SUBMISSION AGREEMENT
BY SUBMITTING CONTENT TO COMIXOLOGY YOU ARE AGREEING TO THE TERMS OF THIS LEGALLY BINDING CONTRACT GOVERNING YOUR SUBMISSION OF CONTENT. IF COMIXOLOGY ACCEPTS YOUR WORK FOR DISTRIBUTION, YOU WILL, WITHOUT FURTHER ACTION ON YOUR PART, BE LEGALLY BOUND BY THE TERMS OF THE LICENSE AGREEMENT SET FORTH AS EXHIBIT 1 TO THIS CONTENT SUBMISSION AGREEMENT. YOU MUST READ THIS AGREEMENT, INCLUDING EXHIBIT 1, CAREFULLY BEFORE SUBMITTING ANY CONTENT TO COMIXOLOGY.
1. Parties
The parties to this Content Submission Agreement (this "Agreement") are you (also referred to as "Licensor") and Iconology, Inc., a Delaware Corporation operating under the comiXology brand, and referred to herein as the "Company" or the "Licensee" (and together with you, the "Parties"). The Company may, in its sole discretion, assign its rights and/or delegate its duties under this Agreement. You may not assign your rights or delegate your duties, and any assignment or delegation without the written consent of the Company, which the Company may withhold in its sole discretion, shall be void. You are not eligible to enter into this Agreement unless you are old enough to have the legal capacity to enter into contracts.
2. Terminology
"Content" refers to any material that you submit to the Company, and includes metadata, logos, and trademarks. The terms "include," "includes," and "including" mean "include, without limitation," "includes, without limitation," and "including, without limitation," respectively. "Agreement" includes the License Agreement (the "License Agreement") set forth in Exhibit 1, as it may be amended from time to time pursuant to section 11.
3. Respect for Intellectual Property Rights
You may only submit Content that you have the full legal right to submit and license to the Company pursuant to this Agreement. The section below titled "Representations and Warranties" contains legally binding representations and promises that you are making to the Company regarding intellectual property rights and other matters. You will be liable to the Company if those representations and promises are not accurate either now or in the future.
4. Content Similar to Yours
You acknowledge that content similar or identical to the Content you submit ("Similar or Identical Content") may have been or may in the future be submitted to the Company by other persons, or may have been or may in the future be made public by other persons. You agree that you are not entitled to any compensation, will not assert any claim against the Company, and the Company will not be liable to you, for any matter relating to such Similar or Identical Content, including the reproduction, sale, distribution, public display, public performance, exploitation of, and the making of derivative works based on such Similar or Identical Content. You acknowledge that it would not be feasible for the Company to provide a creator submission service without your agreement to the terms of this section 4.
5. Your Representations and Warranties
By submitting Content, you are representing to the Company and promising that you have intellectual property and any other applicable rights in and to the Content sufficient for you to submit the Content and to grant the License described in Exhibit 1 free of any third party claim of infringement or other violation of rights. If the Company accepts your Content for distribution, you will be making significant additional representations and promises, which are described under the title "Representations and Warranties" in Exhibit 1.
6. Your Indemnification Obligations
You will indemnify and defend the Company, its Affiliates, and their directors, officers, employees, agents, successors, and assigns against any losses, liabilities, claims, causes of action, and expenses (including reasonable attorneys fees and costs of investigation, whether before or after assertion of a formal claim, and reasonable litigation expenses) arising out of or relating to your submission of Content, including any matters arising out of or relating to any assertion that the Content (a) infringes the intellectual property rights of any third party, (b) is defamatory, (c) violates the rights of privacy or of publicity of any third party, (d) otherwise violates the rights of any third party, (e) requires the payment of royalties or fees of any type to any third party, or (f) violates any applicable laws or regulations.
7. Limitation on Company's Obligations and Liability to You
THE CREATOR SUBMISSION SERVICE PROVIDED IN CONNECTION WITH THIS AGREEMENT IS PROVIDED AS IS WITH NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. THE COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. YOUR USE OF THIS SERVICE IS AT YOUR OWN RISK.
