ARCHITECT AGREEMENT
This Architect Agreement (the “Agreement”) is entered into as of July 22, 2019,
BETWEEN:
OMEGA MORPHOSIS CORPORATION, a corporation incorporated pursuant to the laws of the Province of Alberta with its registered and records office at 3700, 205 – 5th Avenue S.W., Calgary, Alberta T2P 2V7
(the “Corporation”) AND You (the “Architect”)
BACKGROUND:
A. The Corporation owns and operates a personal development platform which connects persons with skills, knowledge and expertise to Consumers to facilitate the transfer of such skills, knowledge and expertise;
B. The Architect possesses certain skills, knowledge and expertise; and
C. The Corporation wishes to retain the services of the Architect pursuant to the terms of this Agreement to facilitate the provision of Content and interaction between the Architect and Consumers.
AGREEMENT:
IN CONSIDERATION of the background and the mutual promises, agreements and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
In addition to any terms defined elsewhere in this Agreement, the following words capitalized in this Agreement shall have the meanings set forth below:
(a) “Archive License” has the definition given to it in Section 2.9;
(b) “Branding License” has the definition given to it in Section 2.2;
(c) “Consumers” means the consumers and end users of the Content, which for further certainty includes but is not limited to Primary Platform subscribers, and “Consumer” shall mean any one of them;
(d) “Confidential Information” means all terms and provisions of this Agreement, including any amendments, and any or all information related to the business of the parties which is not otherwise known to the receiving party or publically available;
(e) “Content” means any work, performance, sound recording or communication signal submitted by the Architect to the Corporation for publication on any Platform, including, without limitation, ideas, text, comments, video, audio, images, graphics, designs, drawings, animations, information, data, software, scripts, plans, goals, tasks, activities, which the Corporation deems acceptable and chooses to publish upon a Platform, in its sole discretion;
(f) “Content Data” means any and all data, information, analytics, metrics or statistics collected or created by the Corporation in, through or related to any or all of the Content, including any and all datasets, databases or other derivatives thereof, which all include, without limitation, data related to Consumer behavior, performance and Content use patterns, Content usage and performance, Consumer geo-location, device, hardware MAC addresses, IP addresses and other data and information related to any of the Content;
(g) “Content Funding” means in respect of any particular Content, the aggregate amount, if any, paid by the Corporation to the Architect as an advance against future Royalty Payments due to the Architect in respect of such Content under this Agreement;
(h) “Content License” has the meaning ascribed to that term in Section 2.1;
(i) “Content Requirements” means in respect of any particular Content the minimum requirements for any particular Content as described in Schedule A attached hereto, as the same may be amended, superseded, updated or replaced, in whole or in part, from time to time in accordance with Section 3.2;
(j) “Community Values and Moral Standards” means the applicable international, federal, provincial, state and local laws and regulations and certain values and moral standards adhered to by the Corporation and that each Consumer and user of the Primary Platform must conduct themselves in accordance with, as published by the Corporation on the Primary Platform and modified from time to time;
(k) “Feedback” means Consumers’ ideas, recommendations, enhancement requests, suggestions, or other feedback on the Content;
(l) “Infringement Claim” has the definition given to it in Section 9.2;
(m) “Initial Term” has the definition given to it in Section 7.1;
(n) “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, design rights, trade secret, Trademarks, moral rights, and other similar rights, whether registered or unregistered.
(o) “Licenses” means, collectively, the Content License and the Branding License.
(p) “Platform” means the Primary Platform, as well as any other third party service the Corporation desires to utilize to publish the Content from time to time;
(q) “Primary Platform” means the “Omega Morphosis” platform of the Corporation found at www.omegamorphosis.com, its subdomains, related platforms and/or the Corporation’s mobile applications;
(r) “Publication Date” means, with respect to particular Content, the date the Content satisfies all Content Requirements and is made publically available on a Platform by the Corporation;
(s) “Renewal Term” has the definition given to it in Section 7.1;
(t) “Royalty Calculation” means the calculation of the Royalty Payment performed as set out in Schedule B attached hereto, as the same may be amended, superseded, updated or replaced, in whole or in part, from time to time in accordance with Section 5.1;
(u) “Royalty Payments” means, in respect of particular Content, the payments made by the Corporation to the Architect representing the Architect’s portion of the profit generated from the applicable Content calculated in accordance with the Royalty Calculation, and “Royalty Payment” means any one such payment;
(v) “Royalty Reports” has the definition given to it in Section 5.5;
(w) “Services” means in respect of particular Content, as applicable, the publishing, distribution, advertising, cross-promotion and marketing of the Content by the Corporation, as set out in Section 4.1;
(x) “Sub-licensee” means a third party sub-licensee that has entered into an agreement with the Corporation during the Term to provide all or any part of the Services on the Corporation’s behalf, including, without limitation, reproducing, publishing, distributing, transmitting, advertising, promoting, marketing or otherwise commercializing the Content;
(y) “Term” has the definition given to it in Section 7.1;
(z) “Terms of Use” means the terms and conditions for the Primary Platform governing the conduct of subscribers and other users of the Primary Platform, as may be updated by the Corporation from time to time;
(aa) “Trademarks” means all trademarks, service marks, brands, certification marks, logos, trade dress, and trade names, and other similar indicia of source or origin, whether or not filed, perfected, registered, recorded or at common law and whether now or later existing, filed, issued or acquired, including all renewals, and all goodwill associated with any of the foregoing; and
(bb) “Treaty Country” means a Berne Convention country, a UCC country (a country that is a party to the Universal Copyright Convention, adopted on September 6, 1952 in Geneva, Switzerland, or to that Convention as revised in Paris, France on July 24, 1971, a WCT country (a country that is a party to the WIPO Copyright Treaty, adopted in Geneva on December 20, 1996) or a WTO Member (means a Member of the World Trade Organization as defined in subsection 2(1) of the World Trade Organization Agreement Implementation Act).
2. GRANT OF LICENSES AND INTELLECTUAL PROPERTY RIGHTS
2.1 License Grant: Subject to the terms of this Agreement, the Architect hereby grants to the Corporation an exclusive, worldwide, sub-licensable, non-transferrable (subject to Section 9.5), right and license, to use the Content to advertise, publish, display, translate in all languages, edit (subject to Section 3.3), publicly perform, promote, market, reproduce, distribute and sell version(s) of the Content (the “Content License”). The Architect further grants the Corporation the exclusive right and license, in connection with the exploitation of the Content License, to upload the Content to any Platform as the publisher of record.
2.2 License to Use Branding Elements and Related Intellectual Property: Subject to the terms of this Agreement, the Architect hereby grants the Corporation an exclusive, royalty-free, worldwide, sub-licensable, transferrable (subject to Section 9.5) right and license to fully exploit all Trademarks in its Content to advertise, publish, display, publicly perform, promote, market, reproduce and distribute the Content through any Platform and in order to otherwise provide the Services in respect of such Content (the “Branding License”). Where applicable, the Corporation will abide by all reasonable and lawful Trademarks guidelines provided to the Corporation by the Architect in writing.
2.3 Waiver of Moral Rights: The Architect hereby irrevocably waives any and all of its moral rights in its Content in favour of Corporation and its successors, assigns, Sub-licensees and Consumers for all purposes and for the full term of any such rights.
2.4 Architect Retains Rights in Content: Between the Architect and the Corporation, and subject to the Licenses granted to the Corporation herein, including in Section 2.9, the Architect retains all rights, title, and interests in and to the Content and all Intellectual Property Rights therein.
2.5 Exclusivity: To protect the Corporation’s interest in being the exclusive provider and publisher of the Content, the Architect agrees that it will not release (other than through the Corporation) any substantially identical or similar media, new versions or updates of the Content which would or could adversely affect Consumer interest or demand for the Content during the Term without the express written consent of the Corporation, which consent may be withheld or conditioned by the Corporation acting in its sole and absolute discretion.
2.6 Content Data: All Content Data will be deemed to be the sole property of the Corporation and the Corporation will own all Intellectual Property Rights in and to such Content Data. The Corporation will make all Content Data available to the Architect and hereby grants the Architect a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, non-sub-licensable, non-transferrable, right and license to use such Content Data for its own internal use.
2.7 Feedback: Any Feedback will be deemed to be the property of the Architect and the Architect will solely own all Intellectual Property Rights in and to such Feedback and the Corporation assigns the Architect any Intellectual Property Rights in and to such Feedback to the extent of its interest therein, if any. The Architect hereby grants to the Corporation a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully sub-licensable, transferrable, unlimited right and license to fully exploit all Feedback. Notwithstanding the foregoing, any Content Data collected or created by the Corporation and derived from Feedback will be the sole and exclusive property of the Corporation.
2.8 Advertising and Marketing Materials: All advertising, marketing and promotional materials related to the Content and created by the Corporation in the performance of the Services, and all Intellectual Property Rights therein will be the sole and exclusive property of the Corporation.
2.9 Archived Content: In the event that the Architect does not update, modify or enhance any Content for a period of five years from the Publication Date and this Agreement, is not terminated before that time under Article 7, then the Licenses shall automatically convert to, and the Architect hereby grants to the Corporation, an exclusive, worldwide, perpetual, irrevocable, fully paid-up, sub-licensable, transferrable, unlimited right and license to fully exploit the Content and Trademarks (the “Archive License”). Where applicable, the Corporation will abide by all reasonable and lawful Trademarks guidelines provided to the Corporation by the Architect in writing.
3. CONTENT REQUIREMENTS AND RESTRICTIONS
3.1 Content Delivery: The Architect will provide Content to the Corporation in a form and format as the Corporation may direct the Architect, for which the Corporation will provide the Services pursuant to this Agreement.
3.2 Content Requirements: The Architect will deliver the Content in compliance with all Content Requirements and the Architect will maintain the Content in compliance with such Content Requirements during the Term. The Corporation may, in its sole discretion, revise the Content Requirements from time to time to conform to legal or regulatory requirements, or to improve or optimize the Consumer experience, upon notice to the Architect, which notice will include an updated version of Schedule A attached hereto, which will amend, replace and supersede the then current version of Schedule A attached hereto and will be incorporated by reference into, and form part of, this Agreement. In the event of any such revision to the Content Requirements, the Architect will use commercially reasonable efforts to adhere to such revised Content Requirements as soon as practicable after being notified thereof.
3.3 Editorial Changes to the Content: The Corporation reserves the right to make any editorial changes to the Content as may be necessary to make the Content suitable for publication.
3.4 Co-Branding and Notices: Within the Content, the Architect and the Corporation will have equal branding rights and the Trademarks notices of each party will be given equal prominence, subject to the Corporation’s sole discretion to give less prominence to its Trademarks.
4. SERVICES AND SUPPORT
4.1 Services: During the Term, the Corporation will provide the following Services in respect of the Content:
(a) Hosting and Publishing. The Corporation will be responsible for hosting the Content and maintaining the availability of the Content for Consumers accessing the Content. Once the Corporation is satisfied, in its sole discretion, that the Content has met the applicable Content Requirements such that it is ready to be launched on a Platform, the Corporation will be responsible for publishing and distributing such Content.
(b) Consumer Support. The Corporation will make commercially reasonable efforts to provide adequate and professional quality frontline Consumer support and services in respect of the Content, including responding to Consumer inquiries in respect of the Content and collecting Feedback from Consumers for further action by the Corporation or the Architect.
4.2 Communication: During the Term of this Agreement, the responsible persons appointed by the parties respectively as the responsible persons for the Content will liaise as necessary to discuss such Content and the marketing, promotion and performance of the Content.
4.3 House Ads: The Corporation will be permitted to deliver ads in the Content that are used to promote the Corporation’s services without notice or payment to the Architect.
4.4 Architect’s Obligations to Support Content: The Architect will make commercially reasonable efforts to respond to Feedback provided to it by the Corporation and to update and maintain the Content. The Architect agrees to cooperate with any reviews conducted by the Corporation with the intention of affirming that the Architect has constructed the Content in a manner sufficient to support the desired Content quality and compliance with the Content Requirements. The Architect will cooperate with the Corporation to make commercially reasonable efforts to update and improve the Content on an ongoing basis after the Publication Date for a minimum period of one year from the Publication Date.
5. PAYMENT, REPORTING AND AUDIT RIGHTS.
5.1 Royalty Payments: The Architect will receive the Royalty Payments generated from the Content which will be calculated in accordance with the Royalty Calculation and the classification of the Content provided for therein, as may be modified by the Corporation from time to time with such modification to be effective as of the next Renewal Term unless the Architect expressly consents to immediate effectiveness. Where a Royalty Payment is payable in respect of any Content, the Corporation will pay such Royalty Payment to such account that the Architect will advise in writing, from time to time, within forty-five (45) days following the end of the calendar month in which such Royalty Payment is earned, provided, however, that the aggregate Royalty Payment payable to the Architect for all Content, subtracting any deductions provided for herein including in Section 5.2, is at least equivalent to CAD$100.00. If the aggregate Royalty Payment payable to the Architect in respect of all Content is less than the equivalent of CAD$100.00, the amount due to the Architect will be carried forward from month to month until such time as the amount thereof will exceed the equivalent of CAD$100.00, or this Agreement has terminated, in which case any balance owed to the Architect will be paid to the Architect by the Corporation within forty-five (45) days after the end of the month in which this Agreement terminates. The Corporation may delay or withhold Royalty Payments or other payments that may be due to the Architect where the Architect has not provided valid payment information or, where required, necessary forms or information which may be required by applicable taxation authorities. The Architect must provide the Corporation with at least fourteen days’ (14) prior notice of any changes to the account to which the Corporation is to pay the Royalty Payment and the date any Royalty Payments would otherwise be due pursuant to this Section 5.1 will be adjusted accordingly if notice of a change of the Architect’s account details is provided less than fourteen days (14) prior to the date a Royalty Payment would otherwise come due.
5.2 Primary Platform Membership: During the Term, the Architect must actively subscribe to the Primary Platform of the Corporation at the “gold” tier (or equivalent). The subscription fee will be deducted from any Royalty Payments due to the Architect, or, if the Royalty Payments are not sufficient the subscription fee will be separately invoiced to the Architect who will promptly remit payment to the Corporation. The Architect will not be entitled to any Royalty Payments hereunder unless the Primary Platform subscription of the Architect is fully paid and in good standing.
5.3 Archive License: The Archive License granted to the Corporation in Section 2.8 is fully paid up and thus the Content subject to the Archive License will not be subject to a Royalty Payment.
5.4 Content Funding: The Corporation may provide Content Funding to the Architect in respect of particular Content to assist in the development of the Content. The Royalty Payment for particular Content, earned by the Architect under the provisions of this Agreement, will first be applied by the Corporation against the Content Funding advanced by the Corporation in respect of that Content, if any, until the Content Funding for that Content has been fully earned by the Architect and credited against such Royalty Payments otherwise payable by the Corporation in respect of such Content.
5.5 Royalty Reports: Royalty reports including the calculation of the Royalty Payment, if any, and the current balance of any Content Funding (“Royalty Reports”), will be provided to the Architect within forty-five (45) days of the end of each calendar month and no later than the date on which the Royalty Payment in respect of such calendar month is paid The Corporation will provide the Royalty Reports by email to the Architect or otherwise make the Royalty Reports available to the Architect on the Primary Platform.
5.6 Audit Rights: At any time during the Term of this Agreement (but not more than once in any twelve month period), and for a period of one year following the expiration or earlier termination of this Agreement, the Architect may designate a certified public accountant to review and audit the Corporation’s books and records as necessary to verify the Corporation’s Royalty Reports provided to the Architect. On at least ten business days’ prior notice, such books and records will be made available for inspection by the Architect’s designated certified public accountant during normal business hours. Costs for each audit and related activities will be paid for by the Architect, unless the audit shows a total shortfall in Royalty Payments reported as earned by the Architect exceeding five percent for the full period audited. In such case, the reasonable cost of the audit will be paid by the Corporation. All audit materials and reports will be held in confidence by the Architect and the auditing accountant and will not be used for any purpose except for enforcing this Agreement. Prior to receipt of audit materials and report, the Corporation will provide and the auditing accountant and Architect must enter into a confidentiality and non-disclosure agreement with the Corporation on the Corporation’s standard terms.
6. REPRESENTATIONS AND WARRANTIES
6.1 Mutual Representations and Warranties: Each party represents and warrants to the other party that:
(a) if not an individual, such party is a legal entity in good standing under the laws of the jurisdiction of its organization and has all necessary power and authority to enter into this Agreement and such party’s signatory has been duly authorized on such party's behalf to enter into and execute this Agreement; and
(b) such party has not taken any action, or entered into any agreement or transaction that would directly or indirectly prevent such party from performing hereunder or complying with any provisions of this Agreement.
6.2 Representations and Warranties of Architect: The Architect represents and warrants to the Corporation that:
(a) it has the right to grant to the Corporation the rights and licenses described in Sections 2.1 and 2.2 of this Agreement, including all Intellectual Property Rights in the Content and Trademarks;
(b) the Corporation’s use of the Content and Trademarks does not infringe, misappropriate or violate any third party Intellectual Property Rights;
(c) as of the Effective Date, there are no Claims pending or threatened against the Architect which allege the infringement, misappropriation or violation of any third party Intellectual Property Rights based on the use or practice of the Content or the Intellectual Property Rights therein;
(d) it has the right to disclose the Confidential Information to Corporation;
(e) the Content is original and not copied or derived from any other work and references any sources utilized in creating the Content;
(f) that, if an individual, the Architect is a citizen of a Treaty Country appearing under [his/her] name in the signature block below and was so when the Content was created;
(g) that, if an entity, the Architect had its headquarters in the Treaty Country appearing under its name in the signature block below, or that its employees were citizens and residents of a Treaty Country at the time the Architect or its employees authored the Content;
(h) if created by its employees, the Architect’s employees:
(i) are the sole author(s) of the Content;
(ii) the Content was made in the course of the employees’ employment with the Architect;
(iii) there is no agreement between the Architect and its employees that would vest ownership of the copyright in the Content otherwise; and,
(iv) have waived all “moral rights” in or relating to the Content, in favour of Architect and its successors, assigns and licensees for all purposes and for the full term of any such rights.
(i) all of the facts contained in the Content are true and accurate;
(j) nothing in the Content is obscene, defamatory, libellous, violates any right of privacy or infringes any intellectual property rights of any other person or entity or is otherwise unlawful; and,
(k) the Architect will abide by the Terms of Use and Community Values and Moral Standards at all times when using the Primary Platform or acting in association with the Corporation.
7. TERM AND TERMINATION
7.1 Term of Agreement: The rights and obligations granted herein will commence on the Effective Date and will continue for an initial term of one year from the Publication Date (the “Initial Term”). Upon the expiration of the Initial Term, this Agreement will automatically renew for successive twelve month terms (each, a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement at the end of the Initial Term or at the end of a subsequent Renewal Term by providing the other party with written notice at least ninety days (90) but no more than one hundred twenty days (120) before the end of that Initial Term or subsequent Renewal Term.
7.2 Termination Without Cause: The Corporation may terminate this Agreement for any reason or no reason, and without reliance on the fault of the Architect, at any time by giving the Architect sixty days (60) written notice.
7.3 Termination for Bankruptcy or Insolvency: Either party may terminate this Agreement effective immediately upon delivery of notice of termination to the other party upon the occurrence of any of the following events with respect to the other party:
(a) a receiver is appointed for such party or its material assets;
(b) such party becomes insolvent, generally unable to pay its debts as they become due, makes an assignment for the benefit of its creditors or seeks relief under any bankruptcy, insolvency or debtor’s relief law;
(c) if proceedings are commenced against such party under any bankruptcy, insolvency or debtor’s relief law, and such proceedings have not been vacated or set aside within sixty days from the date of commencement thereof; or
(d) if such party is liquidated or dissolved or otherwise permanently ceases to do business.
7.4 Effect of Termination: Upon any termination of this Agreement: (a) each party will immediately return, or if so requested destroy, all Confidential Information and other property belonging to the requesting party; and (b) the Corporation will immediately (or as soon as practicable) discontinue any use of the Content unless such Content is subject to the Archive License, and pay to the Architect all Royalty Payments due to the Architect through the date of termination. The Corporation will have no further obligations to market or promote the Content, or provide the Services or any assistance to the Architect after the date of termination. Notwithstanding the foregoing, Sub-licensees may continue to operate pursuant to the terms of such the applicable sub-license agreements in place with such Sub-licensee; provided, however, that such agreements may not contain any indefinite or perpetual rights and the Corporation will endeavor to limit any sublicense and distribution rights granted in any such agreement to a term not exceeding three years from the date of the Corporation’s entry into any such agreement, and no such agreement or grant of rights may be renewed or extended by the Corporation after the termination of this Agreement without the prior express written agreement of the Architect. The payment provisions of Article 5 will continue, including with respect to any amounts owed or become owed pursuant to Article 5 and with regards to any Content that are exploited under a sublicense until the expiration or termination of such sublicense.
7.5 Survival: Articles 6, 8, 9, 10 and Sections 2.3, 2.4, 2.6, 2.7, 2.8, 2.9, 5.3, 5.6, 11.6, and this Section 7.5 together with any provisions necessary for the interpretation and construction of this Agreement, will survive the termination of this Agreement.
8. DISPUTE RESOLUTION
8.1 Consumer Disputes: The Corporation is solely responsible for the resolution of disputes with any Consumer. The Architect may, in its sole discretion, assist the Corporation in the resolution of any such disputes with Consumers and when and if the Architect exercises its discretion to assist in resolving any such dispute, the Corporation agrees to cooperate with the Architect in the resolution of any such disputes, including providing the Architect with any records or other information the Architect may request related to the dispute or facilitating any communication between the Architect and the Consumer, where necessary.
8.2 Corporation and Architect Disputes: In the event of a disagreement or dispute between the Architect and Corporation, the parties will first be subject to resolution in good faith through consultation of the parties. Such consultation will begin within seven days after one party hereto has delivered to the other party a written request for such consultation. If within thirty days following the commencement of such consultation the dispute cannot be resolved, the dispute will exclusively be decided by the courts of the Province of British Columbia located in the city of Kelowna, British Columbia, and the parties irrevocable consent to the jurisdiction of such courts for the resolution of any such disputes and waive any claim that such courts do not have jurisdiction or that such courts are not the proper venue for the resolution of any such disputes.
8.3 Governing Law: This Agreement and all disputes, claims or controversies arising hereunder will be governed by and interpreted in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein.
9. ADDITIONAL TERMS
9.1 Notification of Government Inquiry: In the event that the Architect is contacted by any governmental agency or authority relating to the licensing or operation of the Content, or relating to the sale or issuance of any virtual goods or virtual currency, or the conduct of any other transaction related to the Content, the Architect will immediately notify the Corporation of such inquiry.
9.2 Infringement Claims: In the event the Architect receives notice of any claim or possible claim alleging that the Content or Trademarks, provided or licensed by the Architect to the Corporation under this Agreement infringes any third party Intellectual Property Rights, or misappropriates any trade secrets or violates any right of publicity, moral rights or right to privacy of, or duty of confidence owed to, any third party (each, an “Infringement Claim”), the Architect will promptly provide notice of such Infringement Claim to the Corporation. The Corporation reserves the right to suspend any and all Services, Royalty Payments or Content Funding in regards to any Content that is subject to an Infringement Claim, including removing the Content from any Platform, until such time as the Infringement Claim is resolved to the satisfaction of the Corporation, in its sole discretion.
9.3 Merchant of Record; Taxation: As between the Architect and the Corporation, the Corporation will be the merchant of record for the provision of the Content to the Consumer. Each of the Corporation and the Architect will be responsible for their own income and other taxes. The Corporation will report payments made to the Architect as required by law.
9.4 Confidentiality: Neither party will, without the prior written consent of the other, use or permit any other person or entity to use, nor copy, nor disclose, nor make available to any other person or entity any Confidential Information provided to that party for any purpose other than as legitimately required to perform its obligations or enforce its rights under this Agreement. The Architect agrees that the Confidential Information of the Corporation was provided to it in confidence and includes sensitive commercial and financial information about the Corporation the disclosure of which would significantly harm the competitive position of the Corporation and could result in undue financial loss to the Corporation.
9.5 Assignment: Neither party may assign this Agreement or any of its interests, rights or obligations hereunder without the other party’s prior written consent, except that the Corporation may (i) assign this Agreement, in whole or in part, to an affiliate upon notice to the Architect; or (ii) in connection with a sale of all or substantially all of the assets of the Corporation, upon notice to the Architect.
9.6 Independent Contractor: Each party agrees that it is engaged in an independent business and will perform its obligations pursuant to this Agreement as an independent contractor and not as the agent or employee of the other party. This Agreement does not create a partnership, joint venture, agency or other similar relationship between the parties, and neither party will have the power to obligate the other party in any manner whatsoever.
9.7 Identifying Information: The Architect agrees to provide such information from time to time as the Corporation may require to verify the identity, qualifications, or expertise of the Architect or to comply with applicable law, including copies of educational, professional, craft or other qualifications, licenses or certifications, identification of the Architect or its principal(s), as applicable, and the names, contact details and the basis of association of referees who may attest to any of the foregoing.
9.8 Primary Platform Content: In the event any information is published on the Primary Platform which the Architect identifies as posing a reputational risk to the Architect, the Architect may report such information to the Corporation and the Corporation will review such information within a reasonable period of time to determine compliance with the Terms of Use and Community Values and Moral Standards. In the event the information breaches such standards the Corporation will promptly remove such information.
10. INDEMNIFICATION
10.1 Indemnity: Each party will indemnify, defend and hold harmless the other party and its officers, directors, employees, agents and affiliates against and from all losses, expenses, liabilities, damages and costs including, without limitation, reasonable legal fees (on a solicitor and own client basis), that may at any time be incurred by such party in connection with any third party claims arising from the other party’s gross negligence, willful misconduct, breach of this Agreement or breach of any representation or warranty set forth in this Agreement.
10.2 Notice of Claim: Each party will give the other prompt written notice of any claim made that may be subject to indemnification hereunder. The indemnifying party will have the right to control the defense through counsel of its choosing, but the indemnifying party will not be permitted to enter into any settlement of any claims against the indemnified party without the indemnified party’s consent thereto, which consent will not be unreasonably withheld; provided, however, that no such consent will be required if the settlement will fully release the indemnified party from any liability with respect to such claim, without imposing any financial obligation or other material restriction or burden on the indemnified party. The indemnified party will have the right to participate in any proceedings at its own expense through counsel of its choosing.
11. PROTECTION OF PRIVACY & PERSONAL INFORMATION
11.1 Personal Information: For the purposes of this Agreement, “Personal Information” means information that is about an identifiable individual, including that which is provided to the Architect by the Corporation in the performance of this Agreement.
11.2 Use of Personal Information: In entering into this Agreement, you provide the Corporation with consent to collect, use and disclose your Personal Information for the following purposes related to your engagement:
(a) photograph of you and biographical information for marketing purposes. The Corporation will publish your photograph and biography on the Primary Platform to promote you and your Content;
(b) contact information (e.g. mailing address, e-mail address, phone number) in order to correspond with you regarding your engagement with the Corporation, including the Content;
(c) financial information (e.g. bank account number, GST number) in order to provide you with the Royalty Payments and for accounting and tax reporting purposes; and
(d) such other additional purposes that may be identified to you from time to time.
11.3 Purpose of Personal Information: If the Corporation provides the Architect with Personal Information, including Personal Information about its members, the Architect must treat such information as Confidential Information. The Architect must only use that information for the purposes for which it was provided by the Corporation, and in accordance with this Agreement.
11.4 Personal Information Safeguards: The Architect must ensure that the Architect establishes and maintains reasonable security safeguards against such risks as unauthorized access, collection, copying, use, loss, damage, disclosure or disposal of Personal Information.
11.5 Notification of Safeguard Breach: If the Architect becomes aware of or reasonably suspects any loss, theft, or unauthorized access, disclosure, disposal, copying, use, or modification of Personal Information which it has received as part of this Agreement from the Corporation and/or Primary Platform members, has occurred or is likely to occur, the Architect must immediately notify the Corporation of the particulars of that occurrence or likely occurrence.
11.6 Termination of Use of Personal Information: Upon the expiry or termination of this Agreement or upon request by the Corporation, the Architect will cease any and all use of the Personal Information that it has been provided as part of this Agreement and will, at the request of the Corporation, either return all Personal Information to the Corporation, including any copies, or permanently destroy it using appropriate means, and certify such return or destruction within a timeframe reasonably requested by the Corporation.
12. GENERAL PROVISIONS
12.1 Legal Fees: In any action or proceeding to enforce any of the terms or provisions of this Agreement or on account of the breach hereof, the prevailing party will be entitled to recover all its expenses and costs, including, without limitation, reasonable legal fees and costs (on a solicitor and own client basis).
12.2 Severability: In the event that any one or more of the provisions of this Agreement will be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement will not be affected, or if any one or more of the provisions contained herein will be held to be excessively broad as to duration, activity or subject, such provision will be construed by limiting and reducing such provisions so as to be enforceable to the maximum extent compatible with applicable law.
12.3 Notices: Any notices required or permitted hereunder will be given to the appropriate party at the address specified on the signature page attached hereto or at such other addresses as the party will specify in writing. Such notice will be deemed given upon personal delivery to the appropriate address or if sent by certified or registered mail, three days after the date of mailing, or upon delivery if sent by a reputable courier, with confirmation of receipt. The parties also agree that notices may be given by email to the authorized representative of each such party and that a notice given by email is not deemed received unless (if receipt is disputed) the party giving notice produces a printed copy of the email which evidences that the email was sent to the email address of the party given notice. The authorized representatives of each party, and their respective email addresses, are specified below in the signature pages to this Agreement. Either party may change its authorized representative to receive email notices at any time, or update or change the email addresses specified above, or from time to time, by notice to the other party.
12.4 Binding Effect: The provisions of this Agreement will be binding on and inure to the benefit not only of the parties hereto but to each and every one of their representatives, successors, and permitted assigns.
12.5 Amendments: Other than as specifically permitted by Sections 3.2 and 5.1, no supplement, modification, or amendment of this Agreement will be binding unless executed in writing by the parties. No waiver of any provision of this Agreement will be deemed, or will constitute, a waiver of any other provision, whether or not similar; nor will any waiver constitute a continuing waiver unless executed in writing by the party making the waiver.
12.6 Counterparts: This Agreement may be executed in separate counterparts, each of which will be deemed an original (including faxed or electronic signatures), and all of which will be deemed one and the same instrument.
SCHEDULE A
CONTENT REQUIREMENTS
All O.M. Plans must be Safe, Accurate, Successful, and Properly Formatted. It is our intention to work with you on creating the most useful product to our Members. Create the type of content you would feel your family could use and that you would use, and you cannot go wrong. Omega Morphosis wants the best content for each task but will be more lenient if you are the first one to create that content. There will be times when we ask you to do better. We hope you understand that this is only to acquire the best Plans in the world. We know you can do it. We believe in you, You are the Architects of our Omega Morphosis Experience.
SCHEDULE B
ROYALTY CALCULATION
1. Bronze Pool
Pool Revenue Per Architect
(Bronze POOL Value) = (Revenue per Active Bronze Plan)
(Total Number of Active Bronze plans in use by Bronze users for this month)
(Revenue Per Active Plan) X (# of a plans in active use for month) = (Architect’s share of Bronze Pool)
2. Silver Pool
Pool Revenue Per Architect
(Active Bronzes Plans used by Silver Plan Member X 50%) = (Bronze active plans equivalent to Silver)
(Bronze active plans equivalent to Silver) + (Active Silver plans used by Silver Users) = (Total Number of Active plans for this month)
(Silver POOL Dollar Value) = Revenue per Active Silver Plan
(Total Number of Active plans for this month)
(Revenue Per Active Silver Plan) X (Number of Silver Active Plans) = (Architect’s share of Silver Pool)
3. Gold Pool
Pool Revenue Per Architect
(Active Bronzes Plans X 30%) = (Bronze Worth in Active Gold Plans)
(Active Silver Plans X 60%) = (Silver Worth in Active Gold Plans)
(Bronze Worth in Active Gold Plans) + (Silver Worth in Active Gold Plans) + (Active Gold Plans) = (Total Number of Active plans for this month)
(Gold POOL Value) = Revenue per Active Gold Plan
(Total Number of Active plans for this month)
(Revenue Per Active Gold Plan) X (Number of Gold Active Plans) = (Architect’s share of Pool)
ARCHITECT AGREEMENT
This Architect Agreement (the “Agreement”) is entered into as of today's date (the “Effective Date”),
BETWEEN:
OMEGA MORPHOSIS CORPORATION, a corporation incorporated pursuant to the laws of the Province of Alberta with its registered and records office at 3700, 205 – 5th Avenue S.W., Calgary, Alberta T2P 2V7
(the “Corporation”)
AND:
(the “Architect”)
BACKGROUND:
A. The Corporation owns and operates a personal development platform which connects persons with skills, knowledge and expertise to Consumers to facilitate the transfer of such skills, knowledge and expertise;
B. The Architect possesses certain skills, knowledge and expertise; and
C. The Corporation wishes to retain the services of the Architect pursuant to the terms of this Agreement to facilitate the provision of Content and interaction between the Architect and Consumers.
AGREEMENT:
IN CONSIDERATION of the background and the mutual promises, agreements and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
In addition to any terms defined elsewhere in this Agreement, the following words capitalized in this Agreement shall have the meanings set forth below:
(a) “Archive License” has the definition given to it in Section 2.9;
(b) “Branding License” has the definition given to it in Section 2.2;
(c) “Consumers” means the consumers and end users of the Content, which for further certainty includes but is not limited to Primary Platform subscribers, and “Consumer” shall mean any one of them;
(d) “Confidential Information” means all information related to the business of the parties which is not otherwise known to the receiving party or publically available including all sales data and revenue and other information, irrespective of the form of communication, that relates to the business or affairs of either party that is identified as being confidential at the time of disclosure or disclosed under circumstances that would lead a reasonable person to believe such information is confidential.;
(e) “Content” means any work, performance, sound recording or communication signal submitted by the Architect to the Corporation for publication on any Platform, including, without limitation, ideas, text, comments, video, audio, images, graphics, designs, drawings, animations, information, data, software, scripts, plans, goals, tasks, activities, which the Corporation deems acceptable and chooses to publish upon a Platform, in its sole discretion;
(f) “Content Data” means any and all data, information (including Consumer comments), analytics, metrics or statistics collected or created by the Corporation in, through or related to any or all of the Content, including any and all datasets, databases or other derivatives thereof, which all include, without limitation, data related to Consumer behavior, performance and Content use patterns, Content usage and performance, Consumer geo-location, device, hardware MAC addresses, IP addresses and other data and information related to any of the Content;
(g) “Content Funding” means in respect of any particular Content, the aggregate amount, if any, paid by the Corporation to the Architect as an advance against future Royalty Payments due to the Architect in respect of such Content under this Agreement;
(h) “Content License” has the meaning ascribed to that term in Section 2.1;
(i) “Content Requirements” means in respect of any particular Content the minimum requirements for any particular Content as described in Schedule A attached hereto, as the same may be amended, superseded, updated or replaced, in whole or in part, from time to time in accordance with Section 3.2;
(j) “Community Values and Moral Standards” means the applicable international, federal, provincial, state and local laws and regulations and certain values and moral standards adhered to by the Corporation and that each Consumer and user of the Primary Platform must conduct themselves in accordance with, as published by the Corporation on the Primary Platform and modified from time to time;
(k) “Feedback” means Consumers’ ideas, recommendations, enhancement requests, suggestions, or other feedback on the Content;
(l) “Infringement Claim” has the definition given to it in Section 9.2;
(m) “Initial Term” has the definition given to it in Section 7.1;
(n) “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, design rights, trade secret, Trademarks, moral rights, and other similar rights, whether registered or unregistered.
(o) “Licenses” means, collectively, the Content License and the Branding License.
(p) “Platform” means the Primary Platform, as well as any other third party service the Corporation desires to utilize to publish the Content from time to time;
(q) “Primary Platform” means the “Omega Morphosis” platform of the Corporation found at www.omegamorphosis.com, its subdomains, related platforms and/or the Corporation’s mobile applications;
(r) “Publication Date” means, with respect to particular Content, the date the Content satisfies all Content Requirements and is made publically available on a Platform by the Corporation;
(s) “Renewal Term” has the definition given to it in Section 7.1;
(t) “Royalty Calculation” means the calculation of the Royalty Payment performed as set out in Schedule B attached hereto, as the same may be amended, superseded, updated or replaced, in whole or in part, from time to time in accordance with Section 5.1;
(u) “Royalty Payments” means, in respect of particular Content, the payments made by the Corporation to the Architect representing the Architect’s portion of the profit generated from the applicable Content calculated in accordance with the Royalty Calculation, and “Royalty Payment” means any one such payment;
(v) “Royalty Reports” has the definition given to it in Section 5.5;
(w) “Services” means in respect of particular Content, as applicable, the publishing, distribution, advertising, cross-promotion and marketing of the Content by the Corporation, as set out in Section 4.1;
(x) “Sub-licensee” means a third party sub-licensee that has entered into an agreement with the Corporation during the Term to provide all or any part of the Services on the Corporation’s behalf, including, without limitation, reproducing, publishing, distributing, transmitting, advertising, promoting, marketing or otherwise commercializing the Content;
(y) “Term” has the definition given to it in Section 7.1;
(z) “Terms of Use” means the terms and conditions for the Primary Platform governing the conduct of subscribers and other users of the Primary Platform, as may be updated by the Corporation from time to time;
(aa) “Trademarks” means all trademarks, service marks, brands, certification marks, logos, trade dress, and trade names, and other similar indicia of source or origin, whether or not filed, perfected, registered, recorded or at common law and whether now or later existing, filed, issued or acquired, including all renewals, and all goodwill associated with any of the foregoing; and
(bb) “Treaty Country” means a Berne Convention country, a UCC country (a country that is a party to the Universal Copyright Convention, adopted on September 6, 1952 in Geneva, Switzerland, or to that Convention as revised in Paris, France on July 24, 1971, a WCT country (a country that is a party to the WIPO Copyright Treaty, adopted in Geneva on December 20, 1996) or a WTO Member (means a Member of the World Trade Organization as defined in subsection 2(1) of the World Trade Organization Agreement Implementation Act).
2. GRANT OF LICENSES AND INTELLECTUAL PROPERTY RIGHTS
2.1 License Grant: Subject to the terms of this Agreement, the Architect hereby grants to the Corporation an exclusive, worldwide, sub-licensable, non-transferrable (subject to Section 9.5), right and license, to use the Content to advertise, publish, display, translate in all languages, publicly perform, promote, market, reproduce, distribute and sell version(s) of the Content (the “Content License”). The Architect further grants the Corporation the exclusive right and license, in connection with the exploitation of the Content License, to upload the Content to any Platform as the publisher of record.
2.2 License to Use Branding Elements and Related Intellectual Property: Subject to the terms of this Agreement, the Architect hereby grants the Corporation an exclusive, royalty-free, worldwide, sub-licensable, transferrable (subject to Section 9.5) right and license to fully exploit all Trademarks in its Content to advertise, publish, display, publicly perform, promote, market, reproduce and distribute the Content through any Platform and in order to otherwise provide the Services in respect of such Content (the “Branding License”). Where applicable, the Corporation will abide by all reasonable and lawful Trademarks guidelines provided to the Corporation by the Architect in writing.
2.3 Waiver of Moral Rights: The Architect hereby irrevocably waives any and all of its moral rights in its Content in favour of Corporation and its successors, assigns, Sub-licensees and Consumers for all purposes and for the full term of any such rights.
2.4 Architect Retains Rights in Content: Between the Architect and the Corporation, and subject to the Licenses granted to the Corporation herein, including in Section 2.9, the Architect retains all rights, title, and interests in and to the Content and all Intellectual Property Rights therein.
2.5 Exclusivity: To protect the Corporation’s interest in being the exclusive provider and publisher of the Content, the Architect agrees that it will not release (other than through the Corporation) any substantially identical or similar media, new versions or updates of the Content which would or could adversely affect Consumer interest or demand for the Content during the Term or the operation of the Archive License (if applicable) without the express written consent of the Corporation, which consent may be withheld or conditioned by the Corporation acting in its sole and absolute discretion.
2.6 Content Data: All Content Data will be deemed to be the sole property of the Corporation and the Corporation will own all Intellectual Property Rights in and to such Content Data. The Corporation will make all Content Data available to the Architect and hereby grants the Architect a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, non-sub-licensable, non-transferrable, right and license to use such Content Data for its own internal use.
2.7 Feedback: Any Feedback will be deemed to be the property of the Architect and the Architect will solely own all Intellectual Property Rights in and to such Feedback and the Corporation assigns the Architect any Intellectual Property Rights in and to such Feedback to the extent of its interest therein, if any. The Architect hereby grants to the Corporation a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully sub-licensable, transferrable, unlimited right and license to fully exploit all Feedback. Notwithstanding the foregoing, any Content Data collected or created by the Corporation and derived from Feedback will be the sole and exclusive property of the Corporation.
2.8 Advertising and Marketing Materials: All advertising, marketing and promotional materials related to the Content and created by the Corporation in the performance of the Services, and all Intellectual Property Rights therein will be the sole and exclusive property of the Corporation.
2.9 Archived Content: In the event that the Architect does not update, modify or enhance any Content for a period of five years from the Publication Date and this Agreement is not terminated before that time under Article 7, then the Licenses shall automatically convert to, and the Architect hereby grants to the Corporation, an exclusive, worldwide, perpetual, irrevocable, fully paid-up, sub-licensable, transferrable, unlimited right and license to fully exploit the Content and Trademarks (the “Archive License”). Where applicable, the Corporation will abide by all reasonable and lawful Trademarks guidelines provided to the Corporation by the Architect in writing.
3. CONTENT REQUIREMENTS AND RESTRICTIONS
3.1 Content Delivery: The Architect will provide Content to the Corporation in a form and format as the Corporation may direct the Architect, for which the Corporation will provide the Services pursuant to this Agreement.
3.2 Content Requirements: The Architect will deliver the Content in compliance with all Content Requirements and the Architect will maintain the Content in compliance with such Content Requirements during the Term. The Corporation may, in its sole discretion, revise the Content Requirements from time to time to conform to legal or regulatory requirements, or to improve or optimize the Consumer experience, upon notice to the Architect, which notice will include an updated version of Schedule A attached hereto, which will amend, replace and supersede the then current version of Schedule A attached hereto and will be incorporated by reference into, and form part of, this Agreement. In the event of any such revision to the Content Requirements, the Architect will use commercially reasonable efforts to adhere to such revised Content Requirements as soon as practicable after being notified thereof.
3.3 Editorial Changes to the Content: The Corporation reserves the right to propose, but not make, changes to the Content as may be necessary to correct or improve the grammar, accuracy or clarity of the Content for publication. Any changes the Corporation may propose will be content neutral and the Architect is solely and exclusively responsible for the integrity and substance of its Content.
3.4 Co-Branding and Notices: Within the Content, the Architect and the Corporation will have equal branding rights and the Trademarks notices of each party will be given equal prominence, subject to the Corporation’s sole discretion to give less prominence to its Trademarks.
4. SERVICES AND SUPPORT
4.1 Services: During the Term, the Corporation will provide the following Services in respect of the Content:
(a) Hosting and Publishing. The Corporation will be responsible for hosting the Content and maintaining the availability of the Content for Consumers accessing the Content. Once the Corporation is satisfied, in its sole discretion, that the Content has met the applicable Content Requirements such that it is ready to be launched on a Platform, the Corporation will be responsible for publishing and distributing such Content.
(b) Consumer Support. The Corporation will make commercially reasonable efforts to provide adequate and professional quality frontline Consumer support and services in respect of the Content, including responding to Consumer inquiries in respect of the Content and collecting Feedback from Consumers for further action by the Corporation or the Architect.
4.2 Communication: During the Term of this Agreement, the responsible persons appointed by the parties respectively as the responsible persons for the Content will liaise as necessary to discuss such Content and the marketing, promotion and performance of the Content.
4.3 House Ads: The Corporation will be permitted to deliver ads in the Content that are used to promote the Corporation’s services without notice or payment to the Architect.
4.4 Architect’s Obligations to Support Content: The Architect will make commercially reasonable efforts to respond to Feedback provided to it by the Corporation and to update and maintain the Content. The Architect agrees to cooperate with any reviews conducted by the Corporation with the intention of affirming that the Architect has constructed the Content in a manner sufficient to support the desired Content quality and compliance with the Content Requirements. The Architect will cooperate with the Corporation to make commercially reasonable efforts to update and improve the Content on an ongoing basis after the Publication Date for a minimum period of one year from the Publication Date.
5. PAYMENT, REPORTING AND AUDIT RIGHTS.
5.1 Royalty Payments: The Architect will receive the Royalty Payments generated from the Content which will be calculated in accordance with the Royalty Calculation and the classification of the Content provided for therein, as may be modified by the Corporation from time to time with such modification to be effective as of the next Renewal Term unless the Architect expressly consents to immediate effectiveness. Where a Royalty Payment is payable in respect of any Content, the Corporation will pay such Royalty Payment to such account that the Architect will advise in writing, from time to time, within forty-five (45) days following the end of the calendar month in which such Royalty Payment is earned, provided, however, that the aggregate Royalty Payment payable to the Architect for all Content, subtracting any deductions provided for herein including in Section 5.2, is at least equivalent to CAD$100.00. If the aggregate Royalty Payment payable to the Architect in respect of all Content is less than the equivalent of CAD$100.00, the amount due to the Architect will be carried forward from month to month until such time as the amount thereof will exceed the equivalent of CAD$100.00, or this Agreement has terminated, in which case any balance owed to the Architect will be paid to the Architect by the Corporation within forty-five (45) days after the end of the month in which this Agreement terminates. The Corporation may delay or withhold Royalty Payments or other payments that may be due to the Architect where the Architect has not provided valid payment information or, where required, necessary forms or information which may be required by applicable taxation authorities. The Architect must provide the Corporation with at least fourteen days’ (14) prior notice of any changes to the account to which the Corporation is to pay the Royalty Payment and the date any Royalty Payments would otherwise be due pursuant to this Section 5.1 will be adjusted accordingly if notice of a change of the Architect’s account details is provided less than fourteen days (14) prior to the date a Royalty Payment would otherwise come due.
5.2 Primary Platform Membership: During the Term, the Architect must actively subscribe to the Primary Platform of the Corporation at the “gold” tier (or equivalent). The subscription fee will be deducted from any Royalty Payments due to the Architect, or, if the Royalty Payments are not sufficient the subscription fee will be separately invoiced to the Architect who will promptly remit payment to the Corporation. The Architect will not be entitled to any Royalty Payments hereunder unless the Primary Platform subscription of the Architect is fully paid and in good standing.
5.3 Archive License: The Archive License granted to the Corporation in Section 2.9 is fully paid up and thus the Content subject to the Archive License will not be subject to a Royalty Payment.
5.4 Content Funding: The Corporation may provide Content Funding to the Architect in respect of particular Content to assist in the development of the Content. The Royalty Payment for particular Content, earned by the Architect under the provisions of this Agreement, will first be applied by the Corporation against the Content Funding advanced by the Corporation in respect of that Content, if any, until the Content Funding for that Content has been fully earned by the Architect and credited against such Royalty Payments otherwise payable by the Corporation in respect of such Content.
5.5 Royalty Reports: Royalty reports including a limited calculation of the Royalty Payment, if any, and the current balance of any Content Funding (“Royalty Reports”), will be provided to the Architect within forty-five (45) days of the end of each calendar month and no later than the date on which the Royalty Payment in respect of such calendar month is paid. The Corporation will provide the Royalty Reports by email to the Architect or otherwise make the Royalty Reports available to the Architect on the Primary Platform. For the purpose of preserving the Corporation's competitive position in the market and at the Corporation's sole discretion, certain inputs for the calculation of the Royalty Payment shall not be displayed or provided in the Royalty Reports.
