DIGITAL VIDEO LICENSE AGREEMENT
This Digital Video License Agreement (this “Agreement”) contains the terms and conditions of your use of the Streamlette digital self-publication and distribution program (the “Program”) through which you will make available to Streamlette certain audio-visual programs and related content for distribution through the digital video service operated by Streamlette or its affiliates. This Agreement is a binding agreement between you and Streamlette. As used in this Agreement, “Streamlette,” “we” or “us” means, (a) Streamlette, LLC and (b) any other Streamlette.com affiliate that joins as a party to this Agreement as provided in Section 5, in each case solely with respect to such entity’s exercise of its rights and compliance with its obligations in connection with the countries, territories, and provinces designated by Streamlette. As used in this Agreement, “Content Provider” or “you” means the person or entity accepting this Agreement.
You accept this Agreement by clicking “Agree” where you are given the option to do so. If you do not accept the terms of this Agreement, you may not use the Program. By accepting this Agreement, you confirm that you are at least 18 years old (or the age of majority where you reside, whichever is older) and that you are able to form a legally binding contract. If you are accepting this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the legal authority to bind that company or legal entity by the terms of this Agreement.
Amendment; Notice of Changes
YOUR CONTINUED USE OF THE PROGRAM SITE AND THE PROGRAM AFTER WE POST ANY CHANGES TO THE AGREEMENT ON THE PROGRAM SITE WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS AGREEMENT OR THE PROGRAM SITE, YOU MAY NOT CONTINUE TO USE THE PROGRAM OR THE PROGRAM SITE.
Account Setup and Maintenance
You must ensure that all information you provide in connection with establishing your Program account, such as your name, address and email, is accurate when you provided it, and you must keep it up to date as long as you use the Program. You may maintain only one account at a time. You will not use false identities or impersonate any other person or use a username or password you are not authorized to use. You authorize us, directly or through third parties, to make any inquiries we consider appropriate to verify the account information you provide. You also consent to us sending you emails relating to the Program and other publishing opportunities from time to time.
You are solely responsible for safeguarding and maintaining the confidentiality of your account username and password and are responsible for all activities that occur under your account, whether or not you have authorized the activities. You may not permit any third party to use the Program through your account and will not use the account of any third party. You agree to immediately notify Streamlette of any unauthorized use of your username, password or account.
This Agreement commences upon your acceptance of it and continues until terminated as set forth in this Agreement (the “Term”). We may terminate this Agreement by providing notice to you at any time. You may terminate this Agreement at any time by providing us notice of termination, in which event we will cease offering your Titles within 30 days from the date that we receive notice of termination; provided that if you distribute Titles via Subscription Access, (a) the Term of the Agreement with respect to Subscription Access will commence upon your acceptance of this Agreement and continue for 18 months from the date that your Subscription launches on the Service (the “Initial Subscription Term”) and (b) the Initial Subscription Term will automatically extend for successive periods of 12 months each unless and until terminated by either party by provision of notice of termination to the other party given not later than 90 days prior to the conclusion of the then-current term.
The territory, with respect to any Title, shall be worldwide.
General Description of the Service:
You may authorize distribution of audio-visual programs (“Titles”) via Streamlette’s digital video service (the “Service”). You will have the option to allow customers to access your Titles in the following ways:
Access digital copies of audio-video content via one or more subscription offerings, including on a subscription basis supported by ads, or via other non-transactional basis for repeated viewing during the Term (“Non-transactional Access”), which may be through the subscription offering known as of the date hereof as “Streamlette ” or any successor thereto (“ Subscription Access”) or through a subscription offering of your content which may or may not require a buy-through but which otherwise does not include content from other content providers (“Content Provider Subscription Access.” Non-Transactional Access, Subscription Access and Content Provider Subscription Access are referred to herein as the “Distribution Modes”.
