VIDEO PUBLISHING AGREEMENT
This Video Publishing Agreement is entered into as of the date of signing of the first Order Form the “Effective Date” by and between you as the “Client” and VlogBox, Inc., a Delaware corporation as the “Publisher”. This Video Publishing Agreement and any and all Order Forms entered by and between the Client and the Publisher subject to the matter hereof shall constitute the “Agreement”.
WHEREAS, Publisher is in the business of developing, manufacturing, publishing, licensing, distributing and selling software products;
WHEREAS, Client is in the business of creating a various video content;
WHEREAS, Publisher desires to publish the Video on certain Applications, and Client desires Publisher to publish the Video on such Applications;
NOW, THEREFORE, in consideration of the mutual representations, warranties and covenants set forth in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties to this Agreement agree as follows:
Unless the context otherwise requires, the following terms, when used in this Agreement, shall have the respective meanings specified below (such meanings to be equally applicable to the singular and the plural forms of the terms defined).
“Applications” shall mean the mobile applications (developed by Publisher under the Clients request and/or those of the third-parties) on which the Video will be published, as specified in the appropriate Order Form.
“Correction” or “Correct” shall mean (a) the “debugging” or elimination of Defects or other errors or defects that for any reason cause the Video to fail to work strictly in accordance with the Video specifications or introduce results that the typical user would believe are unintended and/or undesirable; and (b) the redesign, improvement, or correction of design or functionality flaws that cause the Video to fail to fully perform as originally intended.
“Defects” shall mean deficiencies in content or technical defects in regard to the graphics, animation, or other Video assets and attributes developed and/or provided by Client, and may arise prior, during or after public release of the Video. Defects may include, by way of example only and not limited to, cases where (a) the Video is rendered partially or completely non-functional, (b) the Video produces incorrect or misleading information, (c) there is a detriment to the visual representation, sound or Video play of the Video, (d) the Video erroneously interrupts information given to it, (e) there are errors in any textual information, including serious grammatical errors.
“Intellectual Property Rights” shall mean any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing (a) rights associated with works of authorship throughout the universe, including but not limited to copyrights (including without limitation the sole and exclusive right to prepare derivative works of the copyrighted work and to copy, manufacture, reproduce, distribute copies of, modify, publicly perform and publicly display the copyrighted work and all derivative works thereof) and moral rights, (b) trademarks, service marks, trade names, goodwill, rights in packaging, rights of publicity, merchandising rights, advertising rights and other commercial rights, and all rights associated therewith, (c) trade secret rights, (d) patents, designs, algorithms and other industrial property rights, (e) all other intellectual and industrial property and proprietary rights (of every kind and nature throughout the universe and however designated) whether or not analogous to any of the foregoing rights (including without limitation Internet domain names, logos, character rights, “rental” rights and rights to remuneration), whether arising by operation of law, contract, license or otherwise, and (f) all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force throughout the universe (including without limitation rights in any of the foregoing.
“Net Receipts” shall mean gross receipts from the sources specified in the relevant Order Form, actually received by Publisher from the distribution and publishing of the Video, less the following:
- taxes, tariffs and similar;
- returns, allowances, reversals, charge-backs, chargeback fees and fines, credits and refunds;
- costs of billing and collection (e.g., merchant fees, third party payment services and processors);
- royalties or license fees paid to platform manufacturers and licensors (if applicable);
- third-party representation and agency fees;
- actual and documented distribution, affiliate and referral fees (including fees based on advertising receipts) paid to third parties;
- marketing costs and consumer acquisition fees incurred with respect to the promotion of the Video; and
- any other reasonable operational and development costs incurred by Publisher related to the hosting and any other reasonable operational and development costs incurred by Publisher related to the hosting and publishing of the Video.
“Order Form” shall mean an order form to this Agreement for publishing of the Video, setting forth the Application(s), Royalty rate and Milestone Schedule (if applicable) to each such Video. An Order Form may be related to one or more Video(s).
“Publisher Affiliates” shall mean Publisher’s subsidiaries, parent companies, and subsidiaries of parent companies.
“Royalties” shall mean a percentage of Net Receipts payable to Client as its sole compensation under this Agreement.
“Territory” shall mean the countries or geographic areas set out in the applicable Order Form.
“Video” shall mean an interactive entertainment video of a high-quality as will be more detailed in the applicable Order Form.
