YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THIS WEB SITE OR ANY OF THE MODEL BANK SERVICES. THESE AGREEMENTS COVER THE USE OF THE MODEL BANK SYSTEM AND THE LICENSING OF PRODUCTS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS YOU SHOULD NOT USE THIS WEB SITE. BY USING THIS WEB SITE, EITHER BY ACCESS, DOWNLOADING FROM, UPLOADING TO, OR OTHERWISE, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND CONDITIONS, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM.
MODEL BANK MEMBER AGREEMENT
TERMS OF USE
Digimation, Inc. ("Digimation") provides this Web site (the "Site") as a service to its customers and the community. By using the Site, you agree to be bound by these Terms of Use. IF YOU DO NOT AGREE TO THESE TERMS OF USE, DO NOT USE THE SITE. Digimation may change these Terms of Use from time to time, at its sole discretion. Your continued use of the Site following the posting of such changes will constitute your assent to all such changes.
SECTION 1: GENERAL PROVISIONS
1.1 USE OF INFORMATION AND SOFTWARE AVAILABLE ON THE SITE
You acknowledge that Digimation reserves the right to modify, revise or discontinue the Site, or any features, functionality or services provided as part of or in connection with the Site, without prior notice.
Generally speaking, all information or materials contained on the Site (including but not limited to all graphics, images, or other types of content), is the property of Digimation and/or its suppliers or licensors. Any software or files available to download from the Site is the copyrighted work of Digimation and/or its suppliers or licensors. Use of such software is governed by the terms of any End User License Agreement included herein. Copying the software to any other location for further reproduction or redistribution is expressly prohibited, unless otherwise permitted by the terms of the End User License Agreement.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE SITE, YOU MAY NOT DISTRIBUTE, EXCHANGE, MODIFY, SELL OR TRANSMIT ANYTHING YOU COPY FROM THE SITE. UNAUTHORIZED USE OF THE MATERIALS OR INFORMATION CONTAINED HEREIN MAY CONSTITUTE A VIOLATION OF APPLICABLE CRIMINAL OR CIVIL LAWS, INCLUDING BUT NOT LIMITED TO COPYRIGHT, TRADEMARK, OR PRIVACY LAWS.
1.2 DESIGN AND LAYOUT
The design of the Site is the property of Digimation. Elements of the Site, including but not limited to logos, graphics, sounds or images, are protected by copyright, and other laws, and may not be copied or imitated, unless specifically indicated.
1.3 USER PRIVACY INFORMATION
In general, people may visit the Site while remaining anonymous and not revealing any personal information. Digimation does use "cookie" technology to obtain non-personal information from its on-line visitors, and to provide customization options at login, or to keep track of where you are in the Site in order to provide the correct customization options when you use the Site. In addition, you may be required to provide certain personal information, such as your name, address, and email, before you can participate in certain portions of the Site. Digimation does not sell to third parties information you have submitted to this Site that identifies you personally.
1.4 USER FEEDBACK AND IMPROPER TRANSMISSIONS
Except for personal information, if you transmit to or otherwise provide to Digimation any feedback such as questions, comments, suggestions, or the like ("User Feedback"), such User Feedback shall be deemed to be non-confidential and non-proprietary. Digimation shall have no obligation of any kind with respect to such User Feedback and shall be free to reproduce, use, disclose, modify, display and distribute the User Feedback to others without limitation. By transmitting such User Feedback to Digimation, you are deemed to grant to Digimation a perpetual, worldwide, royalty-free, irrevocable, non-exclusive license (with rights to sublicense) to use any ideas, concepts, know-how or techniques contained in such User Feedback for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products incorporating such User Feedback.
You are prohibited from posting or transmitting to the Site any unsolicited chain letters or "spam", or any threatening, harassing, libelous, false, defamatory, offensive, obscene, or pornographic material, or other material that would violate any applicable law or regulation, including but not limited to any federal or state laws or regulations governing equal employment opportunities. However, if such communications do occur, Digimation will have no liability related to the content of any such communications.
You may not post or transmit to the Site any advertising, surveys, promotional materials, contests, or any other commercial or non-commercial solicitations.
