This Content Licensing Agreement (the “Agreement”) is a legal agreement between you (“Publisher”, “you”) and Zip Recipes BV, registered with the Dutch Chamber of Commerce under number 80342515 (“Company”, “us”, “we”) for the analysis and distribution of recipes, cooking instructions, photographs, and other content created by Publisher (collectively, the “Publisher Content”). This Agreement is a binding contract, and it contains the complete terms and conditions that apply to your agreement to authorize Company to use, distribute and resell the Publisher Content (collectively, the “Reseller Services”).
1 NONEXCLUSIVE LICENSE, COMMISSIONS, OWNERSHIP
Company shall use commercially reasonable efforts to sell, resell, license, and sublicense the Publisher Content to third parties, which may involve, at Company’s sole discretion, the packaging with, bundling with, or otherwise the incorporation of Company’s propriety dietary, nutritional, and recipe data and tags, and natural language search software and database technologies, (collectively, the “Edamam Data Services”).
As a material inducement for entering into this Agreement, Publisher hereby represents, warrants, acknowledges and agrees that as between the parties, Company exclusively retains all intellectual property as well as other proprietary rights in and to the Reseller Services and the Zip Recipes Services including but not limited to any and all trade names, trademarks and service marks associated or displayed with the Service.
This Agreement is effective commencing upon your agreement to these terms and shall be in effect until termination by either of the parties hereto pursuant to the terms of this Agreement (the “Term”). You hereby grant to the Company a nonexclusive, worldwide license to reproduce, distribute, publicly display, publicly perform, create derivative works of, publish, analyze, license, sublicense, sell, re-sell, and otherwise use the Publisher Content for any purpose and in any manner whatsoever, including but not limited to for advertising purposes, pursuant to the commissions terms set forth in Exhibit A, which is attached and incorporated herein as if fully recited for all purposes.
2 ADVERTISING RIGHTS
Company reserves and has the right to provide prospective purchasers excerpts of the Publisher Content for promotional purposes, but in no event shall any such prospective purchaser be given the right to distribute, display or commercially exploit any such excerpts. Nothing in this Agreement obligates or may be deemed to obligate Company to sell, license or offer to sell or license any advertising, promotion or distribution rights.
3 PUBLISHER CONTENT
As between the parties, you exclusively retain all intellectual property rights in and to the Publisher Content.
You are fully responsible for all Publisher Content. You agree that all Publisher Content will not:
- Infringe the copyright, trademark, trade secret, or other intellectual property or proprietary right of any third party;
- Violate the privacy, publicity, or other rights of any third party;
- Be false or inaccurate or become false or inaccurate at any time;
- Be discriminatory, unlawful, tortious, obscene, fraudulent, defamatory, harmful, threatening, pornographic, indecent, vulgar, harassing, discourteous, hateful, abusive or racially, ethnically, religiously, sexually or otherwise offensive, as determined by the Company in its sole discretion;
- Disclose or provide information protected under any law, agreement or fiduciary relationship, including but not limited to proprietary or confidential information of others
- Misrepresent the source of the Publisher Content;
- Contain any virus, Trojan horse, worm, time bomb, cancelbot, or other disabling device or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
- Violate any applicable laws or regulations, including but not limited to United States Federal Trade Commission (“FTC”) advertising guidelines; or
- Advocate or encourage any illegal activity.
4.1. Company will pay Publisher an amount of $1 (minus applicable VAT or transactional costs) per month, per recipe that is successfully leased to clients.
4.2. Compensation is payable when Company or its partners leased the Publisher Content to a third party.
4.3. Zip Recipes will only be entitled to refuse compensation based on valid reasons. ’Valid reasons’ apply if there is fraud involved.
5 Billing and payment
5.1. Compensation payable will be paid quarterly, with a threshold of € 25,- minimum earnings.
5.2 Earnings not paid because of this threshold will be moved to next quarter.
5.3. Company will issue a credit invoice to Publisher. This invoice will be in electronic format.
5.4. The term of payment for the credit note is net 30 days following the date stated thereon.
6 LIMITATIONS ON USE
We have no obligation to accept, display or resell any of Publisher Content. If we choose to do so, we agree: (a) not to make any warranties or representations on behalf of you, (b) not to provide any of the Publisher Content to any third party on a free or “gratis” basis, except excerpts for promotional purposes to prospective purchasers; and (c) to display the Digital Content only in the exact form in which it is received by Company (although Company may alter the format of the Publisher Content and/or package with, bundle with or otherwise incorporate Zip Recipes or Edamam Data Services into the Publisher Content.
Publisher may terminate this Agreement for any reason upon sixty (60) days’ written notice to Company. Company may immediately terminate this Agreement without notice if Publisher breaches any of its representations or warranties hereunder, or upon five (5) business days’ written notice for any reason.
In the event of termination of this Agreement by either Publisher or Company, Company shall immediately remove the Publisher Content from its website and mobile applications; provided that, however, Publisher acknowledges and agrees that any sublicenses granted pursuant to this Agreement will survive any termination of this Agreement until such time as the terms of any previously granted sublicenses are exhausted or the sublicenses are otherwise terminated.
8 WARRANTIES AND REPRESENTATIONS
You represent and warrant that (a) your title and ownership rights in the Publisher Content, your identity and address, and any other information you provide to Company is true, accurate, and complete; (b) you have all rights necessary to grant the licenses, sublicenses, and other terms and conditions set forth in this Agreement; (c) you have not assigned, pledged, or encumbered your rights in the Publisher Content, and have not entered into any agreement that would conflict with any rights granted herein; (d) the Publisher Content and the use of the Publisher Content as authorized by this Agreement will not violate or infringe the privacy rights, publicity rights, intellectual property rights, or any other rights of any third party, and that the content is not illegal, obscene, threatening, defamatory, hateful, racist, does not advocate or promote illegal activities, and otherwise complies with the terms of Section 2 of this Agreement; (e) the Publisher Website and Publisher Content are free and clear of viruses, worms, and any other potentially harmful or disrupting code; and (f) you will not breach any term or condition of this Agreement.
TO THE EXTENT PERMITTED BY LAW, THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS TO YOU, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES ABOUT THE VISIBILITY OF THE PUBLISHER CONTENT.
9 CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY LAW, NEITHER THE COMPANY NOR ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, OR LICENSEES SHALL IN ANY EVENT BE LIABLE TO PUBLISHER FOR ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND INCLUDING WITHOUT LIMITATION LOSS OF DATA OR PROFITS, COST OF PROCUREMENT OR REPLACEMENT GOODS AND SERVICES, COVER, OR RELIANCE DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INFRINGEMENT OF INTELLECTUAL PROPERTY, OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES AGREE THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. COMPANY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY US TO YOU UNDER THIS AGREEMENT DURING THE PRIOR SIX (6) MONTHS (IN THE EVENT NO CASH CONSIDERATION HAS BEEN PAID TO YOU, THEN SUCH LIABILITY SHALL NOT EXCEED FIFTY DOLLARS ($50)).
You agree to indemnify, defend, and hold harmless Company, Company’s licensees, and their respective officers, directors, members, managers, employees, independent contractors, and agents, from and against any and all loss, penalties, damages, liability, and expenses (including without limitation reasonable fees for attorneys and experts) arising out of any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon or arises out of a claim that (a) if true, would constitute a breach of any of your representations, warranties, or agreements hereunder; (b) you have infringed on the intellectual property or other rights of any third party; or (c) arises from any negligence or willful misconduct by you. Company shall be entitled, at its expense, to participate in the defense and settlement of any claim or action with counsel of its own choosing.
11 GOVERNING LAW; DISPUTE RESOLUTION
This Agreement shall for all purposes be governed, interpreted, construed, and enforced solely and exclusively in accordance with the law of The Netherlands. The parties hereby agree that the courts located in Groningen, The Netherlands shall constitute the sole and exclusive forum for the resolution of any and all disputes arising out of or in connection with this Agreement and hereby irrevocably waive any objections thereto, including on grounds of forum non conveniens.
You acknowledge and agree that Company may assign the terms of this Agreement without prior notice to a successor entity in the event of a merger, acquisition, or sale of all or part of Company’s business. No waiver of any breach of this Agreement, no matter how long continuing or how often repeated will be deemed a waiver of any subsequent breach, nor shall any delay or omission to exercise any right, power, or privilege hereunder be deemed a waiver of such right, power, or privilege. If any section of this Agreement is held to be unenforceable or in conflict with the law of any jurisdiction, the validity of the remaining sections shall not be affected by such holding. The meaning of any such section shall be construed to the extent feasible to render the paragraph enforceable and to give effect to the intentions of you and Company as reflected in the Agreement. If no feasible interpretation would save such Agreement, it is to be severed from the remaining terms of this Agreement, which are to remain in full force and effect. This Agreement constitutes the entire agreement between you and Company with respect to the subject matter of this Agreement, and shall supersede all prior agreements and understandings, if any, whether written or oral. This Agreement may not be modified or altered except by written instrument duly executed by both parties. The paragraph headings and subheadings contained in this Agreement are included for convenience only and shall not limit or otherwise affect the terms of this Agreement. All legal notices should be submitted to Company at the address listed at the beginning of this Agreement.