2. Grant of License/Development.
2.1 Grant of License. Subject to the terms contained herein, Client hereby grants to Publisher the right and license specified in the applicable Order Form to this Video Publishing Agreement, with the right of sublicense to a Publisher Affiliate, to: copy, modify, create derivative works of, publicly display, publicly perform, localize, host, maintain, support, sell, publish, operate, service, use, promote, advertise, distribute and market the Video on the Applications during Term of this Agreement within the Territory.
2.2 Development Generally. Client shall design, develop, integrate content, produce, pre-test, complete and deliver the Video to Publisher.
2.3 Time is of the essence. Time is of the essence with respect to Client’s obligations set forth herein.
3. Permissions. Third Party Materials.
If the Video contains any non-original material provided by Client (or its contractors), Client shall identify such material and the owner or copyright holder thereof. Client shall, at its own expense and in form acceptable to Publisher, obtain written authorization from the owner or copyright holder of such material for Publisher to use the material, free of cost to Publisher, in perpetuity and without restriction throughout the universe, including therein all rights to copy, manufacture, reproduce, transmit, distribute copies of, modify, publicly perform and publicly display such material. Such written authorization shall be delivered to Publisher promptly following its receipt by Client but in no event later than the delivery of the Video containing such material. The foregoing shall not apply to material owned or copyrighted by Publisher.
4. Proprietary Rights.
4.1. Ownership of Video. Publisher acknowledges and agrees that Client owns the Video, and Intellectual Property Rights of Client as well as any Video-specific improvements and modifications.
4.2. Each Party. Each party shall continue to own all rights, titles and interests including without limitation in their respective Intellectual Property Rights, including all applicable background works, all materials and any Intellectual Property Rights thereto, which are submitted by any party to another party for the performance of this Agreement hereunder, shall remain the respective party’s property.
5.1 Royalties. Conditioned upon Client’s complete and timely performance of all obligations under this Agreement, Publisher shall pay Client a Royalty at the rate set forth in the applicable Order Form. Such Royalty shall be the sole compensation owed or payable to Client with respect to the Video and the rights granted herein.
5.2 Statements. Within three (3) business days from the date of actual receipt of the applicable accounting statement from the relevant demand partner, Publisher will provide Client with an accounting statement setting forth the basis for all Royalties (“Statement(s)”), including a list detailing the deductions made by Publisher from gross receipts under this Agreement. Each Statement may provide sufficient detail so as to permit Client to understand the calculation of Royalties paid thereunder. Statements may be sent by e-mail or regular mail at the Publisher’s sole discretion. Client acknowledges that the information available to Publisher, and hence the information that Publisher is able to include in the Statements, may vary according to each particular Application or the nature of the performance of each particular Video.
5.3 Payments. Publisher will pay Royalties to Client within sixty (60) calendar days from the date of receipt of the applicable invoice of the Client specifying the amounts set forth in the Statement(s) issues by the Publisher. Any overpayment shall be refunded to Publisher upon discovery or, at Publisher’s option, shall be offset against future payment of Royalties.
If the Publisher will not receive or the relevant demand partner will withhold and/or deduct from the Publisher the fees from which the Royalties are due to be paid, the Publisher reserves the right to withhold the same amount from the Royalties due to be paid to the Client, provided, however, that the Publisher may at its sole discretion provide to the Client the reasonable documentary evidence specifying the details of such withhold and/or deduction by the demand partner. The Client agrees to have no claim and/or demand to the fact of such withhold and/or deduction if a documentary evidence is provided by the Publisher to the Client.
5.4 Foreign Currencies. All payments must be made in U.S. dollars. Payments in currencies other than United States dollars will be converted to United States dollars based on the exchange rate of the Publisher’s bank due on the date of the relevant Publisher’s payment.
5.5 Payment Forms. All proceeds/payments to Client under this Agreement shall be paid via wire transfer to Client’s bank account specified by the Client in writing, or by other means as mutually agreed to by the parties.
5.6 Taxes and Bank Fees. Client shall be responsible for all development costs associated with the development, completion, and delivery of Video, including without limitation, the costs of any fees payable for licensing rights or acquiring services or materials in connection with the Video. Any and all bank fees charged to Publisher by Publisher’s bank shall be borne by Publisher and any and all bank fees charged to Client by Client’s bank shall be borne by Client.
