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EXHIBIT 10.7
CONTENT LICENSE AGREEMENT
THIS AGREEMENT is made and entered into as of this 1st, day of July,
2000 (the "Effective Date") by and between XXXXXXXXXXXXXX.XXX, INC., a Florida
corporation ("Licensee"), and Dr. Nan Boss ("Author"), (Licensee and Author are
sometimes collectively referred to herein as the "parties").
WHEREAS, Licensee wishes to display certain works both currently
existing and to be authored by Author (the "Works") on the Licensee's site on
the World Wide Web portion of the Internet (the "Site"); and
WHEREAS, Author owns or controls certain rights with respect to the
Works and wishes to grant to Licensee an exclusive, perpetual, irrevocable,
world-wide license of those rights on the terms and conditions hereof;
NOW, THEREFORE, for good and valuable consideration by each party to
the other, the receipt and sufficiency of which is hereby acknowledged, Licensee
and Author, intending to be legally bound hereby, agree as follows:
1. GRANT OF LICENSE. Author hereby grants to Licensee in
perpetuity an exclusive, world-wide, irrevocable and perpetual right and license
(the "License) to: (i) adapt, modify and alter the Works or otherwise create
derivative works based upon the Works (the "Derivative Works") (the Derivative
Works and the Works collectively referred to herein as the "Materials"); (ii)
reproduce the Materials in digital form of display on the Site (alone or in
combination with other works, including, but not limited to, text, data, images,
photographs, illustrations, animation, graphics, video or audio segments, and
the hypertext links); and (iii) reproduce, transmit, communicate, display or
distribute the Materials, on or as part of the Site, by means of any technology,
whether now known or hereafter to become known. Notwithstanding the exclusivity
of the license granted hereunder, Author shall have the right to use the
Materials to her own benefit in other media, such as newspapers and periodicals
so long as such use is not deemed by Licensee, in its reasonable discretion, to
be competitive with Licensee's business. This Licensee is hereby granted and
intended to extend all Works supplied by Author to Licensee, whether delivered
under Section 3 or at anytime during the Term. The License shall, with respect
to all Materials (including and portions thereof), survive any termination or
expiration of this Agreement and the Licensee shall be entitled to continue to
have all rights with respect to the Materials set forth herein with respect to
such Materials in perpetuity. Licensee shall be responsible for and have sole
discretion with respect to the use and display of the Materials (including
selection, arrangement, format of content, and the "look and feel"), and
notwithstanding any provision in this Agreement to the contrary, Licensee shall
not be required to publish or other use any of the Materials. The initial Works
delivered by Author to Licensee and subject to the License are set forth on
APPENDIX A hereto. Author hereby agrees that upon request by the Licensee from
time to time, whether during or after the term of this Agreement (including any
extensions), Author shall execute such licenses, assignments and other
agreements and instruments and take such other actions as are directed by the
Licensee to ratify, reaffirm, protect, clarify, substantiate or further evidence
its rights with regard to any such Materials and Works. This License shall be
non-transferrable by Licensee and Licensee shall have no right to assign or
sublicense any of its rights hereunder, except to affiliates of Licensee.
2. PROMOTIONAL USE. Author hereby grants to Licensee the right to
advertise and promote the Materials on the Site, by whatever method and in
whatever media Licensee deems appropriate: (i) using references to and excerpts
from the Materials; and (ii) using Author's name, biographical
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information, likeness, pseudonym and/or image in connection with authorized uses
of the Materials. Licensee shall also have the sole right to sell advertising in
conjunction with the use of the Materials.
3. DELIVERY OF MATERIALS. Immediately upon the execution of this
Agreement and every two weeks thereafter, Author shall deliver to Licensee two
(2) copies of printed versions and one (1) copy of electronic/digital (i.e.,
email) forms of the currently identified Works that shall be used by Licensee
for display thereof on the Site and as set forth in APPENDIX A. Author will
supply additional Works to Licensee from time to time on a periodic basis as
they are prepared; provided, however, that while specific Works to be provided
in the future to the Author are not or cannot be identified at this time, it is
the intention of the parties that the Author will provide a substantial amount
of content in the form of articles and other written works, as well as other
forms of content, on a regular basis, that failure to so provide such content
will have a material adverse effect on Licensee, and that Author shall make all
good-faith efforts to provide such Works on a regular basis during the Term.