5.6 Audit Rights: At any time during the Term of this Agreement, and for a period of one year following the expiration or earlier termination of this Agreement, the Architect may designate an independent certified public accountant (the "Auditor") to review and audit the Corporation’s books and records as necessary to verify the Corporation’s Royalty Reports provided to the Architect; provided, however, (a) such audit shall take place no more than once per calendar year at such times and under such circumstances that will not interfere with Corporation’s normal business operations, (b) the Auditor shall sign a non-disclosure agreement in favor of Corporation as a condition of access to such books and records, and (c) the Auditor shall only disclose to the Architect the ultimate result of such audit, i.e. whether the Royalty Payments made to the Architect conform with the Royalty Calculation. If the results of such audit indicate that Corporation has unpaid thee Architect then the Corporation shall promptly pay the Architect the amount of any short fall in Royalty Payments. If the results of such audit indicate that Corporation has over paid the Architect then the Corporation will deduct any over charged amounts from its Royalty Payments due hereunder. Costs for each audit and related activities will be paid for by the Architect, unless the audit shows a total shortfall in Royalty Payments reported as earned by the Architect exceeding five percent for the full period audited. In such case, the reasonable cost of the audit will be paid by the Corporation. The audit report will be held in strict confidence by the Architect and will not be used for any purpose except for enforcing this Agreement.
6. REPRESENTATIONS AND WARRANTIES
6.1 Mutual Representations and Warranties: Each party represents and warrants to the other party that:
(a) if not an individual, such party is a legal entity in good standing under the laws of the jurisdiction of its organization and has all necessary power and authority to enter into this Agreement and such party’s signatory has been duly authorized on such party's behalf to enter into and execute this Agreement; and
(b) such party has not taken any action, or entered into any agreement or transaction that would directly or indirectly prevent such party from performing hereunder or complying with any provisions of this Agreement.
6.2 Representations and Warranties of Architect: The Architect represents and warrants to the Corporation that:
(a) it has the right to grant to the Corporation the rights and licenses described in Sections 2.1, 2.2 and 2.9 of this Agreement, including all Intellectual Property Rights in the Content and Trademarks;
(b) the Corporation’s use of the Content and Trademarks does not infringe, misappropriate or violate any third party Intellectual Property Rights;
(c) as of the Effective Date, there are no Claims pending or threatened against the Architect which allege the infringement, misappropriation or violation of any third party Intellectual Property Rights based on the use or practice of the Content or the Intellectual Property Rights therein;
(d) it has the right to disclose the Confidential Information to Corporation;
(e) the Content is original and not copied or derived from any other work and references any sources utilized in creating the Content;
(f) if an individual, the Architect is a citizen of a Treaty Country appearing under [his/her] name in the signature block below and was so when the Content was created;
(g) if an entity, the Architect had its headquarters in the Treaty Country appearing under its name in the signature block below, or that its employees were citizens and residents of a Treaty Country at the time the Architect or its employees authored the Content;
(h) if created by its employees, the Architect’s employees:
(i) are the sole author(s) of the Content;
(ii) the Content was made in the course of the employees’ employment with the Architect;
(iii) there is no agreement between the Architect and its employees that would vest ownership of the copyright in the Content otherwise; and,
(iv) have waived all “moral rights” in or relating to the Content, in favour of Architect and its successors, assigns and licensees for all purposes and for the full term of any such rights.
(i) all of the facts contained in the Content are true and accurate;
(j) nothing in the Content is obscene, defamatory, libellous, violates any right of privacy or infringes any intellectual property rights of any other person or entity or is otherwise unlawful; and,
(k) the Architect will abide by the Terms of Use and Community Values and Moral Standards at all times when using the Primary Platform or acting in association with the Corporation.
7. TERM AND TERMINATION
7.1 Term of Agreement: The rights and obligations granted herein will commence on the Effective Date and will continue for an initial term of one year from the Publication Date (the “Initial Term”). Upon the expiration of the Initial Term, this Agreement will automatically renew for successive twelve month terms (each, a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement at the end of the Initial Term or at the end of a subsequent Renewal Term by providing the other party with written notice at least ninety days (90) but no more than one hundred twenty days (120) before the end of that Initial Term or subsequent Renewal Term.
7.2 Termination Without Cause: The Corporation may terminate this Agreement for any reason or no reason, and without reliance on the fault of the Architect, at any time by giving the Architect sixty days (60) written notice.
7.3 Termination for Bankruptcy or Insolvency: Either party may terminate this Agreement effective immediately upon delivery of notice of termination to the other party upon the occurrence of any of the following events with respect to the other party:
(a) a receiver is appointed for such party or its material assets;
(b) such party becomes insolvent, generally unable to pay its debts as they become due, makes an assignment for the benefit of its creditors or seeks relief under any bankruptcy, insolvency or debtor’s relief law;
(c) if proceedings are commenced against such party under any bankruptcy, insolvency or debtor’s relief law, and such proceedings have not been vacated or set aside within sixty days from the date of commencement thereof; or
(d) if such party is liquidated or dissolved or otherwise permanently ceases to do business.
7.4 Effect of Termination: Upon any termination of this Agreement: (a) each party will immediately return, or if so requested destroy, all Confidential Information and other property belonging to the requesting party; and (b) the Corporation will immediately (or as soon as practicable) discontinue any use of the Content unless such Content is subject to the Archive License, and pay to the Architect all Royalty Payments due to the Architect through the date of termination. The Corporation will have no further obligations to market or promote the Content, or provide the Services or any assistance to the Architect after the date of termination. Notwithstanding the foregoing, Sub-licensees may continue to operate pursuant to the terms of such the applicable sub-license agreements in place with such Sub-licensee; provided, however, that such agreements may not contain any indefinite or perpetual rights and the Corporation will endeavor to limit any sublicense and distribution rights granted in any such agreement to a term not exceeding three years from the date of the Corporation’s entry into any such agreement, and no such agreement or grant of rights may be renewed or extended by the Corporation after the termination of this Agreement without the prior express written agreement of the Architect. The payment provisions of Article 5 will continue, including with respect to any amounts owed or become owed pursuant to Article 5 and with regards to any Content that are exploited under a sublicense until the expiration or termination of such sublicense.
7.5 Survival: Articles 6, 8, 9, 10 and Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 5.3, 5.6, 11.6, 12.1, 12.2, 12.3, 12.4, 12.5 and this Section 7.5 together with any provisions necessary for the interpretation and construction of this Agreement, will survive the termination of this Agreement.
8. DISPUTE RESOLUTION
8.1 Consumer Disputes: The Corporation is solely responsible for the resolution of disputes with any Consumer. The Architect may, in its sole discretion, assist the Corporation in the resolution of any such disputes with Consumers and when and if the Architect exercises its discretion to assist in resolving any such dispute, the Corporation agrees to cooperate with the Architect in the resolution of any such disputes, including providing the Architect with any records or other information the Architect may request related to the dispute or facilitating any communication between the Architect and the Consumer, where necessary.
8.2 Corporation and Architect Disputes: In the event of a disagreement or dispute between the Architect and Corporation, the parties will first be subject to resolution in good faith through consultation of the parties. Such consultation will begin within seven days after one party hereto has delivered to the other party a written request for such consultation. If within thirty days following the commencement of such consultation the dispute cannot be resolved, the dispute will exclusively be decided by the courts of the Province of British Columbia located in the city of Kelowna, British Columbia, and the parties irrevocable consent to the jurisdiction of such courts for the resolution of any such disputes and waive any claim that such courts do not have jurisdiction or that such courts are not the proper venue for the resolution of any such disputes.
8.3 Governing Law: This Agreement and all disputes, claims or controversies arising hereunder will be governed by and interpreted in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein.
9. ADDITIONAL TERMS
9.1 Notification of Government Inquiry: In the event that the Architect is contacted by any governmental agency or authority relating to the licensing or operation of the Content, or relating to the sale or issuance of any virtual goods or virtual currency, or the conduct of any other transaction related to the Content, the Architect will immediately notify the Corporation of such inquiry.
9.2 Infringement Claims: In the event the Architect receives notice of any claim or possible claim alleging that the Content or Trademarks, provided or licensed by the Architect to the Corporation under this Agreement infringes any third party Intellectual Property Rights, or misappropriates any trade secrets or violates any right of publicity, moral rights or right to privacy of, or duty of confidence owed to, any third party (each, an “Infringement Claim”), the Architect will promptly provide notice of such Infringement Claim to the Corporation. The Corporation reserves the right to suspend any and all Services, Royalty Payments or Content Funding in regards to any Content that is subject to an Infringement Claim, including removing the Content from any Platform, until such time as the Infringement Claim is resolved to the satisfaction of the Corporation, in its sole discretion.
9.3 Merchant of Record; Taxation: As between the Architect and the Corporation, the Corporation will be the merchant of record for the provision of the Content to the Consumer. Each of the Corporation and the Architect will be responsible for their own income and other taxes. The Corporation will report payments made to the Architect as required by law.
9.4 Confidentiality: Neither party will, without the prior written consent of the other, use or permit any other person or entity to use, nor copy, nor disclose, nor make available to any other person or entity any Confidential Information provided to that party for any purpose other than as legitimately required to perform its obligations or enforce its rights under this Agreement. The Architect agrees that the Confidential Information of the Corporation was provided to it in confidence and includes sensitive commercial and financial information about the Corporation the disclosure of which would significantly harm the competitive position of the Corporation and could result in undue financial loss to the Corporation.
9.5 Assignment: Neither party may assign this Agreement or any of its interests, rights or obligations hereunder without the other party’s prior written consent, except that the Corporation may (i) assign this Agreement, in whole or in part, to an affiliate upon notice to the Architect; or (ii) in connection with a sale of all or substantially all of the assets of the Corporation, upon notice to the Architect.
9.6 Independent Contractor: Each party agrees that it is engaged in an independent business and will perform its obligations pursuant to this Agreement as an independent contractor and not as the agent or employee of the other party. This Agreement does not create a partnership, joint venture, agency or other similar relationship between the parties, and neither party will have the power to obligate the other party in any manner whatsoever.
9.7 Identifying Information: The Architect agrees to provide such information from time to time as the Corporation may require to verify the identity, qualifications, or expertise of the Architect or to comply with applicable law, including copies of educational, professional, craft or other qualifications, licenses or certifications, identification of the Architect or its principal(s), as applicable, and the names, contact details and the basis of association of referees who may attest to any of the foregoing.
9.8 Primary Platform Content: In the event any information is published on the Primary Platform which the Architect identifies as posing a reputational risk to the Architect, the Architect may report such information to the Corporation and the Corporation will review such information within a reasonable period of time to determine compliance with the Terms of Use and Community Values and Moral Standards. In the event the information breaches such standards the Corporation will promptly remove such information.
10. INDEMNIFICATION
10.1 Indemnity: The Architect will indemnify, defend and hold harmless the Corporation and its officers, directors, employees, agents and affiliates (the "Indemnitees") against and from all losses, expenses, liabilities, damages and costs (including, without limitation, reasonable legal fees on a solicitor and own client basis) that may at any time be suffered or incurred by any one of the Indemnitees arising from any claim asserted by a third party alleging or relating to any bodily injury, death of any person or damage to real or tangible personal property and caused by the Architect’s negligence, willful misconduct, breach of this Agreement or breach of any representation or warranty set forth in this Agreement.
10.2 Notice of Claim: Each party will give the other prompt written notice of any claim made that may be subject to indemnification hereunder. The indemnifying party will have the right to control the defense through counsel of its choosing, but the indemnifying party will not be permitted to enter into any settlement of any claims against the indemnified party without the indemnified party’s consent thereto, which consent will not be unreasonably withheld; provided, however, that no such consent will be required if the settlement will fully release the indemnified party from any liability with respect to such claim, without imposing any financial obligation or other material restriction or burden on the indemnified party. The indemnified party will have the right to participate in any proceedings at its own expense through counsel of its choosing.
11. PROTECTION OF PRIVACY & PERSONAL INFORMATION
11.1 Personal Information: For the purposes of this Agreement, “Personal Information” means information that is about an identifiable individual, including that which is provided to the Architect by the Corporation in the performance of this Agreement.
11.2 Use of Personal Information: In entering into this Agreement, you provide the Corporation with consent to collect, use and disclose your Personal Information for the following purposes related to your engagement:
(a) photograph of you and biographical information for marketing purposes. The Corporation will publish your photograph and biography on the Primary Platform to promote you and your Content;
(b) contact information (e.g. mailing address, e-mail address, phone number) in order to correspond with you regarding your engagement with the Corporation, including the Content;
(c) financial information (e.g. bank account number, GST number) in order to provide you with the Royalty Payments and for accounting and tax reporting purposes; and
(d) such other additional purposes that may be identified to you from time to time.
11.3 Purpose of Personal Information: If the Corporation provides the Architect with Personal Information, including Personal Information about its members, the Architect must treat such information as Confidential Information. The Architect must only use that information for the purposes for which it was provided by the Corporation, and in accordance with this Agreement.
11.4 Personal Information Safeguards: The Architect must ensure that the Architect establishes and maintains reasonable security safeguards against such risks as unauthorized access, collection, copying, use, loss, damage, disclosure or disposal of Personal Information.
11.5 Notification of Safeguard Breach: If the Architect becomes aware of or reasonably suspects any loss, theft, or unauthorized access, disclosure, disposal, copying, use, or modification of Personal Information which it has received as part of this Agreement from the Corporation and/or Primary Platform members, has occurred or is likely to occur, the Architect must immediately notify the Corporation of the particulars of that occurrence or likely occurrence.
11.6 Termination of Use of Personal Information: Upon the expiry or termination of this Agreement or upon request by the Corporation, the Architect will cease any and all use of the Personal Information that it has been provided as part of this Agreement and will, at the request of the Corporation, either return all Personal Information to the Corporation, including any copies, or permanently destroy it using appropriate means, and certify such return or destruction within a timeframe reasonably requested by the Corporation.
12. GENERAL PROVISIONS
12.1 Legal Fees: In any action or proceeding to enforce any of the terms or provisions of this Agreement or on account of the breach hereof, the prevailing party will be entitled to recover all its expenses and costs, including, without limitation, reasonable legal fees and costs (on a solicitor and own client basis).
12.2 Severability: In the event that any one or more of the provisions of this Agreement will be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement will not be affected, or if any one or more of the provisions contained herein will be held to be excessively broad as to duration, activity or subject, such provision will be construed by limiting and reducing such provisions so as to be enforceable to the maximum extent compatible with applicable law.
12.3 Notices: Any notices required or permitted hereunder will be given to the appropriate party at the address specified on the signature page attached hereto or at such other addresses as the party will specify in writing. Such notice will be deemed given upon personal delivery to the appropriate address or if sent by certified or registered mail, three days after the date of mailing, or upon delivery if sent by a reputable courier, with confirmation of receipt. The parties also agree that notices may be given by email to the authorized representative of each such party and that a notice given by email is not deemed received unless (if receipt is disputed) the party giving notice produces a printed copy of the email which evidences that the email was sent to the email address of the party given notice. The authorized representatives of each party, and their respective email addresses, are specified below in the signature pages to this Agreement. Either party may change its authorized representative to receive email notices at any time, or update or change the email addresses specified above, or from time to time, by notice to the other party.
12.4 Binding Effect: The provisions of this Agreement will be binding on and inure to the benefit not only of the parties hereto but to each and every one of their representatives, successors, and permitted assigns.
12.5 Amendments: Other than as specifically permitted by Sections 3.2 and 5.1, no supplement, modification, or amendment of this Agreement will be binding unless executed in writing by the parties. No waiver of any provision of this Agreement will be deemed, or will constitute, a waiver of any other provision, whether or not similar; nor will any waiver constitute a continuing waiver unless executed in writing by the party making the waiver.
12.6 Counterparts: This Agreement may be executed in separate counterparts, each of which will be deemed an original (including faxed or electronic signatures), and all of which will be deemed one and the same instrument.