This Service Agreement (the "Agreement") is entered into as of this day of (the “Effective Date”), by and between ExploreGate Ltd. (the “Company”) and, an individual (the “Presenter”).
WHEREAS: Presenter has created a PowerPoint presentation described in Stage 1 (the "Initial PowerPoint Presentation”; the Initial PowerPoint Presentation, together with other PowerPoint presentations to be licensed hereunder, the “PowerPoint Presentations”); and
WHEREAS: the Company wishes Presenter to present the PowerPoint Presentations as part of a video film ("Video") to be transmitted over the Internet or otherwise, all according to the terms and conditions described in this Agreement ("Services");
NOW THEREFORE, the parties hereto agree as follows:
1.1. The preamble to this Agreement constitutes an integral part hereof.
1.2. All Section headings are intended for convenience only and shall not be used in interpreting this Agreement.
2. The Services
2.1. The Presenter acknowledges that the Company has complete discretion to decide: (i) whether or not to publish the Video; (ii) whether or not to offer the PowerPoint Presentation in the Video as a PDF, PPP or other file format; (iii) the price, sale and terms of sale of the Video; and (iv) whether to edit the Video (for example, to update or correct information), add subtitles to the Video or to dub the Presenter's voice in other languages, and (v) convert the video to ExploreGate format
3. Representations and Warranties
The Presenter represents and warrants that:
3.1. It does not currently have, and shall not have during the Term, any agreement or obligation that conflict with any of the provisions of this Agreement, or that would preclude the Presenter from complying with this Agreement;
3.2. the execution and delivery of this Agreement and the fulfillment of its terms do not require the consent of any other party;
3.3. It is the exclusive owner of the Video(s) (and all rights therein);
3.4. each Video is free of any claim or right of any third party;
3.5. no Video infringes or violates the intellectual property, privacy, publicity rights, confidential information or any other rights of third parties, or any applicable law, or contains inappropriate content; and
3.6. It has written permission to use images and the names and likenesses of people, if any, contained in each PowerPoint Presentation and Video.
4.1. In the case the Presenter provides the Video then all right and title in the Video shall remain with the Presenter.
4.2. In the case the Presenter provides the PowerPoint Presentation and the Company produces the Video - The Presenter shall remain the owner of all PowerPoint Presentations, and all right, title, interest in the Video (including all modifications and derivative works of the Video, whether made by the Company, the Presenter or any third party) and any copyrights and other intellectual property rights embodied therein, shall remain with the Company.
The Presenter hereby grants the Company a worldwide, irrevocable, non-exclusive, royalty-free, perpetual, sublicenseable and transferable license to use for any purpose, copy, distribute, display, perform, edit, modify, prepare derivative works of, any PowerPoint Presentation, whether in connection with the Video, the Company's website and/or the Company's business.
6.1. The Company shall pay the Presenter as follows:
6.1.1. 20% of the net consideration actually received by the Company from the sale or license of the Video
6.1.2. 20% of the net consideration actually received by the Company for the licensing of the PowerPoint Presentations that are part of the Video and advertisements, if any, accompanying the Video.
6.1.3. For Videos which are part of a Full Seminar - 20% of the net consideration actually received by the Company from the sale or license of the Full Seminars and 20% of the net consideration actually received by the Company for the licensing of the PowerPoint Presentations that are part of the Full Seminars.
The Presenter will be able to review his or her revenue statement on the Company's website. The statement will be updated monthly. Payment will be made quarterly, but only if the total amount payable to the Presenter exceeds $100.
6.2. All payments hereunder shall be made against a duly issued tax invoice by the Presenter, in US Dollars. The Company shall be entitled to withhold amounts as required by law. The Presenter shall be responsible for all tax obligations relating to such payments. The Presenter agrees to indemnify the Company against any tax liability, including interest or penalties thereon.
6.3. The Presenter understands that the payment under this Section is the full consideration due for the Services, and that he or she is not entitled to any other payment, including reimbursement for expenses.
The Presenter shall indemnify and hold harmless the Company from and against all proven loss, liability or expense from any claims or proven damages which the Company may suffer, incur or sustain or which may be brought or threatened by any third party in connection with the Presenter's breach of Sections 3.3, 3.4, 3.5 and/or 3.6 of this Agreement. Notwithstanding the above, the Presenter's indemnification obligation set forth in this provision shall not apply if any such third party claim is solely based on Company's modifications to the PowerPoint Presentation or Company's modifications to the recorded explanations originally provided by the Presenter.
The Company shall indemnify and hold harmless the Presenter from any proven liability, claim or damage brought or threatened by any third party if such third party claim is result directly of a Company's modifications to the PowerPoint Presentation or Company's modifications to the recorded explanations originally provided by the Presenter.
During and after the Term, the Presenter will hold in strict confidence, and not disclose, copy or use, except in performing the Services for the Company, any confidential or trade secret information of the Company.
9. Term and Termination
9.1. Term. This Agreement shall commence, on the Effective Date and will be valid unless terminated in accordance with Section 9.2 (the "Term").
Each party may terminate this Agreement if the other party breaches any material provision of this Agreement, and such breach is not cured within thirty (30) days after written notice thereof.
9.3. Upon termination, all Company's obligations to Presenter shall immediately expire.
This Agreement is non-exclusive. The Presenter is not restricted from working with any other entity, and the Company is not restricted from working with any other presenters or other third parties.
11. Independent Contractor
11.1. The Presenter is an independent contractor and is not an agent or employee of the Company. Nothing in this Agreement shall create or establish an employer-employee relationship between the Company and the Presenter.
11.2. The Presenter has no authority to bind or obligate the Company by contract or otherwise. The Presenter shall not make any representations or warranties to anyone on behalf of the Company with respect to any contract or otherwise.
11.3. The Presenter shall be responsible for paying all applicable taxes as an independent contractor.
12.1. Assignment. The Presenter shall not assign or transfer any of his or her obligations or rights under this Agreement to any third party without the Company's prior written consent.
12.2. Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the parties with respect to the matters referred to herein, and supersedes any other arrangement or agreement, verbal or otherwise. This Agreement may not be amended except by the written consent of the parties.
12.3. Governing Law and Jurisdiction. This Agreement is governed by the law of the State of New York, excluding its conflicts of laws provisions. Any claim or dispute under this Agreement will be decided exclusively by federal or state courts located in New York, New York. Each party agrees to the personal jurisdiction and forum convenience of such courts.
12.4. No Waiver. Failure of a party to enforce any of the provisions of this Agreement on one occasion will not be construed to be a waiver of the provision on any other occasion.
12.5. Severability. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
12.6. Notices. All notices hereunder will be in writing and shall be given by and be deemed received by the receiving party (i) if sent by a delivery service, on the date confirmed as the actual date of delivery by such service; (ii) if sent by registered air mail, return receipt requested, within seven (7) days of mailing; (iii) if sent by fax with electronic confirmation of transmission, on the next business day after transmission; or (iv) if sent by e-mail with an electronic written confirmation of receipt, on the next business day after transmission.
IN WITNESS WHEREOF, the presenter has marked that he Read and Agree to the Terms and Conditions .