You are also prohibited from impersonating any individual. Member accounts must be opened using real names and other requested information.
1.5 DELETION AND LOCKOUT
Failure to adhere to any of these Terms of Use may result in messages and/or posted information being blocked, deleted from the Site and possible lockout. Digimation also reserves the right to take any actions it deems necessary or appropriate to protect the Site and its content.
1.6 FRAMING AND DEEP LINKING
You are permitted to view the Site only in its full presentation form and are prohibited from "framing" the Site. You are prohibited from "deep linking", whereby you use the content from the Site with any other web site via active linking or data mining.
1.7 VIOLATION OF TERMS OF USE
You acknowledge that Digimation has the right, in its sole discretion, to terminate your access to the Site, without liability to you or any third party, if you violate any of these Terms of Use, violate the rights of Digimation, interfere with any other user's access or use of the Site, or if Digimation decides that your use is otherwise detrimental to Digimation, the Site, or Digimation's suppliers or licensors. If you believe that someone has violated these Terms of Use, please contact Digimation. Digimation may decide, in its discretion, to investigate the report and decide, in its sole discretion, to take any action relating to that report. Digimation does not have any obligation or liability to you for the performance or nonperformance of those activities.
1.8 GENERAL
These Terms of Use are governed by the laws of the State of Louisiana, without regard to the rules of conflict which may cause the laws of another jurisdiction to apply. You agree to the sole and exclusive jurisdiction and venue of the federal or state courts of the State of Louisiana in the event of any dispute of any kind arising from or relating to the Site, or your use or review of it. The failure of Digimation to enforce any provision or right of these Terms of Use will not constitute a waiver of such provision or right. If for any reason a court of competent jurisdiction finds any provision or portion of these Terms of Use to be unenforceable, the remainder of these Terms of Use will continue in full force and effect.
SECTION 2: DISCLAIMERS, EXCLUSIONS, LIMITATIONS
For avoidance of doubt, please note that the term "Site" as used in this Section 2 encompasses all content of this Site whatsoever.
2.1 DISCLAIMERS
THE SITE IS PROVIDED BY DIGIMATION "AS IS" AND WITH ALL FAULTS. DIGIMATION AND ITS SUBSIDIARIES, AND AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED WITH REGARD TO THE SITE, ITS CONTENTS OR ITS OPERATION. DIGIMATION SPECIFICALLY STATES THAT THE USE OF THE SITE IS AT YOUR OWN RISK. DIGIMATION AND ITS SUBSIDIARIES, AND AFFILIATES DISCLAIM ANY WARRANTY WITH REGARD TO THE OPERATION OF THE SITE, THE ACCURACY OR TIMELINESS OF THE SITE, OR ITS CONTENTS OR THE INFORMATION OR MATERIALS CONTAINED THEREIN, ANY WARRANTY THAT THE SITE OR ITS CONTENTS OR THE INFORMATION OR MATERIALS CONTAINED THEREIN WILL BE FREE OF ERRORS, VIRUSES OR OTHER COMPONENTS THAT MAY INFECT, HARM, OR CAUSE DAMAGE TO YOUR COMPUTER EQUIPMENT OR ANY OTHER PROPERTY. DIGIMATION AND ITS SUBSIDIARIES, AND AFFILIATES MAKE NO WARRANTIES, REPRESENTATIONS, OR GUARANTEES AS TO THE ACCURACY, TRUTHFULNESS, OR RELIABILITY OF ANY POSTED INFORMATION.
2.2 EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL DIGIMATION OR ITS SUBSIDIARIES, AND AFFILIATES OR THEIR SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, ECONOMIC OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR CONNECTED WITH THE SITE (INCLUDING BUT NOT LIMITED TO ITS OPERATION, ITS CONTENTS OR THE INFORMATION OR MATERIALS CONTAINED THEREIN, OR THE USE OR INABILITY TO USE THE SITE, OR THE USE OR INABILITY TO USE ANY OTHER SITE LINKED TO THE SITE, OR ANY CONTENT CONTAINED IN ANY SUCH SITE, OR THESE TERMS OF USE, OR THE PRIVACY POLICY APPLICABLE TO THIS SITE) EVEN IF DIGIMATION AND ITS SUBSIDIARIES AND AFFILIATES, THEIR SUPPLIERS, OR LICENSORS HAVE BEEN NOTIFIED OF THE POSSIBILITY OF ANY DAMAGES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, THE RESPECTIVE LIABILITY OF DIGIMATION, AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR SUPPLIERS AND LICENSORS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
SECTION 3: COPYRIGHT POLICY AND CONTACT INFORMATION
3.1 COPYRIGHT COMPLAINT POLICY
Digimation, Inc. is particularly concerned about copyright infringement. We expect the users of the Site to respect the copyrights of others. It is a violation of the Terms of Use for a user to post material that infringes the copyrights of others.
