THIS LIMITED LICENSE AGREEMENT is made this 31st day of October, 2020 (the “Effective Date”), by and between DEFCAD, Inc., an Arkansas limited liability company (the “Company”), and the applicant (the “Creator”) (individually, a “Party”, together, the “Parties”)
WHEREAS, Company maintains on certain locations of the Company Web Site (as defined herein) and makes available to content creators the ability to post and publish their original content and collections of information;
WHEREAS, Creator is a creator of content and collections of information and wishes to publish the same to the Company Web Site;
WHEREAS, Company wishes to grant certain rights and licenses to Creator with respect to access to the Company Web Site, and certain other matters, as set forth in this Agreement; and
NOW, THEREFORE, in consideration of the above, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
As used herein, the following terms have the following meanings:
1.1. “Affiliate” means, with respect to a Party, any entity that, directly or indirectly, controls, is controlled by, or is under common control with such Party; and "control" means the direct or indirect possession of the power to direct or cause the direction of the management and policies of another entity, whether through the ownership of voting securities, by contract or otherwise.
1.2. “Bankruptcy Event” means that either Party (i) files a petition for bankruptcy; (ii) has an involuntary petition in bankruptcy filed against it which is not challenged within five (5) days and dismissed within thirty (30) days; (iii) becomes or is declared insolvent; (iv) admits in writing its inability to pays its debts as they come due; (v) is the subject of any other voluntary or involuntary proceedings related to its liquidation, administration, provisional liquidation, insolvency or the appointment of a receiver or similar officer for it; (vi) passes a resolution for its voluntary liquidation; (vii) has a receiver, manager or similar Person appointed over all or substantially all of its assets; (viii) makes a general assignment for the benefit of all or substantially all of its creditors; (ix) enters into an agreement or arrangement for the composition, extension, or readjustment of substantially all of its obligations or any class of such obligations; (x) has any significant portion of its assets attached; or (xi) experiences an event analogous to any of the foregoing in any jurisdiction in which any of its asserts are situated.
1.3. “Change of Control” means the consummation of a transaction in which any entity becomes the beneficial owner, directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of Company’s then outstanding securities, or a transaction in which the stockholders of Company approve: (a) a plan of complete liquidation of Company; or (b) an agreement for the sale or disposition of all or substantially all of Company’s assets, other than to an Affiliate; or (c) a merger, consolidation, or reorganization of Company with or involving any other entity (other than an Affiliate).
1.4. “Company Content” means (i) the Company Web Site, and (ii) hypertext links (whether in graphical, text or other format) that enable "point and click" access to locations of the Company Web Sites specified by Company (and subject to change by Company from time to time).
1.5. “Company Fees” means the fees set forth in Exhibit A hereto.
1.6. “Company Web Sites” means, collectively: (a) the Web Sites located at www.___.com, and (b) other Web Sites owned and/or operated by Company its parent, or its Affiliates.
1.7. “Confidential Information” means and shall be deemed to include each Party's Intellectual Property Rights, and all nonpublic information concerning the other Party (whether prepared by the disclosing Party, its advisors, or otherwise and irrespective of the form of communication) that has been furnished to a Party or its representatives now or in the future, or that will be furnished to a Party or its representatives related to this Agreement, including information related to products, services, technologies, business plans, forecasts, financial condition, operations, assets, liabilities, business strategies, pricing, costs, and manufacturing processes, in each case by or on behalf of the disclosing Party, and any information that is otherwise designated as proprietary and/or confidential or by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and/or confidential.
1.8. “Creator Content” means any data, content, or information that Creator creates or adds to the Creator Page. Creator Content does not and shall not include any Company Content.
1.9. “Creator Content Revenue” means the gross proceeds of revenue derived from the Creator Page.
1.10. “Creator Fees” means Creator Content Revenue less Company Fees.
1.11. “Creator Page” means a Web Site page hosted on the Company Web Site that incorporates a mutually agreed upon Graphical User Interface and displays Creator Content.
1.12. “Graphical User Interface” means the look and feel of a Web Site page that users see when they view it through an Internet browser or equivalent interface regardless of platform or underlying technology, containing and implementing branding, graphics, navigation, and content.
