Exclusive Copyright License Agreement
THE FOLLOWING CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN YOU AND VIRALHOG WHERE YOU GRANT VIRALHOG AN EXCLUSIVE LICENSE IN YOUR WORK. PLEASE READ CAREFULLY.
This Exclusive Copyright License Agreement (this “Agreement”), effective as of the date you execute this Agreement (the “Effective Date”), is made by and between the person or entity executing this Agreement (“Licensor”) and ViralHog, LLC, a Delaware limited liability corporation (“ViralHog”).
In consideration of the mutual covenants, terms, and conditions set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1 Grant of Rights. Licensor hereby grants to ViralHog and its affiliates, successors, licensees, and assigns an exclusive (including as to Licensor), sublicensable, perpetual, irrevocable right and license throughout the universe, to use, alter, change, modify, add to, subtract from, rearrange, exhibit, broadcast, distribute, display, publicly perform, reproduce, and otherwise exploit, create derivative works of, translate, include in collective works, and generally exploit in the same manner as if ViralHog owned the Work, including, but not limited to, exploit for the creation and sale of non-fungible tokens (or similar future technologies or works), and exploit for any advertising or promotion in ViralHog’s sole discretion, all of the foregoing by any and all methods, means or platforms including, but not limited to, YouTube, Facebook, TikTok, Instagram, X/Twitter, Snapchat, and any other social media platforms, whether now known or in the future discovered, in any manner and in any and all media whether now or in the future known or devised, by any and all technologies and means of delivery whether now or in the future known or devised, for any purpose whatsoever, and to sub-license and give permission to others for the same rights in and to the following whether in whole or in part (each a “Work”):
1.1.1 Anything Licensor transmits or submits to ViralHog in any manner and at any time, inclusive of any Work submitted in conjunction with this Agreement, including, but not limited to, any file, document, hyperlink, or other means of providing access to content;
1.1.2 Anything Licensor delivers to ViralHog in any manner and at any time;
1.1.3 Anything that ViralHog obtains at Licensor’s request or with Licensor’s permission in any manner and at any time, including, but not limited to “ripping” or downloading from Licensor’s web presence and/or the above links;
1.1.4 Anything that Licensor authors or creates after any of the foregoing that derives from the Work itself, for example, edits to the Work, trimmed versions of the Work, changes to the Work’s audio, or any modified versions of the Work; and
1.1.5 Any recreation of the Work.
1.2 Exclusive Authority to Enforce Rights. Notwithstanding the other provisions of this Agreement, Licensor grants to ViralHog the exclusive right and authorization to enforce rights in the Work on behalf of Licensor against any third party.
1.3 Publicity. Licensor grants ViralHog and its affiliates, and their respective successors, licensees, assignees, and designees, the perpetual, worldwide right to use Licensor’s name, voice, photographic and non-photographic likenesses, and biographical information, including information Licensor provides to ViralHog and all publicly available information about Licensor, in connection with the Work and any advertising and promotion of the Work or ViralHog, in any and all media and by any and all technologies and means of delivery whether now or in the future known or devised, without further consent from Licensor and without any royalty, payment, or other compensation to Licensor.
1.4 Sublicensing. ViralHog has the right to grant sublicenses or permissions in the rights granted under Section 1 in its sole and exclusive discretion, including with respect to: (a) the identity of any sublicensee; (b) the applicable licensee fees or royalty rates, if any; and (c) other terms and conditions of the sublicense.
2.1 Waiver of Moral Rights. Licensor irrevocably waives, or, if Licensor is not the sole author of the Work has obtained an irrevocable written waiver by each author of the Work, to the extent permitted by applicable law, all rights of paternity, integrity, attribution, disclosure, withdrawal, and any other rights that may be known as “moral rights” (“Moral Rights”) with respect to the use of the Work pursuant to this Agreement. To the extent this waiver is not permitted by applicable law, Licensor hereby agrees not to enforce such Moral Rights against ViralHog and its permitted successors, licensees, and assigns and agrees to defend, indemnify, and hold harmless Licensor for any claims made by other authors of the Work for their enforcement of Moral Rights against Licensor.