The Service may be offered on a stand-alone basis and/or bundled with other products, services, or offerings, including “Streamlette.” As between the parties, Streamlette will have sole control over the Service, all features, terms, and other aspects thereof (including, without limitation, the rights and entitlements granted to customers with respect to Non-transactional Access and the sale of advertisements in connection with the Service); provided, however, that Streamlette’s distribution of Titles on the Service is in accordance with the terms of this Agreement. Without limiting the foregoing, you acknowledge that Streamlette may (i) make the Service available through any websites, applications, device interfaces, and any other online platforms or points of presence now known or hereafter devised, (ii) grant customers who receive Non-transactional Access to audio-visual content the right to access such content via streaming and any other means of digital distribution now known or hereafter devised, for online viewing on any device supported by the Service, and (iii) deliver audio-visual content on the Service via any means now known or hereafter devised (including, without limitation, cable, wire, fiber, satellite, wireless and/or cellular).
License Fee Payment, Reporting and Taxes
Subject to the limitations set forth in this Section, Streamlette will pay you the applicable license fees set forth below (“License Fees”) for offering customers Non-Transactional Access.
Streamlette will calculate, report and pay the License Fees for in arrears within 90 days after the completion of the applicable calendar month. You will receive payment from Streamlette via electronic funds transfer. Notwithstanding anything to the contrary herein, Streamlette may withhold payment until you have reached the minimum threshold in accrued License Fees as set forth in Attachment B. You will also be responsible for any fees imposed by your bank or any intermediary bank. If a third party asserts that you did not have all rights required to make one of your Titles available through the Service or if we determine that you may be in breach of this Agreement, we may withhold all License Fees due to you pending your resolution of the issues. If we determine that you did not have all of the required rights or that you have otherwise breached this Agreement with regard to a Title, we will not owe you License Fees for that Title and we may offset any of the License Fees that were previously paid against future License Fees, or require you to remit a refund to us. We may also withhold and offset any sums you owe to us against amounts that are payable to you. If we terminate your account because of your breach of this Agreement, you forfeit all License Fees not yet paid to you. If after we have terminated your account, you open a new account without our express permission, we will not owe you any License Fees through the new account. Our exercise of these rights does not limit other rights we may have to withhold or offset License Fees or exercise other remedies.
As between the Parties, You will be solely responsible for collecting and paying to the appropriate taxing authorities any national, state or local sales or use taxes, value added taxes (“VAT”) or similar taxes (collectively “Transaction Taxes”) applicable to purchases by Customers. Streamlette will not be required to pay any taxes imposed on or measured by your net income, net profits, income, profits, revenues, gross receipts, franchise, doing business, capital, intangible, value added (other than value added tax in the nature of sales or use or similar taxes), net worth, all real property and ad valorem taxes imposed by any governmental authority on the fees payable to you under this Agreement, or similar taxes or taxes in lieu thereof, whether collected by withholding or otherwise. Except as outlined below, no payments payable by Streamlette to you under this Agreement are inclusive of any Transaction Taxes that apply to the license of the Titles by you to Streamlette. If and to the extent any payments hereunder are subject to and include any applicable Transaction Taxes, you will supply Streamlette with an original, valid tax invoice, to the extent available under the applicable law, separately stating these Transaction Taxes, to enable Streamlette to claim credit for these taxes as applicable. Streamlette may provide you with an exemption certificate or equivalent information acceptable to the relevant taxing authority, in which case, you will not charge or collect the Taxes covered by such certificate. If taxes are required to be deducted or withheld on any payments to be made to you under applicable law, then Streamlette will (i) deduct such taxes from the amount owed to you and pay them to the appropriate taxing authority as required by applicable law and (ii) secure and deliver to you a receipt or other legally required documentation for any taxes withheld as required under applicable laws. Payment to you as reduced by such deductions or withholdings will constitute full payment and settlement to you of amounts payable under this Agreement. Except as specified in this Section, each Party will be responsible for its own taxes as levied by the applicable taxing authorities. Throughout the term of this Agreement, you will provide Streamlette with any forms, documents or other certifications as may be required by Streamlette to satisfy any information reporting or withholding tax obligations with respect to any payments under this Agreement.
