License Agreement

THIS DOCUMENT STATES THE TERMS AND CONDITIONS UPON WHICH MALANE NEWMAN, A SOLE PROPRIETOR IN CALIFORNIA USA (“MALANENEWMAN”) WILL PROVIDE ITS SERVICES AND LICENSE CERTAIN FILES TO YOU.

THIS DOCUMENT CONSTITUTES A CONTRACTUAL AGREEMENT BETWEEN YOU AND MALANE NEWMAN. PLEASE READ THIS DOCUMENT CAREFULLY.

If you have any questions regarding the terms of this Agreement, please send e-mail to: malane@malanenewman.com.

If you do not agree to these Agreement terms, please do not access the Website (as later defined) or use the Services (as later defined). These Agreement terms govern your use of the Website and Services, and your responsibilities as a User.

By your use of this Website and/or the Services, you agree to be bound by and comply with these Agreement terms. Malane Newman reserves the right to amend these Agreement terms from time to time and at any time by posting such amendments on the Website, and your continued use of the Website and the Services following posting of any such amendment constitutes your acceptance of such amendment, regardless of whether you actually have read any such amendment. We recommend that you periodically check this Website for changes.

As used herein, the term “User” refers to you, any entity you represent, and your successors, and permitted assigns. Malane Newman, Inc., a sole proprietor in California, USA (“Malane Newman”) and User may be referred to herein as the “Parties” and each, a “Party”.

Witnesseth

WHEREAS, Malane Newman operates a website where she posts her files to this website and enables other users to license said files;

WHEREAS, User desires to secure certain licensing rights for certain files located on the MalaneNewman.com website.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in consideration of the foregoing recitals, as well as the mutual covenants and agreements set forth below, the Parties hereby agree as follows:

1. Definitions

For purposes of this Agreement, the following terms shall have the respective meanings set forth below:

Website means the https://malanenewman.com website, and any other website through which Malane Newman offers her Services (as hereinafter defined).

File means any kind of illustration, photography, video presented in electronic form that may be accompanied by associated files, which has been placed in the Website archive and can be normally accessed from there.

Permitted Derivative Work means a work of authorship comprising a File which has been sufficiently modified, resulting in an individual original work that gives the contributor the right to ownership and copyright protection in accordance with the law of the United States of America, providing that said work of authorship shall not be deposited by the User on any data bank (including the MalaneNewman.com Website).

Services means the service provided by Malane Newman that enables her to post the files to a website and enables other users to license said files, and all other activities ancillary thereto (including without limitation the facilitation of communication and transactions between file and copyright owner and users).

Fees means license fees set forth herein.

User means the entity set forth in the first paragraph of this Agreement.

Contributor means the owner of the files and/or copyrights thereto, who contributes a file to the Malane Newman’s File library.

Confidential Information means certain information, concepts, data and know-how, whether orally, visually or in electronic or tangible form or otherwise, relating to the Services, the business and prospective business of Malane Newman, and to Malane Newman’s existing or potential products, processes and services, including without limitation, User lists, File lists, Contributor lists, trade secrets, inventions, technology, designs, methods, know-how, show-how, systems, software programs, works of authorship, financial records and information including pricing methods, customer lists and information, plans, proposals, projections, and marketing plans and strategies.

2. License Grant

Subject to the terms and conditions contained herein, Malane Newman grants to User, and User accepts, a non-exclusive, nontransferable right and sub-license to use those Files for which User has paid an applicable fee, with no time constraints, and all in accordance with Standard License or Extended License terms (as may be amended by Malane Newman from time to time).

User may create and use a Permitted Derivative Work, but only in accordance with the terms and limitations set forth herein. User agrees not to deposit any File or Permitted Derivative Work on any file data bank or similar database (including on the Malane Newman Website).

User assumes sole responsibility for the use of a File or Permitted Derivative Work. User specifically agrees not to use a File or a Permitted Derivative Work, except as explicitly permitted herein.

3. Proprietary Rights

User acknowledges and agrees that each File and its copyrights are the property of the Contributor of said File, and not the property of User. Contributors retain all rights, title and interest in the Files and User shall not take any action inconsistent with such title and ownership.

4. Confidential Information

Except for the specific rights granted by this Agreement, User shall not use or disclose any Confidential Information without the written consent of Malane Newman. User shall use the highest commercially reasonable degree of care to protect the Confidential Information, including ensuring that its employees or consultants with access to such Confidential Information have agreed in writing not to disclose the Confidential Information. User shall bear the responsibility for any breaches of confidentiality by its employees and consultants. Within fifteen (15) days after request by Malane Newman, User shall either return to Malane Newman all originals and copies of any Confidential Information and all information, records and files developed therefrom by User, or destroy the same. User may only disclose the general nature, but not the specific financial terms, of this Agreement without the prior written consent of Malane Newman. Nothing herein shall prevent User from disclosing all or part of the Confidential Information as necessary pursuant to the lawful requirement of a governmental agency or when disclosure is required by operation of law; provided that prior to any such disclosure, User shall use reasonable efforts to

• promptly notify of Malane Newman in writing of such requirement to disclose, and
• cooperate fully with Malane Newman in protecting against any such disclosure or obtaining a protective order.

