement at any time in the event of a material breach by the other party of this Agreement that remains uncured thirty (30) days after the breaching party’s receipt of written notice of the breach. Upon the termination of the Agreement, all rights granted to the Company to use the Licensed Content and all rights granted to the Supplier to receive any compensation amounts for the Company’s use of said Licensed Content shall terminate.
a. Any notice required to be given pursuant to this Agreement shall be in writing and mailed by certified or registered mail, return receipt requested, or delivered by a national overnight express service to the address of the party as set forth herein. Either party may change the address to which notice is to be sent by written notice to the other party pursuant to the provisions of this paragraph.
9683 Kalamere Court
Highlands Ranch, CO 80126
Attention: Jim Dickson
Phone: (303) 810-4050
b. Binding on Successors. Except as may be herein specifically provided to the contrary, this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective legal representatives, successors, and assigns.
c. Assignment. This Agreement may not be transferred, assigned or sublicensed by the Supplier without the Company’s written consent. The Company may transfer, assign or sublicense this Agreement at any time without the Supplier’s consent. Additionally, the Company may assign its rights and obligations under this Agreement without the Supplier’s consent to an Affiliate of the Company, or a successor to all of substantially all of the assets of the Company (including by way of merger or consolidation). An authorized assignment hereunder shall constitute a novation.
d. Not a Partnership. Notwithstanding any provision hereof, this Agreement does not create a partnership, joint venture or similar relationship between the parties and neither party shall have the power to obligate or bind the other party in any manner whatsoever. All final decisions with respect to acts of the Supplier or its Affiliates, whether or not made pursuant to or in reliance on information or advice furnished by the Company hereunder, shall be those of the Supplier or such Affiliates and the Company shall under no circumstances be liable for any expense incurred or loss suffered by Supplier as a consequence of such decisions or advice, or actions, and the Company is not liable for any Indirect Damages. The parties hereto have entered into this Agreement based solely on their own judgment and the representations made herein.
e. Force Majeure. Either party shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, common carrier interruptions, breakdown in facilities and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
f. Arbitration. The parties shall endeavor to promptly and amicably resolve any disagreement, dispute or claim between them that may arise under or in any way related to this Agreement, including a breach thereof (a “Dispute”), by good faith consultation and negotiation. If a Dispute cannot be resolved, then the parties agree that the process set forth in this Section 11(f) shall be the exclusive means for resolving all Disputes. The dissatisfied Party may submit the Dispute for final resolution by binding arbitration administered by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules, including the Optional Rules for Emergency Measures of Protection (collectively, the “Rules”). There shall be a single, neutral arbitrator appointed as provided in the Rules (the “Arbitrator”). The Arbitrator shall be an attorney having at least 15 years' professional experience in information technology and software development. The arbitration shall commence within thirty (30) calendar days of the appointment of the Arbitrator. Each party agrees to cooperate fully with the Arbitrator in resolving the Dispute. The arbitration shall be conducted in Los Angeles, California, in accordance with the United States Arbitration Act. The Arbitrator may grant any remedy or relief that the Arbitrator deems just and equitable within the scope of this Agreement, including but not limited to, requiring the other party’s legal costs and expenses to be paid (an “Award”). Each Award shall be accompanied by a written statement of the facts and the reasons upon which it is based. Judgment upon the Award may be entered in any court having jurisdiction thereof. Each Party shall bear its own costs and expenses of arbitration (including its witnesses and legal counsel), and an equal share of the administrative fees of arbitration (including the Arbitrator's fees).
g. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California applicable to agreements made between California residents to be wholly performed in California, without regard to choice of law provisions.
h. Counterparts. This Agreement and amendments hereto shall be in writing and may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Additionally, this Agreement may be executed by electronic signatures, the delivery of which shall be binding and effective for all purposes.
i. Severability. If any one or more of the terms, provisions, promises, covenants or conditions of this Agreement or the application thereof to any person or circumstance shall be adjudged to any extent invalid, illegal, unenforceable, void or void able for any reason whatsoever by a court of competent jurisdiction or an arbitration tribunal, such provision shall be as narrowly construed as possible, if a narrower construction would avoid such invalidity, illegality, or unenforceability or, if that is not possible, such provision shall, to the extent of such invalidity, illegality, or unenforceability, be severed, and the remaining provisions of this Agreement shall remain in effect, and shall be valid and enforceable to the fullest extent permitted by law. To the extent this Agreement is in violation of applicable law, then the parties agree to negotiate in good faith to amend the Agreement, to the extent possible consistent with its purposes, to conform to law.
IN WITNESS WHEREOF, this Agreement has been executed and delivered in Los Angeles, California, as of the date first written herein. The parties hereby agree to the terms contained herein, and INTENDING TO BE LEGALLY BOUND, the parties hereby execute and deliver this Agreement by their duly authorized representatives as of the Effective Date.