Scriptive Terms of Use

This Terms of Use Agreement (“Agreement”) is entered into by and between Scriptive LLC (“Scriptive”), a limited liability company whose address is 3611 County Road Q, Dodgeville, WI 53533, Attn: Bob Wood, and any authors, illustrators, or other individuals and/or corporate, nonprofit, or other entities who submit work to Scriptive in accordance with the terms herein (“Licensor”) (each individually a “Party” and collectively the “Parties”);

WHEREAS, Scriptive licenses certain rights to children’s picture book texts and illustrations from authors, illustrators, publishers, and other rights holders, offering the texts and/or illustrations separately to end users (“Users”) for creative educational purposes through Scriptive’s proprietary subscription-based programs including WriteStories and DrawStories (collectively, the “Program”) and providing Users the opportunity to purchase the complete books;

‍WHEREAS, Licensor is the sole copyright owner or has secured all necessary intellectual property rights to the text and/or illustrations comprising a picture book or multiple picture books (the “Work”);

‍WHEREAS, Scriptive wishes to include the Work in the Program and Licensor wishes to license the Work to Scriptive on the terms set forth herein;

‍NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties do hereby agree as follows:

1. Responsibilities and Deliverables

‍(a) Scriptive will be responsible for: (i) making the text and/or illustrations of the Work separately available in the Program, should Scriptive in its sole discretion select the Work or part thereof for inclusion in the Program; (ii) using commercially reasonable efforts to protect Licensor’s intellectual property from copyright infringement, including listing an appropriate copyright notice in Licensor’s name and requiring Users to agree to Terms and Conditions preventing any unauthorized use of works in the Program; (iii) making a purchase link available to Users accessing the Work in the Program; and (iv) providing Licensor with an account overview upon reasonable request (i.e., the number of clicks per purchase link, to the extent Scriptive has access to such information).

(b) Licensor will be responsible for: (i) providing files of the text and/or illustrations of the Work to Scriptive in a digital format to be specified by Scriptive; (ii) providing Scriptive with permissions agreements from the copyright owners of any third party material in the Work, including but not limited to other authors and/or illustrators, enabling Scriptive to exercise all rights granted herein; (iii) providing Scriptive with Licensor’s preferred purchase link for the Work (i.e., Amazon, publisher’s website, Licensor’s website; should Licensor fail or neglect to provide Scriptive with a preferred purchase link, Scriptive may select the purchase link of its choice); and (iv) complying with this Agreement in all respects, including the warranties and indemnities set forth in Paragraph 6 below, and with the Terms and Conditions of the Program and Scriptive’s website which are incorporated herein by reference.

(c) Scriptive shall have sole editorial control and discretion over which of Licensor’s works, if any, and which portions of Licensor’s works, if any, shall be included in the Program. Nothing herein shall obligate Scriptive to use or not use the Work in the Program.

2. Intellectual Property Ownership

‍(a) Scriptive shall be the sole and exclusive owner of any and all intellectual property rights in the SCRIPTIVE trademark/service mark and in the Program, including but not limited to those arising from copyright, trademark, and patent law, and nothing herein shall be construed to grant any such intellectual property rights to Licensor.

(b) Licensor shall be the sole owner of the rights to the Work granted herein, and nothing herein shall be construed to grant to Scriptive any copyright or other rights in the Work other than those in Paragraph 3 below.

(c) Licensor grants to Scriptive the right to use Licensor’s name, pre-approved likeness, biographical information, and reasonable excerpts from the Work to promote Scriptive and the Program in any manner.

4. Compensation

‍(a) The parties understand and agree that Licensor’s sole compensation for participation in the Program is Scriptive’s provision of a purchase link to the Program’s Users. Scriptive makes no representation as to the number of sales of the Work, if any, that may result from inclusion in the Program. Notwithstanding the foregoing, Scriptive guarantees a quarterly minimum number of clicks to purchase links on a Program-wide level (each, a “Qualified Lead”), and, to the extent that the number of Qualified Leads does not meet or exceed the Program-wide minimum, Scriptive shall compensate Licensor with a percentage of Scriptive’s quarterly revenue deriving from the Program, to be calculated based on the number of Licensor’s completed works in the Program. “Completed Works” are defined as works to which the Program’s User household has added words or graphics to all pages, with partially-completed works counting in aggregate toward the total number of Completed Works. For purposes of illustration: if a User household adds words to 8 out of 10 illustrated pages of the Work, the Work is eight-tenths complete; should a User household add words or graphics to the Work three times in one quarter, where the first use results in 10/10 page completion, the second use results in 8/10 page completion, and the third use results in 4/10 page completion, Licensor shall be credited for 2.2 Completed Works from that User household. Scriptive guarantees a quarterly ratio of 5%, or 1 Qualified Lead for every 20 Completed Works, as measured by User household (not classroom) participation; if the ratio of Qualified Leads to Completed Works is less than 5% in a given quarter, the percentage of Scriptive’s revenues from the Program shall be placed into a pool and distributed in accordance with the percentage of Licensor’s Completed Works relative to the total number of Completed Works in the Program in that quarter. For purposes of illustration: if the ratio of Qualified Leads to User households is 3% in a given quarter, Scriptive shall place 2% of Program revenues from that quarter into the pool; if Licensor’s Completed Works comprise 50% of all Completed Works in said quarter, Licensor shall receive 1% of Program revenues from that quarter in addition to the already-delivered Qualified Leads. Scriptive shall maintain a website accessible to Licensor which shall be updated daily with Qualified Leads, number of Completed Works for the quarter to date, and a quarter-by-quarter history.