Money damages will not be an adequate remedy if this Section 4 or Sections 2 or 3 are breached and, therefore, Malane Newman shall, in addition to any other legal or equitable remedies, be entitled to an injunction or similar equitable relief against such breach or threatened breach without the necessity of posting any bond.

5. Payments

User shall pay all Fees, in accordance with the terms set for pricing.

If the User disregards Section 2 of this Agreement as it pertains to limited quantities of reproductions without obtaining an Extended License, User must notify Malane Newman in writing that User has exceeded the number of permitted reproductions. User must send said notice to Malane Newman within ten (10) days of exceeding said limitation. The notice must contain data on quantity of the reproductions made by the User per month over the permitted quantity. User agrees that in the event User exceeds the number of permitted reproductions, User shall pay a compensatory bill, which will be calculated by Malane Newman based on the excess and the use by User.

6. Independent Audit

Malane Newman shall have the right upon reasonable advance written notice, to have an independent auditor verify User’s compliance with this Agreement. User shall make all applicable books and records available for such inspection during normal business hours at User’s principal place of business. Any such audit shall be at the expense of Malane Newman, unless such audit discloses an underpayment by the User for the audited period in excess of five percent (5%), in which case User shall reimburse Malane Newman for such expenses. If the audit discloses any underpayment by User, User shall promptly make payment to Malane Newman of such underpayment, together with interest.

7. Term and Termination

This Agreement shall commence upon the date hereof, and may only be terminated as provided herein. This Agreement may be terminated:

• by User, upon notice to Malane Newman;
• by Malane Newman immediately upon User’s breach of Sections 2, 3 or 4, or
• by either party, in the event the other party materially breaches a provision of this Agreement and the breaching party fails to cure such breach within thirty (30) days of the receipt of notice of such breach from the non-breaching party.

If User terminates this Agreement pursuant to Section 7(a) or if Malane Newman terminates this Agreement pursuant to Section 7(2) or (3), then User shall pay all amounts due hereunder. Upon termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except as follows:

• User’s liability for any charges, payments or expenses due to Malane Newman that accrued prior to the termination date shall not be extinguished by termination, and such amounts (if not otherwise due on an earlier date) shall be immediately due and payable on the termination date;
• User shall have no further right to use the Files and immediately after the termination or expiration date hereof, the User shall destroy all originals and copies of the Files and Confidential Information in the possession or under the control of User, and User shall certify in writing to Malane Newman within ten (10) days following termination that it has complied with this Section 7(2) and the provisions of Sections 3 (Proprietary Rights), 4 (Confidential Information), 8 (Disclaimer of Warranty), 9 (Indemnification), 10 (Limitation of Liability), 11 (Compliance with Laws), 12 (General Provisions) and this Section 7 shall survive any termination for any reason or expiration of this Agreement.

Malane Newman reserves the right, at her sole discretion, to cancel or change any license granted to User hereunder, or replace any File with similar/alternative file. If such replacement is made after sending a notification to the last provided e-mail address, the license to the File that is replaced (including products not yet manufactured) shall be cancelled automatically. A renewed license is applied to the replacement File(s). User agrees to discontinue the use of the replaced File(s) and any Permitted Derived Works and also perform all actions necessary for cessation and termination of its use.

8. Disclaimer of Warranty

THE FILES, WEBSITE AND SERVICES ARE NOT ERROR-FREE AND ARE BEING PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. MALANE NEWMAN HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE FILES, WEBSITE AND SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE.

9. Indemnification

User agrees to indemnify and hold Malane Newman and Malane Newman Design, its officers, employees, shareholders, directors, managers, members, and contributors, harmless against any damages or liability of any kind arising from any use of an File or Permitted Derivative Work by User or by any other party that received a copy of the File or Permitted Derivative Work from User. User further agrees to indemnify Malane Newman for all costs and expenses that Malane Newman incurs in enforcing the terms of this Agreement.

