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CDL Rev 3: 2-6-07

FETCH-A-SKETCH DESIGNER EXCLUSIVE LICENSE AGREEMENT

This Exclusive License Agreement (the "License Agreement") establishes the legal terms under which landscape designers, architects and other home improvement design professionals (referred to as "Design Suppliers" or as "you") may (1) display your proprietary landscape design, architectural, and other home improvement concept drawings (collectively, "Designer Content") on an exclusive basis on the website located at (the "Site"), to be viewed by users (collectively, "End Users") of the Site, and (2) authorize Intellectual Property Sales, Inc. ("IPS"), the owner and operator of the Site, to grant limited, non-exclusive licenses to End Users to obtain a digital copy of and to use for defined purposes the Designer Content, on the terms established by the separate Fetch-A-Sketch User Agreement (the "User Agreement") and to collect and share with the Design Supplier the associated licensing revenue. It is important that you read this License Agreement and indicate your acceptance of all of its terms by selecting the "I Agree" box at the end of the License Agreement. If you do not accept and agree to be legally bound by these terms, do not select "I Agree" and do not attempt to upload any Designer Content to the Site.

1. Exclusive License for Online Display and Marketing
    (a) In consideration for the services provided by IPS to you under this License Agreement, including operating an online forum accessible worldwide for the display of your Designer Content and collecting and remitting to you licensing revenue from End Users who choose to obtain and use digital copies of that Designer Content, you agree that with respect to all Designer Content that you submit for uploading to and display on the Site, IPS shall have, and you hereby grant to IPS, the exclusive worldwide right and license, royalty free and irrevocable during the Term of this License Agreement, to display that Designer Content on the Internet, and to grant to End Users those rights in your Designer Content as provided by and subject to the Fetch-A-Sketch User Agreement. Further, you hereby appoint IPS as your exclusive worldwide agent to license your Designer Content for the purposes defined in the User Agreement, as it may be amended from time to time. You further grant to IPS a license to use, reproduce, distribute, redistribute, publish, republish, upload, post, transmit, crop, package, repackage, publicly perform and display your Designer content for, and to the extent necessary to accomplish, the purposes of this License Agreement and the User Agreement.

    (b) Notwithstanding the provisions of section 1(a) above, you may establish or maintain a personal portfolio web site on which you may display your Designer Content for purposes of promoting and marketing your professional designer services, but not for sale or licensing or giving away of rights in such Designer Content.
2. Design Supplier Status
    (a) In order to participate on the Site as a Design Supplier, in addition to indicating your acceptance of this License Agreement, you must complete and submit to IPS the Design Supplier Application found here [insert link]. IPS reserves the right to accept or reject any Design Supplier Application in its sole discretion.

    (b) Upon receipt of your Design Supplier Application, IPS will notify you when and if the application has been approved. If your Design Supplier Application is accepted, your account will be activated and you will receive directions for submitting Designer Content for uploading to the Site. Each upload will be governed by the terms of this License Agreement.
3. Intellectual Property Representations.
    (a) By submitting Designer Content, you represent and warrant:
      (1) that you own all proprietary rights, including copyright, in and to the Designer Content;

      (2) that you have the full and unrestricted legal right to grant End Users the rights to use your Designer Content contemplated by the User Agreement, and that you have not granted any license or entered into any agreement that conflicts, interferes or is inconsistent with the rights and obligations that you are undertaking under this License Agreement; and

      (3) that you are not making any of the Designer Content available to or through any other distributor, website (other than the Site) or other marketing, distribution, sale or licensing venue of any kind not specifically permitted herein.
    (b) You acknowledge and agree that IPS prohibits the uploading to or display on the Site of any Designer Content or other material that infringes on any patent, copyright, trademark, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right of any person.

    (c) The parties acknowledge and agree that all rights, including title and copyright, in and to the Designer Content will be retained by the Design Supplier, and that no title or copyright is transferred or granted to IPS or to any End User by this License Agreement and/or by the User Agreement; provided, however, that you acknowledge and agree that IPS, as your exclusive licensee of web site distribution rights to the Designer Content, and as the creator and operator of the Site, may affix to each Design Content drawing posted on the Site a copyright notice in the following form: "Copyright [year], Fetch-A-Sketch.Com."

    (d) You acknowledge and agree that, notwithstanding any provision of this License Agreement to the contrary, IPS reserves the right in its sole discretion to decline to display on the Site, or to remove from the Site, any Designer Content that IPS determines in the exercise of its subjective discretion is not suitable for display on the Site or otherwise does not conform to the requirements of this License Agreement.

    (e) The Site contains logos, text, software, graphics, pictures and other material and information that is owned by and proprietary to IPS, including the "FETCH-A-SKETCH" mark and logo (the "IPS Proprietary Material"). You acknowledge IPS's exclusive ownership of the IPS Proprietary Material and agree not to use or alter in any way any of said IPS Proprietary Material without the prior written consent of an authorized officer of IPS
4. Designer Content Categories

IPS shall segregate Designer Content drawings displayed on the Site into categories "A," "B" and "C," based upon such variables as complexity and scope of the drawing (e.g., a complex, multi-faceted backyard landscaping plan versus a simple outdoor cook center/barbecue plan), degree of detail in the drawing, whether the drawing is monotone or multi-colored, etc. IPS reserves the right to make these category decisions in accordance with its own subjective judgment, and its decisions in this regard shall be final.

5. Featured Designer Program
    (a) Any Design Supplier who has indicated acceptance of this License Agreement and whose Design Supplier Application has been accepted by IPS may elect to participate in the Featured Designer program on the Site by fulfilling these requirements:
      (1) Paying a one year Featured Designer program enrollment fee of $99.00 (which fee is subject to change by IPS); and

      (2) Submitting and having accepted by IPS for posting on the Site a core portfolio of 10 Designer Content drawings (the "Designer Portfolio"), and, at the Featured Designer's option, an unlimited number of additional Designer Content drawings (each an "Added Drawing").
    (b) Featured Designers will receive the following benefits:
      (1) Featured Designer Content shall be made available on the Site for licensing to End Users in accordance with the User Agreement, at prices established from time to time by IPS and published on the Site, and the Featured Designer will receive fifty percent (50%) of the Net Licensing Revenues (as defined below) actually received by IPS from End Users for the licensing of that Featured Designer's Content.

      (2) The Featured Designer will be able to post on the Site a professional biography (not to exceed 500 words) and a personal photo of the Designer at work.

      (3) Featured Designers and all Featured Designer Content will be searchable on the Site.

      (4) Featured Designers may receive free "Fetch-A-Sketch" business cards to help build traffic to their portfolio on the Site.

      (5) Featured Designer Content will be searchable on the Site.
    (c) If the Designer Content of any Featured Designer has generated not less than $500.00 of aggregate Net Licensing Revenues during the first year or subsequent years of participation in the Featured Designer Program, then that Designer's status as a Featured Designer will automatically be renewed, and the Featured Designer's Portfolio drawings shall remain posted on the Site, at no cost to the Designer, for an additional one year period. Otherwise, the Designer may renew its participation in the Featured Designer program by payment of the then-current Featured Designer annual fee.

    (d) Any Added Drawing that generates at least $99.00 in Net Licensing Revenue in any twelve month period may remain posted on the Site for an additional twelve months as part of that Featured Designer's collection at no additional cost. Otherwise, the Featured Designer may choose to have any Added Drawing remain on the Site as part of the Featured Designer's collection for a fee of $15.00 per Added Drawing per year.
6. Free-Loader Designer Program
    (a) Any Design Supplier who has indicated acceptance of this License Agreement and whose Design Supplier Application has been accepted, and who chooses not to participate in the Featured Designer Program, may submit Designer Content for uploading to the Site under the "Free-Loader" program. Any Free-Loader Designer Content accepted by IPS shall be displayed on the Site at no cost to the Free-Loader Designer for a period of twelve months from the date of the first Designer Content posting. All Free-Loader Designer Content posted on the Site shall be available for licensing to End Users pursuant to the User Agreement.

    (b) IPS agrees to remit to each Free-Loader Designer forty percent (40%) of the Net Licensing Revenues (as defined below) actually received by IPS from End Users for the licensing of that Free-Loader Designer's Content.

    (c) Any Free-Loader Drawing that generates at least $99.00 in Net Licensing Revenue in any twelve month period may remain posted on the Site for an additional twelve months at no additional cost. Otherwise, the Free-Loader Designer may choose to have any drawing remain on the Site for a fee of $15.00 per drawing per year.
7. Additional Compensation Terms
    (a) "Net Licensing Revenues" as used in this License Agreement means all payments actually received by IPS from End Users in consideration for the grant of a license to use Designer Content pursuant to the User Agreement. Net Licensing Revenues shall be net of (i) sales, use or similar taxes or withholdings that IPS is required by applicable law to pay measured as a percentage of licensing revenues received; (ii) bad debts or other uncollectible amounts; (iii) fees payable to financial institutions for the processing of any credit card, debit card, e-cheque or alternative payment method; (iv) legal and other reasonable fees incurred in enforcing or collecting amounts owing under the particular User Agreement; and (v) any amounts owing by the Design Supplier to IPS under this License Agreement or otherwise.