5.7 Overpayment. If Publisher makes an overpayment to Client, Client will return to Publisher this overpayment within ten (10) days after the earlier of (i) receipt of Publisher’s written demand, together with documentation supporting this demand, or (ii) Client’s otherwise becoming aware of such overpayment. Notwithstanding the foregoing, Publisher may, at its sole discretion, deduct an amount equal to such overpayment from any sums that may become due or payable to Client by Publisher hereunder, in lieu of Client’s reimbursement to Publisher for such overpayment.
6.1 Publisher’s Marketing Efforts. Publisher shall use commercially reasonable efforts to conduct PR, market, advertise and promote the Video during the Term on the conditions set forth in the applicable Order Form, provided, however, that if no such conditions shall be set forth in the applicable Order Form then the Publisher may use the above mentioned commercially reasonable efforts on its sole discretion.
Nothing contained herein shall be deemed to imply any level of promotion, success, conversions or sales related to the Video, which are by their very nature, undetermined.
6.2 Marketing Materials. Client acknowledges and agrees that Publisher requires certain materials created by Client to effectively market and promote the Video, and that any delay in receiving these items will have a detrimental impact on Publisher’s marketing and promotional efforts. Therefore, Client agrees to provide at least the following material to Publisher upon a reasonable advance written notice by Publisher in the quantities reasonably requested by Publisher. Client agrees to be reasonably available to assist Publisher with the marketing and promotion of the Video. Publisher may issue a press release announcing the Video and Client’s role in the development of the Video in its sole discretion. Publisher shall not be in any way responsible for any marketing materials of the Client.
6.3 Analytics Data. As between Publisher and Client, Publisher shall own any analytics data it may collect from publishing and operating the Video. From time to time, Publisher may make certain analytics data available to Client. Such data will be aggregate and anonymous in order to comply with applicable privacy guidelines, practices, rules and laws. Such analytics data shall be deemed Confidential Information and may be used by Publisher in its sole discretion.
7. Continuing Obligations of Client.
Client shall make, at Client’s own expense, whatever Corrections are reasonably necessary with respect to the Video. In the event Client is unable or refuses to make such Corrections or does not make Corrections to Publisher’s reasonable satisfaction within five (5) calendar days after receipt of written notice from Publisher specifying the nature of the Defect, Publisher shall have the right, but not the obligation, to make such Corrections itself or have a third party make such Corrections, and the cost of making such Corrections (by Publisher or by a third party) shall, at Publisher’s option, be deducted from payments otherwise due to Client hereunder or separately billed to Client. Client shall cooperate with Publisher with respect to Corrections made by Publisher and shall deliver to Publisher upon Publisher’s request all such assets with respect to the Video as Publisher may require or find useful in connection with such Corrections. Client’s obligation to make Corrections to the Video pursuant to this Section shall continue for as long as the Video (as applicable) is in commercial operation.
Client will include fully paid-up English text and audio files at its own expense that allows for integration into other interactive entertainment products. Parties may agree on the option to localize additional text and/or audio files into other languages at Client’s expense.
9. Representations and Warranties.
9.1 Client represents and warrants that:
- Client is duly organized in the country of its registration, validly existing, and in good standing;
- the entering into and performance of this Agreement by Client does not and will not violate, conflict with, or result in a material breach of default under any other agreement to which Client is a party or by which Client or any of Client’s property is or may become subject or bound;
- Client will not grant any rights under any future agreement, nor will it permit or suffer any new lien, obligation, interest, or encumbrances that will conflict with the full enjoyment by Publisher of the rights granted to Publisher under this Agreement;
- Client has and will have all requisite ownership, rights, and licenses to fully perform its obligations under this Agreement;
- Client shall obtain, at Client’s sole cost and expense, all licenses, releases and music necessary for development of the Video;
- Client shall obtain all hardware, software, middleware, and other required licenses at its own cost;
- except with respect to materials provided by Publisher, no part of the Video or any marketing materials or product materials provided by Client shall or will:
- defame any person or entity;
- violate or infringe upon the rights of any person or entity, including, without limitation, any Intellectual Property Rights, right of privacy and/or right of publicity of any third party in any jurisdiction where the Video is available;
- harm a user’s computer; and/or
- be delivered to Publisher with a known Defect;
- the Video will be free from any “Easter Eggs” and/or other hidden content, except as may be approved in writing by Publisher;
- Client complies, and at all times shall comply, with all applicable laws, rules and regulations in effect at the time services are performed pursuant to this Agreement, including without limitation all professional registration requirements and technical specifications pertaining to any aspect of the Video;
- Client is adequately financed to meet any financial obligation that it may be required to incur under this Agreement.
