Take 2 Educational License
This License (“License”) is made and entered into effective as of the date and time accepted by Licensee (“Effective Date”), in the State of California, by and between Take 2, Inc., herein referred to as “Take 2”, and Licensee, collectively, the “Parties”.
WHEREAS, Take 2 owns rights to certain film, including digital renderings of film in physical and electronic forms, voice imprints, still images (in various media), web site(s), and associated curriculum, supporting documents, and training modules (collectively and individually, the "Footage"); and
WHEREAS, Take 2 is prepared to grant the Licensee a non-exclusive, non-commercial, single-classroom License for the licensing period of one year using the Footage in connection with certain instructional needs; and
NOW, THEREFORE, in consideration of the covenants and agreements set forth herein, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
- Use of Footage
Subject to the terms of this License, Take 2 shall provide to the Licensee, under the terms herein set forth, the Footage for use in Licensee's single classroom.
Obligations of Licensee:
Licensee shall pay Take 2 the annual licensing fee indicated on Exhibit A (“License Fee”). Such License Fee is due and payable on the Effective Date. If this License is extended beyond the Term, Licensee shall pay the then-current annual licensing fee for each additional year that this License remains in effect. Such fee shall be due and payable on prior to the commencement of the extended term.
3.01 LICENSE AND EXCLUSIONS:
a. The Licensee may, on a non-exclusive basis, access such Footage as Take 2 makes available to it, on an "as is, where is" basis, for the limited purposes contained in this License, and for no other purpose, for the duration of this License. For greater certainty, Take 2 shall not be responsible for or liable to any person for any consequences resulting from any use of the Footage (whether permitted by this License or otherwise), including:
i. any system or computer or software failure;
ii. any use or misuse of the Footage by the Licensee or any person acting under the Licensee (whether authorized or not), such as pursuant to laws of libel and slander; the Licensee shall use utmost efforts to prevent such misuse by any person, at its sole cost;
b. To the fullest extent permitted by law, there are no express or implied warranties with respect to the Footage, and Take 2 shall to the fullest extent permitted by law be excluded from liability for damages for any breach of warranty or condition including consequential, special, indirect or incidental damages, however and by whomever and however caused (including negligence). This includes physical or electronic damage.
c. The Licensee may not redistribute, rent, lease, lend, publish, print, broadcast, or otherwise make any use of the Footage except with the prior written permission of Take 2, or as set out in this License.
d. For greater certainty, the Footage may only be used for non-commercial purposes. Take 2 may require the Licensee to remove any Footage viewed, accessed, or edited by any Licensee from any or all forums or forms of electronic or other storage at any time, and the Licensee shall forthwith comply.
e. For greater certainty, ownership to and all rights to all of the Footage and any derivatives of the Footage are, and remain, with Take 2 at all times and may be Licensed, sold, transferred, broadcast, or otherwise dealt with by Take 2 in whole or in part as it, in its absolute discretion, deems fit. No compensation of any kind, by quantum meruit or otherwise, shall be payable by Take 2 to any person at any time under this License. The parties acknowledge Take 2 may dispose of some or all rights in the Footage, or any part thereof, at any time and for profit, and this may include Footage that has been edited or otherwise dealt with by the Licensee under this License. No compensation shall be payable by Take 2 or any other vendor of the Footage or any right to the Footage to the Licensee or any other person as a consequence
f. This License may be revoked by Take 2 in whole or in part at any time, with or without notice, with or without cause, without liability to the Licensee or any other person, provided, however, that if Take 2 revokes this License without cause, Take 2 shall refund a pro rata portion of the License Fee.
g. Take 2 may assign or sell any or all of its rights to the Footage, including any or all of its rights under this License, and the Licensee shall continue to be bound by the terms hereunder (and Take 2 shall be read to include such purchaser or assignee as and where the context requires). The Licensee may not assign or sell or sublicense any right hereunder to any person at any time without the prior written consent of Take 2, which consent may be denied with or without cause, or granted on such terms as Take 2, in its absolute discretion, deems fit.
h. Take 2 shall grant the Licensee a non-exclusive, non-commercial License for a period of one (1) year over certain Footage, but shall retain ownership, control, and all rights respecting all of the Footage at all times. This License does not constitute Take 2 and the Licensee as partners or joint ventures.
a. Without restricting 3.01(f), the term of this License shall be from the Effective Date though the first anniversary of the Effective Date (the “Term”).
b The Licensee may terminate this License on thirty (30) days' written notice to Take 2.
c. Take 2 may terminate this License on thirty (30) days' written notice to Licensee, provided, however, that if Take 2 revokes this License without cause, Take 2 shall refund a pro rata portion of the License Fee.
c. In the event of termination of this License by any party, or at the end of the license period (whichever comes first), the Licensee shall forthwith permanently remove all copies of all of the Footage from all media under its control or which it can access, and prohibit any persons under the control of the Licensee (including but not limited to Licensee's students) from accessing, viewing or using any of the Footage.