THE COMPANY WILL NOT RETURN ANY CONTENT SUBMITTED TO IT WHETHER OR NOT SUCH CONTENT IS ACCEPTED FOR DISTRIBUTION. THE COMPANY IS NOT RESPONSIBLE FOR LOST OR DAMAGED CONTENT. THE COMPANY IS NOT RESPONSIBLE FOR, AND WILL HAVE NO LIABILITY FOR, ANY DAMAGE TO YOUR COMPUTER, DEVICE, OTHER HARDWARE OR SOFTWARE, OR FOR LOSS OF OR DAMAGE TO DATA RESULTING FROM YOUR USE OF THIS SERVICE.
THE COMPANY WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR SIMILAR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF, KNOWS OF, OR COULD FORESEE THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. IN NO EVENT WILL THE LIABILITY OF THE COMPANY TO YOU EXCEED $100.
8. Company's Discretion
Whether and to what extent the Company evaluates Content submitted by you, and whether to accept such Content for distribution, shall be in the Company's sole discretion.
9. License Agreement
You agree that if the Company accepts your Content for distribution, you will, without further action on your part, be legally bound by the terms of the License Agreement set forth as Exhibit 1 to this Agreement. Such License Agreement is an integral part of this Agreement. Before submitting Content, you must read, understand, and be willing to accept the obligations, liabilities, and rights that you will have under the License Agreement. If your Content is accepted by the Company for distribution, you subsequently may be able submit Content through a publisher portal that may be made available to you by the Company in its sole discretion. This Content Submission Agreement, including the License Agreement, as either may be amended from time to time pursuant to section 11, will govern all Content submitted by you through the publisher portal.
10. Governing Law and Forum
This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of New York without reference to any provisions of New York law that would result in the application of the law of any other State, country, or jurisdiction, and without reference to the U.N. Convention on Contracts for the International Sale of Goods. Any actions between the Parties arising out of or relating to this Agreement shall be brought only in the State and Federal courts located in Manhattan County, New York, and each Party hereby consents to the personal jurisdiction of those courts, waives any objection to venue in those courts, and consents to the dismissal of any action arising out of or relating to this Agreement that is brought in any other forum.
11. Amendments
The Company may, in its sole discretion, amend (change) the terms of the Content Submission Agreement, including the License Agreement, at any time and from time to time. Such amendments shall not apply to Content submitted before we disclosed such changes as provided for in this section. Submission by you of Content subsequent to disclosure of such changes shall constitute acceptance by you of the terms of the Content Submission Agreement, including the License Agreement, as amended.
We may disclose amendments through any method that provides you notice of such changes prior to your submission of new Content, including (a) through a pop-up dialogue box activated by your attempt to submit new Content, (b) through a notice posted on any screen you would encounter prior to submission of new Content, or (c) through email to the address associated with your account. In each case, such notice will provide you with a means (for example, a link) to review the changes.
12. Basis of the Bargain and Risk Allocations
The terms in this Agreement providing for a limitation or exclusion of liability or disclaimer of warranties are intended to allocate the risks of this Agreement between the Parties and are an essential element of the basis of the bargain between the Parties. You acknowledge that it would not be feasible for the Company to provide a creator submission service without these risk allocations.
13. Severability
If any provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall be unimpaired and remain in full force and effect and the illegal, invalid, or unenforceable provision shall be amended to achieve as closely as possible the economic effect of the original term.
14. Captions
The title of and captions in this Agreement are for the convenience of the reader and shall not affect the interpretation of the Agreement.
15. Entire Agreement
This Agreement is the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, arrangements, understandings, and representations, whether oral or written, regarding the subject matter hereof.
