Video User Agreement

By downloading and using TRADETALKS.ORG Inc.’s (“Licensor”) Videos (defined in Section 1.6) for educational and recruiting purposes, you and your organization (“Licensee”) are subject to this Video User Agreement (this “Agreement”).

Background

1. Licensor has developed videos for educational purposes, which are approved for Licensee use.
2. Licensee desires to use the videos for educational purposes.

Accordingly, in consideration of the mutual promises stated in this Agreement, the parties agree as follows:

Article 1 – Definitions

Definitions and Defined Terms. Each term defined in the preamble of this Agreement has its assigned meaning, and each of the following terms has the meaning assigned to it:

1.1 “Addressee” is defined in Section 6.6.

1.2 “Indemnified Party” is defined in Section 4.1.

1.3 “Notice” is defined in Section 6.6.

1.4 “Term” is defined in Section 5.1.

1.5 “Third-Party Claim” is defined in Section 4.1.

1.6 “Videos” means the motion picture programs created and recorded by Licensor.

Article 2 – Representations and Warranties and Licensee Covenants

2.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that:

1. it is duly organized, validly existing, and in good standing as a corporation or other entity as represented here under the laws of its jurisdiction of incorporation or organization;
2. it has the full right, power, and authority to enter into this Agreement and to perform its obligations;
3. the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate action of the party; and
4. when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

2.2 Licensor’s Representations and Warranties. Licensor represents and warrants,

solely to and for the benefit of Licensee, that it has the right to license the Videos in connection with Licensee’s permitted uses.

2.3 Disclaimer of Representations and Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 2, LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED PROPERTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.

2.4 Licensee’s Promise to Uphold Reputation. Licensee shall not engage or participate in any activity or course of action that could diminish or tarnish the image or reputation of the Videos or Licensor, or cause confusion as to the ownership of the Videos; and

2.5 Licensee’s Appropriate Use. Licensee shall not use the Videos in a way that would infringe, misappropriate, or otherwise violate the U.S. intellectual property or other U.S. rights of any third party or violate any applicable regulation or law.

Article 3 – License

3.1 Grant of License. Subject to the terms and conditions of this Agreement, Licensor grants to Licensee a limited, non-exclusive, non-sublicensable, non-transferable personal right and license to use the Videos. Licensor will provide the Videos for Licensee’s use. 

3.2 Costs or Expenses. All costs or expenses of any kind related to the use of the Videos incurred by Licensee shall be the sole responsibility of Licensee. Other than providing the Videos, Licensor will not be responsible for any related costs or expenses.

3.3 Prohibition on Copying and Distribution. Except as expressly granted by this Agreement, Licensee shall not copy, prepare derivative works, distribute without authorization, transmit, perform, rent, alter, sublicense, store for subsequent use, or otherwise use the Videos, in whole or in part, for any purpose. Violation of the terms of this Agreement regarding the use or duplication of the Videos would constitute a material breach of this license justifying the termination of Licensee’s right to use the Videos in addition to Licensor’s right to pursue any other remedies arising from this breach.

3.4 Reservation of Rights. Licensor reserves all rights not expressly granted to Licensee under this Agreement. Licensee expressly understands and agrees that Licensor shall have the right, at its sole discretion, to grant licenses for the Videos to any other licensee.

3.5 Educational Purpose. Licensee shall at all times use its best efforts to use the Videos only for the purpose of education.

3.6 Compliance with Standards. Licensee shall use the Videos in a competent manner, in full compliance with this Agreement. Licensee shall use the Videos in a way that preserves, maintains, and enhances the goodwill associated with Licensor.

3.7 Acknowledgment of Ownership. Except for the licenses expressly granted to Licensee in this Agreement, Licensee acknowledges that all right, title, and interest in and to the Videos are owned by and will remain with Licensor. If Licensee acquires any rights in the Videos by operation of law or otherwise, Licensee hereby irrevocably assigns such rights to Licensor without further action by either party. Licensee shall not dispute or challenge or assist any person or entity in disputing or challenging Licensor’s rights in and to the Videos.

3.8 Protection of the Videos.

1. Licensee shall, at its sole expense, maintain any copies of the Videos within Licensee’s possession, custody, or control under first-class conditions and shall take all then-available measures to protect and safeguard the Videos. Licensee shall immediately notify Licensor in writing with reasonable detail of any:
   1. actual, suspected, or threatened infringement of the Videos;
   2. actual, suspected, or threatened claim that use of the Videos infringes the rights of any third party; or

• any other actual, suspected, or threatened claim to which the Videos may be subject.

3. With respect to any of the matters listed in Section 3.8(a):
   1. Licensor has exclusive control over, and conduct of, all claims and proceedings;
   2. Licensee shall provide Licensor with all assistance that Licensor may reasonably require in the conduct of any claims or proceedings; and

• Licensor shall bear the cost of any proceedings and will be entitled to retain all sums recovered in any action for its own account.

Article 4 – Indemnification

         4.1 Licensee’s Indemnification Duties. Licensee shall indemnify, defend, and hold harmless Licensor and its officers, directors, employees, agents, affiliates, successors, assigns, and licensees (each an “Indemnified Party”) from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or in connection with any third-party claim, suit, action, or proceeding (each a “Third-Party Claim”) relating to any actual or alleged breach by Licensee of its representations, warranties, covenants, or other obligations hereunder.

4.2 Indemnification Procedure. The Indemnified Party shall notify Licensee upon becoming aware of a Third-Party Claim. Licensee shall promptly assume control of the defense and investigation of such Third-Party Claim, with counsel reasonably acceptable to the Indemnified Party, and the Indemnified Party shall reasonably cooperate with Licensee in connection therewith, in each case, at Licensee’s sole cost and expense. The Indemnified Party may participate in the defense of such Third-Party Claim, with counsel of its own choosing and at its own cost and expense.