10. Limitation of Liability

MALANE NEWMAN’S LIABILITY FOR DAMAGES TO USER OR ANY THIRD PARTY FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, SHALL NOT EXCEED THE AGGREGATE FEES PAID BY USER TO MALANE NEWMAN  FOR THE TWELVE (12) MONTHS PRIOR TO THE CLAIM. MALANE NEWMAN SHALL IN NO EVENT BE LIABLE FOR ANY LOSS OF DATA, PROFITS OR USE OF THE FILES, WEBSITE OR SERVICES, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE FILES, WEBSITE OR SERVICES WITHOUT REGARD TO WHETHER MALANE NEWMAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

11. Compliance with Laws

User is only being granted the rights to use the Files and shall not infringe the Files’ copyrights, export or re-export, directly or indirectly (including via remote access) the Files or other information or files provided by Malane Newman hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. It shall be User’s responsibility to comply with the latest United States export regulations, and User shall defend and indemnify Malane Newman from and against any damages, fines, penalties, assessments, liabilities, costs and expenses (including reasonable attorneys’ fees and court costs) arising out of any claim that Files, or other information or files provided by Malane Newman hereunder were exported or otherwise accessed, shipped or transported in violation of applicable laws and regulations. User shall comply with all laws, legislation, rules, regulations, and governmental requirements with respect to the Software, and the performance by User of its obligations hereunder, of any jurisdiction in or from which User directly or indirectly causes the Software to be used or accessed. In the event that this Agreement is required to be registered with any governmental authority, User shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.

12. General Provisions

12.1 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance shall be extended for the period of delay or inability to perform due to such occurrence.

12.2 Waiver. The waiver by either party of a breach or a default of any provision of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.

12.3 No Agency; Independent Contractors. Nothing contained in this Agreement shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

12.4 Governing Law; Jurisdiction & Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA, without regard to its choice of law provisions. In the event of any conflict between foreign laws, rules and regulations and those of the United States, the laws, rules and regulations of the United States shall govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Exclusive jurisdiction and venue for any litigation arising under this Agreement is in the federal and state courts located in San Jacinto, California USA and both parties hereby consent to such jurisdiction and venue for this purpose. The invalidity or unenforceability of any provision of this Agreement shall not affect the remaining portions hereof.

12.5 Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties with regard to the subject matter hereof. No waiver, consent, modification or change of terms of this Agreement shall bind Malane Newman unless in writing signed by Malane Newman, and then such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given. Terms set forth in any purchase order of User (or other similar document) that are in addition to or at variance with the terms of this Agreement are specifically waived by User. All such terms are considered by Malane Newman to be proposed files alterations of this license and are rejected. User’s purchase order is only effective as User’s unqualified commitment to pay for a license to the Malane Newman Files upon the terms (and only the terms) set forth herein. Malane Newman may amend this Agreement from time to time, by notifying User of the amendment in writing (e-mail shall constitute a writing for the purposes of this sentence).

When concluding an individual agreement with a wet stamp on file purchasing with a customer, Malane Newman Design company has the right to change the list of permitted and forbidden ways of file usage. All such changes are described and fixed in the customer agreement particularly and separately, however no changes in the common rules at the site are made.

12.6 Costs, Expenses and Attorneys’ Fees. User shall reimburse Malane Newman for all reasonable costs (including attorneys’ fees) incurred by Malane Newman in collecting late payments from User. If Malane Newman commences any action or proceeding against the User to enforce or interpret this Agreement, Malane Newman shall be entitled to recover from the User the actual costs, expenses and attorneys’ fees (including all related costs and expenses), incurred by Malane Newman in connection with such action or proceeding and in connection with obtaining and enforcing any judgment or order thereby obtained.

12.7 Assignment. This Agreement and the rights and obligations hereunder, may not be assigned, in whole or in part by User, without the prior written consent of Malane Newman and any unauthorized assignment or transfer shall be void. Malane Newman shall have the right to assign this Agreement to a successor to the whole or the Service-related portion of Malane Newman’s business. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the parties hereto.

12.8 Notices. Any notice or communication from one party to the other shall be in writing and either personally delivered or sent via facsimile or certified mail, postage prepaid and return receipt requested, addressed to such other party at the address specified below or at such other address as such party may from time to time designate in a notice to the other party. All notices shall be in English and shall be effective upon receipt.

12.9 In English. The parties confirm that this Agreement and all related documentation are and will be drafted in English. The provision of this Agreement or any notice to User in any language other than English is for convenience only. In the event of any discrepancy between this English version and any other version, the English version shall control.

12.10 Captions and Headings. Captions and headings contained in this Agreement have been included for ease of reference and convenience and shall not be considered in interpreting or construing this Agreement.

12.11 ACKNOWLEDGEMENT. IN ACCEPTING THIS AGREEMENT, THE USER ACKNOWLEDGES THAT USER HAS READ AND UNDERSTANDS THIS AGREEMENT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF MALANE NEWMAN .COM AGREEING TO PROVIDE THE FILES, USER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.