RFP_Media_Agent_Exhibit_B_(Notable_Concepts).pdf

EXHIBIT B

NOTABLE CONTRACT CONCEPTS

Note: Depending upon the level of support to be provided by the Smithsonian to the Project, the

Smithsonian anticipates that, for tax compliance purposes, the parties may enter into two agreements related to the Project—an intellectual property license agreement and a services agreement. The language below expresses certain concepts to be included in a Project agreement(s) and not the actual contract language that would be incorporated in the agreement(s).

1. APPROVALS. All Project materials bearing the Smithsonian names, trademarks, or images are subject to the advance written approval of the Smithsonian. This includes materials such as Media

Offering elements and advertising and promotional materials. The parties will agree upon a reasonable timetable for concept and design approvals.

2. USE OF SMITHSONIAN NAME. If at any time the continued development, exhibition, distribution or sale of any Media Offering developed pursuant to the Project will harm the reputation and integrity of the Smithsonian or the Smithsonian name, or is not in keeping with the dignity, history and traditions of the Smithsonian Institution, Smithsonian shall have the right to withdraw approvals previously given or terminate the agreement(s). The parties will negotiate a definition of “harm” and “not in keeping,” to be included in the agreement(s). Company is not permitted to refer to the Smithsonian in its own advertising, marketing, promotion, publicity, or on any letterhead or website by any company.

3. COPYRIGHT. All materials produced pursuant to the Project which are based on artifacts or images or other materials from the Smithsonian’s collections either will be deemed to be derivative works within the meaning of the Copyright Act of 1976, and the Smithsonian will own the copyright in those materials, or the company will transfer the rights in the materials to the Smithsonian. These materials may include such things as designs, sketches, tracings, draft and finished artwork, packaging, advertisements, instructions and descriptive or textual materials.

4. BOOKS AND RECORDS. Smithsonian and its authorized representatives will have a reasonable right to conduct audits or examinations of the company’s books of account and other documents and records related to the subject matter and the terms of the agreement(s).

5. INDEMNIFICATION & INSURANCE. The company will indemnify and hold the Smithsonian harmless for third party claims arising out of the subject matter of the agreement(s). The company also will carry, for the term of the agreement(s), commercial general liability insurance and errors and omissions insurance in such amounts and on such terms and conditions as shall be customary for entities of established reputation engaged in similar businesses. The company will be required to name the

Smithsonian as an additional insured to the commercial general liability insurance policy.

6. NO ASSIGNMENT. The Smithsonian is entering into this agreement(s) in part because of particular attributes of the company and its operations. The company may not assign this agreement(s) without the permission of the Smithsonian. If the company sells or otherwise disposes of substantially all of its business or assets to a third party, the agreement(s) may be assigned only if the Smithsonian receives certain assurances of the continued quality of the operation and consistency with the

Smithsonian’s reputation. The parties will negotiate what those assurances must be, and that will be included in the agreement(s).

7. BANKRUPTCY. In the event the company enters into proceedings relating to bankruptcy, whether voluntary or involuntary, the company will provide the Smithsonian with immediate notice and will expedite its election to assume or reject the agreement(s).

8. CONFIDENTIALITY. The Smithsonian Institution is a trust instrumentality of the United States and has adopted a written policy for responding to requests for Smithsonian Institution records, including paper documents, electronic data, email, contracts, and other information stored or maintained by the

Smithsonian, consistent with the principles of disclosure under the Freedom of Information Act, 5 United

States Code (U.S.C.), §552 and available at http://www.si.edu/About/FOIA.

9. FEDERAL TORT CLAIMS ACT. The Smithsonian Institution falls within the purview of the

Federal Tort Claims Act (28 U.S.C. §§ 1346(b) and 2671-80). As such, the exclusive remedy for claims against Smithsonian for bodily injury, death, and property damage due to negligence of Smithsonian or its employees is the Federal Tort Claims Act; the General Counsel of Smithsonian is authorized to settle all claims against the United States (Smithsonian Institution) for damage to property, personal injury, or death caused by the negligent act or failure to act of a Smithsonian Institution employee in the course of his/her employment cognizable under the Federal Tort Claims Act, as amended; and in some instances, this may be the exclusive remedy.

10. APPLICABLE LAW. The agreement(s) will be construed in accordance with the applicable federal laws and laws of the District of Columbia, which shall also be the forum for any lawsuit under the agreement(s), regardless of its place of execution or performance.

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