1. Licensee Settlement Restrictions. Licensee shall not settle any Third-Party Claim on any terms without the Indemnified Party’s prior written consent.
2. Indemnified Party’s Right to Defend. If Licensee fails or refuses to assume control of the defense of the Third-Party Claim, the Indemnified Party has the right, but no obligation, to defend against the Third-Party Claim, including settling the Third-Party Claim after giving notice to Licensee, in each case, in a manner and on such terms as the Indemnified Party may deem appropriate.
3. Licensee’s Relief of Obligations. Neither the Indemnified Party’s failure to perform any obligation under this Section 4.2 nor any Indemnified Party’s act or omission in the defense or settlement of any such Third-Party Claim will relieve Licensee of its obligations under this Section 4.2, except to the extent that Licensee can demonstrate that it has been materially prejudiced as a result.

Article 5 – Term and Termination

         5.1 Term. The term of this Agreement begins on the date in the preamble and, unless terminated earlier as provided herein, will remain in force indefinitely, except the license for Licensor’s “All I Do is Build” video will remain in force until Thursday, July 1, 2021 (the “Term”).

5.2 Licensor’s Right to Terminate. Licensor may terminate this Agreement at any time without cause by providing at least fourteen (14) days’ prior written notice to Licensee.

5.3 Either Party’s Right to Terminate. Either party may terminate this Agreement on written notice to the other party if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice.

5.4 Effect of Termination. Upon the expiration or termination of this Agreement for any reason, all rights licensed under this Agreement will revert immediately to Licensor. Licensee shall inactivate and erase all digital copies of the Videos in its control and possession and return or, at Licensor’s written request, destroy, any tangible copies of the Videos.

5.5 Survival of Rights and Obligations. Any rights or obligations of the parties in this Agreement which, by their nature, should survive termination or expiration of this Agreement will survive any such termination or expiration.

5.6 Remedies for Breach. Licensee acknowledges that each provision in this Agreement providing for the protection of copyrights, trademarks, proprietary information and other proprietary rights belonging to Licensor is material to this Agreement. The parties acknowledge that any threatened or actual breach of Licensor’s copyrights or other proprietary rights by Licensee may constitute immediate, irreparable harm, for which equitable and any other appropriate remedies or penalties may be awarded by a court of competent jurisdiction.

1. No Equitable Relief for Licensee. No breach by Licensor of this Agreement will entitle Licensee to equitable relief, including specific performance, injunctive relief, rescission, or any other form of equitable remedy. Licensee shall not seek equitable relief to rescind this Agreement or seek injunctive relief to enjoin or otherwise restrain or limit the use or other exploitation of the Videos or any rights therein. Licensee acknowledges and agrees that
2. monetary damages at law are a fully adequate remedy to compensate Licensee for any breach or threatened breach of this Agreement by Licensor, and
3. an action at law for monetary damages is Licensee’s sole and exclusive remedy for any such breach.
4. Equitable Relief for Licensor. Licensee acknowledges that a breach by Licensee of this Agreement may cause Licensor irreparable damages, for which an award of damages would not be adequate compensation, and agrees that, in the event of such breach or threatened breach, Licensor will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which Licensor may be entitled at law or in equity. Such remedies are not exclusive but are in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

5.7 Limitation of Liability. LICENSOR WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL, OR EXEMPLARY DAMAGES OR PENALTIES, INCLUDING LOSSES OF BUSINESS, REVENUE, OR ANTICIPATED PROFITS, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Article 6 – General Provisions

6.1 Prohibition on Assignment and Delegation. No party may assign any right or delegate any performance under this Agreement. All assignments of rights are prohibited, whether they are voluntary or involuntary, by merger, consolidation, dissolution, operation of law, or any other manner. A purported assignment or purported delegation in violation of this Section 6.1 is void.

6.2 Governing Law. The laws of Georgia (without giving effect to its conflict of law principles) govern all matters arising under and relating to this Agreement, including torts.

6.3 Forum Selection. The exclusive jurisdiction for any lawsuit arising under or relating to this Agreement will be any state or federal court in Georgia where venue is proper.

6.4 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party has authority to contract for or bind the other party in any manner whatsoever. 

6.5 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any third party any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

6.6 Notice.

1. Requirement of a Writing; Permitted Methods of Delivery. Each party giving or making any notice, request, demand, or other communication (each, a “Notice”) in accordance with this Agreement shall give the Notice in writing and use one of the following methods of delivery, each of which for the purposes of this Agreement is a writing:
2. Personal delivery.
3. Registered or Certified Mail (in each case, return receipt requested and postage prepaid).
4. Addressees and Addresses. Any party giving a Notice shall address the Notice to the appropriate person (the “Addressee”).
5. Licensor’s Contact. Licensor’s Addressee is [INSERT NAME] at 3445 Peachtree Road Suite 1150 Atlanta, GA 30326.
6. Licensee’s Contact. Licensee’s Addressee is [INSERT NAME] at [INSERT ADDRESS].
7. Effectiveness of a Notice. Except as provided elsewhere in this Agreement, a Notice is effective only if the party giving the Notice has complied with subsections (a) and (b) and if the Addressee has received the Notice. 

6.7 Attorneys’ Fees. In the event that any claim, suit, action, or proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.

6.8 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, the remaining provisions of this Agreement remain in full force, if the essential provisions of this Agreement for each party remain legal and enforceable.

6.9 Amendments. The parties may amend this Agreement only by the parties’ written agreement that identifies itself as an amendment to this Agreement.

6.10 Merger. This Agreement constitutes the final, exclusive agreement between the parties on the matters contained in this Agreement. All earlier and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement.