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Copyright Policy

This Copyright License Agreement (the “Agreement”) is entered into as of January 1, 2010 (the “Effective Date”) by and between Kaiasoft Inc., a corporation. (the “Licensor”), and website user, a individual (the “Licensee,” and together with Licensor, each a “Party” and collectively the “Parties”).

RECITALS

WHEREAS, the Licensor (i) has registered or (ii) has applied for the registration of that copyrightable work of authorship more particularly described as follows: Website Text, Postings, Images and Collective Related Material  (the “Material”)

WHEREAS, the Licensor owns all rights in and to the Material and retains all rights to the Material that are not transferred herein, and retains all common law copyrights and all federal copyrights that have been, or that may be granted by the Library of Congress; and

WHEREAS, the Licensor has the [exclusive] right to license others to produce, copy, make, or sell the Material;

WHEREAS, the Licensee wants to obtain, and the Licensor must agree to grant, a license authorizing the use of the Material [in the preparation of one or more Collective Works and/or Derivative Works (as defined below)] by the Licensee subject to the terms and conditions of this Agreement; and

WHEREAS, each Party is duly authorized and capable of entering into this Agreement.

NOW THEREFORE, in consideration of the above recitals and the mutual promises and benefits contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:

1. GRANT OF LICENSE.

Effective as of the Effective Date and subject to the terms and conditions of this Agreement, the Licensor hereby grants to the Licensee, and the Licensee hereby accepts, a non-exclusive, non-transferable license to exercise the rights in the Material, in any and all media (including but not limited to electronic, print, video, audio, and any other technology now known or that may be developed in the future), as follows: 

  1. to not publish the Material, to reproduce the Material, to incorporate the Material into one or more Collective Works (as defined below), and to reproduce the Material as incorporated in the Collective Works. “Collective Works” shall mean any work, including periodical issues, anthologies, or encyclopedias, in which the entire unmodified Material is assembled with other contributions, each constituting separate and independent works in themselves, into a collective whole without the written authorization of Kaiasoft Inc.
  2. to not create and reproduce Derivative Works. “Derivative Works” shall mean any work based on the Material, or on the Material and other preexisting works, including translations, musical arrangements, dramatizations, fictionalizations, motion picture versions, sound recordings, art reproductions, abridgments, condensations, or any other form in which the Material may be recast, transformed, or adapted; provided, however, that a work constituting a Collective Work shall not be considered a Derivative Work under this Agreement without the written authorization of Kaiasoft Inc.
  3. to not distribute copies of, display publicly, perform publicly, or use in any advertising the Material (including as incorporated in Collective Works); without the written authorization of Kaiasoft Inc. and 
  4. to not distribute copies of, display publicly, or use in any advertising any Derivative Works without the written authorization of Kaiasoft Inc.

The Licensee shall make no other use of the Material. 

2. NO ASSIGNMENT OR TRANSFER.

The Licensee hereby acknowledges and agrees that the rights granted to the Licensee by and obtained by the Licensee as a result of or in connection with this Agreement are license rights only and that nothing contained in this Agreement constitutes or shall be construed to be an assignment or exclusive license of any or all of the Licensor’s rights in the Material. The Licensor retains ownership of the copyright in the Material, and all rights not expressly granted in this Agreement. 

3. RESTRICTIONS. 

The license granted in Section 1 above is expressly made subject to and limited by the following restrictions: 

  1. Limited Use. This permissions granted to the Licensee under this Agreement apply only to the uses and purposes stated herein and the Licensee may distribute, publicly display, publicly perform, or use in any advertising the Material only under the terms of this Agreement. The Licensee may not sublicense the Material. Any use that is inconsistent with the limited license provided hereunder shall be a violation of the Licensor’s copyright and subject to copyright law.
  2. No Modification. The Licensee shall not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, sublicense, transfer, assign, rent, sell, or otherwise convey the Material obtained from the Licensor in any way not specifically granted in Section 1 above without the prior written consent of the Licensor. 
  3. Right of Review. The Licensor reserves the right to review any Collective Work or Derivative Work before publication if the Material exceeds 10% of its total content. 

(d)       Limitations on Transfer. The permission hereby granted is not transferable, not exclusive, and applies only to Material controlled by the Licensor and not to any material cited or quoted by the author and incorporated in such Material.