9.2 Publisher represents and warrants that:
- Publisher is duly incorporated in the country of its registration, validly existing, and in good standing;
- the entering into and performance of this Agreement by Publisher does not and will not violate, conflict with, or result in a material breach or default under any other agreement to which Publisher is a party; and
- Publisher shall perform such services in accordance with generally accepted professional standards and in an expeditious and economical manner consistent with sound professional practices;
- Publisher complies, and at all times shall comply, with all applicable laws, rules and regulations in effect at the time services are performed pursuant to this Agreement.
10. Indemnification; Limitation of Liability.
10.1 Client agrees to, and shall, indemnify, defend and hold harmless Publisher and the Publisher Affiliates and their subcontractors and their respective directors, shareholders, officers, agents, employees, successors and assigns from and against any and all claims, demands, suits, actions, judgments, damages, costs, losses, expenses (including reasonable attorneys’ fees and expenses) and other liabilities arising from, in connection with or related in any way to, directly or indirectly, (a) any breach or alleged breach of any of the representations or warranties made by it under this Agreement or any Order Form; or (b) the gross negligence, recklessness and/or intentional misconduct of Client or any of its employees, consultants or subcontractors in connection with this Agreement.
10.2 WITH THE EXCEPTION OF (i) DUTIES OF INDEMNIFICATION AND CONFIDENTIALITY, AND (ii) ANY CLAIM BETWEEN THE PARTIES AS TO THE OWNERSHIP OR PROTECTION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL UNDER ANY CIRCUMSTANCES BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (WHICH TERM INCLUDES, BUT IS NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR BUSINESS INTERRUPTION) ARISING OUT OF THIS AGREEMENT, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND REGARDLESS OF THE LEGAL THEORY, WHETHER A THEORY OF CONTRACT, INDEMNITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE. NOTWITHSTANDING THE AFOREMENTIONED OR ANY OTHER PROVISION IN THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED UNDER THE APPLICABLE LAW, PUBLISHER’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO ONE HUNDRED (100) US DOLLARS.
11.1 “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) (in writing, orally or in any other form) that is designated, at or before the time of disclosure, as confidential, or provided under circumstances reasonably indicating that the information is confidential, including, without limitation, trade secrets, customer lists, business plans, technical data, product ideas, personnel, contract and financial information. Confidential Information shall include the existence and terms of this Agreement and the fact that negotiations may be ongoing between the parties regarding the services to be performed under this Agreement. Confidential Information does not include information or material that (a) is now, or hereafter becomes, through no act or failure to act on the part of the Recipient, generally known or available; (b) is or was known by the Recipient at or before the time such information or material was received from the Discloser, as evidenced by the Recipient’s tangible (including written or electronic) records; (c) is furnished to the Recipient by a third party that is not under an obligation of confidentiality to the Discloser with respect to such information or material; or (d) is independently developed by the Recipient without any breach of this Agreement, as evidenced by the Recipient’s contemporaneous tangible (including written or electronic) records.
11.2 Restrictions on Use. Each party shall take all reasonable measures to protect the confidentiality of the other party’s Confidential Information in a manner that is at least as protective as the measures it uses to maintain the confidentiality of its own Confidential Information of similar importance. Recipient shall hold Confidential Information in strict confidence and shall not disclose, copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of such information, or give or disclose such information to third parties, or use such information for any purposes whatsoever other than as necessary in order to fulfill its obligations or exercise its rights under this Agreement. Notwithstanding the foregoing, Recipient may disclose the other party’s Confidential Information (a) to employees, consultants, accountants, financial advisors and attorneys that have a need to know such information, provided that Recipient shall advise each such employee, consultant, accountant, financial advisor and attorney of their obligations to keep such information confidential and shall require that each such employee, consultant, accountant and financial advisor sign a written nondisclosure agreement consistent with the confidentiality and nondisclosure provisions herein (it being understood that each such attorney shall not be obligated to sign a separate nondisclosure agreement), and (b) to the extent Recipient is legally compelled to disclose such Confidential Information, provided that Recipient shall give advance notice of such compelled disclosure to the other party, and shall cooperate with the other party in connection with any efforts to prevent or limit the scope of such disclosure and/or use of the Confidential Information.
12.1 Termination. Each party may terminate this Agreement upon 5 calendar day’s prior written notice to another party.
12.2 Term. The rights granted to Publisher herein shall commence on the Effective Date and shall expire as set forth in the applicable Order Form (the “Term”).
12.3 Survival. Nothing contained herein shall in any way limit any other rights and remedies that Publisher may have under this Agreement or at law or equity. Client’s remedies are limited to damages at law, and under no circumstances may Client enjoin or prevent Publisher from exercising its rights hereunder in accordance with the terms of this Agreement. The obligations in this Agreement which are intended, by their terms or by necessary implication, to survive the expiration or termination of this Agreement shall so survive.
13. General Provisions.
13.1 Assignment. Upon prior written consent of Publisher, this Agreement may be assigned by Client to any parent. Publisher may freely assign all of its right, title and interest under this Agreement.
13.2 Notices. All notices and other items from one party to the other hereunder will be addressed to the address set forth above or to such other address as the addressee may designate in writing. Any notice shall be sent either by personal delivery or commercial overnight delivery service, or by facsimile to the facsimile number of the party to be served, or by email. Notice shall be deemed complete when: (a) for materials personally delivered or sent by facsimile, when actually received by the party to whom addressed, (b) for commercial overnight delivery service materials, when delivered to the commercial overnight delivery service, and (c) for email, at the time the email is sent. All email notices to both parties shall be sent to the relevant contact emails set forth in the applicable Order Form.
13.3 Governing Law; Exclusive Jurisdiction. This Agreement shall be construed under the internal laws of England and Wales, without regard to its choice of law provisions. Each party agrees that the courts located in England shall have exclusive jurisdiction over any dispute arising hereunder. Each party waives any objection it may have to such venue. Each party expressly disclaims its right for trial by jury. Each party expressly disclaims an opportunity to file a class action against each other for any circumstances related to this Agreement or any Order Form.
13.4 Attorney’s Fees. The “prevailing party”, if any, in any action between the parties arising out of or related to this Agreement, shall be entitled to an award of reasonable attorney’s fees and costs.
13.5 Amendments. This Agreement may be supplemented, modified, amended, waived, terminated or discharged by the Publisher at any time at the Publisher’s sole discretion with a prior written notice to the Client.
13.6 Entire Agreement. This Agreement, including all Exhibits, Schedules, Order Forms and Amendments thereto, constitutes the complete and entire agreement of the parties and supersedes all previous communications, oral or written, and all other communications between them relating to the subject matter hereof.
13.7 Waiver. No waiver of any provision of this Agreement or any rights or obligations of either party shall be effective, except pursuant to a written instrument signed by the party waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing.
13.8 Independent Contractor; No Agency. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties, and the parties shall at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, the parties shall not have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.
13.9 Cumulative Remedies; No Injunctive Relief. Except as may be specifically set forth in this Agreement with respect to certain matters, the rights and remedies of each party as set forth in this Agreement are not exclusive and are in addition to any other rights and remedies provided under this Agreement or now or hereafter provided by law. Subject to Client’s termination rights set forth herein, Client’s remedies are limited to damages at law, and under no circumstances may Client enjoin or prevent Publisher from exercising its rights hereunder in accordance with the terms of this Agreement.
13.10 Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its reasonable control including, but not limited to: earthquake, flood, fire, storm or other natural disaster, epidemic, accident, explosion, casualty, act of God, act of terrorism, lockout, strike, labor controversy or threat thereof, riot, insurrection, civil disturbance or commotion, boycott, disruption of the public markets, war or armed conflict (whether or not officially declared), sabotage, act of a public enemy, embargo, delay of a common carrier, the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law; provided that the party relying upon this Section shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure upon which such notice is based.
13.11 No Third-Party Beneficiaries. Nothing in this Agreement is intended or shall be construed to give any person, other than the parties hereto, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.
13.12 Severability. If any of the provisions of this Agreement shall be found by a court of competent jurisdiction to be void as going beyond what is reasonable under the circumstances for the protection of the interests of the party seeking to enforce such provision, but would be valid if part of the wording thereof were deleted or the time periods (if any) thereof were reduced or the range of activities or area dealt with thereby reduced in scope, such provision shall apply with such modifications as may be necessary to make it valid and effective. In the event that any provision of this Agreement should be found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
13.13. This Agreement may be drawn up in multiple copies with all of the copies to have an equal legal force.
13.14. The correspondence under this Agreement will be held in English. In case of misreading or discrepancy in the meaning of the terms occurred, the text of this Agreement written in English shall prevail.
Version of the Agreement as of March 19, 2020