Content Seller Agreement

Thank you for choosing Kurator. The Kurator Internet Platform (“Kurator”) is one of the world’s most advanced archives & rights management systems for content producers, directors, cinematographers, and professional videographers. Please read this Content Owner Agreement (“Agreement” and/or “License”) carefully before using Kurator to license your content. In consideration for using Kurator to license your content, you are agreeing to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement do not use Kurator to license your content.

This Agreement (“Agreement”) is between Ninu, Inc. (“Kurator”) and the individual and/or entity (“Content Owner”) that created a Kurator account located at http://www.Kurator.com (the “Site”). In consideration for access to use Kurator’s Site, Kurator and Content Owner (collectively, the “Parties”) agree to the following Standard Terms and Conditions and the Commercial Terms as set forth in Exhibit “A”.

If you are using Kurator on behalf of an organization, you are agreeing to these Terms for that organization and promising that you have the authority to bind that organization to these terms. In that case, “you” and “your” will refer to that organization.

This Agreement only applies if you choose to license your content through Kurator. If you don’t license content with Kurator, this Agreement does not apply. If you decide to license your content through Kurator you hereby agree to be bound by the terms of this Agreement. This Agreement governs the terms by which Content Owners provide video and other media content to be licensed through the site, and to other prospective purchasers through other distribution venues as provided for in this Agreement.

This Agreement applies to all Content (as the term is defined in Section 1.2) that Content Owner has previously submitted and, in the future, will submit via the Kurator website located at the Site.

1. ASSET MANAGEMENT, CLOUD STORAGE AND LICENSING

Content: The Parties acknowledge that Content Owner may, from time to time, provide video files, digital assets, animations, information, photographs, illustrations, audio files, flash files, data files and other material (collectively, “Content”) together with other information, documents (such as model or property releases) or software relating to such Content (“Descriptive Information“) to the Kurator Asset Manager and Licensing Platform (the “Platform”) using the upload procedures as specified on the Site or such other procedures as the parties may mutually agree.

Published Files. Content Owner in their sole discretion may determine which Content is suitable for publishing to the Kurator archives (“Published Files”).

Rights Managed Content. Content Owner in their sole discretion may determine which Content is suitable for public licensing (content they choose to license and publish) through the Kurator archives (“Rights Managed Content”).

By Request Content. Content Owner in their sole discretion may determine which Content is suitable for limited licensing through the Kurator platform (“By Request Content”).

• Content Management: Content Owner hereby grants Kurator permission to use Content files to perform services related to content management and storage (Services). The Services include but is not limited to archiving, copying, playing back, displaying, and transferring Content files. Content Owner agrees to permit Kurator to extend Content Owner’s grant of authority to trusted third parties that Kurator works with to provide Services.
• Published Files: Content Owner hereby grants Kurator permission to display Content Owner’s Published Files to the general public.
• Rights Managed Content: Content Owner hereby grants Kurator a worldwide right to sell, license and/or sublicense Rights Managed Content to any prospective licensees for any and all media now in existence or that may in the future be introduced, including without limitation via the Site, print, 3rd party websites, other electronic formats, mobile devices, TV, cinema, exhibitions; and, subject to applicable laws, may be used for any purpose of any nature including without limitation for advertising, publicity, promotions, graphic design, marketing within and on products, corporate communications, press articles, press releases, brochures, reports, décor, programs and films.
• By Request Content: Content Owner hereby grants Kurator a worldwide right to display Content Owner’s By Request Content to the general public.

Kurator may sublicense or authorize any third party distributors (“Distributors”), any customer who licenses Rights Managed Content from Kurator or a Distributor (“Clients”) and their respective customers to exercise the rights described in this Section 1. Kurator and any Distributors or Clients will determine the terms and conditions of all licenses of Rights Managed Content granted by them, but will not use or license Rights Managed Content for uses that are defamatory, pornographic or otherwise illegal and will use commercially reasonable efforts to stop any such use by Clients brought to their attention. Kurator and Distributors may determine how Rights Managed Content may be marketed and may stop marketing or licensing it at any time. If Kurator notifies Content Owner that it has permanently stopped marketing and licensing any particular Rights Managed Content, the Agreement will be deemed to be terminated only with regards to that Rights Managed Content.

The Parties agree that all rights, including title and copyright, in and to the uploaded Rights Managed Content will be retained by the Content Owner, and no title or copyright is transferred or granted in any way to Kurator or any third party except as provided in this Agreement.

Marketing Use of Content. Kurator and Distributors may use Rights Managed Content and/or Published Content to market Content Owner, Content Owner work, Kurator, or Distributors, including use in composites that include Content supplied by a third party. No royalties will be paid on these marketing uses.

Managing Content. Kurator has policies and processes which must be adhered to prior to Content being posted on the Site or otherwise being offered for sale or license. Notwithstanding that some qualitative standards are required to be met, Kurator does not and cannot review all Content uploaded to the Site and is not responsible for the content, quality, or consequences of your uploading such Content. Notwithstanding the foregoing, Kurator reserves the right to delete, move, refuse to accept or edit any Content or Descriptive Information that it may determine, in its sole discretion, violates or may violate this Agreement, the intellectual or proprietary rights of others, any of its policies or is otherwise unacceptable in its discretion, and you hereby agree to forfeit any fees payable in respect of such Content to Kurator or as it may direct. Kurator shall have the right but not the obligation to correct any errors or omissions in any Content or Descriptive Information, as it may determine in its sole discretion. You acknowledge that any screening of Content performed by Kurator to determine Rights Managed Content is done as a courtesy only.

Credit and Moral Rights.

Kurator shall use commercially reasonable efforts to credit Content Owner as the source of Published Content, but shall have no liability for lack of credit. For the purposes of this Agreement, “Moral Rights” means all non-transferable and non-licensable rights belonging to the original creator of Published Content that are automatically conferred by legislation to varying degrees in different countries, which shall include the following rights and all rights of a similar nature: (a) the right to be identified as the creator; (b) the right to object to misrepresentative modification of Published Content; and (c) the right to withdraw Published Content from the market (except pursuant to the termination provisions of this Agreement). To the extent allowed by law, Content Owner hereby waives all Content Owner’s Moral Rights relating to Published Content. To the extent such waivers are not permitted by applicable law, Content Owner agrees not to enforce such moral rights against Kurator, Distributors or Clients. Where Content Owner are not the owner of any Moral Rights, Content Owner confirms that all Moral Rights have been waived to this same extent or that Content Owner has obtained the same commitments not to enforce Moral Rights. Further, Content Owner acknowledges and accepts that it is common business practice for commercial uses that the creator of Content is not credited and that Content may be modified.

Digital Millennium Copyright Act.

If Content Owner or an agent thereof believes that any Content licensed or distributed through Kurator infringes upon its copyrights, Content Owner may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA“) by providing Kurator with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
• Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
• A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Kurator’s designated “Copyright Agent” to receive notifications of claimed infringement is Eric Harrison, located at P.O. Box 85273, email: [email protected]. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Kurator customer service through [email protected]. Content Owner acknowledges that if it fails to comply with all of the requirements of this Section 1.10, your DMCA notice may not be valid.

If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your Rights Managed Content, you may send a counter-notice containing the following information to the Copyright Agent (“Counter-Notice”):

• Your physical or electronic signature;
• Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
• A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
• Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in San Francisco, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, Kurator may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Kurator’s sole discretion.

2. ROYALTIES AND PAYMENTS

Royalties are calculated according to Exhibit “A”. Royalties are paid on Gross License Fees and are based on the type of license model through which Rights Managed Content, By Request and/or Direct Sales is actually licensed as specified in Exhibit “A”. “Direct Sales” means Content that Content Owner licenses through the Direct Sale feature inside the Kurator Platform. “Gross License Fees” means (a) the amount charged by Kurator or a Distributor/Client to each of their Clients (or the amount charged by Kurator to certain of its Distributors for certain royalty free licenses, where applicable); (b) the amount recovered from a third party infringer in connection with a Claim or (c) the amount of revenue received from consumer products/services that is allocated to the Rights Managed Content. In all cases, the following deductions shall be made from Gross License Fees before royalties are calculated: any (i) applicable VAT, duty, levy or impost of any nature required to be withheld, deducted or paid by Kurator from any current or future sums due to Content Owner by any law, regulation, or treaty (excluding: (a) any taxes on the net profits of Kurator or any Distributor; and (b) any withholding taxes imposed on remittances to Kurator from countries outside of the United States); (ii) unauthorized use detection/enforcement fees and expenses, if any; and (iii) shipping charges, insurance charges and service fees such as, for example, special formatting requests, printing/framing costs and technology delivery/access services, in all cases arising out of or resulting from any license of the same Rights Managed Content (“License Fee Deductions”).

Kurator may deduct the following amounts from the Royalties payable to Content Owner (together the “Royalty Deductions”): (a) advances on earnings or royalties under any agreement with Kurator; (b) cancellations of a license where the original sale has been reported in a current or past sales report (“Sales Report”) including where due to a fraudulent transaction; (c) overpayment of Royalties in a prior Royalty period; and (d) amounts that may be deducted or withheld. Kurator will notify Content Owner of any Royalty Deductions in a Sales Report before deducting amounts from payments to Content Owner. Other than Royalties for Content that is improperly credited to Content Owner or any cancellations under (b), if Kurator has not notified Content Owner of any Royalty Deduction within 1 year after it has been incurred, Kurator waives the right to recoup it.

Reporting.

• Royalties: Kurator will make available to Content Owner an Earnings Summary for all completed transactions. The Earnings Summary will include the following information: (a) the license sale amount; (b) date of transaction; (c) Content ID number; and (d) royalty rate. Kurator will make Payments when requested by the Content Owner through the “Request Payment” button inside the Content Owner’s Earnings page within the Kurator Platform. No payment will be made unless a minimum of US$100.00 (or local currency alternative), after Royalty Deductions, is due to Content Owner.
• Platform Fees: Content Owner may owe Platform Fees as indicated in Exhibit A depending on the type of Kurator account Content Owner selects. Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. All fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Content Owner agrees to pay such taxes (excluding US taxes based on Kurator’s net income) unless Content Owner has provided Kurator with a valid exemption certificate. Notwithstanding anything to the contrary, in addition to any other remedy available, Kurator may: (a) restrict or suspend Customer’s access to the Services without warning if payment is not made when due; or (b) deduct and offset any amounts due from any earned but unpaid Royalties due Content Owner.

The parties further agree that Kurator shall not be required to pay Royalties to the Content Owner if Kurator is restrained or otherwise prevented from using rights granted under this Agreement relating to Content because those rights are found to be an infringement or contravention of the intellectual or other property rights of a third party.

Without limiting the generality of the foregoing, Kurator is entitled to set-off against any amount owing to Content Owner, all amounts to which Kurator is or may be entitled under this Agreement or otherwise at law, including withholding amounts as security for any pending or threatened claim relating to any matter which is the subject of a representation, warranty or indemnity of Content Owner under this Agreement.

3. REPRESENTATIONS AND WARRANTIES, INDEMNIFICATION & LIMITS ON LIABILITY

Representations and Warranties. Content Owner hereby represents and warrants as follows:

• Content Owner has the legal capacity and authority to enter into this Agreement, is the sole and exclusive owner of the Content, has the right to grant all of the license rights contemplated to be provided under this Agreement, and has not granted any rights or licenses to any Content or any other intellectual property or technology that would conflict with this Agreement;
• If the Content consists in whole or in part of design elements that are included in design program software, the end user license agreement, terms of service or the equivalent license held by Content Owner for such design program software allows the Content Owner to incorporate such elements in Content created by the Content Owner, and to license such Content to Kurator for the purposes set forth herein;
• No portion of the Content as delivered to Kurator from time to time, contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement, and all Content will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the Site or the Content or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Content or the Site in any way;
• The Content will include all necessary Descriptive Information to enable its effective marketing on the Site, which Descriptive Information will be complete and accurate in all material respects and will not include false, misleading or inapplicable metadata intended to or which has the effect of keyword “doping” or improperly altering search results that would otherwise be applicable to such Content;
• The Content delivered to Kurator hereunder represents original creations and expressions of subject matter, and no Content or Descriptive Information infringes any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party, or defames or casts into disrepute in any manner any third party;
• The Content has not been obtained in any unlawful manner, whether civil or criminal, and is not subject to any applicable accreditation terms or access condition that might be breached by the Content being used by Kurator, its customers or distributors as contemplated under this Agreement. In addition to any other available remedies, if you breach this paragraph Kurator may immediately terminate this Agreement. You further agree to forfeit any royalties earned by you in connection with your misconduct;
• You have obtained valid model and property releases where necessary in accordance with Kurator’s submission requirements applicable at the time of submission and you will keep the original release and provide a copy to Kurator.
• You agree to indemnify, defend and hold Kurator and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Content (singularly a “Kurator Party” and collectively, the “Kurator Parties”) harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any Kurator Party as a result of or in connection with: (i) any use or alleged use of the Site or provision of Content under your Member Name by any person, whether or not authorized by you; (ii) or resulting from any communication made or Content uploaded under your Member Name; (iii) any breach by you of this Agreement; or (iv) any claim threatened or asserted against any Kurator Party to the extent such claim is based upon a contention that any of the Content used within the scope of this Agreement infringes any copyrights, trade secrets, trademarks, right of privacy or publicity, or other intellectual property rights of any third party.

Kurator reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Kurator’s defense of such claim.

Content Owner agrees that Kurator shall have the right to determine whether and to what extent to proceed against a licensee or other third party (an “Infringer“) for any violation of a license agreement or alleged infringement of other rights of the Content Owner. Content Owner hereby releases Kurator from any and all claims Content Owner might have, either directly or indirectly, arising out of or in connection with a determination by Kurator to proceed or not to proceed against any Infringer in any instance. Kurator hereby agrees that any monetary recovery it receives as a result of any legal or enforcement action taken against any such Infringer, to the extent such monies are intended to compensate Kurator for lost licensing fees or statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, reasonable counsel and experts’ fees and disbursements on a solicitor and client basis) incurred by or on behalf of Kurator in connection with such action, be divided between the Content Owner and Kurator pursuant to the provisions contained herein. In the event Kurator elects not to proceed against an Infringer, Content Owner shall have the right to proceed against such Infringer for such license violation or infringing action. Content Owner hereby agrees that any monetary recovery it receives as a result of any legal action taken against any such Infringer, to the extent such monies are intended to compensate the Content Owner for lost licensing fees or include statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, reasonable counsel and experts’ fees and disbursements on a solicitor and client basis), be divided between the Content Owner and Kurator pursuant to the provisions contained herein.

Limitation of Liability. THE SITE AND PLATFORM, INCLUDING ALL SOFTWARE, SERVICES AND/OR OTHER RELEVANT TECHNOLOGIES OR METHODOLIGIES REQUIRED TO SUPPORT THE SITE AND THE PLATFORM ARE PROVIDED “AS IS”, AND Content Owner AGREES THAT THE USE OF THE SITE AND/OR THE PLATFORM WILL BE AT ITS OWN RISK, WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND BY Kurator, INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED THEREIN. Kurator FURTHR DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

EXCEPT AS EXPRESSLY SET FORTH IN THE HEREIN, Kurator DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH REGARD TO THE SITE AND/OR THE PLATFORM OR ANY OTHER ITEMS PROVIDED BY, THROUGH OR ON BEHALF OF Kurator, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Kurator OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, DATA OR OTHER INTANGIBLE LOSSES, IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SITE, THE PLATFORM, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF Kurator HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Kurator ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM Content Owner’S OR AUTHORIZED USERS’ ACCESS TO AND USE OF THE SITE AND/OR PLATFORM; (II) ANY ERRORS OR OMISSIONS IN, OR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF, ANY MATERIALS POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SITE AND/OR PLATFORM; (III) DAMAGE CAUSED BY THE POSTING, TRANSMISSION OR STORAGE OF Content Owner OR Content Owner’S CUSTOMER DATA SUBMITTED VIA AUTHORIZED USER ACCOUNTS ON THE PLATFORM AND/OR SITE, OR (IV) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY AUTHORIZED USER OR THIRD PARTY. IN NO EVENT WILL Kurator, ITS DIRECTORS, OR EMPLOYEES, BE LIABLE TO SUBSCRIBER AND/OR ITS AUTHORIZED USERS FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE LESSER OF (A) THE AGGREGATE AMOUNT Content Owner PAID TO Kurator UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE CLAIM; OR (B) ONE THOUSAND DOLLARS USD ($1,000.00).

SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF Kurator OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

Kurator IP and Marks. Kurator reserves all rights, title and interest to the Site, the Platform and any other software, technology, methodology or knowhow not otherwise expressly granted to Content Owner in this Agreement. No title to or ownership of the Site, the Platform and any other software, technology, methodology or knowhow, or any other IPR of Kurator associated therewith is transferred to Content Owner or any third party under this Agreement. For the purposes of this Agreement, “IPR” means all rights of a person or business entity in, to, or arising out of: (i) any U.S., international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, applications, moral rights, patents, trademarks, trade secrets, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.

4. TERMINATION & SURVIVAL

Termination and Effect. This Agreement is effective until terminated. You may terminate this Agreement at any time by giving thirty (30) days written notice to Kurator at [email protected] or such other means of written notice acceptable to Kurator, which enables confirmation of your identity and your intention to terminate. Kurator may also terminate this Agreement for any reason by giving you thirty (30) days notice by e-mail at the last address contained in your membership information. If Kurator terminates your membership pursuant to the terms of the Membership Agreement, such termination shall be deemed to be notice of termination of this Agreement, as well.

Either party may terminate this Agreement upon written notice effective immediately upon being sent to the last address included on the Site if the other party (i) liquidates all or substantially all of its assets, dissolves as a corporation other than through inadvertence, or otherwise ceases to do business in a material way, or (ii) makes an assignment for the benefit of creditors, or (iii) files a petition in bankruptcy, petitions or applies for a receiver or trustee for all or any substantial part of its property and such receiver or trustee is Rights Managed, or commences, or has commenced against it, a proceeding under any bankruptcy, reorganization, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, any of which shall remain in force for a period of thirty (30) days or more, or (iv) is adjudicated insolvent or bankrupt, or (v) is in breach of this Agreement.

In addition, Kurator may deem an account to be terminated and may off-set any fees or credits contained in such account against its costs of administration if there has been: (i) in the reasonable opinion of Kurator, any material misrepresentation made as to the capacity, identity or copyright ownership of Content or Content Owner provided hereunder; or (ii) no log-in or other activity in the account for 24 months despite reasonable commercial efforts to contact Content Owner based on the information provided through the Site as part of the account profile of such Content Owner.

Upon termination, Kurator will use commercially reasonable efforts in relation to all Rights Managed Content subject to termination to: (a) inactivate digital Rights Managed Content in its inventory within 90 days; and (b) upon Content Owner’s written request made by within 1 year of termination, either (i) return to Content Owner any analog format Rights Managed Content within 3 years; or (ii) provide Content Owner with a digital copy of any analog format Rights Managed Content that is irretrievable or otherwise damaged (normal wear excepted). During all wind-down periods under this Section 3.1, Kurator may continue to process licenses of the Rights Managed Content so long as Kurator pays Royalties to Content Owner as required under this Agreement and Content Owner may not exploit the Rights Managed Content elsewhere during this time.

Survival of Unexpired Licenses. Following termination of the Agreement, all unexpired licenses of Rights Managed Content will remain in effect and Content Owner shall not license any Rights Managed Content (or derivative works) in a way that conflicts with any unexpired exclusive licenses identified in Content Owner’s past Sales Reports. Kurator and Distributors will have a one-time only (or up to five times only in the case of licenses for educational uses) right to renew unexpired licenses on substantially the same terms, provided that there is no break in the licensing period.

Surviving Provisions. The termination of this Agreement will not affect the accrued rights and obligations of the Parties existing at the date of termination. All sections and the Commercial Terms specified in Exhibit “A” as may be appropriate, will survive termination of the Agreement, as will any matter arising under the Agreement either expressly or that by its nature is required to be performed or apply after the Term of the Agreement.

5. MISCELLANEOUS

Entire Agreement; Severability and Waiver. This Agreement supersedes and cancels any previous agreements related to the distribution of Rights Managed Content. Unless otherwise specified herein, this Agreement constitutes the entire agreement among the Parties relating to its subject matter and may not be amended, except (a) via the Rate Card described in the Commercial Terms contained in Exhibit “A”; (b) in writing by an authorized representative of each Party; or (c) where a court or other competent legal authority finds a provision to be invalid, illegal or unenforceable (in which event such determination shall not affect any other provision in the Agreement all of which shall remain in full force and the Parties shall in good faith consult to agree the extent of any amendment that might be possible to make the provision valid, enforceable or legal whilst reflecting as far as possible the original intention of the Parties). If a Party waives any provision of this Agreement, the waiver in such an instance shall not be deemed to be a continuing waiver, and no waiver by either Party shall prevent such Party from enforcing any and all other provisions of this Agreement.

Relationship of Parties. The Parties expressly acknowledge and agree that their relationship is not one of partnership, employment, joint venture, or any other legal identity, and that Kurator has no obligation to find or offer employment to Content Owner.

Governing Law and Arbitration. The Site is controlled, operated and administered by Kurator from within Washington State. The Site can be accessed from all states in the United States, as well as from other countries around the world. As each of these jurisdictions has laws that may differ from those of Washington State, you acknowledge and agree that this Agreement will be governed under the laws of Washington State and the federal laws of the United States applicable therein (without reference to conflicts of laws principles). Content Owner hereby irrevocably submits to the exclusive jurisdiction of Washington State with respect to the subject matter of this Agreement. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

Content Owner hereby consents to service of any required notice or process upon you by email, registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by Content Owner at the time you are first granted access to the membership portions of the Site. Content Owner agrees to waive any right you may have to (i) trial by jury; and (ii) to commence or participate in any class action against Kurator related to the Site or this Agreement.

Any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be submitted to arbitration in Seattle, Washington.

If Kurator is obligated to go to court or arbitration to enforce any of its rights, or to collect any fees, Content Owner hereby agrees to reimburse Kurator for its legal fees, costs and disbursements if Kurator is the prevailing party in any such action.

• Parties shall provide all notices in writing via mail and/or email to the addresses set forth in Exhibit “A”.
• Content Owner acknowledges and agrees that it is responsible for each and every access or use of the Upload portions of the Site that occurs in conjunction with Content Owner’s Member Name and such passwords, and that Kurator is authorized to accept Content Owner’s Member Name and password as conclusive evidence that Content Owner wishes to upload Content pursuant to this Agreement. Kurator shall have no liability or responsibility to monitor the provision of Content under your member name and password.
• “Confidential Information” Content Owner acknowledges that the Confidential Information (defined below) which it obtains through the entering into of this Agreement, the use of the Site and the provision of Content constitutes valuable, confidential, proprietary information of Kurator and its licensors, and agrees that during the term of this Agreement and thereafter it shall not, without the express written consent of Kurator, use or disclose to any other person any such Confidential Information, except as specifically authorized under this Agreement.