EXHIBIT 1
LICENSE AGREEMENT
The Parties to this License Agreement (the "License Agreement") are Iconology, Inc., a Delaware corporation with a principal place of business at 159 West 25th Street, 9th floor, New York, New York 10001 ("Licensee" or "Company"), and the submitter of Content pursuant to a Content Submission Agreement ("Licensor"), each a "Party" and, collectively, the "Parties." This License Agreement is effective when Licensee notifies Licensor by email that the specific Content identified in such email (the "Licensed Work") has been accepted by Licensee for distribution. With respect to such Licensed Work, this License Agreement and the above Content Submission Agreement shall supersede and replace any other agreements between the Parties that might otherwise apply to the Licensed Work.
The Parties, intending to be legally bound, agree that:
INTRODUCTION
A. Licensor has submitted, and Licensee has accepted, the Licensed Work for distribution.
B. Licensee has developed, among other things, (i) software and other technology that enables users to purchase and read comic books or other literature through various devices, operating systems, and media, (ii) Licensee branded digital stores offering comic books and other literature available through one or more websites, mobile or tablet devices, and other devices, operating systems and media, and (iii) digital stores branded or co-branded by third parties offering comic books and other literature utilizing Licensee's software and other technology and available through one or more websites, mobile or tablet devices, and other devices, operating systems and media.
C. Licensor and Licensee believe it is in their mutual best interests for Licensor to license to Licensee the Licensed Work for use in connection with Licensee's software, technology, and digital stores on the terms set forth herein.
As used in this License Agreement, the following terms shall have the meanings set forth below. Capitalized terms not defined below and defined in the above Content Submission Agreement shall have the meanings set forth therein:
1.1 "Affiliates" of a person means persons controlled by such person, the persons who control such person, or persons under common control with such person.
1.2 "License Agreement" has the meaning set forth in the preamble.
1.3 "Art Work" has the meaning set forth in Section 2.2.
1.4 "Comics Store" means, collectively, all digital stores owned or controlled by or on behalf of Licensee, now or in the future, that, in each case, enables users to purchase and read comic books or other literature through any device, operating system, and/or media, whether existing now or in the future, including, without limiting the generality of the foregoing, the Company Affiliate Sites.
1.5 "comiXology" and "Comixology" each mean the software and other technology owned, controlled, or provided by Licensee (whether branded by Licensee or a third party), now or in the future, that would allow users to purchase and read comic books or other literature through devices, operating systems, or media, whether existing now or in the future, including, but not limited to, operating systems for mobile or tablet devices.
1.6 "Company" has the meaning set forth in the preamble.
1.7" Company Affiliate Sites" means websites provided by Licensee and accessed through the websites of Licensee's third-party marketing or distribution partners.
1.8 "Effective Date" has the meaning set forth in the preamble.
1.9 "Force Majeure Event" has the meaning set forth in Section 9.1.
1.10 "Initial Term" has the meaning set forth in Section 5.1.
1.11 "Licensed Work" has the meaning set forth in the preamble.
1.12 "Licensee" has the meaning set forth in the preamble.
1.13 "Licensor" has the meaning set forth in the preamble.
1.14 "Net Sales" means gross revenues from the sale of the Licensed Work, less fees payable to any channel partner or distributor of comiXology (for example, various App stores) with respect to the sale of the Licensed Work, credit card and other transaction fees, affiliate fees payable for sales on the Internet, returns, credits, and any value added, sales, or other taxes or governmental charges that are stated separately or collected substantially contemporaneously with the sale of the Licensed Work. In the case of end user sales denominated in currencies other than U.S. Dollars, Net Sales shall be calculated using the amounts in U.S. Dollars remitted to Licensee by the channel partner making such remittance and/or actually received by or paid by Licensee in U.S. Dollars after currency translation.
1.15 "Term" has the meaning set forth in Section 5.1.
1.16 "Parties" has the meaning set forth in the preamble.
1.17"Party" has the meaning set forth in the preamble.
1.18 "Renewal Term" has the meaning set forth in Section 5.1
1.19 "Use" has the meaning set forth in section 2.1.
