ZYGOTE MEDIA GROUP, INC.
CUSTOMER LICENSE AGREEMENT
This Customer License Agreement (this “License”) is a legal agreement between the
person(s), corporation(s), business(es), limited liability company(ies) or other entity(ies)
identified below (“Customer”) and Zygote Media Group, Inc., a Utah corporation (“Zygote”).
(exact legal name)
(a) “Contract Specifications” means the contract-specific information set forth in Section 1 of
(b) “Derivative Work” means a new Stock Imagery (or animation or movement of a Stock
Imagery) based upon or derived from a Licensed Module delivered to Customer
hereunder and containing an original work of authorship created solely by Customer
and independently from Zygote.
(c) “Customer Derivative Work” means a new Stock Image (or animation of a Stock
Image) that is an original work of authorship, created solely by Customer
independent of Zygote, copyrightable under U.S. copyright laws, and based upon or
derived from a Stock Image delivered to Customer hereunder.
(d) “Stock Image” or “Stock Imagery” means the two- or three-dimensional pictorial or
graphical image described in the Contract Specifications.
(e) “License” means the rights expressly granted to Customer pursuant to Section 3 of this
(f) “3D Model Library” means the collection of technical data owned or controlled by
Zygote which is recorded in a form capable of being accessed and processed by a
computer using graphical imaging software to create, display, manipulate and/or animate
two- or three-dimensional pictorial or Stock Imagery.
(g) “Permitted Uses” means the purposes or uses specified in the Contract Specifications,
which may (but need not be) defined using the following terms:
(1) “Educational Publishing” means publishing the Stock Imagery, in hard copy
or electronic media, of text books of an educational nature for use in schools
or other academic institutions or as a resource for professionals in the field.
(2) “Sales and Marketing” means use and display of the Stock Imagery for
informational purposes related to the marketing, sales or distribution of
User’s commercial products or services.
(3) “Teaching” means use and display of the Stock Imagery for educational
purposes in schools or other academic institutions.
(4) “Motion Pictures” use and display of the Stock Imagery in connection with
the creation, development, editing or production of audiovisual works.
3.License. Subject to Section 4 below, Zygote shall, and hereby does, grant to Customer a non-
exclusive, limited, non-transferable, non-assignable, worldwide, royalty-free right and license to
(a) use, display, copy, reproduce, or publish exact copies of Stock Imagery solely for Permitted
Uses and (b) create, use, display, copy, reproduce, or publish Customer Derivative Works solely
for Permitted Uses.
4.Restrictions and Limitations. Notwithstanding anything to the contrary in this Agreement,
Customer covenants and agrees as follows:
(a) Except for the foregoing rights, Customer shall have no further rights or interests
with respect to any other pictorial or graphical images owned or controlled by Zygote
or any proprietary rights, trade secrets, copyrights or copyrightable subject matter, patents
or patentable subject matter, or other intellectual property rights or interests of Zygote
(including, but not limited to, any part of the 3D Model Library). The License does not
include and Customer has no rights to access or use the 3D Model Library or any part
(b) Except as expressly permitted under the License, Customer shall not sell, transfer,
assign, lease, loan, rent, license, sublicense or distribute the Stock Imagery or any part
of the 3D Model Library in any manner whatsoever.
(c) Customer shall retain all of Zygote’s copyright and other proprietary notices and
legends on the Stock Imagery.
(d) Customer shall not export, ship, transmit or re-export the Stock Imagery in violation
of any applicable law or regulation including, without limitation, the Export
Administration Act of 1979 or the Export Administration Regulations issued by the
United States Department of Commerce.
5.Permitted Uses; Prohibited Uses of Certain Products.
(a) If the Contract Specifications are not competed as to “Permitted Uses” (in other
words, if the “Permitted Uses” section is left blank), “Permitted Uses” shall mean the
specific purposes or uses disclosed by Customer to Zygote in connection with the
negotiation and execution of this License, but in no event shall Permitted Uses (i)
exceed the scope of Customer’s business operations as conducted on the date of this
License or (ii) violate the restrictions or limitations set forth in Section 4 above.
(b) If Zygote’s website or promotional materials, any electronic or written notices
delivered with the Stock Imagery or the Contract Specifications contain a statement
substantially to the effect that “this product is not licensed for educational
publications for anatomy/physiology or pathology (internal medicine) nursing
students in Europe,” then Permitted Uses shall exclude, and Customer shall be
prohibited from, using, displaying, copying, reproducing, or performing any Stock
Imagery in any European textbook or other educational publication teaching
anatomy/physiology or pathology (internal medicine) for nursing students in Europe.
6.License Fee. In exchange for, and as an express condition precedent to the grant of the License
under this Agreement, Customer shall pay to Company the License Fee specified in the Contract
Specifications, plus applicable federal, state, local or other governmental taxes or charges of any
kind arising from or relating to the transactions contemplated hereby including, by way of
illustration but not limitation, excise, sales, use or value-added taxes, customs or import duties, or
other taxes, tariffs or duties, but excluding taxes on the income of Zygote. Customer shall be
responsible for and shall pay all such taxes in a timely manner, and in any event no later than
thirty (30) days following Customer's receipt of an invoice therefor from Zygote. All amounts
shall be due and payable in lawful currency of the United States. Payments are deemed made by
Customer when received by Zygote. Interest shall accrue on any unpaid balances due to Zygote
at a rate of 1.5% per month (or the maximum legal interest rate allowed by applicable law, if less)
from and after the due date.