Digimation may, under appropriate circumstances and in accordance with the Terms of Use, terminate the accounts of users who post material that Digimation has reason to believe infringes on the copyrights of others.
In accordance with the Digital Millennium Copyright Act ("DMCA") Pub.L.N. 105-304, 112 Stat.2860 (28 Oct, 1998)] of the United States of America, Digimation has appointed a Designated Agent to receive notification of claimed copyright infringement. If you believe that your copyrighted work has been infringed, you may provide a notification of claimed infringement containing the following information:
1. The physical or electronic signature of the copyright owner or the person authorized to act on behalf of the copyright owner;
2. A description of the material you claim has been infringed;
3. A description of the claimed infringing material, including information describing its location on the Site;
4. Your name, address, telephone number, and email address;
5. A statement by you that you have a good faith belief that use of the allegedly infringing material is not authorized by the copyright owner, the copyright owner's agent, or the law; and
6. A statement by you that the information you have provided is accurate and, under the penalty of perjury, that you are the copyright owner or that you are authorized to act on behalf of the copyright owner.
Please provide all of the information listed above, or we may not able to process your complaint.
Send your notification of claimed infringement to Digimation's Designated Agent for copyright complaints as follows:
Mr. Joseph L. Caverly
Digimation Corporate Counsel
Stone Pigman Walther Wittmann L.L.C.
546 Carondelet Street
New Orleans, Louisiana 70130-3588
Direct Dial: (504) 593-0845
Direct Fax: (504) 596-0845
email: jcaverly@stonepigman.com
Web Address: www.stonepigman.com
Please note that any information provided under this Complaint Policy, including the original notification and any responses to it, may be shared with others as deemed by Digimation necessary or appropriate to process your notification.
3.2 CONTACT INFORMATION
If you have any questions about the practices of this Site, or your dealings with this Site, you can contact the Manager at the following address and email:
Manager, Website Operations
Digimation, Inc.
115 James Drive West
Suite 140
St. Rose, LA 70087
U.S.A
END USER LICENSE AGREEMENT
THIS IS A LEGAL AGREEMENT ("License Agreement") between you and Digimation, Inc. ("Company"). By creating an account on this system, or by proceeding to download, or use any of the files of digital raster image data in grayscale or color form or three-dimensional digital coordinates (each a "Dataset" and collectively, the "Datasets"), you thereby signify that you have agreed to all of the terms and conditions set forth below.
Each of the Datasets is a set of digital, three-dimensional coordinates or images created by Company (or its licensors) of a particular object. Company gives no rights or warranties with regard to the use of any objects, names, trademarks, service marks or works of authorship depicted in any Dataset and you must satisfy yourself that all necessary rights or consents that may be required for your particular use of a Dataset are obtained from the applicable third party(ies) owning or having rights in or to such objects, names, trade marks, service marks or works of authorship.
The Datasets are protected by United States copyright laws, international treaty provisions, and other laws. You may not use, copy, display, modify or distribute the Datasets except in strict accordance with this License Agreement and you agree to comply with all applicable laws and regulations with respect to your use of the Datasets as authorized hereunder. The Datasets are licensed to you, they have not been sold to you. Subject only to the license granted to you herein, all right, title and interest in and to the Datasets are retained by Company and its licensors.
Company hereby grants to you the following perpetual, worldwide, non-exclusive, non-transferable, non-sublicensable license with respect to its rights in the Datasets:
You may copy the Datasets onto the storage devices of an unlimited number of computers; provided that all such computers are physically located at your business (or if you are a residence your place of residence) at a single specific street address (or its equivalent).