2. GRANT OF LICENSE, RIGHTS AND OBLIGATIONS.
2.1 Licensor hereby grants to Licensee for the Term, and following the Term solely as authorized in Section 6.2, the worldwide, non-exclusive license and right (the "License") to use, store, reproduce, distribute, publicly display, format for comiXology, and sell (collectively, "Use") the Licensed Work through any and all versions of comiXology and the Comics Store, in each case as they exist now or in the future, through any device, operating system, and media, existing now or in the future.
2.2 The License shall also include Licensee's right to Use all artwork and other content developed by or on behalf of Licensor (or excerpts therefrom) that is related to the Licensed Work (for example, comic book covers or titles, character likenesses, curated content, advertising material, Licensor name, icon, trademarks) (collectively, the "Art Work") in connection with Licensee's sales and marketing of the Comics Store.
2.3 Licensee may, in its sole discretion, provide functionality in the Comics Store that enables users to share with third parties of their choosing, including social media, the cover of, and up to five pages or portions thereof from, any Licensed Work to which they have authorized access. The parties acknowledge that Licensee has no ability to limit the screen shot capabilities of users' devices.
2.4 Licensee shall be entitled to provide to the users of the Comics Store a partial issue for each Licensed Work at no cost to users or Licensee. Such partial issue will not comprise more than twenty percent (20%) of the pages of the Licensed Work.
2.5 Licensor shall determine the pre-tax sale price of the Licensed Work to be distributed or sold by Licensee pursuant to this License Agreement, subject to the following: (a) to accommodate technical requirements of Licensee's pricing mechanism, prices will begin at $0.99 and increase in $1.00 increments, (b) Licensor will not set a sale price for the Licensed Work higher than the sale price for the Licensed Work on any other channel for which Licensor sets prices, and (c) Licensee shall have the right to reduce its price for the Licensed Work to the competing price the Licensed Work is available for on any other channel or to the next lowest price feasible under the technical requirements of Licensee's pricing mechanism and shall have the right to offer the Licensed Work for free to meet similar competing offers for the Licensed Work.
2.6 If Licensee has licensed more than one Licensed Work to Licensor, Licensor shall have the right to "bundle" such Licensed Works for sale in the form of virtual trade paperbacks or otherwise, at such discounts to the individual sales price of such Licensed Works (if sold separately) as shall be determined by Licensee in its sole discretion.
2.7 Licensee shall have the right to sell Licensed Works series consisting of multiple future installments of a Licensed Work at such discounts to the price of the individual installments, as Licensee shall determine in its sole discretion.
2.8 Licensee, in its sole discretion, will determine from time to time whether or not to offer the Licensed Work for sale, the platforms and channels, if any, on which to offer the Licensed Work, and without limiting the generality of the foregoing, may at any time remove from any channel or platform any Licensed Work that violates the standards of such channel or platform or that Licensee, in its sole discretion, considers to be inappropriate for any portion of the audience or users of such channel or platform.
3.1 Licensee shall own all right, title, and interest in and to Comixology and the Comics Store, including, without limitation, all related copyrights, trademarks, trade names, and trade dress, and customer information, excluding the Licensed Work or Licensor trade names or trademarks. Without limiting the generality of the foregoing, Licensor shall not, and shall not attempt, to copy, replicate, modify, reverse engineer, distribute, sell, or allow third parties to access any of the tools or technology made available to Licensor by Licensee.
4. PAYMENT.
4.1 Licensee shall pay to Licensor a fee for all of the rights and licenses granted under this License Agreement, as set forth in Schedule A.
5. TERM; TERMINATION.
5.1The License shall have an initial term (the "Initial Term") of five (5) years commencing as of the Effective Date. Immediately following the termination of the Initial Term, the License Agreement shall automatically renew for successive one (1)-year terms (each a "Renewal Term"), unless either Party gives the other written notice of non-renewal no later than sixty (60) days prior to the commencement of a Renewal Term. The Initial Term and the Renewal Terms (if any) are, collectively, the "Term."
