VIDEO PUBLISHING AGREEMENT
This Video Publishing Agreement is entered into as of the Start Date set forth on the first Order Form executed by the Parties and is by and between the “Client” set forth on the applicable Order Form (“Client”) and VlogBox, Inc., a Delaware corporation (“Publisher”). This Video Publishing Agreement and any and all Order Forms entered by and between the Client and the Publisher shall constitute the “Agreement”. Each of Client and Publisher may be referred to under this Agreement each as a “Party” or, collectively as “Parties”.
WHEREAS, Publisher is in the business of developing, manufacturing, publishing, licensing, distributing and selling software products;
WHEREAS, Client is in the business of creating video content;
WHEREAS, Client desires to engage the services of Publisher to publish the Client’s Video on certain Application(s) through certain Platform(s) and Publisher desires to develop the Application(s) and publish the Client’s Video on such Application(s) through such Platform(s).
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:
1.1 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).
Affiliate” of a Person shall mean any other Person that (directly or indirectly) is controlled by, controls or is under common control with such Person. For the purposes of this definition, the term “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) as used with respect to a Person, will mean the possession, directly or indirectly, of the power to direct, or cause the direction of, the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise, and “control” will be presumed to exist if either of the following conditions is met: (a) in the case of a corporate entity, direct or indirect ownership of voting securities entitled to cast at least 50% of the votes in the election of directors; or (b) in the case of a non-corporate entity, direct or indirect ownership of at least 50% of the equity interests with the power to direct the management and policies of such entity. Notwithstanding the foregoing, neither Party will be deemed an Affiliate of the other Party.
“Aggregated Application(s)” shall mean Application(s) that aggregates syndicated content in one location for easy viewing developed or provided by Publisher or a third party, in each case on which the Video will be published hereunder, as specified in the applicable Order Form.
“Application(s)” shall mean any and all software applications, whether (i) developed by Publisher on behalf of Client; (ii) independently developed by Publisher; and/or (iii) developed or provided by a third party, in each case on which the Video will be published hereunder, as specified in the applicable 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.
“CTV” shall mean any “connected television” used to or capable of streaming video over the Internet.
“Dedicated Application(s)” shall mean customized Application(s) developed by Publisher on which the Video will be published, as specified in the applicable Order Form.
“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 be recognized or arise prior, during or after public release of the Video. Defects may include, by way of example only and not limitation, 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, or (f) the Video or elements thereof infringe, violate or misappropriate any third party’s Intellectual Property Rights or other proprietary rights.
“Demand Partner” shall mean a third party who brings advertiser demand to ad inventory (supply) in connection with Publisher’s publication of the Client’s Video on through the Platform(s) under this Agreement and from whom Publisher receives Net Revenues in connection therewith.
“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 Revenues” shall mean gross receipts from the sources actually received by Publisher and arising from Publisher’s distribution and publishing of the Video through the Platform(s), less the following:
- taxes, returns, allowances, reversals, charge-backs, chargeback fees and fines, credits and refunds;
- royalties or license fees paid to platform manufacturers and licensors (if applicable);
- third-party representation and agency fees (including without limitation advertising agency fees, fees payable by Publisher for third party advertising serving);
- marketing costs and consumer acquisition fees incurred with respect to the promotion of the Video, if agreed according to Section 7.4; and
- any other reasonable costs, if agreed according to Section 7.4.
“Order Form” shall mean an order form to this Agreement which is mutually executed by the Parties for publishing of the Video, setting forth the Application(s), Platform(s) and Royalty rate and other terms applicable to the publishing of each such Video. An Order Form may be related to one or more Video(s).
“Person” shall mean any individual, partnership, limited liability company, firm, corporation, association, trust, unincorporated organization or other entity.
“Platform(s)” shall mean the third party CTV/OTT platform on which the Application(s) will be developed and/or published, as specified in the Order Form. The list of Platform(s) specified in the Order Form shall mean the possibility of variants that will be chosen at the sole discretion of Publisher. Please note, that the Publisher may, but is not obligated to publish Application(s) on all of the specified Platform(s).