    (b) Without limiting the generality of the foregoing, IPS is entitled to set off against any amounts owing to a Design Supplier, all amounts to which IPS is or may be entitled from that Design Supplier under this Agreement or otherwise at law, including withholding an appropriate amount as security for performance by Design Supplier of its obligation to indemnify IPS against third party claims arising out of a breach of this License Agreement by Design Supplier.

    (c) The price for a license of any given Featured Designer or Free-Loader Content drawing shall be determined by (i) the category into which IPS has indexed the particular drawing in accordance with section 4 above, namely, "A," "B" or "C," and (ii) the resolution and print size capacity of the digital download license selected by the End User.

    (d) IPS agrees to remit to each Featured Designer and Free-Loader Designer its designated share of Net Licensing Revenue on or about the 15th day of the month following IPS's receipt of such Revenue, provided that the aggregate Revenue share due to the Designer is a minimum of US $100.00, failing which the Designer's Revenue share will be retained by IPS until it exceeds such minimum.
8. Managing Designer Content
    (a) You acknowledge and agree that you will be responsible for all access or use of the upload portions of the Site that occurs in conjunction with your Design Supplier name and password.

    (b) IPS will give priority to posting Featured Designer Content.

    (c) Notwithstanding that IPS reserves the right to decline to post or to remove previously posted Designer Content from the Site that in IPS's sole subjective judgment does not satisfy the desired qualitative standards or is otherwise unacceptable, IPS does not undertake and has no obligation to review all Designer Content uploaded to the Site and is not responsible for the content, quality or consequences of your uploading such Designer Content to the Site. You acknowledge that any screening of Designer Content is done as a courtesy only.

    (d) You acknowledge that End Users who license your Designer Content pursuant to the User Agreement may violate or exceed the limitations and restrictions on permitted use of that Designer Content. In no event shall IPS be liable to you with respect to any such third party's violation of your rights in Designer Content. If IPS obtains actual knowledge of such a breach of the User Agreement, it may, but shall not be obligated to, take commercially reasonable and appropriate action, at its cost, to cause the End User to cease any unauthorized use of the licensed Designer Content and to recover damages or other relief for breach of the User Agreement. In addition, IPS will cooperate reasonably with you, at your cost, to assist you to enforce your intellectual property rights in Designer Content against an End User who is breaching the User Agreement. In the event that you or IPS take action against an End User for unauthorized use of Designer Content in violation of the User Agreement, all proceeds of such action (whether by recovery of a money judgment or arbitration award or by settlement), after each party has recouped all of its costs and expenses, including attorneys' fees, incurred in such proceeding, shall be split between the Design Supplier and IPS in accordance with the Featured Designer or Free-Loader Designer percentages, as applicable to the Design Supplier at the time that the involved Designer Content was first posted on the Site.
9. Featured Designer Referral Service.
    (a) Any Featured Designer may, at its option, elect to participate in the Featured Designer Referral Service by selecting that option in its Design Supplier Application.

    (b) In the event that an End User clicks on the "Contact the Designer" link that appears with each Featured Designer Content drawing on the Site and completes the referral request form on the Site, including the End User's name, telephone and/or email contact information and nature of inquiry, IPS will promptly forward the End User's contact information to the Featured Designer. The Featured Designer will pay IPS a referral fee of $20.00 for each such referral that includes all the required End User information forwarded to the Featured Designer.

    (c) IPS assumes and shall have no responsibility to prescreen or to verify the accuracy of any information submitted by an End User using the "Contact the Designer" link, and the referral fee shall be payable without regard to whether any transaction occurs between the End User and the Featured Designer.
10. Representations and Warranties

You represent and warrant that:
    (a) You have the legal capacity and authority to enter into this License Agreement, you are and will be the sole and exclusive owner of all Designer Content that you submit for posting on the Site, and the Designer Content you submit will not infringe any copyright, trademark, right of privacy, right of publicity or other proprietary right of any third party, or defame or cast into disrepute any third party;

    (b) No portion of the Designer Content that you submit for posting on the Site will contain any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated by this License Agreement and the User Agreement, and all such Designer content will be free of any worm, virus, lock or other mechanism or device that may be used to damage or disable the Site or any Designer Content.
11. Term and Termination.
    (a) This License Agreement is effective, and the rights granted by you to IPS in your Designer Content shall remain in effect, for a period of two years from the date that any of your Designer Content is first posted on the Site, unless sooner terminated as provided below.

    (b) The right of any Featured Designer and Free-Loader Designer to continue to enjoy and receive the benefits of this License Agreement is subject to and conditioned upon the fulfillment of the conditions specified in section 5(a) and (d) (for Featured Designer status) and section 6(c) (for Free-Loader Designer status); provided, however, that notwithstanding any other provision of this License Agreement, the exclusive license for online distribution and licensing of Designer Content granted by you to IPS shall in all cases remain valid and in effect for not less than two years from the date that any given Designer Content drawing is first posted on the Site.

    (c) Either party may terminate this License Agreement in the event that the other party has committed a material breach of this License Agreement, by giving the breaching party written notice specifying the breach or breaches and demanding that the other party cure such breach(es) within thirty days following delivery of the notice. If the breaching party has not cured the breach within such thirty day period, and subject to IPS's retained exclusive online distribution rights under section 11 (b) above and continuing obligation to account under section 11 (e) below, this License Agreement shall automatically be deemed terminated.

    (d) In addition, IPS may terminate this License Agreement with a Design Supplier and set off any fees or credits contained in such account against its costs of administration if there has been (i) in the reasonable opinion of IPS any material misrepresentation made as to the capacity, identity or copyright ownership of Designer Content, or (ii) no log-in activity or other use of the account by the Design Supplier for 24 months despite commercially reasonable efforts by IPS to contact the Design Supplier based on the contact information most recently provided to IPS by that Design Supplier.

    (e) Upon the termination of this License Agreement, with respect to all Designer Content that was posted on the Site as of the termination date, IPS shall continue to have the license and authority to grant End User licenses to all such content until the end of the two year period following the earliest posting of any of that Designer's Content on the Site, and IPS shall pay the designated percentage of Net Licensing Revenue to the Design Supplier for such post-termination End User licenses.

    (f) Upon termination, IPS will be entitled to retain all amounts owing to the Design Supplier for a period of thirty (30) days to determine any applicable right of set-off, and shall be entitled to deduct from such amounts a reasonable administrative fee for establishing, managing and terminating the account

    (g) The termination of this License Agreement shall not, in any event, alter, effect, limit or terminate the rights in particular Designer Content granted to an End User pursuant to a User Agreement validly entered into between IPS and the End User prior to the termination or in accordance with section 10(e) above.

    (h) Termination of this License Agreement shall be without prejudice to IPS's rights, defenses and limitations of liability under this Agreement, and all such rights, defenses and limitations of liability, as well as IPS's right of indemnity based on the Design Supplier's breach of this License Agreement, shall survive termination and continue I full force and effect thereafter.
12. Limitation of Warranties and Representationsx
    (a) THE SITE, ANY CONTENT CONTAINED THEREIN, AND ALL OTHER INFORMATION PRESENTED ON THE SITE, IS PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND, AND IPS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. IPS DOES NOT WARRANT THAT THE OPERATION OF THE SITE WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT BREACHES OF SECURITY. IPS MAKES NO REPRESENTATION OR WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY OR TIMELINESS OF THE CONTENT, SOFTWARE, TEXT, GRAPHICS, LINKS, OR COMMUNICATION PROVIDED ON OR THROUGH THE USE OF THE SITE. IT DOES NOT GUARANTEE THE SITE TO BE ERROR-FREE, SECURE, CONTINUOUSLY AVAILABLE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Some jurisdictions do not allow the exclusion or limitation of implied warranties, so in these jurisdictions the above limitations or exclusions may not apply or may be limited.
13. Limitation of Liability.
    (a) IN NO EVENT WILL IPS, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR SUBSIDIARIES, BE LIABLE TO YOU OR ANY PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION OR LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE OR OF THE SERVICES OFFERED BY THE SITE, THE AVAILABILITY OR UNAVAILABILITY OF THE SITE OR OF DESIGNER CONTENT, OR ANY OTHER SERVICES OR GOODS OBTAINED THROUGH USE OF ANY OF THE FOREGOING, OR ANY DATA TRANSMITTED THROUGH THE SITE, HOWEVER ARISING, INCLUDING NEGLIGENCE, EVEN IF IPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND IRRESPECTIVE WHETHER THE CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHERWISE.

    (b) IPS 'S ENTIRE AGGREGATE LIABILITY TO YOU FOR ANY CLAIM ARISING OUT OF OR BASED UPON YOUR USE OF THE SITE OR OF THE SERVICES OFFERED BY THE SITE SHALL BE LIMITED TO THE AGGREGATE AMOUNT OF NET LICENSING REVENUES RECEIVED BY FOR THE DESIGNER CONTENT THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED $500.00.

    (c) REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND ARE LIMITED TO THOSE EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. Some jurisdictions do not allow the exclusion or limitation of certain damages, so in these jurisdictions the above limitations or exclusions may not apply to you.
14. Indemnification

You agree to indemnify, defend and hold IPS, its affiliates, its Designer Content contributors, and their respective employees, officers, directors, agents and representatives (collectively, the "IPS Parties") harmless from and against any losses, costs, liabilities and expenses (including reasonable attorneys' fees) incurred by any IPS Party as a result of or in connection with any breach by you or anyone acting on your behalf of any of the terms of this License Agreement.

15. General Provisions
    (a) You acknowledge and affirm that you have, in addition to the terms of this License Agreement, carefully reviewed the terms of the User Agreement and any other agreement that may be incorporated therein, and to the extent that the terms of such other agreements are expressly referred to in or control this License Agreement, you agree to those other terms as well.

    (b) This License Agreement is personal to you and is not assignable by you without the prior written approval of IPS. IPS may assign this Agreement without your consent to any other party that agrees to be bound by its terms.

    (c) IPS does not recommend any specific design professional or Designer Content and does not provide its advice on which Content or designer to select.

    (d) This License Agreement is made in and shall be performed by IPS in, and shall be governed by and interpreted in accordance with the laws of, the State of California, USA, without regard to its conflict of law provisions. This License Agreement shall not be governed by the United Nations Convention on contracts for the International Sale of Goods, the application of which is expressly excluded. Any dispute arising under or concerning this License Agreement shall be finally resolved exclusively 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 Los Angeles, California, and shall be conducted in English. By using the Site, you agree and consent to personal and subject matter jurisdiction in such arbitration in Los Angeles, California. In any such proceeding, the prevailing party shall be entitled to recover, in addition to any other relief, its costs of the action or proceeding, including its reasonable attorneys' fees.

    (e) The failure of IPS to insist upon or enforce strict performance of any provision of this Agreement, or to exercise any right under this Agreement, will not be construed as a waiver or relinquishment of the right of IPS to rely upon or demand performance of that provision on any other occasion.

    (f) IPS reserves the right to modify or amend the provisions of this License Agreement from time to time, and it shall prominently post notice of any such modified or amended terms on the Site. You shall be bound by any such modified or amended terms if you use or access the Site after such posting unless you give written notice to IPS within thirty (30) days following such notice of amended terms that you have decided to terminate this License Agreement in accordance with section 10 above.

    (g) The Site may contain links to websites operated by parties other than IPS ("Third Party Site "). IPS's links to such Third Party Sites do not imply any endorsement of the products, services or material on such Third Party Site or any association with their sponsors or operators. IPS expressly disavows any responsibility or liability for any content, services and products available through all such Third Party Sites. Linking to any other service or site from this Site is at each Designer's own risk.

    (h) No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created between you and IPS. Nothing in this Agreement is intended to create, or shall be construed as creating, a taxable entity between the parties to this License Agreement, or any right to pledge the other's credit, it being understood that IPS and you are independent contractors vis-à-vis one another.

    (i) Should any provision of this License Agreement be held by a court or arbitration tribunal of competent jurisdiction to be invalid or unenforceable, then the remainder of this License Agreement shall nevertheless remain in full force and effect.
16. Contact

If you have any questions about this License Agreement or wish to terminate the Agreement as provided in section 10, please contact IPS at webmaster@fetchasketch.com or via phone at 800-813-8422.

17. Acknowledgement

By selecting the "I Agree" box at the bottom of this page, you acknowledge that you have read this Agreement, understand it, and have had the opportunity to seek independent legal advice prior to agreeing to it. In consideration of IPS agreeing to allow the posting of your Designer Content, promote End User's licensing of it, and remit the agreed compensation to you, you agree to be bound by the terms and conditions of this License Agreement. You further agree that this License Agreement constitutes the complete and exclusive statement of the agreement between you and IPS concerning the subject matter hereof, and that this License Agreement supersedes any proposal or prior agreement, oral or written, or any other communication between you and IPS relating to the subject matter of this License Agreement.

I ACCEPT AND AGREE


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