5.2 This License Agreement may be terminated by either Party if the other Party is in material breach of the terms of this License Agreement and does not cure said breach within thirty (30) days following written notice of such breach. Termination shall be in addition to any other remedies available with respect to the underlying facts.
6. RIGHTS AND DUTIES RELATING TO TERMINATION.
6.1 If this License Agreement is terminated by Licensor for material, uncured breach by Licensee, Licensee agrees, subject to its rights pursuant to Section 6.2, to (a) cease all Uses of the Licensed Work; (b) at Licensee's option, either destroy or deliver to Licensor, free of any charge to Licensor, all copies of the Licensed Work in Licensee's possession; (c) at Licensor's request, provide the certification of an officer of Licensee to the effect that this section has been fully complied with; and (d) make all payments due and owing to Licensor as defined in Schedule A.
6.2 Licensee's Rights of Use Following the Term. Notwithstanding the expiration or termination (by Licensor or Licensee) of this License Agreement, whether for material breach or otherwise, Licensee shall have the right to retain, store, publicly display, reproduce, and distribute copies of the Licensed Work and Art Work previously sold or distributed to fulfill the 'buy once, read anywhere' proposition for the benefit of such distributes and their successors, or to provide replacement copies of the Licensed Work and/or Art Work in the event of loss, damage, or corruption of previously distributed Licensed Work or Art Work. The Parties agree that there would be no adequate remedy at law in the event of a breach of Licensee's rights under this section 6.2, and that Licensee would be entitled to specific performance of its rights under this section without any requirement that it post a bond.
7. INDEMNIFICATION
7.1. Indemnification by Licensor. Licensor will indemnify and defend Licensee, its Affiliates, and their directors, officers, employees, agents, successors, and assigns against any losses, liabilities, claims, causes of action, and expenses (including, but not limited to, reasonable attorneys fees and costs of investigation, whether before or after assertion of a formal claim, and reasonable litigation expenses) arising out of or relating to any assertion that the Licensed Work or Art Work or the License or other transactions contemplated hereunder (a) infringe the intellectual property rights of any third party, (b) are defamatory, (c) violate the rights of privacy or of publicity of any third party, (d) or otherwise violate the rights of any third party, (e) require the payment of royalties or fees of any type to any third party, or (f) by virtue of the content thereof violate any applicable laws or regulations.
7.2. Indemnification by Licensee. Licensee will indemnify and defend Licensor, its Affiliates, and their directors, officers, employees, agents, and successors against any losses, liabilities, claims, causes of action, and expenses (including, but not limited to, reasonable attorneys fees and costs of investigation, whether before or after assertion of a formal claim, and reasonable litigation expenses) arising out of or relating to any assertion that Licensor does not have intellectual property rights in and to Comixology and the Comics Store necessary to Use the Licensed Work or Art Work as contemplated under this License Agreement.
7.3 Notice of Suit. In the event either Party is named as a defendant in any legal action for which it claims indemnity hereunder, it agrees to notify the indemnifying Party within five (5) business days of service on it of such legal action. If Licensee is the indemnifying party, it shall have the right, but not the obligation, to assume control and direct the defense of such action, including, without limitation, the right to select defense counsel. Licensor as indemnifying party shall have no right to control or direct the defense of any action.
8. REPRESENTATIONS AND WARRANTIES.
8.1 Licensor's Representations and Warranties. Licensor represents and warrants, that (i) if Licensor is not a natural person, it is duly organized and validly existing under the laws of the relevant jurisdiction, with full organizational authority to enter into and perform this License Agreement, (ii) Licensor has the legal capacity to enter into, be bound by, and perform this License Agreement, and, if Licensor is not a natural person, the execution, delivery, and performance of this License Agreement by Licensor is duly authorized, (iii) entry into and performance of this License Agreement will not (and would not, after the giving of any required notices and the expiration of any required time periods) violate or constitute a default or event of default under any statute, regulation, judgment, order, contract or other legal authority to which Licensor is subject, (iv) Licensor has and will maintain throughout the Term intellectual property rights in and to the Licensed Work and the Art Work sufficient for it to grant the License herein free of any third party claim of infringement or other violation of rights, (v) Use of the Licensed Work and Art Work as contemplated herein will not violate, by way of infringement or otherwise, the rights of any third party or require the payment of royalties or fees of any sort by Licensee to any third party, and (vi) the content of the Licensed Work and Art Work will not violate the laws of the United States, any State thereof, or any country within the European Economic Area, and, to the best of Licensor's knowledge, will not violate the laws of any other jurisdiction.