You may (i) access, use, copy and modify the Datasets stored on such computers at such single location in the creation and presentation of animations and renderings which may require runtime access to the Datasets, and (ii) incorporate two dimensional images (including two dimensional images that simulate motion of three dimensional objects) derived from the Datasets in other works and publish, market, distribute, transfer, sell or sublicense such combined works; provided that you may not in any case: (a) separately publish, market, distribute, transfer, sell or sublicense any Dataset or any part thereof; (b) publish, market, distribute, transfer, sell or sublicense renderings, animations, software applications, data or any other product from which any original Dataset, or any part thereof, or any substantially similar version of the original Dataset can be separately exported, extracted, or decompiled into any redistributable form or format, or (c) publish, market, distribute, transfer, sell or sublicense any image created from a Dataset as "clip art" or the like, including but not limited to animations or still images that are sublicensed or otherwise distributed by a stock photography or stock animation agency, or in any other manner in which the primary source of value derived from publishing, marketing, distributing, transferring, selling or sublicensing the image is that it is accessible in a manner similar to "clip art." Subject to the foregoing limitations, and the rights, if any, of third parties in or to the objects represented by the Datasets, you may copy and distribute your animations and renderings derived from the Datasets.
All other rights with respect to the Datasets and their use are reserved to Company (and its licensors).
INFRINGEMENT WARRANTY
Company warrants to you that, to the best of its knowledge, the digital data comprising the Datasets do not infringe the rights, including patent, copyright and trade secret rights, of any third party, nor was the digital data unlawfully copied or misappropriated from digital data owned by any third party; provided, however, that Company makes no representation or warranty with respect to infringement of any third party's rights in any image, trademarks, works of authorship or object depicted by such Dataset.
LIMITATION OF LIABILITY AND WARRANTIES
YOU ASSUME THE ENTIRE COST OF ANY DAMAGE, LOSSES OR EXPENSE RESULTING FROM YOUR USE OR EXPLOITATION OF THE DATASETS. YOU ASSUME ALL RESPONSIBILITIES FOR SELECTION OF THE DATASETS TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE DATASETS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE EXPLICITLY SET FORTH IN THIS LICENSE AGREEMENT, COMPANY AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE DATASETS AND ANY ACCOMPANYING SOFTWARE OR MATERIALS.
Some states do not allow limitations on implied warranties, so the above limitation may not apply to you.
NO LIABILITY FOR CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF SALES, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR THIRD PARTY CLAIMS) ARISING OUT OF THIS LICENSE AGREEMENT OR THE USE OR INABILITY TO USE THE DATASETS OR FOR ANY OTHER REASON, EVEN IF COMPANY AND/OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY AND/OR ITS LICENSORS' TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN ANY ONE OR MORE CAUSES OF ACTION EXCEED THE AMOUNT, IF ANY, PAID BY YOU FOR THE DATASETS.
Because some States do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.
U.S. GOVERNMENT END USERS. The Datasets are a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Datasets with only those rights set forth herein.
THIS LICENSE AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF LOUISIANA, WITHOUT REGARD TO THAT STATE'S CHOICE OF LAW PROVISIONS.
This License Agreement is the entire agreement between you and Company with respect to the Datasets and supersedes any other communications or advertising, whether written or oral, with respect thereto. This License Agreement may not be modified or expanded except in a writing signed by an authorized representative of Company. If any provision of this License Agreement is held invalid or unenforceable, the remainder shall continue in full force and effect, provided that, if any limitation on the grant to you of any right herein is held invalid or unenforceable, such right shall immediately terminate.
Should you have any questions concerning this License Agreement, or should you desire to contact Company for any reason, please contact:
Attn: Legal Affairs
Digimation, Inc.
115 James Drive West, Suite 140
St. Rose, LA 70087
SELLER LICENSE AGREEMENT
This Seller License Agreement (the Agreement) sets forth the terms and conditions of a publishing agreement by and between you (the Licensor) and us (Digimation). By the act of delivering content to us, either electronically or otherwise, and for the considerations, warranties, and covenants set forth herein, you hereby agree as follows:
SECTION 1 - DEFINITIONS
1.1 Licensed Products. The "Licensed Products" shall mean any and all three-dimensional computer models, objects, datasets, databases, textures, images, products, software and other subject matter related thereto in their configuration, and which are hereby licensed to Digimation by the Licensor and made subject to the terms and conditions of this Agreement.