Non-transactional Access License Fee for Subscription Access
Streamlette will pay to you the rate set forth on Attachment A for the applicable territories, multiplied by the number of Hours Viewed and with any merchant fees subtracted, provided, however, that Streamlette will not be obligated to pay for any Hours Viewed for any Title in excess of 300,000 hours in any given annual period, which annual period will be prorated based on the portion of the calendar year for which you have the applicable Title available for Subscription Access (the “Payment Cap”), it being understood that, for any Title, the Payment Cap will be reset to zero at the start of the each annual payment period, and if Streamlette pays a sum equal to the Payment Cap in any annual payment period for that Title, notwithstanding anything to the contrary herein, Streamlette may continue to make that Title available during that annual payment period without further payment to you and you may not withdraw the Title from availability via Subscription Access during that annual payment period.
“Hours Viewed” means the number of hours of a Title that is viewed by a viewer that is authorized by Streamlette to view any Title via Subscription Access on the Service; provided that Hours Viewed will not include (and Streamlette will not be obligated to pay for) (i) more than five streams of the same Title by the same account id in a given month or (ii) streams that Streamlette determines, in its sole discretion, are not actual customer views (e.g., imitating legitimate views or click fraud) or are otherwise not authorized to access the applicable Service, including, without limitation, as a result of accessing the Service via false account information or proxy servers.
You hereby grant Streamlette a non-exclusive license to use, reproduce, reformat for online delivery, encode, encrypt, market, promote, transmit, distribute and display the Titles and Promotional Materials (as defined below) and to create, insert and distribute closed captions and subtitles for Titles. Streamlette will have the right, but not the obligation, to offer customers of the Service the opportunity to access the Titles. Streamlette will have sole discretion to determine the retail prices charged for offerings on the Service. Streamlette may advertise, market, and promote, in any and all media (whether now known or hereafter devised), the availability of Titles on the Service using images, trailers, logos, artwork, publicity materials, and metadata provided by you and video clips created by Streamlette of up to (i) 1 consecutive minute of footage from Titles that are under 22 minutes in duration and (ii) 3 consecutive minutes of footage from Titles that are 22 minutes or longer in duration (collectively, the “Promotional Materials”). Streamlette may insert advertisements into or over Titles made available in the Service and may insert pre-roll and post-roll advertisements into or over Titles made available on the Service via other Distribution Modes.
Delivery of Content:
You will deliver Titles, together with applicable Promotional Materials, to Streamlette at your sole cost and in accordance with such timetable and technical specifications as are provided by Streamlette to you from time to time (including, without limitation, the requirement that such titles not contain any advertisements), at the highest resolution available to you, ideally in high definition. To the extent that you have previously delivered audio-visual programs and associated promotional materials to Streamlette or its affiliates (“Prior Deliveries”), such Prior Deliveries will be deemed to be Titles and Promotional Materials subject to the terms of this Agreement unless otherwise indicated by Streamlette to you. You will have no obligation to re-deliver Prior Deliveries, except (i) as necessary to comply with other obligations set forth herein (such as language, closed captioning and resolution requirements), and (ii) to the extent that a given Title becomes available to you at a higher resolution. You hereby represent and warrant that (i) you have the sole, full and unencumbered right to grant to Streamlette and its affiliates all of the rights set forth herein, (ii) any information and documentation you provide to us will be current, complete, and accurate and (iii) the Titles and Promotional Materials will not contain any subject matter or materials that are defamatory, libelous, obscene, pornographic, exploitative or illegal. You will deliver English language versions of the Titles (unless the original version of a Title is not in English, in which case you will deliver the original version and an English dubbed version, if available), as well as any other dubbed or subtitled versions of the Titles to which you have access.
You agree that the subscriptions made available to Streamlette hereunder for distribution via Subscription Access comprised of Titles (“Subscriptions”) will, at a minimum, be the same subscription video on demand packages, including the same titles, as the subscription video on demand packages made available by you via any method of non-physical distribution. In the event that you make the Subscriptions available for distribution by any non-physical distribution platform that competes with the Service (each a “Competing Service”) for better license fees or with additional rights with respect to free trials, Streamlette is entitled to the same license fees and free trial rights as the applicable Competing Service.