8.2 Licensee's Representations and Warranties. Licensee represents and warrants that (i) Licensee is duly organized and validly existing under the laws of the State of Delaware, with full organizational authority to enter into and perform this License Agreement, (ii) the execution, delivery, and performance of this License Agreement by Licensee is duly authorized, (iii) its entry into and performance of this License Agreement will not (and would not, after the giving of any required notices and the expiration of any required time periods) violate or constitute a default or event of default under any statute, regulation, judgment, order, contract or other legal authority to which it is subject, and (iv) it has intellectual property rights in and to comiXology, and the Comics Store sufficient for it to Use the Licensed Work and Art Work as contemplated herein free of any third party claim of infringement or other violation of rights based on a claim of rights in comiXology or the Comics Store.
9.1 Notwithstanding any provision of this License Agreement to the contrary, if Licensor or Licensee is delayed, hindered in or prevented from, in whole or in part, performing any of their respective obligations under this License Agreement (except for payment obligations) by reason of any fire, strike, civil commotion, lock-out, labor dispute, law, rule, proclamation or governmental regulation, insurrection, war, public disaster, flood, unavoidable casualty, act of God or the elements, earthquake, vandalism, sabotage or failure of power (a "Force Majeure Event"), then the Party so affected shall be excused from its performance hereunder solely for the duration of such Force Majeure Event until the completion of the remedial activity in response to the Force Majeure Event and the time for performance shall be extended for a period equal to the duration of the Force Majeure Event and such remedial period; provided, that if a Force Majeure Event shall extend for more than ninety (90) days, the License Agreement may be terminated immediately on notice given by either Party, without liability incurred to the other Party as a result of such termination. In order to avail themselves of the foregoing provisions, each Party shall promptly notify the other of the occurrence of any such Force Majeure Event.
10. LIMITATION OF LIABILITY.
10.1 EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS CONTAINED IN THIS LICENSE AGREEMENT, A PARTY'S FRAUD, INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, OR ANY PERSONAL INJURY OR PHYSICAL PROPERTY DAMAGE CAUSED BY EITHER PARTY, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR SIMILAR DAMAGES ARISING OUT OF OR RELATING TO THIS LICENSE AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF, KNOWS OF, OR COULD FORESEE THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS LICENSE AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
10.2 No Personal Liability. None of the Parties' officers, directors, employees, and agents, acting within the scope of their employment, shall be liable to the other Party for monetary damages for any matters arising out of or relating to this License Agreement.
11.1 Entire License Agreement. This License Agreement is the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, arrangements, understandings, and representations, whether oral or written, regarding the subject matter hereof.
11.2 Amendments. This License Agreement may be amended as to the Licensed Work only by a written instrument signed on behalf of the Parties by their duly authorized representatives. Licensor understands and agrees that Content submitted by Licensor in the future pursuant to the Content Submission Agreement shall be subject to the terms of the Content Submission Agreement and related License Agreement offered by Licensee at the time of such submission, which may, in Licensee's sole discretion, be different than this License Agreement and related Content Submission Agreement.
11.3 Successors and Assigns. This License Agreement binds and benefits the successors of the Parties. Licensor may not assign Licensor's rights or delegate Licensor's duties, and any assignment or delegation without the written consent of Licensee, which Licensee may withhold in its sole discretion, shall be void. Licensee, may, in its sole discretion, assign its rights and/or delegate its duties under this Agreement.