1.13. “Intellectual Property Rights” means all (i) patents and patent applications, (ii) copyrights and registrations and applications for registrations thereof, (iii) mask works and registrations and applications for registration thereof, (iv) computer software, data, and documentation, (v) proprietary know-how, manufacturing and production processes and techniques, research and development information, copyrightable works, trade secrets, tangible and intangible proprietary information or materials, (vi) trademarks, business identifiers, service marks, trade names, Internet domain names and applications for registration and registrations therefore, and all goodwill symbolized thereby and associated therewith, and (vii) other proprietary rights relating to any of the foregoing, existing at any time in the United States or elsewhere throughout the world.
1.14. “Person” means any natural person, corporation, partnership, limited liability company, or other legal entity.
1.15. “Payment Processing Services” means the processing of Automated Clearing House (“ACH”) payments originating on the Payee Platform.
1.16. “Trademarks” means any trademarks, service marks, trade dress, trade names, corporate names, proprietary logos or indicia and other source or business identifiers.
1.17. “Web Site” means any point of presence maintained on the Internet or on any other public data network. With respect to any Web Site maintained on the World Wide Web, such Web Site includes all HTML pages (or similar unit of information presented in any relevant data protocol or presentation language) that either (a) are identified by the same second-level domain (such as defcad.com and including any subdomain, subdirectory, or binary or text file associated with such second-level domain) or by the same equivalent level identifier in any relevant address scheme, or (b) contain branding, graphics, navigation, or other characteristics such that a user reasonably would conclude the pages are part of an integrated information or service offering.
During the Term, the Company hereby agrees to make available to Creator in its discretion certain Company Web Site(s) and the Graphical User Interface(s) of which it is comprised, for purposes of Creator’s creating and maintaining a Creator Page and publishing Creator Content thereupon, and Creator agrees to maintain such Creator Page during the Term, subject to the terms of this Agreement.
Subject to the terms of this Agreement, Company hereby grants Creator, during the Term of this Agreement a revocable, non-sublicensable, limited, non-exclusive, personal, non-transferable license to: (a) use, reproduce, distribute and publicly display the Company Content via its Creator Page; (b) create and publish a Creator Page; (c) add and append Creator Content to its Creator Page; and (d) use the Company Web Sites and Graphical User Interfaces which the Company makes available to Creator in order to do the foregoing. The placement, location and sequencing of the Creator Page and Creator Content contained therein shall be solely determined by Company. Notwithstanding anything to contrary in this Agreement, Creator shall not use the Company Content in any manner not primarily intended to direct users to the Company Web Sites.
Except as permitted in paragraph 3 of this Agreement, Creator shall have no right to reproduce or sub-license, re-sell or otherwise distribute all or any portion of the Company Content to any Person via the Internet or any successor public or private data network. Creator agrees to comply with Company’s Acceptable Use Policy, by not posting content that (i) is libelous; (ii) infringes the intellectual property rights of other parties; (iii) could be deemed “hate speech”; (iv) is pornographic; or (v) is otherwise illegal, wrongful or criminal.
3.2.1. Subject to the terms and conditions of this Agreement, Company hereby grants Creator, during the term of this Agreement, a revocable, non-sublicensable, limited, non-exclusive, personal, non-transferable, royalty-free and fully-paid worldwide license to use and display the Company Trademark in connection with the display of the Company Content. All goodwill arising out of any use of any of the Company Trademarks by Creator will inure solely to the benefit of Company. Creator further acknowledges and agrees that: (i) except as set forth herein, Creator has no rights, title or interest in or to the Company Trademarks; (ii) it will not engage, participate or otherwise become involved in any activity that diminishes or tarnishes the image or reputation of any such Company Trademarks; and (iii) it will use reasonable efforts to promptly notify Company of any unauthorized use of Company Trademarks by any party as it comes to Creator’s attentions. Company may add Trademarks to the Company Trademarks licensed hereunder at any time by providing written notice to Creator.