In the event that you make any other subscriptions containing audio-visual programs available for Subscription Access on a Competing Service then such subscriptions and/or audio-visual programs will constitute Subscriptions or Titles, as applicable, under this Agreement and Streamlette will have the right to distribute such Titles and Subscriptions in the same manner and for the same or better license fees as the applicable Competing Service, and you will deliver such Titles and Subscriptions together with the applicable Promotional Materials to Streamlette as soon as possible pursuant to the terms hereof, provided that the availability periods of any such Titles and Subscriptions will be no less favorable than the availability periods offered to the Competing Service.
You may not offer access to your Titles on Youtube, Vimeo or any other free or strictly ad-supported video-streaming service while they are simultaneously on Streamlette.
You must ensure that all your Titles and Subscriptions are in compliance with our policies for content at the time you submit them to us. If you discover that content you have submitted does not comply, you must immediately withdraw the content. We are entitled to remove or modify the Titles, the Subscriptions, the metadata, cover art and product description you provide for your Titles and Subscriptions for any reason, including if we determine that it does not comply with our content requirements. You may not include any advertisements or other content that is primarily intended to advertise or promote products or services. If available, you will provide ratings for your Titles in each country in which you distribute your Titles from the applicable local ratings authorities (e.g., MPAA, BBFC, FSK, EIRIN). You must ensure that all information that you provide to us, including but not limited to metadata, is current, complete, and accurate. If you discover that any information you have provided to us for a Title or Subscription is inaccurate or incomplete, you must promptly submit corrected information to us. We are entitled to determine what content we accept and distribute on the Service in our sole discretion. If we request that you provide additional information relating to your Titles or Subscription, such as information confirming that you have all rights required to permit our distribution of the Titles or Subscription, you will promptly provide the information requested, recognizing that your content may not be made available until proof of rights is received. You authorize us, directly or through third parties, to make any inquiries we consider appropriate to verify your rights to permit our distribution of the Titles or Subscription and the accuracy of the information or documentation you provide to us with respect to those rights.
You may withdraw your Titles from further sale on the Service at any time on thirty business days’ advance notice by following the then current Program procedures for Title withdrawal or un-publishing; provided that you may not remove (a) a Title from Non-Transactional Access that has hit the Payment Caps prior to the end of the annual payment period or (b) a Title within a Subscription other than in accordance with the Subscription Guidelines, in each case, unless you either (i) lose any rights or other licenses, consents or permissions relating to any specific Title that are necessary for you to grant the rights granted hereunder or (ii) receive written notice of a third-party claim relating to a Title, which reasonably could result in legal liability for you; provided that Streamlette will only be obligated to withdraw the Title if you also concurrently obligate other subscription based services to withdraw the Title.
Subject to the rights you grant to us under this Agreement, as between us and you, you retain all ownership rights in and to the copyrights and all other rights and interest in and to your Titles and Subscriptions. We retain all ownership rights in and to the copyrights and all other rights and interests in and to the Program, the Program Site and all Streamlette properties, and any materials we use or provide to you for use relating to your Titles and Subscriptions (such as a generic cover image used for your Titles or Subscriptions if you do not provide one). We are solely responsible for, and will have full discretion with respect to the terms, features, and operation of the Program and the Program Site and related marketing, but our use of the Titles and Subscriptions will be subject to the terms of this Agreement. If you elect to provide suggestions, ideas, or other feedback to Streamlette or any of its affiliates in connection with the Service, the Program, the Program Site or anything on the Program Site (“Feedback”), Streamlette and its affiliates will be free to use and exploit the same in any manner without restriction and without any need to compensate you. This Agreement does not grant you any license or other rights to any intellectual property or technology owned or operated by us or any of our affiliates, including, without limitation, any trademarks or trade names. Nothing in this Agreement restricts any rights we may have under applicable law or a separate agreement.
- Termination of Agreement. If either party is in breach of this Agreement and fails to cure such breach within 30 days following written notice from the other party, the non-breaching party may terminate this Agreement upon 5 business days’ written notice to the breaching party. