Exhibit 10.5
COPYRIGHT LICENSE AGREEMENT
This AGREEMENT is entered into this day of (......date......), by and
between (Publisher's name) (hereinafter "Licensor") and PEPC Nederland BV
(hereinafter "Licensee").
RECITALS
A. Licensor owns the copyright, title, trademarks and all other related
rights in and to the publication named (Newspaper name) (hereinafter
"Newspaper").
B. Licensee is engaged in the development, marketing, operation,
distribution and archiving of global newspaper-print-on-demand, and content
distribution applications. These applications provide the latest editions of
major newspapers available worldwide via three unique channels: 1) Electronic
Newspapers Vending Unit or Back Office System (hereinafter "PEPC Global Vending
Machines"), 2) Site License Distribute and Print Agreements (hereinafter "Site
License"), and 3) Electronic Content Distribution Devices (hereinafter
"Electronic Devices"). These channels are known as PEPC Global Marketing
Network.
C. Licensee desires to obtain the rights to incorporate (portion of) all
daily released editions of the Newspaper into its product and services, marketed
under Licensee's brand name and trademark of PEPC and or PEPC Global vending
machine for printing and/or distribution of (portions of) all daily released
editions of the Newspaper on the PEPC Global Vending Machines, at Site License
locations, and Electronic Devices.
NOW, THEREFORE, in consideration of the promises, conditions, covenants and
warranties herein contained, the parties agree as follows:
1. Rights Granted
Licensor hereby grants to Licensee, [its successors and assigns], a
non-exclusive right, license and privilege to: markets so specified by Licensor.
(a) Incorporate the Newspaper into the PEPC Global Marketing Network
Channels and reproduce, (electronically) distribute, import, print and sell the
Newspaper through the PEPC Global Vending Machines, Site Licenses, and
Electronic Devices via the PEPC-System throughout the world;
(b) Utilise or incorporate excerpts and trademark from the Newspaper
on or in connection with the packaging, advertising, publicising, marketing and
distribution of the PEPC Global Vending Machine and the Newspaper [unless
otherwise agreed in writing between Parties]; and
(c) Publicly operate and authorise others to operate any one or all of
the PEPC Global Marketing Network Channels (and print and/or distribute those
versions of the Newspaper incorporated therein) in connection with the
advertising, publicizing, marketing, distribution and use of the PEPC Global
Vending Machines, Site Licenses and Electronic Devices.
2. Licensor's Rights and Obligations
(a) Licensor warrants and represents that it has the right to grant
the license herein and that the granting of the license by Licensor as meant in
article 1 hereof does not infringe on any intellectual property rights of third
parties.
(b) Licensor reserves unto itself all rights of every kind and nature
except those specifically granted to Licensee herein;
(c) Licensor obligates itself to, upon public or commercial release of
the daily editions of the Newspaper, electronically submit the (portion of)
Newspaper, via the Internet to a URL designated by the Licensee. The editions
shall be transmitted in one (1) Portable Document Format (PDF) file with the
following properties:
. Maximum of 40 pages
. All fonts and graphics embedded
. DPI settings for Black and White at 600
. DPI settings for Grey Scale at 150
. Not exceeding 25 MB
(d) Licensor has full responsibility for the contents of the Newspaper
of whatever nature vis-a-vis third parties.
(e) Licensor has the right to exclude the sales of its printed
newspaper from selected vending machines if agreements are already established
with local distributors in said area(s).
(f) Licensor does not and will not contravene and/or breach any laws
of the jurisdiction where it is located.
(g) Licensor shall provide licensee with a complete set of fonts that
are used in the (re-)production of the newspaper via the PEPC Global vending
machine. These fonts are and shall remain, throughout the duration of this
agreement, the exclusive property of the licensor. PEPC Nederland BV shall
exclusively use them for the purposes of (re-) producing the newspaper.
(h) Licensor shall promote the availability of the newspaper from the
PEPC Global Marketing Network with in-house advertising promotion by placing
monthly advertisements within the local daily newspaper and/or other
publications or media owned by licensor.
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(i) Licensor shall promote the availability of the PEPC vending
machine on its Internet site by placing a permanent banner-ad provided by PEPC
Nederland BV.
3. Licensee's Rights and Obligations
(a) Licensee is free to market the PEPC Global Marketing Network, and
use the trade names of the Newspaper in that respect.
(b) Licensee is and shall be the sole owner of the PEPC Global Vending
Machine and all proprietary rights in and to the PEPC Global Vending Machine.
Such ownership shall not include ownership of the copyright in and to the
Newspaper or any other rights to the Newspaper not specifically granted in
Section 1 above.
(c) Licensee shall observe due care in the processing of
electronically transferred information as to the Newspaper via the PEPC-System.