7.Ownership. Notwithstanding anything to the contrary in this Agreement, Zygote and Customer
covenant and agree as follows:
(a) Zygote shall not be obligated to deliver, (i) the Stock Imagery in any format other the
encrypted or unencrypted standard data format(s) selected by Zygote (provided that
such data may be accessed and read by graphical imaging software supported Zygote
particular purpose of the Stock Imagery created or generated by Customer. Any
description of the Stock Imagery contained on Zygote’s website, catalogues or
promotional materials is for the sole purpose of identifying them, and any such
description is not a part of the basis of the bargain and does not constitute a warranty
that the item or product shall conform to that description. No affirmation of fact or
promise made by Zygote, on its website, catalogues, promotional materials or
otherwise, shall constitute a warranty that items or products will conform to the
affirmation or promise. ZYGOTE MAKES NO FURTHER REPRESENTATIONS
OR WARRANTIES OF ANY KIND WHATSOEVER REGARDING THE STOCK
IMAGERY, REGARDLESS OF WHETHER EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION, (i) ANY REPRESENTATION OR
WARRANTY WITH RESPECT TO NON-INFRINGEMENT OF THE RIGHTS OF
THIRD PARTIES, (ii) THE MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF ANY OF THE FOREGOING, OR
(iii) INTEROPERABILITY OF THE STOCK IMAGERY IN COMBINATION
WITH OTHER DATA OR SOFTWARE SELECTED BY CUSTOMER. NO ORAL
OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE COMPANY, ITS
AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY.
11.No Updates, New Versions or New Releases. Notwithstanding anything to the contrary in this
Agreement, except as expressly required by its limited warranty above, Zygote shall have no
obligation to provide any upgrades, updates, modifications, additions, new versions or new
releases of the Stock Imagery.
12.Limitation of Liability; Indemnification. In addition to any other limitations on Zygote's
liability set forth herein, in no event shall Zygote or its managers, employees, agents or
representatives be liable by reason of Zygote's breach or termination of this Agreement or for any
Zygote acts or omissions in connection with this Agreement for any special, incidental or
consequential damages of any kind, however caused, including, but not limited to, loss of profits
or revenue, loss of data, work interruption, procurement of substitute goods or services, or any
claims or demands against Customer by any other entity, whether such remedy is sought in
contract, tort (including negligence), strict liability or otherwise, and even if Zygote is advised of
or has knowledge of the possibility of such damages. In no event shall Zygote's liability for
damages in any circumstances related to the execution, delivery or performance of this
Agreement exceed the License Fee paid to Zygote by Customer. This Agreement shall neither
create for nor give to any third party any claim or right of action against Zygote or Customer
which would not otherwise arise without this Agreement. Customer shall indemnify, defend and
hold Zygote and its managers, employees, agents and representatives harmless from and against
any claims, demands, causes of action or liabilities asserted by any third party and arising from or
related to (a) except to the extent covered by Zygote’s limited warranty set forth in Section 11
above, Customer’s use, display, copying, reproduction or publication of Stock Imagery (including
derivative works thereof), (b) the conduct by Customer of its business or operations, or (c) any
breach of any covenant or any representation or warranty made by Customer in this Agreement.
13.Termination. Without prejudice to any other rights, Zygote may terminate the License if
Customer fails to comply with the terms and conditions of this License. In such event, Customer
must destroy all copies of Stock Imagery and all of its component parts. Further, Customer
agrees and acknowledges that substantial and irreparable injury will result from, and money
damages would not be a sufficient remedy for, any breach of this Agreement by Customer or
Customer’s agents and that in the event of any such breach of this Agreement, Zygote shall be
entitled to injunctive relief, as well as any other remedies available at law or in equity (all of
which shall be cumulative and not exclusive), without (and Customer hereby waives) any
requirement that Zygote prove actual damages, intentional, reckless or malicious conduct, or that
Zygote post a bond or other security in connection therewith.
14.Miscellaneous. This contract is a final and complete expression of the terms and conditions
between Customer and Zygote regarding the Stock Imagery and the License granted hereunder.
No other terms or conditions, regardless of whether written or verbal and regardless of whether
set forth in any proposals, negotiations, credit applications, purchase orders, invoices or similar
documents or statements between Customer and Zygote are part of this contract. This contract
may be modified only by a written instrument signed by Customer and the President of Zygote.
This Agreement shall be governed and construed in accordance with the laws of the State of
Utah, without regard for its conflicts of laws principles. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, venue shall be exclusively vested in
the state or federal courts located in Salt Lake County, State of Utah. Customer hereby
irrevocably and unconditionally submits to the personal jurisdiction of such court(s) and waives
any objections (whether substantive or procedural) based upon lack of personal jurisdiction,
improper or inconvenient venue or the like. Zygote and Customer irrevocably waive trial by jury
in action or proceeding related to or arising from this Agreement, and the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.
15.Addendums. The following Addendums shall be executed and delivered with, and made a
part of, this Agreement:
ZYGOTE MEDIA GROUP, INC. CUSTOMER
Roger Clarke, President