For the purposes of this Agreement, “Confidential Information” means any and all data, information, documents, software or materials relating to the business and management of Kurator, its members, affiliates, licensors or licensees, that is designated as confidential or ought reasonably to be considered confidential, including but not limited to: their business model and operations, processes, products, designs, pricing, promotions, business plans, business opportunities, alliances, Content, graphics, documentation, finances, research, development, know-how, trade-secrets, training materials, personnel, identities or personal information of any kind pertaining to members, clients, methodologies, Site content belonging to others and other intellectual property.

• Personal Data Transfer. Content Owner understand and agree that information relating to Content Owner or any other person such as a model that Content Owner may provide to Kurator may be retained for a reasonable period, and may be transferred to, stored, accessed and used in jurisdictions worldwide whose privacy laws may be different and less protective than those of Content Owner’s home country. Kurator, as data controller and processer, may use this information in connection with the performance of this Agreement, including for contacting Content Owner, and may disclose this information to necessary service providers, to provide the services they contract for. These third parties will have no right to use Content Owner’s information for secondary purposes. Any personal information Content Owner do provide may also be disclosed as part of any merger, sale of the company assets or acquisition, as well as in the unlikely event of an insolvency, bankruptcy or receivership in which event personal information would be transferred as one of the business assets of the company. Kurator reserves the right to disclose any information Content Owner provide in order to respond to claims or protect the rights, property or safety of itself, its related companies, Distributors and their employees, customers or the public.
• Kurator’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right;
• This Agreement is personal to Content Owner and is binding upon its heirs, executors and legal representatives, as the case may be, and is not assignable by Content Owner without Kurator’s prior written consent. Kurator may assign this Agreement without Content Owner’s consent to any other party so long as such party agrees to be bound by its terms;
• This Agreement can be amended by the written agreement of the parties or by Kurator posting amendments to its Cloud Storage Agreement, Application License Agreement, Site User Agreement, Community Section Agreement and any other agreements, which may be incorporated by reference therein on the Upload portion of the Site. Continued provision of Content or failure to terminate this Agreement within thirty (30) days of posting of such amendment will be deemed to be acceptance of the amendment by the Content Owner and it will be incorporated by reference into this Agreement. The Agreement may be executed in two or more counterparts, each of which will be deemed to be an original and each of which together constitute a single instrument.

6. ACKNOWLEDGEMENT

Content Owner ACKNOWLEDGE THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND HAS HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF Kurator AGREEING TO PROVIDE A MEANS FOR THE SALE OR LICENSE OF Content Owner’S Rights Managed CONTENT, Content Owner AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. Content Owner FURTHER AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN IT AND Kurator, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN Content Owner AND Kurator RELATING TO THE SUBJECT OF THIS AGREEMENT.

Exhibit “A”

COMMERCIAL TERMS

Royalties: The following royalty rates (“Royalty/ies”) calculated on Gross License Fees (as defined in Section 1) will apply to content licensed through the Kurator Platform:

Direct Sales: 90% royalty to Content Owner.

By Request: Royalty negotiated and approved by Content Owner prior to license.

ights Managed: 50% royalty to Content Owner.

Platform Fees: The following fees will be charged to the Content Owner based on the type of account selected by Content Owner.

Starter Account: Free

Standard Account: $15/month per user

Enterprise Account: Neogtiated

Kurator may, upon providing you 30 (thirty) days notice, make amendments to this Agreement including by introducing new royalty rates and methods for calculating Royalties to accommodate distribution of Rights Managed Content through new licensing methods/models that it introduces from time to time, by posting a rate card (the “Rate Card”) on the Site. When changes or additions are made to the Rate Card, Kurator will also notify you of such changes by email. It is your responsibility to keep Kurator informed of your current email address via the account management tool made available to you by Kurator. Continued submission of Content or failure to terminate this Agreement within 30 days of Kurator notifying you of any changes to the Rate Card will be deemed acceptance by you of those changes and they will be incorporated by reference into this Agreement.

Term

The Term of this Agreement begins as of the Commencement Date and will continue for an initial period of One (1) Year, with automatic renewals of successive one-year periods, subject to the termination provisions provided above.