Licensee will not be liable for any incompleteness or imperfections in the
processing of the Newspaper data via the PEPC-System in case the data sent by
Licensor is incomplete or imperfect.
(d) Licensee recognises the goodwill associated within the Newspaper
and acknowledges that the Newspaper and all rights therein do not belong to
Licensee and will not use the Newspaper and/or the rights granted herein for any
other purpose than contemplated in this Agreement.
(e) Licensee has the right to exclude the newspaper from selected
markets, if this is required due to restrictions of the law(s) in certain
countries or due to restrictions given by the location itself.
(f) Licensee has the right to promote the newspaper in all sales
material delivered to any actual or potential sales point in all markets where
the newspaper is or will be sold.
(g) The operation of the PEPC Global Vending Machines including any
and all costs and expenses related thereto including the creation, distribution
marketing and sales of the Newspaper via the PEPC Global Marketing Network
Channels is for the sole risk and responsibility of Licensee.
4. Payments
(a) For the rights granted by Licensor herein, Licensee shall pay to
Licensor a license fee (hereinafter: the "License Fee" or "License Fees") of US$
0.25 per copy sold via the PEPC Global Vending Machines and Site License
locations to customers; (NOTE: a separate payment schedule will be constructed
regarding content used through Electronic Devices)
(b) Licensee shall not pay an advance against License Fees to Licensor
upon the signing of this agreement;
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(c) Licensee has no payment obligation of any kind to licensor if the
newspapers are (re-) produced free of charge from time to time as samples, tests
or for promotion purposes.
(d) Licensee shall render to Licensor on a quarterly calendar basis,
within twenty (20) days after the end of each quarter during which the Newspaper
was sold through the PEPC Global Marketing Network Channels, a printed statement
of the License fees due to Licensor with respect to such sold copies of the
Newspaper in last calendar quarter. Such statement shall be accompanied by a
remittance advise of the amount due in US Dollars. Licensor shall have the
right, upon reasonable request, to review those records of Licensee necessary to
verify the License Fees paid. Any such audit will be conducted at Licensor's
expense and at such times and in such a manner as to not unreasonably interfere
with Licensee's normal operations.
(e) Payment of the License Fees will be accomplished by PEPC Nederland
BV within ten (10) days after the remittance advise as meant above under clause
4 c has been made available to Licensor.
(f) Licensee is not liable to Licensor in the event that under treaty
or due to tax, currency and/or exchange regulations of the jurisdiction where
Licensor is situated, payment in US dollars is prohibited and/or taxed and/or
charged with duties and/or exchanged in local currency and/or seized.
(g) For copies requested by Licensor for special events, advertising
promotions, etc. in Site License locations and/or markets where Licensee, at
their discretion, can print significant copies, Licensor will pay to Licensee
US$1.50 for every copy printed. There will be no license fee or royalty paid to
Licensor for these copies.
5. Warranties and Indemnification
(a) Each Party warrants and represents to the other Party that it has
the full right, power and authority to enter into this Agreement and Licensor
specifically warrants it has the right to grant the rights granted herein and in
doing so does not infringe on intellectual property rights or other rights of
third parties;
(b) Licensor shall indemnify and hold harmless Licensee, its
successors, assigns and licensees, and the respective officers, directors,
agents and employees, from and against any and all claims, damages, liabilities,
costs and expenses (including reasonable attorneys' fee), arising out of or in
any way connected with any breach of any representation or warranty made by
Licensor herein;
(c) Licensee shall indemnify and hold harmless Licensor, its
successors, assigns and licensees, and the respective officers, directors,
agents and employees, from and against any and all claims, damages, liabilities,
costs and expenses (including reasonable attorneys' fees), arising out of or in
any way connected with its performance of its obligations under this agreement
including but not limited to its representations and warranties.
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(d) Licensee represents and warrants that the PEPC Global Marketing
Network Channels and the operation thereof does not infringe on any intellectual
property right and/or other rights of third parties.
(e) Licensee is not liable for the content of the Newspaper and
Licensor shall indemnify and hold harmless Licensee against any and all claims
from third parties, including, but not limited to, authors, persons and entities
mentioned in the Newspaper, advertisers and readers of the Newspaper in
connection with the content of whatever nature therein.
6. Terms and Termination
(a) The term of this Agreement shall be five (5) years from the date
of execution by both parties, unless terminated earlier pursuant to this section
or by parties in mutual written understanding.
(b) This Agreement will be extended automatically for the term of one
(1) year at the expiry date. Desired adjustments, both from the side of the
Licensor as well as the Licensee, will be notified to the other party ultimately
1 month before the expiration date.
(c) This Agreement shall be subject to termination or suspension at
the election of Licensor, by written notice to Licensee, where there has been a
default in the due observance or performance of any covenant, condition,
warranty representation or agreement herein by Licensee, and such default has
continued for a period of thirty (30) days after written notice specifying the
same shall have been given to Licensee by Licensor. In case of suspension,
Licensor maintains the right to terminate this agreement.
