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Content License Agreement

CONTENT LICENSE AGREEMENT

This Agreement governs the terms by which you may use lesson plans, illustrations, logos, worksheets, and other intellectual property on kidproofsafety.com or otherwise made available by Kidproof (the “Site”).

Last Updated: July 2014

1. Background of Agreement

(a) By selecting the correct box at the end of this Agreement and selecting “I Agree” or otherwise signifying your acceptance, you accept this Agreement and agree to be bound by its provisions. If you are accepting on behalf of your employer, client or other entity that is the member account holder, you represent and warrant that you have full legal authority to bind your employer, client or such other entity. If you do not have such authority or you do not accept or agree with these terms, do not accept this Agreement and do not download the Content.

(b) In this Agreement: (i) “you” means you or, if you are accepting on behalf of your employer, client or member account entity, then “you” means that employer, client or entity; (ii) “Kidproof” or “we” means the party identified in Section 9(k) below; and (iii) “Content” means any lesson plans, illustrations, logos, worksheets, and other intellectual property generated optically, electronically, digitally or by any other means or in any file, media or other material that you are downloading from the Site, together with any accompanying material.

(c) This Agreement is set up as a user-determined document where you will choose to enter into either our standard single use royalty-free content license (the “Single Use License”) an extended license or multi-use license where one or more of the restrictions of the Single Use License are amended for your proposed use of the Content (an “Extended License” or ‘Multi-Use License”). If you do not select an Extended License, Multi-Use License, or there is no Extended or Multi-Use License option for the Content you have requested, your download of Content will be subject to the Single Use License.

2. Permitted Uses

Subject to the Prohibited Uses in Section 4 below and the termination provision in Section 5, Kidproof hereby grants to you a perpetual, non-exclusive, non-transferable, non-sub licensable, and worldwide right to use in whole or in part, via personal instruction the Content for educational purposes (the “Permitted Use(s)”). All other rights in and to the Content, including, without limitation, all copyright and other intellectual property rights relating to the Content, are retained by Kidproof or the supplier of the Content, as the case may be. You may not alter, change, add or edit any content whatsoever.

3. Restrictions

Only you are permitted to use the Content, although you may transfer files containing Content or Permitted Derivative Works to your printers, for the purpose of reproduction for Permitted Uses, provided that you shall have no further or additional rights to use the Content and cannot access or extract it from any file you provide. You may install and use the Content on only one computer or other electronic device at a time. You may physically transfer the Content and its archives from one computer or electronic device to another, in which case you may use the Content at the new computer or electronic device instead. If you require the Content to be in more than one computer or other electronic device or accessible by more than one person within your organization, you must license the Content from the Site for each such use or obtain an Extended or Multi-Use License for the Content. You may make one (1) copy of the Content solely for back-up purposes, and you must reproduce all proprietary notices on this single back-up copy.

4. Prohibited Uses

(a) Prohibited Uses. You may not:

  1. Use the Content in person, electronic or digital template applications intended for resale or other distribution, whether on-line or not, including, without limitation, website eLearning and in-person fee based sessions.
  2. Use or display the Content on websites or other venues designed to induce or involving the sale, license or other distribution of “on demand” products (e.g. products in which Content is selected by a third party for customization of such product on a made to order basis) including, without limitation, customized learning.
  3. Use the Content in connection with any goods or services intended for resale or distribution where the primary value lies in the Content itself including, without limitation, portions of educational programs, information programs or content on websites, blogs or other electronic mediums or other items for resale, license or other distribution for profit;
  4. use any of the Content as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo;
  5. incorporate the Content in any product that results in a re-distribution or re-use of the Content (such as customized educational materials whether in person or electronic/digital or is otherwise made available in a manner such that a person can extract or access or reproduce the Content as an electronic file;
  6. use the Content in a fashion that is considered by Kidproof (acting reasonably) as or under applicable law is considered pornographic, obscene, immoral, infringing, defamatory or libelous in nature, or that would be reasonably likely to bring any person or property reflected in the Content into disrepute;
  7. to the extent that source code is contained within the Content, reverse engineer, decompile, or disassemble any part of such source code;
  8. remove or modify any notice of copyright, trademark or other proprietary right , or any other copyright management information or metadata, from any place where it is on or embedded in the Content;
  9. sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Content or the rights granted under this Agreement;
  10. install and use the Content in more than one location at a time or post a copy of the Content on a network server or web server for use by other users;
  11. Use or display the Content in an electronic format that enables it to be downloaded or shared in any peer-to-peer or similar file sharing arrangement.
  12. Either individually or in combination with others, reproduce the Content, or an element of the Content, in excess of one (1) time in physical (hard-copy) prints.
  13. If the Content is reproduced on a social media platform or other third party website, (i) the rights granted herein shall automatically be revoked in the event that the platform website seeks to exploit purported rights to the Content contrary to the terms of this Agreement, and (ii) in such event, upon Kidproof’s request, you shall remove any Content from such platform or website.