4. CREDIT AND SAMPLES.

(a)        Credit. The Requester agrees to acknowledge fully in every copy of the Material distributed, publicly displayed, publicly performed, or used in any advertising, either on the copyright page or as a footnote on the page on which the Material begins, or, if in a periodical, as content  originating from www.yourgaragesale.com with the permission of Kaiasoft Inc. If the copyright and acknowledgement notices are not printed as specified herein, all permissions granted by this Agreement are canceled without further notice.

5. MAINTENANCE OF RECORDS AND AUDIT RIGHTS.

  1. Books and Records. The Licensee will keep accurate books of account and records covering all transactions relating to or arising out of this Agreement. The Licensee will permit the Licensor and its nominees, employees, accountants, agents, and representatives to (i) have reasonable access to and inspect such books and records during normal business hours on reasonable notice, and (ii) to conduct an examination of all such books and records. The Licensee will maintain in good order and condition all such books and records for a period of two (2) years after the termination of this Agreement pursuant to Section 13 or, in the event of a dispute between the Parties, until such dispute is resolved, whichever date is latest. Receipt or acceptance by the Licensor of any sums paid by the Licensee hereunder will not preclude the Licensor from exercising its rights hereunder.

6. DELIVERY OF MATERIAL.

The Licensor will provide the Material to the Licensee in the following manner: (select all that apply; delete any inapplicable provisions

  1. Network Access. The Material will be stored at one or more Licensor locations in digital form accessible by telecommunications links between such locations and authorized networks of the Licensee.                                                                                                                      

and/or

  1. Physical Media. Copies of the Material will be provided to the Licensee on physical media (e.g., digital video disk, CD-ROM, digital tape) for use on the Licensee’s network and workstations. 

and/or

  1. File Transfer. Copies of the Material will be provided to the Licensee through electronic transfer (by means of file transfer protocol or otherwise). 

7. OWNERSHIP AND USE OF MATERIAL.

  1. Ownership of Material. The Licensee hereby acknowledges that the Licensor is the owner of the Material and of all associated federal registrations and pending registrations, and the Licensee shall do nothing inconsistent with such ownership. The Licensee further agrees that it will not claim ownership rights to the Material, or any derivative, compilation, sequel or series, or related work owned by or used by the Licensor. The Licensee agrees that nothing in this Agreement shall give the Licensee any right, title, or interest in the Material other than the right to use the same in accordance with this Agreement. 
  2. Validity of Registrations. The Licensee hereby admits the validity of all copyrights for the Material and all associated registrations and acknowledges that any and all rights that might be acquired by the Licensee because of its use of the Material shall inure to the sole benefit of the Licensor; provided, however, that this subsection (b) shall not entitle the Licensor to all or any portion of the profits or revenues from the Licensee’s permitted uses hereunder, except for the fees described in Section 6 above. 
  3. Limitation on Licensee’s Actions. The Licensee agrees that it will not do anything inconsistent with the Licensor’s ownership of the Material, and will not claim adversely to the Licensor, or assist any third party in attempting to claim adversely to the Licensor, with regards to such ownership. The Licensee further agrees that it will not challenge the Licensor’s title to the Material, oppose any registration or re-registrations thereof, or challenge the validity of this Agreement or the grants provided herein or hereunder.

 

8. REPRESENTATIONS AND WARRANTIES.

  1. The Parties each represent and warrant as follows 
  1. Each Party has full power, authority, and right to perform its obligations under the Agreement. 
  1. This Agreement is a legal, valid, and binding obligation of each Party, enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors’ rights generally and equitable remedies). 
  1. Entering into this Agreement will not violate the charter or bylaws of either Party or any material contract to which that Party is also a party.

 

  1. The Licensor hereby represents and warrants as follows: 
  1. It is the sole owner of all right, title, and interest in and to the Material; 
  1. It has the right to grant permission for use of the Material as specified in this Agreement; provided, however, that any citations or quotations used in the Material may have third party rights holders, and the Licensor does not purport to own or have the right to grant permission to republish such citations or quotations;           
  1. It has not assigned, transferred, exclusively licensed, pledged, or otherwise encumbered the Material or agreed to do so; 
  1. It is not aware of any violation, infringement, or misappropriation of any third party’s rights or any claims of rights (including existing intellectual property rights, rights of privacy, or any other rights) by the Material; 
  1. It is not aware of any third-party consents, assignments, or licenses that are necessary to perform under this Agreement; and
  1. It was not acting within the scope of employment of any third party when conceiving, creating, or otherwise performing any activity with respect to the Material purportedly licensed in Section 1. 