2.2 Permissions. Licensor has obtained from all persons and entities who are, or whose trademark or other property is, identified, depicted, or otherwise referred to in the Work, such written and signed licenses, permissions, waivers, and consents (“Permissions”), including those relating to publicity, privacy, and any intellectual property rights, as are or reasonably may be expected to be necessary for ViralHog to exercise its rights in the Work as permitted under this Agreement, without incurring any payment or other obligation to, or otherwise violating any right of, any such person or entity.
2.3 Artificial Intelligence. Licensor represents, warrants, covenants, and agrees that (1) provided Licensor used Artificial Intelligence or any comparable technology in authoring the Work (“AI”), any material input into the AI to produce the Work, including but not limited to as training or production data, or the act of inputting such data does not infringe or otherwise conflict with the rights of any other person or entity; (2) Licensor will not input the Work into any AI including but not limited to as training or production data; and (3) provided Licensor used AI in authoring the Work, such Work is eligible for copyright protection as mandated by the U.S. Copyright Office.
2.4 Further Assurances. Upon a ViralHog’s reasonable request, Licensor shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.
2.5 Video Quality and Credit. Licensor shall upload the best quality video file available to ViralHog’s server and add a line to any site where Licensor has previously posted the Work, stating: “For licensing or usage, contact: [email protected]”. ViralHog may require a change to this line at any time, and Licensor shall comply with such requirements. Licensor shall not otherwise edit the description, title, length, audio, add text overlays or ads to, or modify the Work in any other way without the written approval of ViralHog.
3.1 Consideration. In full consideration of the rights and licenses granted under this Agreement, ViralHog shall (1) ingest the Work into ViralHog’s system; (2) evaluate the Work for potential audiences; (3) consider the Work for monetization; (4) store the Work in ViralHog’s file systems; (5) consider the Work for inclusion in ViralHog’s compilations and other original products; and (6) strategize potential monetization strategies for the Work, where appropriate.
3.2 Potential Revenue Share. Subject to the other provisions of this Agreement, in addition to, and not in lieu of the consideration provided in Section 3.1, ViralHog shall pay Licensor percent of the Net Revenue actually and unconditionally received by ViralHog (the “Revenue Share”). “Net Revenue” means the gross amount actually and unconditionally received by ViralHog from a third-party attributable to ViralHog’s exploitation of the Work less (1) a reasonable service fee as ViralHog may determine in its sole discretion; (2) the sum of all costs and expenses actually paid or incurred by or on behalf of ViralHog (or its contractor’s on behalf of ViralHog) in connection with, related to, or arising out of, whether directly or indirectly, the use, exploitation, monetization, ownership of the copyright in, management, maintenance, or enforcement or defense of all or any part of the Work or the copyright rights associated with the Work, all as determined by the ViralHog in its sole discretion, including but not limited to: (a) discounts and rebates allowed in amounts customary in the trade (b) banking fees and other costs associated with payment of claims or receipt of revenue; (c) fees, charges and other costs, including, without limitation, consulting fees, service fees, transaction fees, and accounting fees of all contractors engaged by ViralHog; (d) actual labor, resources or other costs necessarily expended; (e) fees or costs determined by ViralHog to be necessary and appropriate for exploiting, enforcing, or defending the Work or its copyright rights; (f) taxes withheld pursuant to this Agreement; or (g) if ViralHog, in its sole discretion, incurs any attorney’s fees in connection with, related to, or arising out of, whether directly or indirectly, the use, exploitation, monetization, ownership of the copyright in, management, maintenance, or enforcement or defense of all or any part of the Work or the copyright rights associated with the Work; and (3) any payments received from one or more third parties as the result of ViralHog’s enforcement or defense of all or any part of the Work or the copyright rights associated with the Work that exceed the amount ViralHog would require the third-party or parties to pay, in its sole discretion, to sublicense the Work from ViralHog for the type of use giving rise to such enforcement or defense. Provided ViralHog incurs costs, expenses, or attorney’s fees related to complaints, objections, protests, grievances, claims, disputes, or the like brought by Licensor arising out of, relating to, or in connection with this Agreement or the Work and Licensor’s position is incorrect in ViralHog’s commercially reasonable discretion, such costs, expenses, and fees shall be deducted solely from Licensor’s portion of the Revenue Share (after accounting for Net Revenue).
3.3 Cap on Revenue Share. Notwithstanding any other provision of this Agreement, in no event will the Revenue Share due to Licensor exceed: For each Distinct Use, $1000 USD, where a “Distinct Use” is the exploitation of a single Work for a distinct exploitation, whether such distinct exploitation results in a one-time payment or ongoing payments. For example, the sale of a Work to a single sublicensee.
3.4 Enforcement Recoveries (Settlements and Judgments). Without limiting the Section titled “Potential Revenue Share,” amounts received by ViralHog from any settlement, judgment, consent decree, or similar recovery arising out of enforcement or defense relating to a Work (collectively, “Enforcement Recoveries”) shall be treated as follows:
3.4.1 Costs-First Deduction. ViralHog shall first deduct from any Enforcement Recovery all costs, fees, expenses, and disbursements of every kind actually paid or incurred by or on behalf of ViralHog (or its contractors or agents) in connection with the matter or any related activity (including, without limitation, investigation, evidence preservation, claims handling, takedowns/DMCA actions, pre-litigation and litigation work, settlement negotiations, expert fees, travel, overhead allocations, internal labor and resources, consulting and service fees, third-party administration, banking and payment processing fees, and outside and in-house attorneys’ fees). The remainder after such deductions is the “Net Recovery.”
3.4.2 FMV Cap. From the Net Recovery, ViralHog will pay Licensor at most an amount equal to Licensor’s contractual Revenue Share percentage applied to the fair market value license fee that would typically have been charged for the same use by the infringer had the use been properly licensed through ViralHog in the ordinary course; provided, however, that if the Net Recovery funds are not enough to constitute what would otherwise be a fair market value license, the payment to Licensor shall equal the Net recovery multiplied by Licensor’s contractual Revenue Share percentage (the “FMV License Fee”). The FMV License Fee will be determined by ViralHog in good-faith discretion based on comparable licenses for similar works and similar uses, platforms, terms, territories, durations, and audiences. For clarity, Licensor does not share in any portion of Enforcement Recoveries in excess of the FMV License Fee (i.e., penalties, deterrents, premiums, statutory multipliers, or amounts beyond a comparable voluntary license) and does not share in Enforcement Recoveries to the extent they are fully absorbed by costs as set forth above.
3.4.3 Allocation Among Multiple Works/Claims. If an Enforcement Recovery relates to multiple works, claims, or rights, ViralHog may reasonably apportion the Net Recovery and the FMV License Fee among the implicated works, including allocating all or a portion to works or claims other than Licensor’s Work where appropriate.
3.4.4 No Double Counting; Priority. Deductions and allocations under this Enforcement Recoveries provision are in addition to and not in lieu of the Agreement’s existing Net Revenue deductions and expense provisions for exploitation, management, enforcement, defense, payment processing, and the like.
3.5 Future Assignment. Provided the Net Revenue for a single Work exceeds $10000 USD, on receipt of payment from ViralHog to Licensor in the amount of $10000 USD, Licensor hereby irrevocably assigns to ViralHog, all right, title, and interest throughout the world in and to each work that exceeds $10000 USD, including all intellectual property rights in any such work. Licensor irrevocably waives, to the extent permitted by applicable law, any and all claims Licensor may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to any assigned Work. Licensor shall promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, and provide such further cooperation as may be necessary to assist ViralHog to apply for, prosecute, register, maintain, perfect, record, or enforce its rights in any such Work.
3.6 Advertisement. Provided ViralHog exploits the Work for its own advertising or promotional purposes, the Section titled “Potential Revenue Share,” above shall not apply, and ViralHog shall owe no Revenue Share to Licensor unless ViralHog determines otherwise in its sole discretion.
3.7 Payment Terms.
3.7.1 ViralHog shall pay all Revenue Share due under this Agreement within fifteen (15) days after the end of each month; provided, however, if the total due to Licensor is less than seventy-five US dollars ($75 USD) in any given month per individual Work, ViralHog reserves the right to carry such amount over to subsequent month(s) until the Revenue Share for such Work exceeds seventy-five US dollars ($75 USD).
3.7.2 Provided the Revenue Share does not exceed seventy-five US Dollars ($75 USD) in any period of twenty-four (24) consecutive months:
3.7.2.1 The amount that would otherwise constitute Revenue Share will be charged as a service fee, no Revenue Share will be due to Licensor, and Licensor forfeits any such Revenue Share; and
3.7.2.2 ViralHog shall have no obligation to pay Licensor any Revenue Share, whether in the future or otherwise.
3.7.3 Licensor acknowledges and agrees that seventy-five US Dollars ($75 USD) is a reasonable service fee, and represents a reasonable cost to ViralHog, including administrative, marketing, server storage, employee wages, and other similar costs. Licensor further acknowledges and agrees that given the nature of viral videos, provided the Revenue Share does not exceed seventy-five US Dollars ($75 USD) in any period of twenty-four (24) consecutive months, the Work is extremely unlikely to produce material Revenue Share and that any such Revenue Share is outweighed by the cost and administrative burden of continuing to track and pay such Revenue Share.
3.7.4 Notwithstanding anything to the contrary in this Agreement, provided the gross amount actually and unconditionally received by ViralHog attributable to ViralHog’s exploitation of the Work, at any time, is less than $0.25, ViralHog shall have no obligation to track, report, account for, pay to Licensor, or otherwise have any obligation with respect to such sums.
3.7.5 Licensor acknowledges and agrees that if ViralHog permanently ceases Active Solicitation of licensors (the “Cessation Date”) while continuing to accept Passive Submissions, then ViralHog’s obligation to make future Revenue Share payments shall continue only with respect to Net Revenue that (a) was earned or accrued on or before the Cessation Date, including amounts invoiced but not yet collected, and (b) is actually received by ViralHog. ViralHog shall provide Licensor written notice of the Cessation Date within 10 days, and upon request shall certify in writing the facts evidencing such cessation. Otherwise, ViralHog shall have no obligation to pay any Revenue Share, and Licensor forfeits any such Revenue Share. For purposes of this Section: (i) “Active Solicitation” means paid advertising, outbound pitching, or direct outreach campaigns to acquire new licensors; and (ii) “Passive Submissions” means unsolicited submissions made by licensors through publicly available, non-promoted intake channels. For clarity, nothing in this Section limits ViralHog’s rights in any Work, nor does it obligate ViralHog to continue exploiting any Work after the Cessation Date..
3.7.6 Notwithstanding anything to the contrary in this Agreement, ViralHog shall have no obligation to make any Revenue Share payment to Licensor where ViralHog determines, in its good faith discretion, that such Revenue Share was the result of Licensor’s fraud or misleading or false activities or where Licensor fails to provide ViralHog with information necessary to exploit any Work, recover remuneration from any Work, or provide information to process payments.
3.7.7 ViralHog shall make all payments in US dollars of immediately available funds to Licensor via PayPal, check, electronic bank transfer, or the like as ViralHog elects in its sole discretion. ViralHog may use a third-party vendor to process payments to Licensor and other third-party vendors from time to time to perform its obligations under this Agreement (each a “Processor”). Licensor acknowledges and agrees that (i) it may be required to execute any terms of service or agreements which Processor requires Licensor to execute or complete any other steps necessary to onboard with Processor prior to; and (ii) it may be required to establish an account with Processor, and provide Processor with all banking and other information necessary to transmit payment prior to receiving any funds, or other such information as Processor may require to complete Licensor’s obligations under this Agreement. ViralHog shall have no liability in connection with Licensor’s failure to comply with this Section. ViralHog shall have no liability for Processor’s action, inaction, or negligence.
3.7.8 To receive any Revenue Share, Licensor agrees to first provide ViralHog all necessary and accurate information required to process Revenue Share, including complete and accurate relevant tax forms which may be specified by ViralHog, including, but not limited to Forms W-8 and/or W-9. Payment of Revenue Share is contingent on Licensor’s compliance with this subparagraph. If Licensor fails to provide ViralHog and/or the Processor all necessary and accurate information required to process Revenue Share, or as otherwise set forth in this Section, within sixty (60) days of the execution of this Agreement, or within such timeframe as ViralHog reasonably requires, any outstanding Revenue Share will be charged as a service fee, no Revenue Share will be due to Licensor for this period, Licensor forfeits any such Revenue Share, and no amount shall carry over to subsequent months. For clarity, no amount is due to Licensor until all such information is provided to ViralHog. If Licensor provides all necessary and accurate information required to process Revenue Share later than 60 days after the execution of this Agreement, ViralHog shall make Revenue Share payments to Licensor in accordance with this Agreement, with Licensor’s Revenue Share balance starting at zero on the day all accurate information is provided.
3.7.9 If ViralHog is prohibited by a governmental authority from making any payment due under this Agreement, then ViralHog shall hold the payment and remit the payment to Licensor when the prohibition is lifted, provided such prohibition lasts no longer than twenty-four (24) months. If such prohibition lasts longer than twenty-four (24) months, such Revenue Share will be charged as a service fee, no Revenue Share will be due to Licensor for this period, Licensor forfeits any such Revenue Share, and no amount shall carry over to subsequent months.
3.7.10 Notwithstanding anything to the contrary in this Agreement, and without prejudice to any other right or remedy it has or may have, ViralHog may, without notice to Licensor, set off or recoup any liability it owes to Licensor against any liability for which ViralHog determines Licensor is liable to ViralHog, whether either liability is matured or unmatured or is liquidated or unliquidated or arises under this Agreement. If ViralHog makes an overpayment of accrued or future Revenue Share or other compensation to Licensor for any reason, ViralHog shall have the right to deduct the amount of such overpayment from Licensor’s accrued Revenue Share or to demand the immediate repayment of such overpaid Revenue Share or other compensation.
3.8 Taxes. If ViralHog is required by law to withhold taxes in connection with any sums payable to Licensor under this Agreement, ViralHog may deduct that amount from the payment it otherwise would have made to Licensor under this Agreement.
4.1 No Obligation to Monetize. ViralHog has no obligation to: (a) release, display, distribute, exhibit, advertise, promote, exploit, or otherwise use the Work or any part of the Work; or (c) exercise any rights granted under this Agreement.
4.2 No Guaranteed Revenue Share. Both parties acknowledge that each of them will incur expenses in connection with their performance under this Agreement without guarantee by the other party that they will enjoy a return on all or any part of such investment. Accordingly, Licensor agrees that it may receive no Revenue Share by executing this Agreement, and each party expressly waives and releases the other party from any and all claims and liabilities for such past or future returns (including Revenue Share).
5.1 Acknowledgment of Ownership. Except for the licenses expressly granted to ViralHog in this Agreement, as between ViralHog and Licensor, (a) all right, title, and interest in and to the Work are owned by Licensor; (b) all right, title, and interest in and to the copyright rights in the Work are owned by ViralHog; and (c) any derivative works, modifications, or improvements made to the Work by ViralHog, its agents, or its sublicensees will be owned by ViralHog. Licensor understands and agrees that because ViralHog owns the copyright rights in the Work, Licensor has no right to use the Work in any way.
5.2 Protection of the Work.
5.2.1 Harm. During the Term, Licensor shall protect and safeguard any copies of the Work within Licensor’s possession, custody, or control against theft, misuse, infringement, unauthorized use, and any similar harms.
5.2.2 Notification. Licensor shall promptly notify ViralHog in writing with reasonable detail of any: (i) actual, suspected, or threatened infringement of the Work; (ii) actual, suspected, or threatened claim that use of the Work infringes the rights of any third-party; or (iii) any other actual, suspected, or threatened claim to which the Work may be subject. ViralHog has the sole and exclusive right, in its discretion, to enforce its rights in the Work and its copyright rights in the Work, including to bring action with respect to any claims and proceedings, including, but not limited to making any legal claim, DMCA takedown requests, strikes, takedowns, and the like.
5.2.3 Power of Attorney. If ViralHog learns of any (i) actual, suspected, or threatened infringement of the Work; (ii) actual, suspected, or threatened claim that use of the Work infringes the rights of any third-party; or (iii) any other actual, suspected, or threatened claim to which the Work may be subject, Licensor grants ViralHog the right, without any requirement of notice, to bring, prosecute, defend, appear, or take any action it deems necessary in connection with suits, actions, and proceedings of any nature in ViralHog’s or Licensor’s name and to control the conduct of such claim, including settlement. Licensor shall provide such assistance as may be requested by ViralHog, at ViralHog’s expense, in connection with any such action (including being joined as a party to such action as necessary to establish standing or otherwise). Licensor may appear in such suits, actions, or proceedings at Licensor’s option and cost. Provided (i) Licensor fails to appear or otherwise cooperate; and (ii) ViralHog deems Licensor’s appearance or cooperation necessary, Licensor irrevocably designates and appoints ViralHog as Licensor’s attorney-in-fact, with full and irrevocable power and authority to perform all acts and to sign, acknowledge, deliver, file, register, and record all documents in Licensor’s name and on Licensor’s behalf as ViralHog deems necessary or proper to defend or prosecute such suit, action, or proceeding. This appointment is coupled with an interest.
5.2.4 Expenses. The party taking action related to any claim or proceeding in accordance with this Section shall be responsible for the expenses of such enforcement action, including attorneys’ fees, subject, however, to the deduction of ViralHog’s expenses in accordance with the definitions of Revenue Share and Net Revenue. Any monetary recovery resulting from such enforcement action will be distributed pursuant to the Revenue Share and Net Revenue terms of this Agreement.
7.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that:
7.1.1 if such party is an entity, it is duly organized, validly existing, and in good standing as a corporation or other entity as represented in this Agreement under the laws of its jurisdiction of incorporation or organization;
7.1.1.1 it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder;
7.1.1.2 if such party is an entity, 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 actions of the party; and
7.1.1.3 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.
7.2 Licensor’s Representations and Warranties. Licensor represents and warrants that:
7.2.1 Licensor is at least 18 years of age, or, if Licensor is not 18 years of age or otherwise legally competent to enter into this Agreement, the individual signing on behalf of such Licensor has full right, power, and authority to execute this Agreement on Licensor’s behalf and to bind the owner to its terms.;
7.2.2 it solely and exclusively owns the right, title, and interest in and to the Work;
7.2.3 it has not granted, and during the Term will not grant, any licenses, liens, security interests, or other encumbrances in, to, or under the Work;
7.2.4 neither the Work nor the exercise by ViralHog of the rights and licenses granted under this Agreement will infringe or otherwise conflict with the rights of any other person or entity;
7.2.5 neither the Work nor the exercise by ViralHog of the rights and licenses granted under this Agreement will violate any law;
7.2.6 it has obtained all Permissions as set forth in this Agreement;
7.2.7 there is no settled, pending, or threatened litigation, opposition, or other claim or proceeding challenging the validity, enforceability, ownership, registration, or use of the Work in connection with ViralHog’s uses permitted under this Agreement;
7.2.8 it will not, in any way, re-create the Work for any other person or entity aside from ViralHog;
7.2.9 it has not, nor will they in the future, enter into any other agreement with any other party regarding the rights and licenses granted under this Agreement, nor will they authorize any other party to exercise any right including, but not limited to, the right to monetize the Work on YouTube, Facebook, or other social media, or take any action that impairs the rights granted to the ViralHog;
7.2.10 it has not brought or threatened any claim against any third-party alleging infringement of the Work, nor is any third-party infringing or threatening to infringe the Work; and
7.2.11 it is the sole author of the Work, and no other person or entity is or could reasonably be considered a joint author or joint owner of the Work.
8.1 Licensor Indemnification. Licensor (as “Licensor Indemnifying Party”) shall indemnify, hold harmless, and defend ViralHog and its owners, shareholders, members, managers, officers, directors, employees, agents, affiliates, assigns, and successors, sublicensees, and licensees (collectively, “ViralHog Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and attorneys’ fees, that are incurred by ViralHog Indemnified Party (collectively, “Losses”), arising out of or relating to any third-party claim alleging: (a) actual or alleged breach or misrepresentation by Licensor Indemnifying Party of, inaccuracy in, or failure to perform, any representation, warranty, covenant, or other obligation under this Agreement; (b) any negligent or more culpable act or omission of Licensor Indemnifying Party (including any reckless or willful misconduct) in connection with the performance of its obligations under this Agreement; (c) any failure by Licensor Indemnifying Party to comply with any applicable federal, state, or local laws, regulations, or codes in the performance of its obligations under this Agreement; (d) relating to the subject matter of the Work; or (e) resulting directly or indirectly from the Work or use of the Work by ViralHog Indemnified Party in accordance with this Agreement, including failure to obtain any required Permission, or infringement or other violation of any intellectual property or other personal or proprietary rights of any person or entity resulting from the use of the Work by ViralHog Indemnified Party in accordance with this Agreement.
8.2 ViralHog Indemnification. ViralHog shall indemnify, defend, and hold harmless Licensor from and against any Losses, arising out of any third-party claim, suit, action, or proceeding under US law relating to any actual material breach by ViralHog of its representations, warranties, covenants, or other obligations under this Agreement.
9.1 Term. The term of this Agreement commences as of the Effective Date and continue in perpetuity (the “Term”).
9.2 Termination. Subject to the ViralHog’s license rights pursuant to Section 1, which will remain irrevocable by Licensor, and will not terminate when this Agreement terminates or expires:
9.3 Discontinuation of Business. Provided ViralHog ceases business or materially changes its business or operations that are in effect as of the Effective Date, in each case for any reason at ViralHog’s sole discretion, ViralHog may terminate this Agreement on written notice to Licensor.
9.4 ViralHog’s Termination for Convenience. ViralHog may terminate this Agreement for convenience, for any reason or no reason, upon thirty days prior written notice to Licensor.
9.5 Bankruptcy. All rights and licenses granted by Licensor under this Agreement are and shall be deemed to be rights and licenses to “intellectual property,” as such term is used in and interpreted under section 365(n) of the United States Bankruptcy Code, 11 U.S.C. § 365(n).
9.6 Surviving Rights. Termination or expiration of this Agreement shall not extinguish any of the ViralHog’s or Licensor’s obligations under this Agreement which, by their nature, should survive termination or expiration including, but not limited to, the obligation to make Revenue Share payments (provided ViralHog’s rights under Section 1 are not terminated). Furthermore, all rights and licenses granted by Licensor to ViralHog shall survive termination.
10.1 No Equitable Relief. Licensor acknowledges and agrees that: (a) monetary damages at law are a fully adequate remedy to compensate Licensor for any breach or threatened breach of this Agreement by ViralHog; and (b) an action at law for monetary damages is Licensor’s sole and exclusive remedy for any such breach. No breach by ViralHog of this Agreement will entitle Licensor to equitable relief, including specific performance, injunctive relief, rescission, or any other form of equitable remedy. Without limiting the generality of the immediately preceding two sentences, Licensor 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 Work or any rights under this Agreement.
10.2 Forfeiture of Settlement Proceeds. If Licensor grants a license, right to use, or the like (including by using the Work itself) during the Term, to any third-party, ViralHog shall be entitled to enforce its rights in the Work against such party and any payments received from such party as the result of ViralHog’s enforcement or defense of all or any part of the Work or the copyright rights associated with the Work shall be paid solely to ViralHog and not included in any Revenue Share to Licensor, in addition to ViralHog’s other rights and remedies under this Agreement, at law, or equity.
10.3 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, VIRALHOG WILL NOT BE LIABLE TO LICENSOR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES, OR FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS (REGARDLESS OF HOW THESE ARE CLASSIFIED AS DAMAGES), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE (INCLUDING THE ENTRY INTO, PERFORMANCE, OR BREACH OF THIS AGREEMENT), REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL VIRALHOG’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, INDEMNIFICATION, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED TWO TIMES THE TOTAL OF THE AMOUNTS PAID TO LICENSOR PURSUANT TO THIS AGREEMENT IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11.1 Entire Agreement. This Agreement, including and together with any related attachments, constitutes the sole and entire agreement of the parties with respect to the subject matter contained in this Agreement, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
11.2 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the parties direct the court or arbitrator to modify this Agreement to give effect to the original intent of the parties as closely as possible in order that the transactions contemplated by this Agreement are consummated as originally contemplated to the greatest extent possible.
11.3 Assignment; Effect of Death; No Rights of Heirs. ViralHog may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensor’s consent. Licensor may not assign or delegate any of its rights or obligations under this Agreement, in whole or in part. Any purposed assignment or delegation in violation of this Section shall be null and void. Licensor acknowledges and agrees that the exclusive license granted under this Agreement shall be binding upon Licensor and shall survive Licensor’s death or incapacity. This Agreement does not create and shall not be construed as granting any rights or benefits to Licensor’s heirs, executors, administrators, successors, or assigns, except to the limited extent required by applicable copyright law. Licensor further acknowledges that, except as provided under statutory termination rights pursuant to 17 U.S.C. §§ 203 or 304, any ownership interest in the Work that may pass to Licensor’s heirs or estate shall remain fully subject to the rights granted to Licensee hereunder, and such heirs or estate shall have no authority to revoke, alter, or interfere with Licensee’s rights under this Agreement.
11.4 Choice of Law; Venue. This Agreement shall be deemed to have been executed and delivered within the State of Montana, and the rights and obligations of the parties hereunder shall be construed and enforced in accordance with, and governed by, the laws of the State of Montana, without regard to conflicts of law principles. The parties agree to the personal jurisdiction by, and venue in, Missoula County, Montana, and waive any objection to such jurisdiction or venue, irrespective of the fact that a party may not be a resident of that State.
11.5 Arbitration. Any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, including the breach, termination or validity, shall be finally resolved by arbitration in Missoula County, Montana in accordance with the rules of the American Arbitration Association. The tribunal shall have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of the agreement to arbitrate. The language of the arbitration shall be English. The parties agree to arbitrate solely on an individual basis, and that this Agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of the arbitration agreement will remain in force. Licensor shall have the right to opt out of this agreement to arbitrate by providing written notice of its intention to do so to ViralHog within 60 days of the execution of this Agreement. The substantially prevailing party shall be entitled to its reasonable attorneys’ fees and costs, including its share of the arbitration costs, from the other party. All decisions of the arbitrator shall be final, binding, and conclusive on all parties. Judgment may be entered upon any such decision in accordance with applicable law in any court of competent jurisdiction.
11.6 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 nor bind the other party in any manner whatsoever.
11.7 Electronic Returns. For the Term of this Agreement, Licensor consents to the receipt of all relevant tax information returns in electronic format. Accessing electronic tax information returns requires any computing device with an internet browser capable of downloading, opening, and printing Adobe .pdf files. Licensor represents that they have a device that meets these requirements. If Licensor wishes to update any information relevant to tax information returns or no longer wishes to receive electronic information returns, they may notify ViralHog in writing via email to [email protected] or post to:
ViralHog, LLC
3701 Trakker Trail Suite 1C
Bozeman, MT 59718
Withdrawal of consent for electronic information returns must be received prior to December 31st of the tax year for which the electronic form will be filed. Electronic information returns will remain available to Licensor for a period of twenty-four (24) months or the minimum required by law after the end date of this Agreement. Upon withdrawal of consent, ViralHog will provide all tax information returns in paper format.
11.8 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties and nothing in this Agreement, 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.
11.9 Force Majeure. ViralHog shall not be liable for any delays or failures in performance resulting from acts beyond its control including, without limitation, acts of God, flood, fire, explosion, strike, lockout, labor dispute, shortage of materials, casualty, accident, war, terrorist attack, revolution, civil commotion, act of public enemies, blockade or embargo, injunction, law, order, proclamation, regulation, ordinance, demand, or requirement of any government or subdivision, authority or representative of any such government, acts, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, or pandemics or epidemics.
11.10 Amendment and Modification. No amendment or modification to this Agreement is effective unless it is in writing and signed by an authorized representative of each party.
11.11 Waiver. No waiver by any party of any of the provisions of this Agreement will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
11.12 Electronic Signature Agreement. Licensor acknowledges that its electronic signature is the legal equivalent of Licensor’s manual signature on this Agreement. Licensor also acknowledges that no certification authority or other third-party verification is necessary to validate the e-signature and that the lack of such certification or third-party verification will not in any way affect the enforceability of the e-signature or any resulting contract between Licensor and ViralHog.