“Publisher Affiliates” shall mean Publisher’s Affiliates.
“Royalties” shall mean a portion of Net Revenues payable to Client as in accordance with the Royalty Rate percentage specified on the applicable Order Form.
“Specifications” shall mean guidelines for file format, file size, video duration, framerate, aspect ratio, video resolution video bitrate, etc. as specified by Publisher from time to time, including via email.
“Sublicense” means any grant by the Publisher to any third party or Affiliate of any of the rights granted under this Agreement or any part thereof;
“Sublicensee” means any OTT/CTV Platform, third party or Affiliate to whom Publisher grants a sublicense of some or all of the rights granted to Publisher under this Agreement as permitted by this Agreement.
“Sublicense Royalties” means revenue payable by Sublicensee to Publisher, which shall be shared between Publisher and Client in the Royalty Rate set forth in the applicable Order Form. Publisher shall pay to Client Sublicense Royalties as and when the revenue is actually received by Publisher from the relevant Sublicensee.
“Territory” shall mean the countries, jurisdictions or geographic areas set out in the applicable Order Form.
“Video” shall mean Client’s proprietary or operated interactive entertainment video of a high-quality as described on the applicable Order Form. If Client specified in the Order Form the link on the Video, Client shall immediately notify Publisher in the event the link is changed, deleted, blocked, or other. The Parties agree that if the link specified in the Order Form redirects to another channel, it is considered that the Client owns and operates the Video published therein and grants the same rights to the Video published at the redirected link to Publisher according to this Agreement.
2. Grant of License. Development.
2.1 Grant of License. Client hereby grants to Publisher the right and license specified in the applicable Order Form, with the right of sublicense to Publisher Affiliates or Sublicensee (If the right of Sublicense is granted under the applicable Order Form) to: copy, modify, create derivative works of, publicly display, localize, host, maintain, support, sell, publish, operate, service, use, promote, advertise, distribute and market (“Exploit”) the Video on the Application(s) through the Platform(s) during Term of this Agreement within the Territory. The foregoing right and license expressly includes the right to sublicense the foregoing rights to the Platform(s) to the extent necessary for Publisher or any Publisher Affiliate to fully exercise the foregoing rights.
2.1.1. Right to Grant Sublicense. If the right of Sublicense is granted under the applicable Order Form, Publisher shall have the right to grant Sublicense to Sublicensee without the prior written consent or other approval solely within the Territory. Publisher shall cause each Sublicensee to comply with the applicable terms and conditions of this Agreement. Publisher shall remain responsible for the performance of Sublicensee that is granted Sublicense as permitted herein, and the grant of any such Sublicense shall not relieve Publisher of its obligations under this Agreement. With respect to any such Sublicense, Publisher shall ensure that the agreement pursuant to which it grants such Sublicense (i) does not conflict with the terms and conditions of this Agreement; (ii) terms relating to intellectual property and data ownership consistent with those set forth in this Agreement, and (ii) contains terms obligating the Sublicensee to comply with confidentiality provisions consistent with those set forth in this Agreement. The granting of Sublicense shall be at Publisher’s sole discretion and Publisher shall have the sole power to determine the identity of any Sublicensee, the applicable fees or royalty rates, if any, and other terms and conditions of any Sublicense. Each Sublicense granted to a Sublicensee by Publisher to any rights licensed to it hereunder shall terminate immediately upon the termination of the license from Client to Publisher with respect to such rights as of the effective date of such termination.
2.2 Video Development. No later than five (5) business days after signing the Order Form, Client shall design, develop, integrate content, produce, pre-test, complete and deliver the Video to Publisher in accordance with all applicable Specifications. Unless otherwise set forth in the applicable Order Form, the Video shall be delivered in one of the following formats: mp4 files in HD or Full HD resolution. The Video shall be delivered electronically to Publisher in accordance with Publisher’s instructions, unles otherwise agreed by the Parties.
