This Agreement governs the terms by which Teachers provide Badges to members of the https://badges4languages.com community, on a non-exclusive basis through the web site located at https://badges4languages.com (the “Site”), and to other prospective purchasers through other distribution venues as provided for in this Agreement. This Teachers’s Supply Agreement is in addition to the Term Of Service applicable to the Site that all persons providing Badges to or downloading Badges from the Site have previously entered into. In the event of any inconsistency between this Agreement, and the Terms of Service, the terms of this Agreement shall govern.
I. Background of Agreement
- By confirming your acceptance of this agreement this becomes a binding legal agreement between any member intending to upload data or materials onto the Site (in this agreement referred to as “you” or the “Teachers”) and Badges for languages with his brand Badges4Languages. If you are a corporation or other entity or a minor you may be subject to further filing requirements.
- The Teacher wishes to appoint Badges for languages as its non-exclusive agent to license, sublicense and distribute Badges (as defined below) produced by the Teacher on the terms and conditions set forth in this Agreement. Upon accepting the terms of this Agreement, you may make Badges available to Badges for languages by following the ‘Upload’ procedures identified on the Site. Each upload of Badges will be governed by the terms and conditions of this Agreement.
- This is a fairly lengthy document, and it contains many important provisions that affect your rights and obligations. This Agreement remains in full force and effect until terminated in accordance with its terms. If at any time the terms and conditions of this Agreement are no longer acceptable to the Teacher, you must follow the termination procedures set forth below under “Term and Termination”.
II. Provision of Badges
- The parties acknowledge that the Teacher may, from time to time, provide information and other material to Badges for languages using the Upload procedures of the Site or such other procedures as the parties may mutually agree (collectively, “Badges”) together with other information or documents relating to such Badges or otherwise required to enable Badges for languages to realize the commercial potential of the rights granted in the Badges (“Descriptive Information”). Badges for languages, in its sole discretion, may determine which of such Badges are suitable for posting on the Site or other means of direct or indirect distribution, and only such Badges as it deems suitable will be considered “Accepted Badge” for the purposes of applicable provisions of this Agreement. Although Badges for languages may permit Badges to be submitted pursuant to certain applications from time to time, your ability to submit further Badges to the Site shall be subject to policies and procedures outlined in the Site and such applications.
- In addition to the terms of this Agreement, the parties acknowledge that the provision of all Badges are subject to the policies and procedures outlined in the relevant portions of the Site and applications, the terms of which are incorporated by reference into this Agreement. Any breach of the rules relating to Accepted Badges outlined in the Site will be deemed to be a breach of this Agreement.
III. Grant of Authority
- The Teacher hereby appoints Badges for languages as Teacher’s non-exclusive distributor to sell, license or sublicense Badges to third parties worldwide. For all Badges, Teacher grants Badges for languages:
- The worldwide right to market and sublicense the right to copy, use, reproduce, distribute, redistribute, sublicense, publish, republish, upload, post, transmit, broadcast, crop, modify, alter, create derivative works of, package, repackage, produce and sell, publicly perform or display Badges to prospective licensees in any and all media now in existence or that may in the future be introduced: (i) through the Site; (ii) through other venues owned or operated by Books for languages or its affiliates from time to time, and (iii) through Distribution Partners (defined in Section 3(3)); and
- The right to grant perpetual, worldwide, licenses or sublicenses to end-users. Badges for languages and its Distribution Partners will determine the terms and conditions of all licenses of Badges granted by them, but will not use or license Badges for uses that are defamatory, pornographic or otherwise illegal.
- In addition to the foregoing grant Badges for languages and its Distribution Partners may post, reproduce, modify, display, make derivative works or otherwise use any Accepted Badges for their own business purposes relating to the promotion of the Site, the Badges and their distribution programs, and promote the licensing of Accepted Badges (including, without limitation, the use of the Accepted Badges and the Teacher’s registered and unregistered trademarks for marketing, sales and promotional efforts whether on the Site or through third parties). No compensation shall be due to the Teacher for use of Accepted Badges for such business purposes.
- Accepted Badges may be included in one or more current or future Badges collections (“Collections”) made available for licensing or distribution by Badges for languages or third party distributors (each a “Distribution Partner”).
- The Parties agree that all rights, including title and copyright, in and to the uploaded Accepted Badges will be retained by the Teacher, and no title or copyright is transferred or granted in any way to Badges for languages or any third party except as provided in this Agreement.
IV. Intellectual Property Matters
- The Teacher acknowledges that Badges for languages prohibits any Badges or any other material that infringes on any patent, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be uploaded to the Site.
- By uploading Badges, you are warranting that you own all proprietary rights or are the authorized representative of the applicable copyright owner(s) of such Badges, including copyright, in and to the Badges with full power to grant the rights contemplated in this Agreement.
- The Teacher agrees that neither Badges for languages nor any of its directors, officers, employees, partners, affiliates or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Badges or Descriptive Information, or any error, omission or other matter relating to a model or property release respecting Badges or Descriptive Information.
- Using the member name Teacher by you, Badges for languages shall use commercially reasonable efforts to credit you as the source of Accepted Badges, but shall have no liability for lack of credit. You acknowledge and accept and therefore waive any right to object to the fact that it is common business practice for commercial uses that the creator of Badges is not credited, that Badges may be modified, used in connection with sensitive topics and may be used or modified in ways that may be controversial or unflattering.
You acknowledge and agree that you will be responsible for each and every access or use of the Upload portions of the Site that occurs in conjunction with your Member Name and such passwords, and that Badges for languages is authorized to accept your Member Name and password as conclusive evidence that you wish to upload Badges pursuant to this Agreement. Badges for languages shall have no liability or responsibility to monitor the provision of Badges under your member name and password.
VI. Managing Badges
- Badges for languages has policies and processes which must be adhered to prior to Badges being posted on the Site or otherwise being offered for sale or license. Notwithstanding that some qualitative standards are required to be met, Badges for languages does not and cannot review all Badges or Descriptive Information uploaded to the Site and is not responsible for the Badges, quality, or consequences of your uploading such Badges or Descriptive Information. Notwithstanding the foregoing, Badges for languages reserves the right to delete, move, refuse to accept or edit any Badges that it may determine, in its sole discretion, violates or may violate this Agreement, the intellectual or proprietary rights of others, any of its policies or is otherwise unacceptable in its discretion, and you hereby agree to forfeit any fees payable in respect of such Badges to Badges for languages or as it may direct. Badges for languages shall have the right but not the obligation to correct any errors or omissions in any Badges or Descriptive Information, as it may determine in its sole discretion. You acknowledge that any screening of Badges or Descriptive Information performed by Badges for languages to determine Accepted Badges is done as a courtesy only.
NOTICE: You acknowledge that the Badges you provide pursuant to this Agreement that becomes Accepted Badges may be purchased or licensed by members of the Site or Distribution Partner sites with the intention that they will adhere to the terms of the applicable license agreement.
- Notwithstanding the foregoing, you acknowledge and agree to the possibility of Badges being used in a manner that is not contemplated in this Agreement, and you agree that notwithstanding any rights you may have to pursue the licensees of such Badges at law, Badges for languages shall have no liability to you or any person claiming through you for any breach by a licensee of the terms of any agreement respecting Accepted Badges. Badges for languages will use commercial efforts to assist in the protection of your intellectual property rights, at your request and expense.
VII. Confidential Information
- The Teacher acknowledges that the Confidential Information (defined below) which it obtains through the entering into of this Agreement, the use of the Site and the provision of Badges constitutes valuable, confidential, proprietary information of Badges for languages and its licensors, and agrees that during the term of this Agreement and thereafter it shall not, without the express written consent of Badges for languages, use or disclose to any other person any such Confidential Information, except as specifically authorized under this Agreement.
- For the purposes of this Agreement, “Confidential Information” means any and all data, information, documents, software or materials relating to the business and management of Badges for languages, its members, affiliates, licensors or licensees, that is designated as confidential or ought reasonably to be considered confidential, including but not limited to: their business model and operations, processes, products, designs, pricing, promotions, business plans, business opportunities, alliances, Badges, graphics, documentation, finances, research, development, know-how, trade-secrets, training materials, personnel, identities or personal information of any kind pertaining to members, clients, methodologies, Site Badges belonging to others and other intellectual property.
