AGREEMENT between EARTHLUV MEDIA, INC. (hereinafter Earthluv) and the customer (Customer) named on the front side of the Order Confirmation, and Invoice between Earthluv and Customer (Invoice), wherein Earthluv grants Customer and Customer accepts from Earthluv the limited license to exhibit the programs identified on the front side of the Invoice (the Program or Programs) in accordance with the following terms and conditions. Customer agrees to these terms and conditions by accepting delivery of any Program whether on videocassette, DVD, 16mm film, videodisc, or any other medium from Earthluv Media Inc. Customer acknowledges that the Programs may not be utilized in any manner other than as specified herein and in no event shall the Programs be exhibited before an audience where admission is charged for the viewing of the Programs, without prior written consent from Earthluv. With the exception of public libraries lending programs to their authorized cardholders, and schools lending programs to students and their families, CUSTOMER SHALL NOT SUBLICENSE, SUBLEASE, RENT, SELL OR OTHERWISE PART WITH THE POSSESSION OF THE PROGRAMS secured by Customer hereunder to any third parties. Nor may any fund-raising use of the Programs be made without previous authorization from Earthluv. Nothing herein shall derogate from any rights of Earthluv or any other copyright proprietor(s) of the Programs under the United States Copyright Law.
1. RIGHTS For the Program price identified on the front side of the Invoice, Customer has the right to exhibit the Programs to a limited number of viewers where all viewers, projector, or monitor(s) and playback unit are in the same room (in-room use). Such exhibition shall be in accordance with the Arrangement indicated on the front side of the Invoice and during the period applicable thereto. CUSTOMER ACKNOWLEDGES THAT THE PROGRAMS MAY NOT BE DUPLICATED, DIGITIZED OR TRANSFERRED TO ANY OTHER MEDIUM, BROADCAST, TRANSMITTED BY CABLE, OR OTHERWISE TRANSMITTED, ON ANY MULTI-RECEIVER OR CLOSED CIRCUIT SYSTEM, unless otherwise specified herein or agreed to by Earthluv in writing.
2. ARRANGEMENTS
a. Purchase. Purchase shall mean the release of the Programs by Earthluv to Customer for use during the life of the exact videocassette, DVD, 16mm film, videodisc, or other medium delivered by Earthluv to Customer.
b. Site License. Site License shall mean the release of the Programs by Earthluv to Customer for use in a single K-12 school, or a single academic unit of a college or university, or a single unit of a similar large institution, during the life of the exact videocasette, DVD, 16mm film, videodisc, or other medium delivered by Earthluv to Customer. The Site License description and any restrictions shall be printed on the Invoice.
c. Rental. Rental shall mean the release of the Programs by Earthluv for use during the period beginning on the Play Date and ending on the Ship Back on or Before date as indicated on the front side of the Invoice.
d. Preview. Preview shall mean the release of the Programs by Earthluv for evaluation with intent to purchase by funded media buyers in nonprofit institutions only, during the period beginning on the Play Date and ending on the Ship Back on or Before date as indicated on the front side of the Order Confirmation
e. Videocassette Duplication License. No duplication of Programs is permitted unless prior written approval is obtained from Earthluv.
f. Home Video Sale. Home Video Sale shall mean the release of the Programs to Customer for Customers personal use or with friends or family only. NO PUBLIC PERFORMANCE OF THE PROGRAMS IS PERMITTED, except that permitted under the face-to-face exemption (Section 110 (1)) of the U.S. Copyright Law, for Programs purchased with the designation of Home Video Sale. A public performance is any performance which occurs outside of the home, or at any place where people are gathered who are not family members, such as in a school, library, business or group meeting.
3. PAYMENTS Customer shall pay to Earthluv at the address noted below the following sums in the manner and at the times specified, time being of the essence for all such payments.
a. The price for the Programs as set forth on the front of the Invoice, and
b. Any and all taxes, fees, or other like charges billed against Earthluv and imposed, levied, or assessed upon the delivery, possession, exhibition, or any use of the Program, upon the grant or exercise of any rights hereunder, or upon the sum payable by Customer to Earthluv pursuant hereto, if any, and
c. All other charges specified on the front of the Invoice, including but not limited to late charges, charges for damage to videocassettes, DVDs, 16mm films, videodiscs, or other media, cancellation fees, shipping charges and rush order service charges.
4. TERM OF AGREEMENT The term of this Agreement with regard to each of the Programs shall commence as of the date each Program is delivered to Customer and shall continue for the applicable Arrangement period pursuant to Paragraph 2 above.
5. DELIVERY With respect to rentals, Earthluv shall at Customers expense deliver a videocassette, DVD, 16mm print or videodisc of each Program, as specified by Customer, to Customer. Earthluv will use reasonable efforts to mail or ship the Programs to Customer in the time normally required for the Programs to reach Customer by the Play Date, as confirmed by Earthluv. The Program shall be deemed in satisfactory condition for exhibition unless Customer immediately after inspection thereof notifies Earthluv to the contrary specifying the nature of the defect. Earthluv shall not be in breach of the Agreement for failure to deliver any of the Programs by the Play Date and shall not be liable for incidental or consequential damages. Customer shall pay shipping charges as indicated on the Invoice.
6. RETURN With respect to rentals and previews, unless otherwise instructed, Customer shall return by the Ship Back on or Before date on the front of the Invoice each of the Programs in the containers originally provided by Earthluv, by First Class Mail, Parcel Post or UPS insured in the same condition as when received by Customer, normal wear and tear due to proper use excepted. Videocassettes, DVDs and videodiscs shall be insured for $50.00 and 16mm prints for $300.00 each. For each days delay in depositing any rented Program for return with the Post Office or UPS as set forth, Customer shall pay to Earthluv 50% of the rental price paid or payable to Earthluv as indicated on the front of the Invoice.
7. REPLACEMENT Customers renting or previewing the Programs shall pay to Earthluv the replacement cost of any videocassettes, videodiscs, or any other medium including 16mm prints, reels, or containers, lost, stolen, destroyed or injured other than through normal wear and tear on the correct projection device or playback system in the interval between delivery to Customer and return by Customer. Such payment shall not transfer title to or any interest in the Programs to Customer or to any other party. Customer shall immediately notify Earthluv in writing of the loss, theft, injury or destruction of any of the Programs.
8. ALTERATIONS Customer shall exhibit each Program in its entirety only. Customer shall not cut or alter the Programs or otherwise tamper therewith and in no event shall the Programs be exhibited without the complete copyright notices and/or credits contained therein.
9. WARRANTIES OR REMEDIES Earthluv warrants that each Program shall be free from defects in material and workmanship at the time of delivery. In the event of Earthluvs breach of such warranty, or Customers dissatisfaction with program content, Customers exclusive remedies shall be that Earthluv will replace the defective or unwanted Program(s), or exchange the defective or unwanted Program(s) for different Programs that are equal in purchase price, provided Customer returns said defective or unwanted Program(s) to Earthluv. NO OTHER WARRANTY EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, SHALL APPLY TO ANY PROGRAM HEREUNDER. Earthluv shall have no other liability and Customer shall have no other remedy, except as specifically provided in this Paragraph; and in no event shall Earthluv be liable for any consequential damages. The terms and conditions of this Agreement shall apply to any replacement Program(s) furnished.
Legal title to the Programs shall at all times remain in Earthluv and all rights therein are reserved to Earthluv. The term purchase as used herein means only the right and license for Customer to use and reuse the Programs without limitation as to the number of uses or reuses, but without any change in ownership or title and otherwise subject to the terms and conditions of this Agreement.
11. DEFAULT If Customer defaults hereunder:
a. Earthluv, in addition to other remedies, may repossess any Program previously delivered hereunder; and/or
b. Earthluv may refuse to take any further orders from Customer and may refuse to make further shipment of Programs to Customer; and/or
c. Customer agrees to pay Earthluvs costs and expenses of collection and/or repossession including the maximum attorneys fees allowed by law.
12. ASSIGNMENT This Agreement shall not be assignable by Customer.
This Agreement sets forth the entire and complete agreement and understanding between the parties. This Agreement is made in Michigan and shall be construed and enforced in accordance with the laws of Michigan. A waiver by Earthluv of any breach or default by Customer shall not be construed as a waiver of any other breach or default by such Customer. Reiterating the statement in paragraph one, customer agrees to the terms and conditions set forth in this Agreement by accepting delivery of any Program whether on videocassette, DVD, 16mm film, videodisc, or any other medium from Earthluv Media Inc.
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