2.3 Application(s) Development. Publisher may start the development of the Application(s) upon receipt of all Videos from Client as set forth in this Agreement. If the Video is inappropriate at the sole discretion of Publisher, the Publisher may at its sole discretion not develop the Application(s) or not use the Video or any rights granted herein without any liability to Client. Publisher shall not be responsible for (i) the time-period during which such Application(s) will be accepted by the Platform; (ii) delays in the provision of the Video(s) to Publisher in accordance with this Agreement; (iii) delays introduced by Defects in the Video(s); or (iv) any other delays or errors not attributable to Publisher’s failure to perform Publisher’s obligations under this Agreement.
2.4 Time is of the essence. Time is of the essence with respect to Client’s obligations set forth in this Agreement.
3. Permissions. Third Party Materials.
If any Video contains any non-original material provided by Client (or its contractors), prior to or upon delivery of such Video, 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 Exploit 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. Client represents and warrants to Publisher that to the extent any Video content was created by employees, agents or contractors of Client (“Client Personnel”), each such Client Personnel has assigned to Client their entire right, title and interest in and to such content (including all Intellectual Property Rights therein) and, to the extent permissible under applicable laws, waived any moral rights such Client Personnel may have in such content.
4. Video Content Guarantee.
4.1 Under all circumstances, Client will be solely responsible for all Video provided to Publisher. Such responsibilities shall include but not limited to the accuracy, propriety and rights to use each Video and its content (video, music, song, image, text etc.). Publisher disclaims any and all liability and responsibility for the foregoing.
5. Proprietary Rights.
5.1 Ownership of Video. Publisher acknowledges and agrees that, as between the Parties, except as expressly set forth in this Agreement, Client owns all right title and interest in and to the Video, and Intellectual Property Rights therein, as well as any Video-specific improvements and modifications.
5.2 Ownership of Application(s). Client acknowledges and agrees that, as between the Parties, Publisher owns all right, title and interest in and to the Application(s) and all Intellectual Property Rights therein as well as improvements, modifications and derivative works of the Application(s), excluding the applicable Video(s).
5.3 Except as expressly set forth in this Agreement, neither Party will acquire any license or other Intellectual Property Right or proprietary right, by implication or otherwise, under or to any Intellectual Property Rights owned or otherwise controlled by the other Party.
6.1 Royalties. Conditioned upon Client’s complete and timely performance of all obligations under this Agreement, Publisher shall pay Client the Royalty in accordance with this Section 6 and the Order Form. If the right of Sublicense is granted under the applicable Order Form in addition to Royalty payable hereunder, If Publisher grants Sublicense, Publisher agrees to pay Client the Sublicense Royalties at the Royalty Rate set forth in the applicable Order Form. Provisions of Sections 6.2; 6.3; 6.4; 6.5; 6.6; 6.7 herein shall apply to the payment of Sublicense Royalties. Such Royalty and Sublicense Royalties (if applicable) shall be the sole compensation owed or payable to Client under this Agreement with respect such Video under the applicable Order Form.
6.2 Statements. Within 3 (three) business days from the date of actual receipt of the applicable accounting statement from the relevant Demand Partner setting forth Royalty-bearing income (“Demand Partner Accounting Statement”), Publisher will provide Client with an accounting statement setting forth the applicable Net Revenues and 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(s) or the nature of the performance of each particular Video. Each Statement is Publisher’s Confidential Information.
6.3 Payment Term. Publisher will pay Royalties to Client within sixty (60) calendar days from the date of receipt of the applicable invoice from the Client specifying the amounts set forth in each applicable Statement(s). Any overpayment shall be refunded to Publisher upon discovery or, at Publisher’s option, shall be offset against future payment of Royalties. Publisher shall pay Royalties due to Client provided that the minimum payment shall be 100 US Dollars. By way of example, if the amount payable to Client for any given period is less than 100 US Dollars, Publisher may roll such amount over to the subsequent payment period until the amount payable reaches this minimum. For the avoidance of doubt, any final payment shall be payable irrespective of whether or not such final payment is in excess of 100 US Dollars.
If the Publisher has not received or the relevant Demand Partner has withheld and/or deducted 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 applicable Royalties due to be paid to the Client until such amounts are actually received by Publisher, 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 amounts so withheld if such documentary evidence is provided by the Publisher to the Client.