9. INDEMNIFICATION.

In the event that the Material infringes on any United States copyright of a third party not affiliated with the Licensee, the Licensor shall indemnify the Licensee against such claim; provided that all of the following are true: 

  1. the Licensee promptly gives notice of any such claim to the Licensor; 
  1.  the Licensor controls the defense and settlement of such claim; 
  1.  the Licensee fully cooperates with the Licensor in connection with its defense and settlement of such claim; 
  1.  the Licensee stops all sales, distribution, and public use of or relating to the infringing Material, including as necessary any Collective Works or Derivative Works, if requested by the Licensor. 

If the Licensee is enjoined from further use of any infringing Material or if the Licensee stops using any of the Material (including as necessary any Collective Works or Derivative Works) pursuant to the Licensor’s request (as described in (d) above), the Licensor shall, at its own expense and option: 

  1. obtain the right for the Licensee to continue to use the infringing Material; 
  1. modify the infringing Material to eliminate such infringement (if practicable); or
  1. refund the amount paid under this Agreement for the infringing Material to the Licensee, on such terms and conditions as the Parties may thereafter agree. 

The Licensor shall have no other obligations or liability if infringement occurs, and shall have no other obligation of indemnification or to defend or hold harmless relating to infringement. The Licensor shall not be liable for any costs or expenses incurred without its prior written authorization and shall have no obligation of indemnification or any liability whatsoever if the infringement is based on (i) any altered, changed, or modified form of the Material not made by the Licensor or (ii) the laws of any country other than the United States of America or its states.

All references in this Agreement to the Parties shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties.  

The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation. 

This Agreement creates a licensor-licensee relationship between the Parties. Nothing in this Agreement shall be construed to establish a joint venture, agency, or partnership relationship between the Parties.

This Agreement shall be governed by the laws of the state of California.  In the event that litigation results from or arises out of this Agreement or the performance thereof, the Parties agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled. 

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature.

Whenever possible, each provision of this Agreement, will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.

This Agreement constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties.

Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.

10. TERMINATION.

  1. Termination Procedures The Agreement will terminate immediately, without notice, if: 
  1. before publication, the Licensee has not complied with the provisions of this Agreement; 
  1. the Licensee attempts to assign, sublicense, transfer, or otherwise convey, without obtaining the Licensor’s prior written consent, any of the rights granted to the Licensee by or in connection with this Agreement; 
  1. the Licensee uses the Material in a manner not expressly permitted by this Agreement; 
  1. no Collective Work, Derivative Work, or republication of Material is published within one (1) year of the Effective Date, unless extended by written permission of the Licensor; 
  1. the copyright and acknowledgment notices are not printed as specified in Section 5 of this Agreement; or 
  1. A Collective Work, Derivative Work, or republication of Material is published and remains out of print for a period of at least six (6) months. 

11. SUCCESSORS AND ASSIGNS.

All references in this Agreement to the Parties shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties.  

12. NO IMPLIED WAIVER.

The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation. 

This Agreement creates a licensor-licensee relationship between the Parties. Nothing in this Agreement shall be construed to establish a joint venture, agency, or partnership relationship between the Parties.

14. GOVERNING LAW.

This Agreement shall be governed by the laws of the state of California.  In the event that litigation results from or arises out of this Agreement or the performance thereof, the Parties agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled. 

15. COUNTERPARTS/ELECTRONIC SIGNATURES.

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature.

16. SEVERABILITY.

Whenever possible, each provision of this Agreement, will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.

17. ENTIRE AGREEMENT.

This Agreement constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties.

18. HEADINGS

 Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.

 

19. NO AGENCY RELATIONSHIP.

  1. Effect of Termination. All rights granted by this Agreement including, without limitation, the Licensee’s right to use the Material, shall end on termination of this Agreement. On termination of this Agreement, the Licensee agrees [as soon as is commercial feasible] to promptly discontinue all use of the reprinted Material, any Collective Work, or any Derivative Work and to refrain from further reprinting, publishing, and distributing of such reprinted Material, Collective Work, or Derivative Work. Notwithstanding the foregoing, the Licensee shall have the right to fill existing orders and sell off existing copies of the reprinted Material, Collective Work, or Derivative Work then in stock; provided, however, the sell-off period shall not exceed _______ (___) months from the date of termination[; provided further, however, that any such sales of reprinted Material, Collective Work, or Derivative Work shall constitute Gross Sales]. The Licensor shall have the right to verify the existence and validity of the existing orders and existing copies of the reprinted Material, Collective Work, or Derivative Work then in stock on reasonable notice to the Licensee. 
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