1.2 Licensed Intellectual Property. "Licensed Intellectual Property" shall mean any and all copyright, patents, trade secrets, trademarks, trade names, trade dress rights, and any other intellectual property and other rights, which relate to or form any part of the Licensed Products.
1.3 Sales Revenue. The "Sales Revenue" for the Licensed Products shall be the sales price(s) paid for the Licensed Product(s) sold or licensed by Digimation. Reductions to the Sales Revenue shall be made for rebates, refunds, dealer or distributor discounts and the like. Neither sales taxes nor income taxes or the like shall be included in Sales Revenue.
SECTION 2 - LICENSE
2.1 Appointment; Grant of Rights and License. You hereby appoint Digimation, as a non-exclusive distributor, with world-wide, perpetual rights and licenses, to publish, market, distribute, sell, translate, transfer and sublicense, whether bundled or not bundled with other Digimation products or services, all Licensed Products and Licensed Intellectual Property; and (ii) Licensor hereby grants to Digimation a non-exclusive, world-wide, perpetual, non-royalty bearing, fully-paid-up rights and licenses to use, modify, reproduce, prepare derivative works and otherwise exploit any or all of the foregoing, and to use, reproduce and distribute generally all trademarks, trade names, trade dress and service marks of Licensor for Digimation's marketing purposes (all of the foregoing appointments, rights and licenses are referred to herein collectively as the "License"). Under the License, you agree that Digimation may, at its sole discretion:
a) exercise the License in whole or in part with respect to the Licensed Products in any software format and on any computer hardware platform;
b) translate, convert or otherwise modify the Licensed Products;
c) create derivative works from the Licensed Products;
d) license or sublicense any or all Licensed Products under Digimation's license, sublicense or end-user agreements, or under Digimation's OEM, bundling or reseller agreements; and
e) determine and have final discretion with respect to all marketing and pricing decisions regarding the Licensed Products.
2.2 Retention of Rights by Licensor. Nothing in this Agreement shall be construed as limiting Licensors rights to utilize the Licensed Product itself or grant licenses to the Licensed Products to other parties provided that such licenses do not conflict with the rights granted to Digimation hereunder.
SECTION 3 - CONSIDERATION
3.1 Royalty. Licensor shall be entitled to a "Royalty" equal to fifty percent (50%) of (a) the Sales Revenue of all Licensed Products sold by Digimation during the Term hereof and (b) Digimations net royalty income received from any sublicensee of Digimation during the Term hereof, subject to the terms and conditions set forth in this Section. If a Licensed Product is a part or component of a larger item or bundled, then the Sales Revenue shall be only that portion of the Sales Revenue of the larger item or bundle that is fairly, reasonably and conclusively allocated by Digimation to the part or component that is the Licensed Product. If any Licensed Products are sublicensed by Digimation to any sublicensee(s) and then resold or re-sublicensed to another third party by the sublicensee(s), the Royalty payable by Digimation to Licensor for any such transaction(s) shall be limited to fifty percent (50%) of whatever payment(s) Digimation receives from the sublicensee(s). There are no other royalties, fees or any other compensation payable to Licensor under this Agreement except as expressly specified in this paragraph.
3.2 Royalty Payments. Digimation shall pay to Licensor the Royalty due under paragraph 3.1 on a monthly basis. The Royalty payment for each month shall be paid to Licensor by the end of the following month. The Royalty shall be paid in United States dollars. The Royalty and Sales Revenue shall be determined according to the definitions set forth above and, in the event of any uncertainty beyond said definitions, in accordance with generally accepted accounting principles consistently applied.
3.3 Demonstration Copies. Digimation and its Sublicensees shall have no Royalty obligation to Licensor for copies of any Licensed Products used by Digimation for demonstration, evaluation or advertising purposes.
3.4 Except for the foregoing, there are no other royalties, fees or any other compensation payable by Digimation to Licensor or any third party under this Agreement. Licensor agrees that the consideration paid to it herein is fair and sufficient consideration for the rights and licenses granted, and, therefore, agrees to waive any right it has to modify the consideration included in this Agreement.
SECTION 4 - OWNERSHIP; CONFIDENTIALITY; AND LITIGATION RESPONSIBILITY
4.1 Ownership. Ownership of the Licensed Products shall remain vested in Licensor. Ownership of the modifications and/or derivative works of the Licensed Products prepared hereunder in accordance with Section 2 above shall be vested in Digimation. At the request of Digimation, Licensor will execute or cause to be executed all assignments and other instruments and documents as Digimation may consider necessary or appropriate to carry out the intent of this Agreement.
4.2 Non-Disclosure. Each party agrees to treat materials clearly marked as confidential with the same degree of confidentiality with which it protects its own proprietary products, data and confidential information, except for: (a) data or confidential information generally available to the public at the time of this Agreement; (b) data or confidential information which later becomes available to the general public without the receiving partys fault; (c) data or confidential information that was rightfully in the possession of the receiving party prior to this Agreement; (d) data or confidential information that was lawfully disclosed to the receiving party by a third party not under any obligation to the disclosing party with respect thereto; or (e) data or confidential information that is disclosed to a third party with the disclosing partys prior approval.
4.3 Obligation to Inform. As an ongoing covenant under this Agreement, Licensor shall promptly inform Digimation of: (a) any infringement or alleged infringement of any Licensed Intellectual Property; and (b) any claim, suit or threat that may affect any Licensed Product(s) or Digimation's rights hereunder.
SECTION 5 - ADDITIONAL REPRESENTATIONS AND WARRANTIES
5.1 No Conflict. Licensor represents and warrants that it has the right to enter into this Agreement; that execution of this Agreement has been duly authorized by appropriate consents or resolutions of its respective partners or governing boards; and that this Agreement is not in conflict with any other agreement or obligation, or any law or regulation.
5.2 Intellectual Property. Licensor represents and warrants that: (a) Licensor is the sole owner, free and clear, of all Licensed Intellectual Property and the Licensed Products; (b) all of Licensors rights in and to the Licensed Intellectual Property are valid and enforceable; (c) the rights and licenses granted to Digimation under this Agreement to the Licensed Products and the Licensed Intellectual Property will not, when used or exploited by Digimation as permitted under this Agreement, infringe, violate, or interfere with any intellectual property or other right of any other person or entity.
5.3 Additional Representation and Warranty. Licensor represents and warrants that: (a) no other license relating to any Licensed Products or any Licensed Intellectual Property has been granted to any other person or entity that would contradict, invalidate or constitute a breach of the License; and (b) no such other license will be granted to any third party during the Term hereof.
SECTION 6 - INDEMNIFICATION
6.1 In the case of any breach by Licensor of any covenant, representation or warranty set forth in this Agreement, regardless of any other remedy which may be available to either party at law or equity, Licensor shall defend, hold harmless and indemnify Digimation and its directors, officers, employees, representatives, sublicensees and successors against any and all claims, causes of action, losses, damages, judgments, settlements, liabilities, and costs and expenses (including attorneys' fees) arising from any fact or circumstance constituting such breach by Licensor. In addition, Digimation shall have the right to set off against any amounts owed Licensor by Digimation hereunder any and all amounts owed by Licensor to Digimation under this indemnification or by virtue of any other material breach of this Agreement by Licensor. Payment shall not be deemed a condition precedent to the enforcement of any non-breaching partys rights under this section. Digimation shall: (i) provide notice to Licensor of any claim or action threatened or filed; (ii) allow Licensor to defend such matter, at Licensors sole cost and expense, with counsel of its choosing; and (iii) cooperate with Licensor, at Licensors cost and expense, in the defense and/or settlement of such matter. Should any Licensed Product or any portion thereof become the subject of a claim of infringement for which indemnity is provided herein, Licensor may elect to: (i) obtain for Digimation the right to use the Licensed Product the extent of the rights and licenses granted herein; or (ii) replace or modify the Licensed Product so that it becomes non-infringing while retaining its previous functionality, content and appearance.