6.4 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.
6.5 Payment Forms. All 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.
6.6 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. Client shall additionally be responsible for any other payments and fees expressly stated in the Agreement, including without limitation as set forth in Section 7.4 (if applicable), Section 8 and Section 9. 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.
6.7 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 such demand, or (ii) Client’s otherwise becoming aware of such overpayment. Notwithstanding the foregoing, Publisher may, at its sole discretion, set off an amount equal to such overpayment against any sums that may become due or payable to Client by Publisher hereunder, in lieu of Client’s reimbursement to Publisher for such overpayment.
7.1 Publisher’s Marketing Efforts. Publisher (if agreed in advance) shall use commercially reasonable efforts to conduct PR, market, advertise and promote the Application(s) 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 (including all Exhibits, Schedules and Amendments) then the Publisher may use the above mentioned commercially reasonable efforts on its sole discretion. Publisher may conduct technical support, in-channel store optimization, patching, monetization of the Application(s) to increase the number of Application(s) users.
Client expressly acknowledges and understands that nothing contained herein shall be deemed to imply any specific results or level of promotion, success, conversions or sales related to the Application(s), which are by their very nature, undetermined.
7.2 Marketing Materials. Client acknowledges and agrees that Publisher requires certain materials (such as sources and stills from the Video(s) for creating banner content or other) (“Materials”) created and supplied by Client to effectively market and promote the Application(s), and that any delay in receiving such Materials will have a detrimental impact on Publisher’s marketing and promotional efforts. Therefore, Client agrees to provide the specified Materials to Publisher upon Publisher’s reasonable advance written request. Client hereby grants Publisher a nonexclusive license during the Term of this Agreement to Exploit such Materials to the extent required for Publisher, Publisher Affiliates, and its and their employees, agents, contractors, partners and service providers to market and promote the Application(s). Client agrees to be reasonably available to assist Publisher with the marketing and promotion of the Application(s). Publisher may issue a press release announcing the Application(s) containing all or portions of Video(s) in its sole discretion. Publisher shall not be in any way responsible for any Client’s marketing materials and its content.
7.3 Analytics Data. As between Publisher and Client, Publisher shall own any analytics data it may collect from publishing and operating the Video, including through the Application(s). Publisher will grant Client access to certain analytics data, including performance and revenue tracking, available to Client after the Application(s) is published. All such data will be in aggregated and anonymous format. Such analytics data shall be deemed Publisher’s Confidential Information and may be used by Publisher in its sole discretion.
7.4 Promotion. Subject to the prior written consent by both Parties (whether as set forth in an Order Form or as otherwise mutually agreed in writing), Publisher will use its reasonable efforts to market and promote the Application(s) in accordance with the conditions set forth on the Order Form (if any), and to acquire new users throughout the Territory during the Term. In order to avoid any doubt, Publisher shall not start any marketing promotion activity and deducting any promotion costs from Client, without the prior written consent of Client. Marketing promotion, including but not limited to the conditions and budget of marketing promotion, shall be discussed between the Parties before the start of each advertising campaign. The promotion costs shall be split between the Parties in accordance with the Royalty rate set forth in the applicable Order Form (for example and without limitation, if Royalty Rate is 40% and CPI rate is $3.00, Client shall pay to Publisher $3.00 * 40% = $1.2 CPI). These Client’s promotion costs will be deducted from Royalties to be paid by Publisher to Client.
This section 7.4. is not applicable to Video usage solely in Aggregated Application(s) as specified in the Order Form unless otherwise agreed by the Parties, including via email.
8. Client Obligations.
8.1 The Сlient shall notify the Publisher of any publications of Video within the same language on its own behalf or on behalf of third parties on the Platform(s) where the Application(s) are published by the Publisher. The notice shall be sent no later than three (3) months prior to the date of publication. The Client acknowledges and agrees that the publication of Video shall not conflict with the published Application(s) by Publisher or have any priorities on the Platform(s).
In the event the mentioned actions occurred, the Client shall be liable for all claims, damages and loss which Publisher may bear. The Publisher has the right to set off any such amounts due to Publisher from the funds paid to Client under this Agreement.
8.2 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 throughout the Term. Otherwise, Publisher and Client may agree to withdraw the Video which has the Defect from this Agreement.
9.1 Client will include English text and audio files at its own expense that allows for integration into other interactive entertainment products. The Parties may mutually agree that Publisher may localize additional text and/or audio files into other languages at Client’s expense.
10.1 Client represents and warrants that:
- Client is duly organized in the jurisdiction 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
- Client shall obtain, at Client’s sole cost and expense, all licenses, releases and music necessary for development
of the Video and any Corrections thereto;
- 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 or on behalf of Client shall or will:
- defame any person or entity;
- violate or infringe upon the rights of any Person, including, without limitation, any Intellectual Property Rights, right of privacy, right of publicity or any proprietary rights of any third Person in the Territory;
- harm a user’s computer;
- be delivered to Publisher with a known Defect; and/or
- contain any “Easter Eggs” and/or other hidden content, except as may be approved in writing in advance 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 by maintaining 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 in connection with this Agreement.
- Client will notify Publisher of any Video publications on the Platform(s) initiated by the Client, its Affiliate or its partners no later than 3 months to the date of such publication.
10.2 Publisher represents and warrants that:
- Publisher is duly incorporated in the jurisdiction 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;
- Publisher shall perform the services hereunder in accordance with generally accepted professional standards and in a professional and workmanlike manner;
- 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; and
11. Disclaimers. Indemnification. Limitation of Liability.
11.1 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 10.2, PUBLISHER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT IN CONNECTION WITH THIS AGREEMENT. IN ADDITION, PUBLISHER MAKES NO REPRESENTATION OR WARRANTY THAT THE PUBLISHER’S SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE. PUBLISHER DOES NOT MAKE ANY REPRESENTATION AS TO CLIENT’S OR DEMAND PARTNER(S) ACTS OR OMISSIONS, THE ACCURACY OR SUITABILITY OF THE VIDEO(S) AND/OR DEMAND PARTNER’S ADVERTISING MATERIAL(S), AND DOES NOT ACCEPT ANY RESPONSIBILITY OR LIABILITY FOR THE CONDUCT OR CONTENT OF SUCH VIDEO OR ADVERTISING MATERIAL(S), FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT AND/OR FORESEEABLE CAUSED BY OR RESULTING FROM SUCH VIDEOS OR THEIR USE, INCLUDING WITHOUT LIMITATION THEIR INAPPROPRIATENESS AND/OR UNLAWFULNESS.
11.2 Indemnification. Client agrees to, and shall, indemnify, defend and hold harmless Publisher and the Publisher Affiliates and its and their subcontractors, service providers, partners, 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.
11.3 Limitation of Liability. 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, PUBLISHER’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO ONE HUNDRED US DOLLARS, NEITHER PARTY WILL UNDER ANY CIRCUMSTANCES BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATED TO 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.
11.4. Publisher shall not be liable for any cessation, interruption, or delay in the performance of its obligations, including payment obligations hereunder due to errors, blocking, interruptions or other actions of Platform(s), or other causes beyond its reasonable control related to Platform(s).
12.1 “Confidential Information” means all information disclosed by one Party (“Discloser”) to the other Party in connection with this Agreement (“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. The existence and terms of this Agreement shall be deemed the Confidential Information of both Parties. 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.
12.2 Restrictions on Use. The Recipient shall take all reasonable measures to protect the confidentiality of the Discloser’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 Discloser’s Confidential Information 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 shall be bound by confidentiality obligations at least as protective of the Discloser’s Confidential Information as the confidentiality and nondisclosure provisions herein. Further, the Recipient may disclose the Discloser’s Confidential Information to the extent such disclosure is required by law or order of a court of competent jurisdiction or regulatory authority, provided that the Recipient shall furnish prompt written notice of such required disclosure and reasonably cooperate with the Discloser, at the Discloser’s cost and expense, in any effort made by the Discloser to seek a protective order or other appropriate protection of its Confidential Information.
13. Term &Termination.
13.1 Term. Unless otherwise set forth on an applicable Order Form, this Agreement will begin on the Start Date set forth in the applicable Order Form and continue for a period of twelve (12) months (“Initial Term”). Unless otherwise set forth on an applicable Order Form, after the expiration of the Initial Term, this Agreement shall automatically renew for additional twelve (12) month terms thereafter (“Renewal Term(s)”). The Initial Term, together with these Renewal Term(s), shall be collectively referred to herein as the “Term”. Client may terminate this Agreement upon delivery of advance written notice to the Publisher of its intent not to renew at least ninety (90) days prior to the last day of the Initial Term or the then-effective Renewal Term, as applicable, which termination shall be effective at the conclusion of the Initial Term or the then-effective Renewal Term, as applicable.
13.2 Termination by Client. Client may terminate this Agreement at any time during the then-effective Renewal Term upon ninety (90) calendar days prior written notice to Publisher. In such a case Client shall compensate Publisher the unused portion of costs and expenses paid and/or spent by Publisher for development, in-channel store optimization, technical support, patching, promotion and marketing of the Application(s) for each month till the end of such Renewal Term. Publisher will invoice Client for such costs which shall be paid by Client to Publisher within sixty (60) calendar days from its issuance by Publisher. The Publisher has the right to set off any such amounts due to Publisher from the funds paid to Client under this Agreement.
13.3 Termination by Publisher. Publisher may terminate this Agreement at any time upon thirty (30) calendar days prior written notice to Client. Publisher may terminate this Agreement at any time with immediate effect if in its sole discretion Publisher deems that Client’s Video or other activity in any way or context, may damage or harm the business or business reputation of Publisher, or if Client publishes the Video as specified in Section 8.1. In such a case Publisher shall have no further obligations to Client.
13.4 Termination for Cause. Either Party may terminate this Agreement upon prior written notice to the other Party if:
- either Party is in breach of its obligations under this Agreement which is not remedied within thirty (30) business days of the other Party giving written notice of such breach; or
- with immediate effect by prior notice in writing if either Party ceases to conduct business (except for a force majeure event), becomes or is declared insolvent or bankrupt, is the subject of any proceeding relating to its liquidation or insolvency which is not dismissed within sixty (60) days, or makes an assignment for the benefit or its creditors.
13.5 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. Upon expiration or termination of this Agreement, all the provisions of this Agreement shall terminate, except that Sections 1, 5, 7.3, 11, 12, 13.5 and 14 will survive termination or expiration of the Agreement for any reason according to their respective terms.
14. General Provisions.
14.1 Assignment. Agreement may not be assigned or transferred by Client, in whole or in part, without Publisher’s prior written consent. Publisher may freely assign all of its right, title and interest under this Agreement without Client’s consent. Any purported assignment or transfer in violation of the foregoing is null and void.
14.2 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 email. Notice shall be deemed complete when: (a) for materials personally delivered, 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, by the date the email was sent (exception for the case of a non-delivery report receipt). All email notices to both Parties shall be sent to the relevant contact emails set forth in the applicable Order Form or otherwise designated by the Parties.
14.3 Governing Law; Exclusive Jurisdiction. This Agreement shall be construed under the laws of the State of Delaware, without regard to its conflicts of law provisions. Each Party agrees that the courts located in Delaware shall have exclusive jurisdiction over any dispute arising hereunder. Each Party waives any objection it may have to such venue.
14.4 Amendments. This Agreement may be supplemented, modified and/or amended only upon a written agreement between the Parties.
14.5 Entire Agreement. This Agreement 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.
14.6 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.
14.7 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.
14.8 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.
14.9 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 shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure upon which such notice is based.
14.10 No Third-Party Beneficiaries. Except for Section 11.2, nothing in this Agreement is intended or shall be construed to give any person, other than the Parties, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.
14.11 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.
14.12 This Agreement may be drawn up in multiple copies with all of the copies to have an equal legal force.
14.13 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 June 25, 2021