Commercial License Agreement Plotagon® Studio
1. Initial provisions
Plotagon Production AB (“Licensor”) has developed the Software, a downloadable application with which a user may create animated characters, stories, and movies. Because you (“Licensee”) would like to enable one named User (defined term) to use the Software, the Parties have entered into this Agreement.
The following terms used in this Agreement have the following meanings: “Agreement” means this agreement and any duly agreed amendments.
“Business Day” means a day on which banks are open for business in Sweden (excluding Saturdays, Sundays and public holidays).
“Confidential Information” means the content of this Agreement and any technical information, financial information, trade secrets, customer lists and other information that a Party receives or obtains (orally, in writing or in any other form) as a result of entering into or performing its obligations under this Agreement or that otherwise relates to a Party.
“Content” means all scenes and characters available to the User, including any new scenes and characters that Licensor makes available to the User during the Term. Content may be digital animations, characters, environments, scenes and other types of digital interaction between digital characters.
“Effective Date” means the date the Agreement is accepted by the Licensee.
“First Line Support” means basic technical support provided in English or Swedish by Licensor’s support staff to the User via email during normal office hours (09.00 – 17.00 Central European Time) during Business Days.
“IPR” means Plotagon’s Intellectual Property Rights, including the Software and thereto connected systems, software, Content and services developed and owned by the Licensor, including all of the Licensor’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information as well as the metadata created or commissioned by Licensor that describes that Software).
“License” means the Licensee’s right to use the Software and Content, as described in section 3 Grant of License.
“License Fee” means the annual fee stated on the Licensor’s website when the Agreement is accepted by the Licensee, or otherwise agreed between the Parties. VAT, if any, is not included in the License Fee.
“Licensee” means the Party that is granted a License by accepting this Agreement, with address as provided when purchasing the License.
“Licensor” means Plotagon Production AB, reg. no 556935-3237, a limited liability company incorporated under the laws of Sweden, with registered address at Wallingatan 18, SE-114 46, Stockholm, Sweden, and having (for the purpose of this Agreement) the email address firstname.lastname@example.org.
“Movies” means an animated video that a User creates as the result of using the Software. “Party/Parties” means the Licensor and the Licensee.
“Software” means the suite of Plotagon software applications including Plotagon Studio, Plotagon Education, Plotagon Story, and any new editions thereof.
“Term” means the period for which this Agreement is valid, including any extensions, pursuant to section 12.
“Territory” means worldwide.
“User” means employees or consultants working for the Licensee who are authorized to use the Software.
3. Grant of License
Subject to the terms and conditions of this Agreement, including full payment of the License Fee, the Licensor grants to the Licensee the non-exclusive, non-transferable, non-sublicensable right to let one named User download, install and use the Software for creating Movies in the Territory. Unless otherwise agreed by the Parties, the Licensee may not display or perform any Movie (in whole or in part), via any broadcast, cable, satellite television or subscription-based or pay-per-download over-the-top (OTT) platforms.
4. Delivery of Software
4.1. The Licensee will provide the name of the User and its email address, and the Licensor will then send an email with instructions on how to download the Software. The email will also include a username and a password, which are necessary for the User to access the downloaded and installed Software. The username and password is personal for the User. If the Licensee would like to replace the User with another User the Licensee shall provide the Licensor with the name and email address of the new User, where after the Licensor will provide a username and a password for the new User. After such transfer, the username and password for the previous User are no longer valid.
4.2. The Software is used offline, but an internet connection might be necessary to download new features and to verify the password when accessing the Software.
The Licensor provides First Line Support to the Licensee for the latest edition of the Software. The Licensor shall use commercially reasonable efforts to provide First Line Support as soon as reasonably possible. The Licensee shall provide such access, information and support as the Licensor may reasonably require in the process of supplying First Line Support.
6.1. The Licensee shall pay to the Licensor, or other party assigned by the Licensor, the License Fee.
6.2. The License Fee is payable at the when the Licensee orders the Software, unless otherwise agreed between the Parties.
7. The Licensor’s Obligation
7.1. The Software is provided on an “as is” basis and the Licensor makes no warranties in regard of compatibility, suitability for a certain purpose or that the Software will be continuous, uninterrupted, secure or error-free.
7.2. The Licensor possesses all rights necessary to grant the rights under the Agreement.
7.3. The Licensor shall indemnify and hold Licensee harmless from and against all loss, liability and expense (including reasonable attorney’s fees) suffered or incurred by Licensee by reason of any material breach of this section 7, however limited to the total License Fees paid by the Licensee during the calendar year during which the breach took place.
8. The Licensee’s Obligation
8.1. The Licensee may not:
8.1.1. reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software, except as expressly permitted by the law in effect in the jurisdiction in which the Licensee is located;
8.1.2. rent, lease, sell, assign or otherwise transfer rights in or to the Software or related documentation;
8.1.3. use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Software;
8.1.4. use, nor store, nor integrate the Software to create any Movies, characters, content or material that is illegal, obscene, libellous, scandalous, defamatory, indecent, objectionable, or otherwise violates any rights of privacy and publicity or any other applicable laws, or that infringes on the copyright, trademark, or other intellectual property rights of Licensor or any third party, nor use any Movies, characters, content or other material created by the Software in any way described in this section;
8.1.5. send, transmit or store in the Software viruses, trojans, malware, spyware, or other harmful or malicious code, interfere with or disrupt the provision of the Software or the data therein, or try to access the Software or related systems in a way contrary to the Agreement;
8.1.6. allow access to the Software to anyone other than the User, including sharing User logins with other employees or contractors without Licensor’s written consent.
8.3. The Licensee is responsible for any breach and infringement made by any User or any other third party which has been given access to the Software by the Licensee.
8.4. The Licensee has the full and unencumbered right, power and authority to enter into this Agreement.
8.5. The Licensee shall indemnify and hold the Licensor harmless from and against all loss, liability and expense (including reasonable attorney’s fees) suffered or incurred by Licensor by reason of any breach of this section 8.
9. Intellectual Property
9.1. The respective Party shall, during and after the Term remain the owner of its intellectual property right, such as copyrights, industrial design rights, trademarks and other registered or non-registered trademarks or other rights. This Agreement shall not be interpreted in such a way that some of these rights are partly or wholly transferred to the other Party, if this is not expressly indicated in this Agreement.
9.2. For the avoidance of doubt, Licensor retains all ownership rights, title and interest in the Software, Content and IPR, including but not limited to trademarks and all patents, copyrights, trade secrets and other proprietary rights in or related to the Software, Content and IPR. Notwithstanding the above, the rights to any Content commissioned by, or custom-developed for the Licensee shall be retained as agreed and negotiated by the Parties.
9.3. The rights to scripts, recorded voices, and other content provided by the Licensee are hereby retained by the Licensee.
9.4. The Licensor is co-author to all Movies and does not object to the Licensee’s use of the Movies in accordance with this Agreement. If the Licensor assesses that the Licensee is using Movies in breach of this Agreement the Licensee shall, upon request from the Licensor, delete such Movies.
10. Limitation of Liability
10.1. Except for breach of the regulations concerning The Licensor’s Obligation (section 7), The Licensee’s Obligation (section 8), Intellectual Property (section 9) or Confidentiality (section 13), the following limitation of liability shall apply:
10.1.1. Each Party’s aggregate liability is limited to the equivalent of the total License Fees paid by the Licensee during the calendar year during which the claim arose, but shall in no event exceed Ten Thousand Euros (€10 000).
10.1.2. The limitation of liability shall not apply for acts or omissions of gross negligence or wilful misconduct.
10.1.3. Neither Party shall be liable for any indirect or consequential damages. Each Party has been advised of the possibility of such loss or damages. This section 10 shall survive termination of this Agreement.
11.1. The Licensor shall have the right, upon ten (10) Business Days’ prior written notice, to verify the User of the Software, provided said audit occurs no more than once per calendar year and is during normal business hours.
11.2. The cost of any such audit shall be borne in equal parts by the Parties, provided, however, that in the event such audit reveals misuse, then the Licensee shall bear the expense of the audit and compensate the Licensor for such misuse.
12. Term and termination
12.1. This Agreement enters into force on the Effective Date and is valid for twelve (12) months.
12.2. The Agreement can be extended for a period of twelve (12) months at a time, if the Licensee pays a new License Fee before the expiry of this Agreement. If Licensor in its sole discretion determines to amend any of the terms set out in this Agreement prior to the expiry of said twelve (12) month period, Licensee will have to renew its acceptance to the updated terms in order for the Agreement to be extended. The size of the License Fee shall be subject to Licensor’s sole discretion unless otherwise agreed in writing by the Parties.
12.3. Subject to the provisions of section 16 (Force majeure), a Party is entitled to terminate this Agreement with immediate effect should
(a) a proceeding in bankruptcy, insolvency or other law of the relief of debtors, including the appointment of any receiver or trustee or assignment for the benefit of creditors, be instituted by or against the other Party; or
(b) the other Party commit a material breach of its obligations pursuant to this Agreement that, if possible to remedy, are not remedied within ten (10) Business Days of notification of such breach by the non- defaulting Party.
12.4. A Party’s notice of immediate termination in accordance with section 12.3 must be given without undue delay from when such Party became aware of the circumstance giving rise to such notice.
12.5. Termination of this Agreement will be without prejudice to any rights and obligations of either Party against the other which may have accrued up to the date of such termination.
12.6. Sections 13 (Confidentiality) and 17 (Governing law and jurisdiction) will survive termination of this Agreement.
13.1. Save for the other Party’s prior written consent, each Party hereby undertakes not to directly or indirectly exploit or reveal to a third party any information about this Agreement or Confidential Information that a Party has received as a result of or pursuant to this Agreement.
13.2. The Parties’ undertaking above does however not apply to:
(a) disclosure of information due to a court judgment or decision by any authority;
(b) disclosure necessitated by applicable laws, stock exchange contract or similar binding rules;
(c) information which a Party can prove was in its possession before the Party received it from the other Party; or
(d) information that, at the time of disclosure, is generally available to or known by the public other than as a result of its disclosure in breach of this Agreement.
13.3. A breach of this section 13 shall be considered a material breach of this Agreement in accordance with section 12.3(b).
14.1. Any notices and other communication to be made under or in connection with this Agreement must be in writing in the English language, and must be sent by courier, registered or certified mail or email and be addressed to the other Party as set forth in section 2 or to such other addresses as a Party may notify the other Party in accordance with this section by not less than five (5) Business Days’ notice.
14.2. A notice shall be effective upon receipt and shall be deemed to have been received:
a) at the time of delivery, if delivered by hand;
b) two (2) Business Days from the time of posting, if sent by registered or certified mail, return or delivery receipt requested, postage prepaid; or
c) if by way of electronic mail, at the time of transmission, if receipt is confirmed.
Neither Party may assign, transfer or pledge or otherwise dispose of or grant any security interest in or over any of its rights or obligations under this Agreement without the prior written consent of the other Party, not to be unduly withheld, with the exception that the Licensor may assign its rights if the majority of its assets are acquired by a third party.
16. Force majeure
16.1. A Party shall be relieved from liability for a failure to perform its obligations under this Agreement during such period, and to the extent that the due performance thereof by the Party is prevented by reason of any circumstance beyond the control of the Party, which could not reasonably have been foreseen or taken into consideration by the Party prior to entering into this Agreement as well as for which the effects thereof could not reasonably have been avoided or mitigated by such Party.
16.2. If relief from liability is provided in accordance with the above, this stipulates an extension of time regarding performance and relief from damages and other remedies. If a Party wishes to invoke a circumstance in accordance with this section, it shall give notice to the other Party when there is a risk for failure or delay to perform an obligation under this Agreement. The time for performance of the relevant obligations of a Party shall be appropriately extended by the period during which the circumstance shall have continued, provided, however, that if performance of a contractual obligation is prevented by such a circumstance for a period of three (3) months or more, each Party shall be entitled to terminate this Agreement.
17. Governing law and jurisdiction
17.1. This Agreement is governed by and construed in accordance with Swedish law.
17.2. Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce.
17.3. The seat of arbitration shall be Stockholm, Sweden, and the language to be used in the arbitral proceedings shall be English, unless otherwise agreed between the disputing parties.
17.4. The Parties agree not to disclose any information obtained in connection with the arbitration proceedings (including all communications, decisions and rulings in the arbitration proceedings) to any third party unless the other Party has given its written consent to disclose such information or if required to do so by law or other binding regulations.
Last amended: 29 May 2018