3.2.2. Subject to the terms and conditions of this Agreement, Creator hereby grants Company, during the term of this Agreement, a revocable, non-sublicensable, limited, non-exclusive, personal, non-transferable, royalty-free and fully-paid worldwide license to use and display the Creator Trademarks as is reasonably necessary for Company to perform its obligations and exercise its rights hereunder. All goodwill arising out of any use of any of the Creator Trademarks by Company will inure solely to the benefit of Creator. Company further acknowledges and agrees that: (i) except as set forth herein, Company has no rights, title or interest in or to the Creator Trademarks; (ii) it will not engage, participate or otherwise become involved in any activity that diminishes or tarnishes the image or reputation of any such Creator Trademarks; and (iii) it will use reasonable efforts to promptly notify Creator of any unauthorized use of Creator Trademarks by any party as it comes to Company’s attention. Creator may add Trademarks to the Creator Trademarks licensed hereunder at any time by providing written notice to Company.
Subject to the terms of this Agreement, Creator hereby grants Company a limited license to use, modify, delete from, add to, combine with other content, publicly display, reproduce, transmit, sell, distribute and otherwise exploit such Creator Content by all means and manners now or later known, including, without limitation, on, through or with the Company Web Sites to third party applications, widgets and websites, including, without limitation, distribution of all or part of the Creator Content in any media formats and through any media channels. The license granted hereunder is perpetual; provided, however, that after Creator removes any Creator Content from the Company Web Sites, Company will make commercially reasonable efforts to remove such specific deleted Creator Content from the Company Web Sites.
As consideration for the services provided by Company to Creator, the Creator agrees to pay the Creator Fees as set forth in Exhibit A in accordance with the following terms and conditions:
Company, through the Company Web Sites, shall provide for and make available to Creator the Payment Processing Services. The Creator Content Revenue received through the Payment Processing Services by Company on behalf of Creator shall be collected and maintained by Company for the benefit of the Creator in accordance with the terms set forth in paragraph 4.3 below.
Company shall calculate all Creator Content Revenue on a calendar monthly basis. Within ten (10) days following the end of each calendar month during which any Company Fees are owed by Creator to Company according to the terms of this Agreement, Company shall provide Creator with a report detailing the Company Fees due, upon which time the Company Fees shall become immediately payable to Company.
The Creator Content Revenue shall be maintained in a segregated account by Company (and/or Company’s bank) for the benefit of Creator. As soon as practicable following the calculation of the Company Fees as provided in paragraph 4.2 above, and following all internal reconciliations, fraud prevention and anti-money laundering checks, Company (and/or Company’s bank) shall pay the Company Fees from such segregated account without any further action of Creator. As soon as practicable following the payment of the Company Fees, the net amount remaining in such segregated account for the benefit of Creator, i.e., the Creator Fees, shall be paid by ACH transfer to the bank account nominated by Creator in Exhibit A hereto. Notwithstanding the foregoing, Company may choose to issue a monthly payment to Creator only once the aggregate outstanding amounts owed to Creator exceed One Hundred U.S. Dollars ($100) at the end of such month. Amounts to be paid to Creator do not include any foreign, U.S. federal, state or local taxes or other governmental charges, arising as a result of or in connection with the transactions contemplated under this Agreement for which Creator is solely responsible. Creator acknowledges and agrees that the Payment set forth herein above is the total compensation Creator shall be entitled to in connection with its performance of this Agreement and Company’s exercise of its rights hereunder.
5.1. Provide Company with the requisite data, including technical specifications of the Creator Content to enable Company to utilize or develop a suitable Graphical User Interface to display the Creator Content from Creator;
5.2. Ensure the Creator Content specifications are complete, accurate and current and that Company is duly notified in advance and provided with a list of intended changes to said specifications which may affect the said Graphical User Interface or the ability of Company to display the Creator Content;
5.3. Develop, maintain and regularly update the Creator Content in order to keep the same current, relevant and useful to users of the Company Web Sites;
5.4. Provide on-going assistance to Company in relation to technical, administrative and service oriented issues relating to the use, transmission and maintenance of the Creator Content, as Company may reasonably request; and
5.5. Comply with all applicable laws, rules, regulations or directives of the relevant authorities or with any notices, instructions, guidelines or directives given by Company from time to time. Such applicable laws, codes or regulations shall include those relating to subversive, defamatory, obscene or pornographic materials, breach of copyright, patent or other proprietary rights or any which in the reasonable opinion of Company may adversely affect the use of the Company Web Sites by other users.