Author agrees to make such changes in the Works as may reasonably be requested
by Licensee prior to publication, to assist Licensee's editorial personnel in
the verification of any information contained in the Works, and to retain all
notes, drafts and copies relating to the Works for three (3) years from
publication. Final editing, headings and subheadings, illustrations and captions
shall be in the sole discretion of Licensee. Licensee has the right not to
publish the Materials at its discretion.
4. CREDIT AND ATTRIBUTION. Licensee shall give Author credit in
connection with the exploitation of the Materials by identifying Author in a
prominent manner in conjunction with Materials as displayed on the Site.
5. TERM. The term of this Agreement (the "Term") shall commence
upon delivery of the Materials in a form acceptable to Licensee and continue for
a period of fifteen (15) months or until terminated in accordance with this
Agreement. The Agreement may be renewed annually thereafter on terms and
conditions to be agreed to by the parties at such time. Licensee may terminate
this Agreement at any time upon 30 days written notice to Author.
6. FEES. During the Term, and in consideration for the license
granted to Licensee hereunder, Licensee shall grant to Author an option to
purchase up to fifteen thousand (15,000) shares of the Class A non-voting common
stock in XxxxXxxxxxxXxx.xxx, Inc. at a price of $1.04 per share, with an
exercise period of five years from the date of the grant. Such option shall
fully vest 1,000 shares per month for each month Author provides the materials
and services required hereunder, for the 15 month Term of this Agreement,
provided, however, that the option shall not be deemed granted until the
Licensee has issued a Notice of Grant and Author has executed the Stock Option
Agreement attached hereto as APPENDIX B.
7. PROPRIETARY RIGHTS. As between Licensee and Author, Licensee
shall be the sole owner of all intellectual property rights in the Site and all
materials relating to the Site other than the Works. Notwithstanding the
foregoing, Author shall retain all rights with respect to the Works which are
not expressly granted to Licensee herein and Author may exercise, sell, license,
or otherwise dispose of such rights at any time, except as would be in
contravention hereof; provided however, that during the term of this Agreement,
Author shall not license to any third party the right to use the Works in any
media, except with respect to the existing contract with AVLS/Veterinarian
Marketing Services. Neither party shall take any action or make any claim or use
of the other party's intellectual property rights that infringes, jeopardizes,
undermines or reduces the value of, or in any way dilutes or is contrary to the
proper management and/or protection of, the other party's ownership of its own
intellectual property.
8. WARRANTIES AND REPRESENTATIONS. Author warrants and represents
to Licensee that (i) Author has the right to enter into this Agreement and grant
the rights granted herein, and that there has
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been no prior sale or transfer of rights to the Materials or any party thereof;
(ii) the Materials are Author's original works, and do not now and will not
violate or infringe upon any existing intellectual property rights, including,
without limitation, copyright or trade secret or any contractual rights, and
they contain no matter which, if published, will be fraudulent, harassing,
libelous, obscene, or a violation of any rights of publicity or privacy, or any
law or regulation. Author will fully cooperate with Licensee in responding to
and defending against any third party claim related to the Materials.
9. INDEMNITY. Each Party hereto shall indemnify, defend, and hold
harmless the other Party, its editors, officers, directors, shareholders,
employees, and agents with respect to any claim, demand, cause of action, debt
or liability, including reasonable attorney's fees, to the extent that it is
based upon a claim that, if true, would constitute a breach of any of the
indemnifying Party's representations, warranties, or agreements hereunder.
Notwithstanding the foregoing, Author shall not be liable for any claims arising
from any matter displayed on the Site by Licensee that was not contained in the
Materials, unless such matter was inserted with the written permission of
Author. In claiming indemnification (the "Claimant") shall provide the other
Party with written notice of any claim which the Claimant believes falls within
the scope of the foregoing sections. The Claimant may, at its own expense,
engage its own counsel and assist in the defense if it so chooses, provided that
the other party shall control such defense and all negotiations relative to the
settlement of any claim and further provided that any settlement intended to
bind the Claimant shall not be final without the Claimant's written consent.
10. LIMITATION LIABILITY. EXCEPT WITH RESPECT TO LIABILITY ARISING
FROM A PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY HERETO SHALL
BE LIABLE TO THE OTHER FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL
OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES) SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED
PROFITS OR LOST BUSINESS. IN ANY EVENT, THE LIABILITY OF LICENSEE HEREUNDER
SHALL NOT EXCEED THE FEES, IF ANY, DUE AND OWING TO AUTHOR HEREUNDER.