SECTION 7 - TERM AND TERMINATION
7.1 The term of the Agreement shall begin on the Effective Date and terminate or expire in accordance with its terms (such period, the Term). During the Term, this Agreement can be terminated: (a) by mutual agreement; or (b) in the event this Agreement is materially breached, by the non-breaching party if the breaching party: (i) fails to cure such breach within thirty (30) days after its receipt of written notice of the breach from the non-breaching party; or (ii) fails to take reasonable steps in good faith towards diligently curing any such breach (excluding mere failure to pay sums due hereunder) during said thirty (30) day period and thereafter. In addition, Digimation shall have the right to terminate this Agreement at any time in the event that it determines, in its sole discretion, to discontinue publishing any or all of the Licensed Products. But, in the case of a partial discontinuation, this Agreement shall be deemed terminated by Digimation only with respect to those particular Licensed Products discontinued by Digimation, and this Agreement shall remain in full force and effect with respect to all Licensed Products not discontinued. Termination of the Agreement will under no circumstances imply Licensor returning all or part of the payment outlined in Section 3. Nothing herein will be construed to limit a partys right to recover any: (i) damages arising from a partys breach of this Agreement; (ii) damages arising from early termination of this Agreement as may be allowable by law; or (iii) amounts payable under Section 6.
SECTION 8 - GENERAL PROVISIONS
8.1 Good Faith. The parties hereto mutually agree to exercise commercially reasonable efforts in good faith to fulfill the purposes of this Agreement, and to fully cooperate with each other to that end; and, if and to the extent that the consent or cooperation of any third party is required to fulfill the purposes of this Agreement, the parties hereto agree to exercise their best efforts to obtain such consent or, if such consent is not obtainable, to cooperate in any reasonable arrangements designed to provide the parties with the benefits or equivalent result of such consent by other reasonable and lawful means. Moreover, the parties agree to execute any other legal documents, and to take any other action, that may be necessary to effectuate the purposes of this Agreement.
8.2 No Fiduciary or Agency Relationship. The parties hereto expressly disclaim and disavow any partnership, joint venture, fiduciary, agency or employment status or relationship between them and expressly affirm that they have entered into this Agreement as independent contractors and that the same is in all respects an "arms-length" transaction. No party hereto has the authority to make any representation or warranty or incur any obligation or liability on behalf of any other party hereto, nor shall they make any representation to any third party inconsistent with this paragraph, except to the extent expressly permitted elsewhere in this Agreement.
8.3 Paragraph Headings. The paragraph headings of this Agreement are inserted only for convenience and in no way define, limit or describe the scope or intent of this Agreement nor affect its terms and provisions.
8.4 Governing Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Louisiana and the laws of the United States of America. The parties have selected the English Language to define, govern, and interpret their rights and obligations under this Agreement.
8.5 Attorneys' Fees. In the event of any litigation between the parties, the prevailing party shall be entitled to recover from the non-prevailing party all costs and expenses, including without limitation all attorneys' fees and court costs, incurred by the prevailing party. Such relief shall be in addition to any other relief, award or damages to which the prevailing party may be entitled.
8.6 Severability. In the event that any provision of this Agreement, or any operation contemplated hereunder, is found by a court of competent jurisdiction or arbitration to be inconsistent with or contrary to any applicable law, ordinance, or regulation, the latter shall be deemed to control and the Agreement shall be regarded as modified accordingly, consistent with the parties expressed intent and to the maximum extent permitted by law, and the remainder of this Agreement shall continue in full force and effect.
8.7 Survival. The parties' respective obligations, covenants, rights and licenses granted, indemnities, representations and warranties in this Agreement shall survive termination hereof unless indicated otherwise by their express terms.
8.8 Final Agreement. This Agreement constitutes the final and complete agreement between the parties concerning the subject matter of this Agreement and supersedes all prior agreements, understandings, negotiations and discussions, written or oral, between the parties with respect thereto. Any waiver of, or promise not to enforce, any right under this Agreement shall not be enforceable unless evidenced by a writing signed by the party making said waiver or promise.
8.9 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, personal representatives, successors and permitted assigns.