5.01 GOVERNING LAW AND NOTICE:
This License shall be governed by the laws of California and by the federal laws of the United States of America applicable in California. Any dispute arising out of this License shall be heard and determined only in the County of Ventura, California.
Any notice under any part of this License shall be deemed delivered as follows:
In the case of notice to the Licensee, three business days' after posting by prepaid regular mail to the address provided by Licensee in its application.
In the case of notice to Take 2, upon receipt by the Licensee of an acknowledgement (by affidavit of service upon Karin Muller personally or United States Postal Service registered mail card signed by Karin Muller personally) to the address indicated on the Take 2 website or by emailing firstname.lastname@example.org/.
Licensee shall indemnify, defend, and hold Take 2, its officers, directors, shareholders, principals, and employees, harmless from any and all demands, claims, actions, liabilities and expenses, (including, without limitation, reasonable attorney's fees, expenses, costs, judgments, settlements) arising out of or relating to (1) Licensee's use of the Footage; (2) Licensee's misuse or modification of the Footage; (3) Licensee's failure to use corrections or enhancements provided to Licensee by Take 2; (4) Licensee's distribution, marketing or use for the benefit of parties of the Footage; (5) information, direction, specification or materials provided by Licensee.
Confidential Information refers to student names, records, trade secrets, business plans, strategies, methods and/or practices, and any other information relating to either party or its business that is not generally known to the public, including but not limited to information about either party's students, personnel, products, customers, marketing strategies, services or future business plans. Notwithstanding the foregoing, the term “Confidential Information” specifically excludes (i) information that is now in the public domain or subsequently enters the public domain by publication or otherwise through no action or fault of the other party; (ii) information that is known to either party without restriction, prior to receipt from the other party under this License, from its own independent sources as evidenced by such party's written records, and which was not acquired, directly or indirectly, from the other party; (iii) information that either party receives from any third party reasonably known by such receiving party to have a legal right to transmit such information, and not under any obligation to keep such information confidential; and (iv) information independently developed by either party's employees or agents provided that either party can show that those same employees or agents had no access to the Confidential Information received hereunder.
Take 2 shall comply with the provisions of the Family Educational Rights and Privacy Act, 20 U.S.C. §1232g (“FERPA”) in all respects to this License. Take 2 will use data collected and shared under this License for no purpose other than research authorized under §99.31 (6)(a) of Title 34, Code of Federal Regulations. Nothing in this License may be construed to allow either Party to maintain, use, disclose, or share student information in a manner not allowed by federal law or regulation. In particular, Take 2 shall not disclose any data contained under this License in a manner that could identify any individual student or student's parent(s)/guardian(s), per 34 CFR §99.31 (a)(6)(ii)(A), except as authorized by FERPA.
All Footage shall remain the sole property of Take 2, Inc..
Licensee will obtain prior written permission from Take 2 before using the name, symbols, and/or marks of Take 2 in any form of publicity in connection with the work performed under this License.
The failure of either party to insist upon strict performance of any of the terms, conditions, or covenants in this License shall not be deemed a waiver of any right or remedy that either party may have and shall not be deemed a waiver of any right or remedy for a subsequent breach or default of the terms, conditions or covenants herein contained.
12.0 THIRD PARTY BENEFICIARY
Nothing contained in this License shall create a contractual relationship without a cause of action in favor of any third party against either the Licensee or Take 2.
Licensee shall not have any right or ability to assign, transfer or sublicense any obligations or rights under this License without the express written consent of Take 2, and any such attempt shall be void ab initio.
14.0 ENTIRE AGREEMENT/MODIFICATIONS
This License constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements, either written or oral. All exhibits referenced herein and attached hereto shall be deemed incorporated into and made a part of this License by each reference as though fully set forth in each instance in the text hereof. This License may only be modified by written agreement signed by both Parties.
Teaching Modules may be updated from time to time by Take 2, Inc. Licensee should reference Take 2's web site, located at http://www.take2videos.org for the most current description of the Teaching Modules, attached hereto and incorporated herein by this reference.
Information concerning the current Licensing Fee can be found at http://take2videos.org/PRODUCTS/Fee%20Schedule.html
Annual renewal of the non-commercial, non-exclusive, one-classroom licensing fee is required for each License and Training Module.