VIII. Representations and Warranties
The Teacher hereby represents and warrants as follows:
- The Teacher has the legal capacity and authority to enter into this Agreement and perform its obligations hereunder and that it will comply with all applicable laws, is the sole and exclusive owner of the Exclusive Badges or is the authorized representative of the applicable copyright owner(s) of such Badges, has the right to grant all of the license rights contemplated to be provided under this Agreement, and has not granted any rights or licenses to any Badges or any other intellectual property or technology that would conflict with this Agreement;
- No portion of the Badges as delivered to Badges for languages from time to time, contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement, and all Badges will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the Site or the Badges or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Badges or the Site in any way;
- the Badges will include all necessary Descriptive Information to enable its effective marketing on the Site, which Descriptive Information will be complete and accurate in all material respects, and will not include false, misleading or inapplicable metadata intended to or which has the effect of keyword ‘doping’ or improperly altering search results that would otherwise be applicable to such Badges;
- the Badges delivered to Badges for languages hereunder represents original creations and expressions of subject matter, and no Badges or Descriptive Information infringes any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party, or defames or casts into disrepute in any manner any third party; and
- the Badges has not been obtained in any unlawful manner, whether civil or criminal, and is not subject to any applicable accreditation terms or access condition that might be breached by the Badges being used by Badges for languages, its customers or distributors as contemplated under this Agreement.
- You agree to indemnify, defend and hold Badges for languages and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Badges (collectively, the “Badges for languages Parties”) harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any Badges for languages Party as a result of or in connection with: (i) any use or alleged use of the Site or provision of Badges under your Member Name by any person, whether or not authorized by you; (ii) or resulting from any communication made or Badges uploaded under your Member Name; (iii) any breach by you of this Agreement; or (iv) any claim threatened or asserted against any Badges for languages Party to the extent such claim is based upon a contention that any of the Badges used within the scope of this Agreement infringes any copyrights, trade secrets, trademarks, right of privacy, right of publicity or other intellectual or other property rights of any third party.
- Badges for languages reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Badges for languages’s defense of such claim.
- The Teacher agrees that Badges for languages shall have the right to determine whether and to what extent to proceed against a licensee or other third party (an “Infringer”) for any violation of a license agreement or alleged infringement of other rights of the Teacher. The Teacher hereby releases Badges for languages from any and all claims the Teacher might have, either directly or indirectly, arising out of or in connection with a determination by Badges for languages to proceed or not to proceed against any Infringer in any instance. Badges for languages hereby agrees that any monetary recovery it receives as a result of any legal or enforcement action taken against any such Infringer, to the extent such monies are intended to compensate Badges for languages for lost licensing fees or statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, reasonable counsel and experts’ fees and disbursements on a solicitor and client basis) incurred by or on behalf of Badges for languages in connection with such action, be divided between the Teacher and Badges for languages. In the event Badges for languages elects not to proceed against an Infringer, the Teacher shall have the right to proceed against such Infringer for such license violation or infringing action. The Teacher hereby agrees that any monetary recovery it receives as a result of any legal action taken against any such Infringer, to the extent such monies are intended to compensate the Teacher for lost licensing fees or include statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, reasonable counsel and experts’ fees and disbursements on a solicitor and client basis), be divided between the Teacher and Badges for languages.
X. Term and Termination
- This Agreement is effective until terminated. You may terminate this Agreement at any time by giving thirty (30) days written notice to Badges for languages using firstname.lastname@example.org or such other means of written notice acceptable to Badges for languages which enables confirmation of your identity and your intention to terminate. Badges for languages may also terminate this Agreement for any reason by giving you thirty (30) days notice by e-mail at the last address contained in your membership information. If Badges for languages terminates your membership pursuant to the terms of the Membership Agreement, such termination shall be deemed to be notice of termination of this Agreement with respect to all Badges, as well.
- Either party may terminate this Agreement upon written notice effective immediately upon being sent to the last address included on the Site, if the other party (i) liquidates all or substantially all of its assets, dissolves as a corporation other than through inadvertence, or otherwise ceases to do business in a material way, or (ii) makes an assignment for the benefit of creditors, or (iii) files a petition in bankruptcy, petitions or applies for a receiver or trustee for all or any substantial part of its property and such receiver or trustee is appointed, or commences, or has commenced against it, a proceeding under any bankruptcy, reorganization, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, any of which shall remain in force for a period of thirty (30) days or more, or (iv) is adjudicated insolvent or bankrupt, or (v) is in breach of this Agreement.
- In addition, Badges for languages may deem an account to be terminated and may off-set any fees or credits contained in such account against its costs of administration if there has been:
(i) in the reasonable opinion of Badges for languages, any material misrepresentation made as to the capacity, identity or copyright ownership of Badges or the Teacher provided hereunder; or
(ii) no log-in or other activity in the account for 24 months despite reasonable commercial efforts to contact Teacher based on the information provided through the Site as part of the account profile of such Teacher.
XI. Effect of Termination
- Upon the termination of this Agreement, the grant of authority given to Badges for languages shall cease subject to the following conditions: (i) Badges for languages shall remove Accepted Badges from the Site and Distribution Partners within ninety (90) days of the termination of this Agreement; (ii) notwithstanding termination, Badges for languages and its Distribution Partners shall have the right to continue licensing Accepted Badges until it is removed from the Site or other sites where Accepted Badges is distributed and for up to (1) year following termination where such Accepted Badge has previously appeared in Badges for languages’s promotional materials, or Distribution Partner marketing programs;
- Notwithstanding any other provision in this Agreement, the termination or expiration of this Agreement shall not alter or affect the rights granted to licensees or sub-licensees by Badges for languages pursuant to this Agreement.
XII. DISCLAIMER OF WARRANTIES
- THE SITE, INCLUDING ANY BADGE CONTAINED THEREIN, ARE PROVIDED BY BADGES FOR LANGUAGES “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. BADGES FOR LANGUAGES DOES NOT REPRESENT OR WARRANT THAT THE SITE OR THE BADGE WILL BE MADE AVAILABLE FOR SALE OR LICENSE OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE.
- BADGES FOR LANGUAGES DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY BADGE AVAILABLE FOR DOWNLOADING THROUGH THE SITE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
XIII. LIMITATION OF LIABILITY
- YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE INCLUDING WITHOUT LIMITATION ANY OF THE BADGES OR INFORMATION CONTAINED THEREIN.
- IN NO EVENT SHALL BADGES FOR LANGUAGES OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES 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 THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SITE, THE BADGES OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF BADGES FOR LANGUAGES HAS 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.
- IN ANY EVENT, BADGES FOR LANGUAGES’S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE SITE OR THE BADGES IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES COLLECTED BY BADGES FOR LANGUAGES FOR THE BADGES THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED ONE THOUSAND (1,000.00 €) EUROS.
- 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. IN SUCH JURISDICTIONS, THE LIABILITY OF BADGES FOR LANGUAGES OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
V. Applicable law
- This Agreement will be governed in all respects by the laws of Valencia, Spain, without reference to its laws relating to conflicts of law. Any disputes arising from or related to this Agreement or its enforceability, or the business relationship between the parties, shall be finally settled by binding, confidential arbitration by a single arbitrator. The arbitration proceedings shall be conducted in Spanish and all documentation shall be presented and filed in Spanish. The decision of the arbitrator shall be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. 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. Notwithstanding the foregoing, Badges for languages 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 Badges for languages, such action is necessary or desirable. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any proceeding within the scope of this paragraph shall be commenced within two years of the acts, events, or occurrences giving rise to the claim.
- 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 you are first granted access to the membership portions of the Site. You agree to waive any right you may have to (i) trial by jury; and (ii) to commence or participate in any class action against Badges for languages related to the Site, this Agreement or any agreements contemplated hereby.
- If Badges for languages is obligated to go to court or arbitration to enforce any of its rights, or to collect any fees, you agree to reimburse Badges For Languages for its legal fees, costs and disbursements if Badges for languages is successful.
Badges for languages reserves the right to disclose any information you provide in order to respond to claims or protect the rights, property or safety of itself, its related companies, Distribution Partners and their employees, customers or the public.
If and to the extent you are submitting Badges to Badges for languages as an authorized representative of the applicable copyright owner(s), you acknowledge and agree that (a) you will ensure that such copyright owner(s) comply with the terms of this Agreement where necessary; and (b) to the extent Royalties are paid to you in such capacity, you will be solely responsible for compensating the copyright owner(s) where applicable.
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 BADGES FOR LANGUAGES AGREEING TO PROVIDE A MEANS FOR THE SALE OR LICENSE OF YOUR ACCEPTED BADGES, 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 BADGES FOR LANGUAGES, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND BADGES FOR LANGUAGES RELATING TO THE SUBJECT OF THIS AGREEMENT.