11.4 No Partnership or Joint Venture. In making and performing this License Agreement, Licensor and Licensee act and shall act at all times as independent contractors and nothing contained in this License Agreement shall be construed or implied to create an agency, joint venture or partnership relationship between the Parties. At no time shall either Party make commitments or incur any charges or expenses for or in the name of the other except as expressly provided for herein.
11.5 Survival. For avoidance of doubt, after the termination (for material breach or otherwise) of this License Agreement, the rights and obligations of the Parties relating to the License, Licensed Work and Art Work (including, but not limited to, payment obligations under Schedule A, indemnification obligations, and all representations and warranties) will be governed by the terms of this License Agreement regardless of whether such terms have been expressly specified to survive.
11.6 Choice of Law; Forum. This License Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of New York without reference to any provisions of New York law that would result in the application of the law of any other State, country, or jurisdiction, and without reference to the U.N. Convention on Contracts for the International Sale of Goods. Any actions between the Parties arising out of or relating to this License Agreement shall be brought only in the State and Federal courts located in Manhattan County, New York, and each Party hereby consents to the personal jurisdiction of those courts, waives any objection to venue in those courts, and consents to the dismissal of any action arising out of or relating to this License Agreement that is brought in any other forum.
11.7 Notice. Any notice required or permitted to be given hereunder shall be given by email to the addresses specified below. Notice by such emails shall be deemed given on the date of transmission of during normal business hours, if a copy of the sent item showing the date and time of transmission is preserved and no notice of non-delivery is received (if so transmitted electronically after normal business hours such notice shall be deemed given on the succeeding day). Any notice shall be delivered as follows:
If to Licensor: to the email address associated with Licensor's account related to the Content Submission Agreement.
If to Licensee: to [email protected], with a copy to [email protected].
11.8 Provisions Severable. If any provision of this License Agreement is held to be illegal, invalid or unenforceable, the remaining provisions of this License Agreement shall be unimpaired and remain in full force and effect, and the illegal, invalid or unenforceable provision shall be amended to achieve as closely as possible the economic effect of the original term.
11.9 No Waivers. Failure by a Party in any instance to insist upon the strict performance of any term or condition of this License Agreement or to exercise any right or remedy consequent upon a breach hereof shall not waive such term or condition or impair such right or remedy with respect to any other instance.
11.10 Titles and Captions. Titles and captions are for convenience only and shall not affect the interpretation hereof.
11.11 Interpretation. This License Agreement shall be interpreted in accordance with its terms, and no convention regarding the interpretation of contracts based on who drafted the contract shall apply.
SCHEDULE A
PAYMENTS AND FEES
Fees. For each partial or full calendar quarter of the Term, Company shall remit to Licensor, by the 45th day following the end of each calendar quarter of the Term or the first business day thereafter if the 45th day falls on a federal holiday in the United States or a state holiday in the State of New York or a weekend, the royalty (the "Royalty") described below, for the then-ended calendar quarter:
Fifty percent (50%) of Net Sales for each Licensed Work sold during such quarter.
Method of Payment. The Royalty payment shall be made in U.S. Dollars via electronic fund transfer ("EFT"), or, if such wire transfer is not feasible, such other method as may reasonably substitute therefor. The paying Party shall be responsible for any costs charged by its bank for initiating an EFT and the payee Party shall be responsible for any costs deducted by its bank, financial institution or payment receipts provider for receipt of an EFT. Each Party shall provide all tax documentation reasonably requested by the other or as required by law.
Minimum Balance. Payments to Licensor shall be made when the Royalty amount due Licensor equals or exceeds $100.00 (the "Minimum Balance"). If the amount of the Royalty due Licensor is less than the Minimum Balance, then the payment of the Royalty will be held until a subsequent calendar quarter during which the Minimum Balance is reached. Failure to reach the Minimum Balance shall not result in forfeiture of the Royalty due to Licensor, and such Royalty less than the Minimum Balance shall be paid by Licensee at such time or times and in such manner as Licensee may determine in its sole discretion.