Company reserves the right to review and reject the Creator Content in its sole discretion. If Company determines, in its sole and absolute discretion, that the Creator Content contains any material that Company deems to have breached any of the terms and conditions of this Agreement or which is likely to subject Company to unfavorable regulatory action, contravene any law or infringe upon the rights of any persons, or subject Company to liability for any reason, Company will inform Creator of the reason for such determination and:
6.1. Company may refuse to include the Creator Content or any part thereof or any references to such Creator Content on the Creator Page or Company Web Sites; and/or
6.2. Remove or delete the affected Creator Content from the Creator Page or Company Web Sites; and/or
6.3. Cause Creator to remove or delete the affected Creator Content from the Creator page or Company Web Sites.
7.1. Creator warrants and represents for the benefit of Company that:
7.1.1. Creator has the right, power and authority to enter into, make and perform this Agreement without the consent of any third party;
7.1.2. Creator is the author, creator or legitimate licensee of all Creator Content provided pursuant to this Agreement with the necessary rights to distribute the Creator Content which includes authorizing Company to provide, promote and display the Creator Content on the Creator Page;
7.1.3. The Creator Content developed by Creator or on its behalf or furnished by Creator to Company (as the case may be) does not and will not infringe any Intellectual Property Rights of any third party and does not and will constitute a defamation or invasion of the rights of privacy or publicity of any third party;
7.1.4. Creator has not made and will not make any grant, assignment or agreement which will or might reasonably be expected to conflict, interfere, prejudice, limit, diminish or impair any of the rights granted or to be granted to Company hereunder;
7.1.5. The Creator Content does not violate the laws, statutes and/or regulations of any jurisdiction, including the United States;
7.1.6. The Creator Content furnished by Creator to Company for the purpose of this Agreement is true, consistent and accurate;
7.1.7. Creator has all the necessary consents, licenses and approvals from any and all relevant authorities to provide, promote and display the Creator Content on the Creator Page; and
7.1.8. Creator is an entity duly organized and validly existing under the laws of the jurisdiction in which it is formed and has the requisite power and capacity to execute, deliver and perform the terms of this Agreement has taken or shall take all necessary corporate or other action to authorize the execution, delivery and performance of this Agreement.
7.2. Creator acknowledges that Company has entered into this Agreement in reliance on the representations and warranties set forth herein.
7.3. Without prejudice to the provisions of paragraphs 7.1 and 7.2 above, Creator shall provide Company with the necessary documents evidencing the validity of the representations and warranties set forth herein within seven (7) days from the date of receipt of Company’s written notice requesting the same, failing which Company shall be entitled to remove or delete the Creator Content from the Creator page without any liability to Creator.
7.4. If Company is notified that any Creator Content, or part thereof, is in violation or any applicable laws, rules or regulations, Company will immediately notify Creator who shall immediately remove the affected Creator Content, provided, however that if Creator does not do so within twenty-four (24) hours of being so informed, Company may remove or delete the affected Creator Content from the Creator Page without any liability to Creator.
Creator will indemnify and hold Company and its directors, officers, shareholders, partners, employees and agents (each, a “Company Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that a Company Party may suffer or incur as a result of or relating to the failure of the representations and warranties of Creator to be true and correct or for Company’s publication of any Creator Content.
8.1 UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO CREATOR FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. CREATOR IRREVOCABLY WAIVES ALL RIGHTS TO SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF HEREUNDER AND AGREES TO LIMIT CREATOR’S CLAIMS TO CLAIMS FOR MONETARY DAMAGES. COMPANY’S AGGREGATE LIABILITY TO CREATOR UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID TO CREATOR BY COMPANY IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM OR ACTION.
Parties acknowledge and agree that all Confidential Information disclosed by or on behalf of the Party disclosing such information shall be and remain the property of such disclosing party. No license, whether express or implied, in the Confidential Information is granted by either Party to the other to use the Confidential Information other than in the manner and to the extent authorized by this Agreement. Each Party agrees and undertakes with each other to protect the Confidential Information of the other Party using not less than the standard of care with which it treats its own Confidential Information but in no event less than reasonable care and shall ensure that the Confidential Information of the other Party is stored and handled in a way to prevent unauthorized disclosure. Both Parties further acknowledge that they are aware and fully understand that in the event any breach of this provision could result in, and otherwise cause, substantial loss and damage for which monetary damages would not be an adequate remedy, the aggrieved Party shall be entitled to specific performance, injunctive and other equitable relief in enforcing the obligations of this provision in addition to all other remedies available in law.