(d) This Agreement shall be subject to termination or suspension at
the election of Licensee, by written notice to Licensor, where there has been a
default in the due observance or performance of any covenant, warranty,
condition or agreement herein by Licensor and such default has continued for a
period of thirty (30) days after written notice specifying the same shall have
been given to Licensor by Licensee. In case of suspension, Licensee maintains
the right to terminate this agreement.
(e) Both parties maintain the right, without any warning or
declaration of non-compliance to the contents of this contract, to terminate
this contract by notifying the other party by means of a registered letter, in
case the other party has: requested a suspension of payment; has been put in the
position of suspension of payment; has been declared bankrupt or is requesting
it's own bankruptcy; the company of the other party is liquidated or ceases it's
activities.
(f) Upon termination or expiration of this agreement, Licensee shall
immediately cease reproducing, advertising, marketing and distributing the
Newspaper as soon as commercially feasible.
(g) Termination and expiration of this agreement shall not terminate
or extinguish parties obligations and warranties to each other under this
agreement insofar these obligations and/or warranties, including the obligation
by Licensee to pay Licence Fees, by their terms are supposed to continue
thereafter.
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7. General Provisions
7.1 Successors/Assigns
This Agreement is binding upon and shall inure to the benefit of the
respective successors and/or assigns of the parties hereto. Licensee may not
assign this agreement or any of its rights hereunder, without the written
consent of Licensor, except to a legal entity in which it has a controlling
interest.
7.2 Integration
This Agreement sets forth the entire agreement between the parties with
respect to the subject matter hereof, and may not be modified or amended except
by written agreement executed by the parties hereto.
7.3 Governing Law: Forum
The laws of The Netherlands, applicable to agreements made and to be wholly
performed therein, shall govern this Agreement. In case of a dispute regarding
the execution of this agreement, it will be presented to the authorised court of
law in Amsterdam, The Netherlands.
7.4 Confidentiality
Each party shall treat as confidential all information obtained from the
other pursuant to this Agreement and shall not disclose such information without
the other party's prior written consent.
7.5 Notice
The address of each party hereto as set forth below shall be the
appropriate address for the mailing of notices, checks and statements, if any,
hereunder. All notices shall be sent certified or registered mail and shall not
be deemed received or effective unless and until actually received. Either party
may change their mailing address by written notice to the other.
7.6 No Agency/Partnership
Nothing in this agreement shall be constructed as creating a joint venture,
partnership or agency and neither party has the right to bind the other party in
any way whatsoever.
7.7 Waiver
The waiver by either party, by default or otherwise, of any breach of a
provision of this agreement shall not be construed as a waiver or acceptance of
such a breach and affect in any way the further effectiveness of such provision.
7.8 Severability
If any provision of this Agreement is or becomes, at any time and under any
laws, rules or regulations, unenforceable or invalid in any jurisdiction in
which the parties are located or in
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which this agreement is being performed, the remainder of this agreement shall
be valid and enforceable. Parties shall negotiate in good faith in order to come
to a mutual agreement on a substitute, valid and enforceable provision that most
nearly affects the parties' intent in entering into this agreement.
7.9 Limitations of Liability
PEPC Nederland BV is not and does not hold itself out to be a publisher and
as such has no ownership of any data or information contained in any newspaper.
Under no circumstances shall PEPC Nederland BV be liable for direct, indirect,
incidental, special, punitive or consequential damages, including, but not
limited to, lost profits, lost sales, lost savings or loss of or damage to data,
regardless of the form of action, whether in contract, tort, breach of warranty
or otherwise arising out of or in any way connected to the content provided by
publisher, even if PEPC Nederland BV has been advised of the possibility of or
could have foreseen such damages.
7.10 Force Majeure
Neither Party shall be liable to fulfil its obligations, or for delays in
performance, due to causes beyond its reasonable control, including, but not
limited to, acts or omissions of civil or military authority, fires, strikes,
floods, epidemics, riots or acts of war. In case of Force Majeure, the party
claiming such a situation will promptly inform the other party and keep them
up-to-date on the development of the Force Majeure situation.
Neither party shall be liable for damage or injury caused by Force Majeure.
Force Majeure is to be regarded as such in case of a non-accountable shortcoming
from either of both parties, her suppliers not included.
IN WITNESS WHEREOF, the parties have caused this License Agreement to be
executed the day and year set forth above.
Signed by Signed by
______________________________ _________________________________
Name X. X. Xxxxx
Title Executive Content Director
PEPC Nederland B.V.
Company Alexanderstraat 18
Address 2514 JM
Zip Code The Hague
City The Netherlands
Country
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