5. Term of Agreement

(a) This Agreement is effective until it is terminated. You can terminate this Agreement by destroying the Content and any Permitted Derivative Works, along with any copies or archives of it or accompanying materials (if applicable), and ceasing to use the Content for any purpose. The Agreement also terminates without notice from Kidproof: (i) if at any time you fail to comply with any of the terms of this Agreement. Upon termination, you must immediately cease using the Content for any purpose; destroy or delete all copies and archives of the Content or accompanying materials; and, if requested, confirm to Kidproof in writing that you have complied with these requirements.

(b) Kidproof reserves the right to elect at a later date to revoke or amend the license granted by this Agreement and replace the Content with an alternative for any reason. Upon notice, sent to the address or contact information provided by you for your member account, or such other address as you may advise us in writing to use, from time to time, of such replacement, the license for the replaced Content immediately terminates for any products that do not already exist, and this license automatically applies to the replacement Content. You agree not to use the replaced Content, or any Permitted Derivative Works, for future products and to take all reasonable steps to discontinue use of the replaced Content, or any Permitted Derivative Works, in products that already exist.

(c) Upon notice from Kidproof, or upon your knowledge that any Content is subject to a threatened, potential or actual claim of infringement of another's right for which Kidproof may be liable, you must immediately and at your own expense (i) stop using the Content; (ii) delete or remove the Content from your premises, computer systems and storage (electronic or physical). Kidproof shall provide you with replacement Content (which shall be determined by Kidproof in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.

6. Kidproof Representations and Warranties

(a) Kidproof warrants that) your use of the Content in accordance with this Agreement and in the form delivered by Kidproof will not infringe on any copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity.

(b) While we have made reasonable efforts to correctly categorize, keyword, caption and title the Content, Kidproof does not warrant the accuracy of such information. Additionally, Kidproof does not warrant the accuracy of any metadata that may be provided with the Content.

(c) OTHER THAN AS EXPRESSLY PROVIDED IN SECTION 6(a), THE CONTENT IS PROVIDED “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. KIDPROOF DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE CONTENT PROVE DEFECTIVE, YOU (AND NOT KIDPROOF) ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS.
IN PARTICULAR AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IF YOU ARE DOWNLOADING CONTENT THAT IS IN A FLASH FORMAT OR FILE (WHETHER .SWF OR OTHERWISE), EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6(a),KIDPROOF MAKES NO REPRESENTATION OR WARRANTY RESPECTING SUCH CONTENT WHATSOEVER, WHETHER AS TO OWNERSHIP, TECHNICAL OR LEGAL COMPLIANCE, OR OTHERWISE.

(d) Certain jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. You have specific rights under this warranty, but you may have others, which vary from jurisdiction to jurisdiction.

7. Your Indemnification

You agree to indemnify, defend and hold Kidproof, its affiliates, its Content providers and their respective directors, officers, employees, shareholders, partners and agents (collectively, the “Kidproof Parties”) harmless from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any Kidproof Party as a result of or in connection with any breach or alleged breach by you or anyone acting on your behalf of any of the terms of this Agreement.

8. Kidproof Indemnification and Limitation of Liability

(a) Provided that the Content is only used in accordance with this Agreement and you are not otherwise in breach of this Agreement and as your sole and exclusive remedy for breach of the representations and warranties set forth in Section 6 (a) above, Kidproof shall, subject to the terms of Sections 8(b),(c),(d) and (e) defend, indemnify and hold harmless you, your parent, subsidiaries and affiliates and respective directors, officers and employees from all damages, liabilities and expenses (including reasonable outside legal fees), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that the possession, distribution or use of the Content by you is in breach of the representations and warranties set forth in Section 6(a) above. The foregoing states Kidproof’s entire indemnification obligation under this Agreement.

(b) The indemnification set out in Section 8(a) above is conditioned on your prompt notification in writing to Kidproof of such claim and our right to assume the handling, settlement or defence of any claim or litigation. You agree to cooperate with Kidproof in the defence of any such claim or litigation and shall have the right to participate in such litigation at your sole expense. Kidproof shall not be liable for legal fees and other costs incurred prior to the notice of the claim.

(c) IN NO EVENT SHALL KIDPROOF OR ANY OF ITS AFFILIATES OR CONTENT PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE CONTENT, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY OR ON BEHALF OF YOU MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION FIRST AROSE.

(d) NOTWITHSTANDING ANY OTHER TERM HEREIN, KIDPROOF SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFICATIONS MADE TO THE CONTENT BY YOU OR THE CONTEXT IN WHICH THE CONTENT IS USED BY YOU.

(e) NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF KIDPROOF UNDER THIS AGREEMENT AND ANY OTHER AGREEMENT UNDER WHICH YOU HAVE LICENSED THE SAME CONTENT, REGARDLESS OF THE FILE, OR THE USE OR EXPLOITATION OF ANY OR ALL OF THE CONTENT IN ANY MANNER WHATSOEVER AND THE OBLIGATION OF KIDPROOF UNDER SECTION 8(a) SHALL BE LIMITED TO AN AGGREGATE OF TEN THOUSAND ($10,000) CDN DOLLARS PER PIECE OF CONTENT. FOR GREATER CLARITY, KIDPROOF’S LIABILITY TO YOU IN RESPECT OF THE PIECE OF CONTENT SHALL NOT EXCEED TEN THOUSAND ($10,000) CDN DOLLARS REGARDLESS OF THE NUMBER OF TIMES THAT YOU LICENSE THE SAME PIECE CONTENT FROM KIDPROOF.

(f) SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

9. General Provisions

(a) You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the terms of the Agreement and Terms of Use and any other agreements which may be incorporated by reference therein, and to the extent of their incorporation in this Agreement you agree to be bound by them. In the event of any inconsistency, the terms of this Agreement shall govern.

(b) Kidproof’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.

(c) This Agreement is personal to you and is not assignable by you without Kidproof’s prior written consent. Kidproof may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.

(d) No terms or conditions may be added or deleted unless made in writing and either accepted in writing by an authorized representative of both parties or issued electronically by Kidproof and accepted in writing by your authorized representative.

(e) Upon reasonable notice, you shall provide sample copies of uses of the Content to Kidproof. In addition, upon reasonable notice, Kidproof may, at its discretion, either through its own employees or through a third party, audit Licensee's records directly related to this Agreement and use of Content in order to verify compliance with the terms of this Agreement. If any such audit reveals an underpayment by Licensee to Kidproof of five percent (5%) or more of the amount Licensee should have paid for the time period that is the subject of the audit, in addition to paying Kidproof the amount of such underpayment, Licensee shall also reimburse Kidproof for the costs of conducting such audit. Where Kidproof reasonably believes that Content is being used outside of the scope of the license granted under this Agreement, Licensee shall, at Kidproof’s request, provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by Kidproof.

(f) Any use of Content in a manner not expressly authorized by this Agreement constitutes copyright infringement, entitling Kidproof to exercise all rights and remedies available to it under copyright laws around the world. You shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party. In addition to other termination rights hereunder, Kidproof reserves the right to terminate this Agreement in the event you enter in to this Agreement after having received notice of unauthorized use from Kidproof relating to the Content.

(g) If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.

(h) You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the Content, pursuant to this Agreement.

(i) This Agreement will be governed under the laws of the Province of British Columbia and the federal laws of Canada applicable therein (without reference to conflicts of laws principles). This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time the Content was downloaded, or such other address as you may advise us in writing to use, from time to time.

(j) Any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be finally and confidentially settled under the Rules of Arbitration of the International Chamber of Commerce by a single Arbitrator appointed in accordance with such rules. The arbitration shall take place in Vancouver, British Columbia, and shall be conducted in the English language. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. The judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. Notwithstanding the foregoing, Kidproof shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against you in the event that, in the opinion of Kidproof, such action is necessary or desirable. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any arbitration proceeding shall be commenced within two years of the acts, events or occurrences giving rise to the claim.

(k) The licensing entity under this Agreement for all Content licensed with Kidproof Canada (child safety) Inc. The licensing entity under this Agreement for all Content licensed under a subscription shall be determined by your billing address, as follows:

Kidproof Canada (child safety) Inc.

10. Contact

If you have concerns relating to this Agreement, please contact Kidproof at info@kidproofsafety.com or via phone at +1 604-605-0522 or Toll Free North America 1 866-467-2338.

11. Acknowledgement

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF KIDPROOF AGREEING TO PROVIDE THE CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND KIDPROOF, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND KIDPROOF RELATING TO THE SUBJECT OF THIS AGREEMENT.

© Kidproof Safety 2014. All rights reserved.

 

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  • info@kidproofsafety.com
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