(i) International Use: Should any Users access the Work from a country where the Work is unavailable for purchase in any format through ordinary trade channels (“Unavailable Works”), the terms of Paragraph 4(a) shall not apply and Scriptive shall instead compensate Licensor as follows: Scriptive shall create a fund comprised of 5% of quarterly revenue from each country  where Users access the Program (the “Fund”) and shall pay licensors of Unavailable Works a percentage of the Fund based on the number of Unavailable and Available Works that Users access in that country per quarter. For purposes of illustration: in a given quarter, Users in India access the Work—which is unavailable for purchase in any format through ordinary trade channels in India—along with three additional works which are available for purchase in India in electronic format (“Available Works”). For the three Available Works, the quarterly ratio of Qualified Leads to User households is half of the quarterly guaranteed 5%, thus entitling each licensor of the Available Works to 2.5% divided by 4 (applying the standard formula in Paragraph 4(a) above and assuming each licensor has an equal number of Completed Works). For the Unavailable Work, the Licensor would receive one-quarter of the Fund: the Fund (representing Scriptive’s quarterly revenue from India) divided by 4 (the total number of Unavailable and Available Works accessed by Users in India that quarter). For the avoidance of doubt, if the Work is available for purchase in any format (including electronic format) through ordinary trade channels in any country outside the United States and Canada, the terms of 4(a) above shall apply in that country and in any other countries where the Work is available.

(b) Should Users arrange for on-demand printing of Completed Works in the Program for personal, non-commercial use, and should Scriptive receive compensation for facilitating such on-demand printing, Scriptive shall split net profits from such use as follows: For facilitating on-demand printing of Completed Works in WriteStories, Scriptive shall pay 50% of its net profits to the owner of the text of the Work; out of the remaining 50% of net profits, Scriptive shall pay 1/3 of its share to the owner of the unused illustrations of the Work and retain the balance. For facilitating on-demand printing of Completed Works in DrawStories, Scriptive shall pay 50% of its net profits to the owner of the illustrations of the Work; out of the remaining 50% of net profits, Scriptive shall pay 1/3 of its share to the owner of the unused text of the Work and retain the balance.

(c) To the extent that Licensor is entitled to a share of revenues in accordance with Paragraph 4(a) and 4(b) above, Scriptive shall issue statements and payments on a quarterly basis within 30 days of the end of the quarter. Scriptive shall not be required to make any payments to Licensor until Scriptive has received all information or documents requested by Scriptive for the purpose of processing payments and/or until Licensor has created an account with an international payment facilitator such as PayPal or WISE as directed by Scriptive.

5. Confidentiality

‍(a) Any information exchanged between Scriptive and Licensor in furtherance of this Agreement is confidential (“Confidential Information”). Each party agrees not to use the Confidential Information to the detriment of the other party or for any purpose other than to effect the provisions of this Agreement. Neither party shall disclose any Confidential Information to any third party without the prior written approval of the other party, except to legal, financial, accounting, or other advisors who have the need to know this information in order to implement the provisions hereof and are made aware of and agree to adhere to the confidentiality terms.

6. Warranties and Indemnities

‍(a)  Licensor represents and warrants that Licensor is the sole creator of the Work and has the full power to make the grant of rights herein (or, if Licensor is not the sole creator and/or owner of the rights herein granted, that Licensor has secured the necessary rights and provided Scriptive with permissions agreements from all owners of copyrights that subsist in the Work to enable Scriptive to exercise all rights granted herein); that the Work is original with Licensor; that Scriptive shall have no obligation to compensate Licensor except as provided in Paragraph 4 above; that Licensor is not subject to any agreement or obligation inconsistent with any of the provisions of this Agreement or that would in any way restrict or affect the inclusion of the Work in the Program; that the Work will not violate any copyright or any other right of any third party, including but not limited to rights of privacy, publicity, or any other right of any party, or any governmental law, regulation, or order of the United States or of any other country; that any factual statements in the Work are and will be true to the best of Licensor’s knowledge and belief and based upon reasonable research or Licensor’s direct knowledge of the facts; that the Work does not contain any recipe, formula, direction, or other statement that might be injurious to the person or property of any reader or other party; that Licensor is not aware of any actual or threatened claim, action, or proceeding that is inconsistent with any of the foregoing warranties or that otherwise relates to the Work; and that Licensor will immediately inform Scriptive of any such actual or threatened claim, action, or proceeding. Licensor shall indemnify Scriptive and any licensees thereof for any loss, damage, or expense (including reasonable attorneys’ fees) arising out of any claim, threatened or actual, inconsistent with any of the foregoing warranties and representations, or for the purpose of avoiding any claim.