11. MISCELLANEOUS.
11.1 CONFIDENTIALITY. The terms and conditions of this
Agreement shall be kept confidential by the parties and not disclosed to any
third party except as required by law.
11.2 WAIVERS. No course of dealing or any delay or failure
on the part of any party hereto in exercising any right, power, privilege or
remedy hereunder or under any other instrument given in connection with or
pursuant to this Agreement shall impair any such right, power, privilege or
remedy or be construed as a waiver of any breach, default or acquiescence
relating thereto. No single or partial exercise of any such right, power,
privilege or remedy shall be construed as a waiver, or preclude the further
exercise, of any such right, power, privilege or remedy or the exercise of any
other right, power, privilege or remedy. No waiver shall be valid against any
party hereto unless made in writing and signed by the party against whom
enforcement of such waiver is sought and then only to the extent expressly
specified therein.
11.3 ENTIRE AGREEMENT. This Agreement, including all
exhibits and schedules referenced herein and attached hereto, constitutes the
entire agreement between the parties hereto pertaining to the subject matters
hereof, and supersedes all negotiations, preliminary agreements, and all prior
and contemporaneous discussions and understandings of the parties in connection
with the subject matters hereof.
11.4 AMENDMENTS. No change, modification or termination of
any of the terms, provisions, or conditions of this Agreement shall be effective
unless made in writing and signed or initialed by all parties hereto, their
successors and assigns.
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11.5 GOVERNING LAW. This Agreement shall be construed and
enforced under and in accordance with the laws of the State of Florida. Any
litigation arising from a dispute hereunder shall be litigated solely in the
Circuit Court of the State of Florida in Hillsborough County, Florida, or in the
Federal District Court for the Middle District of Florida, Tampa Division, and
the parties hereto submit to the jurisdiction of such courts and agree that such
courts shall be the sole situs of venue for the resolution of any such dispute
through litigation.
11.6 SEPARABILITY. If any paragraph, subparagraph or other
provision of this Agreement, or the application of such paragraph, subparagraph
or provision, is held invalid, then the remainder of the Agreement, and the
application of such paragraph, subparagraph or provision to person or
circumstances other than those with respect to which it is held invalid, shall
not be affected thereby.
11.7 HEADINGS AND CAPTIONS. The titles or captions of
paragraphs and subparagraphs contained in this Agreement are provided for
convenience of reference only, and shall not be considered a party hereof for
purposes of interpreting or applying this Agreement, and, therefore, such titles
or captions do not define, limit, extend, explain, or describe the scope or
extent of this Agreement or any of its terms, provisions, representations,
warranties, conditions, etc., in any manner or way whatsoever.
11.8 BINDING EFFECT ON SUCCESSORS AND ASSIGNS. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors, personal representatives, heirs and
assigns.
11.9 CONTINUANCE OF AGREEMENT. The rights,
responsibilities, duties, representations and warranties of the parties hereto,
and the covenants and agreements herein contained, shall survive any closing and
the execution hereof, and shall continue to bind the parties hereto, and shall
continue in full force and effect until each and every obligation of the parties
hereto pursuant to this Agreement and any document or agreement incorporated
herein by reference shall have been fully performed.
11.10 RELATIONSHIP OF PARTIES. Nothing contained in this
Agreement shall be deemed or construed as creating a joint venture or
partnership between Author and Licensee. Neither party, by virtue of this
Agreement, is authorized as an agent, employee or legal representative of the
other. Except as specifically set forth herein, neither party shall have the
power to control the activities and operations of the other and their status is,
and at all time will continue to be, that of independent contractors.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date hereof.
"AUTHOR"
/s/ Nan Boss, D.V.M.
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[signature]
Dr. Nan Boss
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[print name]
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[Title, if applicable]
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"LICENSEE"
XxxxXxxxxxxXxx.xxx, Inc.
By:/s/ Xxxx Xxxxx
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[signature]
Xxxx Xxxxx
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[print name]
Vice President and Director
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[Title, if applicable]
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APPENDIX A
"MATERIALS" AND "WORKS" COVERED UNDER THE CONTENT LICENSE AGREEMENT
"Materials" and "Works" to be provided by Author shall include, without
limitation, the complete contents contained in the following CD-ROMs: The Client
Education Notebook; Customized Handouts and Forms to Use in Your Practice and
Educating Your Clients from A to Z; What to Say and How to Say It, as well as
any materials contributed to develop other sections of the XxxxXxxxxxxXxx.xxx
Web site, including but not limited to, Client Education, Staff Training and
other sections as appropriate.
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