This Agreement shall be valid for a period of one (1) year from the Effective Date and may be extended automatically for further annual periods unless terminated in accordance with the provisions of this Agreement.
10.1. Notwithstanding the provisions of paragraph 10 above, this Agreement may be terminated immediately by:
10.1.1. An agreement in writing signed by both Parties;
10.1.2. Either Party upon the expiry of thirty (30) days’ written notice of termination given by one Party to the other Party;
10.1.3. One Party if the other breaches any of its obligations under this Agreement and fails to rectify such breach to the notifying Party's satisfaction within such period stipulated in this Agreement or fourteen (14) days where no such period has been stipulated, after it receives a notice in writing demanding that the breach be rectified; or
10.1.4. One Party if the other Party becomes insolvent or bankrupt, assigns all or a substantial part of its business or assets for the benefit of its creditor(s), permits the appointment of a receiver or a receiver and manager for its business or assets, or becomes subject to any legal proceedings relating to insolvency, reorganization or the protection of creditors' rights, or otherwise ceases to conduct business in the normal course.
10.1.5. By Company, at any time upon notice to Creator or removal of all Creator Content from the Company Web Sites by Creator or Company.
10.2. Upon termination of this Agreement:
10.2.1. The licenses granted in Section 3 of this Agreement shall terminate immediately and Company and Creator shall cease to use the respective Content of the other;
10.2.2. Any and all documents containing Confidential Information shall be returned to the respective parties and any copies thereof shall be destroyed as soon as practicable;
10.2.3. Neither Company nor Creator shall in any way exhibit any links or display any information that would suggest, intimate, or otherwise lead one to believe that Company and Creator are linked or related in any manner; and
10.2.4. No Intellectual Property Rights owned by one Party may at any time thereafter be used by the other Party for any purpose whatsoever.
10.3. Termination of this Agreement shall be without prejudice to any other rights, remedies or claims either Party may have against each other under this Agreement or at law in respect to any antecedent breach by the Parties of any provisions of this Agreement.
This Agreement shall be governed and construed according to the laws of the State of Texas. The Parties hereby submit to the exclusive jurisdiction of the courts of Austin, Travis County, Texas.
The Parties are acting as independent contractors to each other under this Agreement, and nothing contained in this Agreement shall create or suggest any affiliation, association, partnership, agency or joint venture between the parties. Neither Party shall represent itself or act as the associate, partner, agent or joint venturer of the other party in any way whatsoever. Nothing in this Agreement will in any way be construed to constitute Creator as an agent, employee, or representative of Company. Without limiting the generality of the foregoing, Creator is not authorized to bind Company to any liability or obligation or to represent that Creator has any authority.
If any provision of this Agreement is held invalid, unenforceable, or illegal for any reason, this Agreement shall remain in full force apart from such provision which shall be deemed deleted.
Notices under this Agreement may be (i) delivered by hand, registered mail or facsimile to the addresses set forth in Exhibit A hereto; or (ii) emailed to the recipient with a receipt requested Notice shall be deemed given: (a) in the case of hand delivery or registered mail, upon written acknowledgement of receipt by an officer or other duly authorized employee, agent or representative of the receiving Party; (b) in the case of facsimile, upon completion of transmission; or (c) in the case of email, upon the issuance of a receipt message by the recipient.
Neither Party shall assign, subcontract or otherwise transfer any of its rights or obligations under this Agreement to any other Person without the prior written consent of the other Party. No waiver by either Party of any breach or default hereunder is effective unless in writing and no waiver of any breach or default by either Party shall be deemed to be a waiver of any preceding or subsequent breach or default.
This Agreement including the Appendices constitutes the entire agreement between the Parties relating to the subject matter hereof and supersedes all prior arrangements, agreements, representations or undertakings. There are no promises, terms, conditions, or obligations, oral or written expressed or implied other than those contained in this Agreement. Any subsequent alteration, amendment or addition to this Agreement shall be in writing and signed by the authorized representatives of the Parties.
DEFCAD, Inc. All rights reserved.Habent sua fata libelli et balli
DEFCAD files and other hardware are not currently available to persons outside the United States and are only available to residents of and persons in the State of New Jersey who possess a federal firearms license.