(b) Scriptive represents and warrants that it has the full right, power, and authority to enter into and perform this Agreement. Scriptive shall indemnify Licensor for any loss, damage, or expense (including reasonable attorneys’ fees) arising out of any claim, threatened or actual, arising out of Scriptive’s material breach of this Agreement.

(c) Licensor agrees not to institute or authorize any action or lawsuit based on the ground that Scriptive’s use of the Work constitutes an infringement of Licensor’s copyright, “moral rights,” or similar rights that Licensor may have in any future works. Should Licensor become dissatisfied with Scriptive, Licensor’s sole remedy shall be partial withdrawal or termination in accordance with Paragraph 7 below.

(d) In addition to the warranties contained in Section 6 herein, Licensor agrees to indemnify and hold Scriptive harmless from and against any and all losses, damages, costs, charges, expenses (including reasonable attorneys’ fees), causes of action, suits, claims, demand, judgments and liabilities arising from: any and all claims, demands, judgments, damages, actions, causes of action, injuries, administrative orders, consent agreements and orders, penalties, fines, liability, loss, cost, damage and expense of any kind whatsoever (including reasonable attorneys’ and witnesses’ fees, deposition costs and copying and telephone charges) resulting from or relating to the Work, Licensor’s possession or ownership of the Work, Scriptive’s inclusion of the Work in the Program, copyright claims related to the Work, or Licensor’s breach of this Agreement.

7. Termination

‍(a) Scriptive’s Right of Termination: Scriptive may suspend or remove the Work from the Program in whole or in part at any time for any reason or no reason, including but not limited to if (i) Licensor fails to deliver any materials required hereunder; (ii) Scriptive is dissatisfied with Licensor or the Work at any time; (iii) Licensor breaches or allegedly breaches any warranties or representations hereunder, or (iv) Scriptive has legal concerns about the Licensor’s conduct or the content of the Work.

(b) Licensor’s Right of Termination: Licensor may request withdrawal of the Work from the Program in whole or in part and/or terminate this Agreement by written notice to Scriptive at any time for any reason or no reason. Once Scriptive has received Licensor’s notice of partial withdrawal or termination, Scriptive shall endeavor to remove the Work in whole or in part from the Program within thirty (30) days. Following termination, Scriptive shall retain the rights herein granted on copies of the Work distributed prior to termination, and reserves the right to fulfill its obligations to Users of the Program in accordance with copies of the Work distributed during the term of this Agreement.

8. General

‍(a) Independent Contractor: Licensor’s relationship with Scriptive is that of an independent contractor, and nothing herein will create a partnership, joint venture, or other association between the parties. This engagement is not exclusive, and nothing in this Agreement should be construed to preclude Scriptive from soliciting or engaging other rights holders and works for the Program.

(b) Successors and Assigns: This Agreement shall be binding on and inure to the benefit of Licensor and Scriptive, and upon their respective heirs, administrators, executors, successors, and assigns. Scriptive may assign this Agreement at Scriptive’s discretion. This Agreement may not be assigned by Licensor without Scriptive’s written consent.

(c) Governing Law: This Agreement shall be construed, interpreted, and governed by the laws of the State of Wisconsin, regardless of the place of its execution or performance. The courts, state and federal, located in Wisconsin shall have exclusive jurisdiction over any controversy arising out of this Agreement, and the parties hereby consent to the jurisdiction of said courts.

(d) Headings: The headings used in this Agreement are intended for reference only and will not be deemed part of this Agreement. Each party has had the opportunity to review and negotiate the language of this Agreement.

(e) Severability: The provisions of this Agreement are severable.  If any of the provisions of this Agreement are held to be invalid, such invalidity will not affect any other provision or the validity or enforcement of the remainder of this Agreement, and the remainder of this Agreement will continue in full force and effect.

(f) Notices: Any notice required hereunder must be sent by first-class mail, return receipt requested, to Scriptive or Licensor at their last known address. Addresses shall be changed by either party by written notice to the other.

(g) Survival: Paragraphs 2, 4, 5, and 6 shall survive termination of this Agreement for any reason, as well as any other terms which by their nature survive termination.

(h) Complete Understanding: This Agreement constitutes the complete understanding of Licensor and Scriptive and supersedes all prior agreements, written or oral. Terms may be modified periodically without notice to Licensor. Should Licensor disagree with any terms of this Agreement, Licensor’s sole remedy shall be to cease participating in the Program in accordance with Paragraph 7(b) above.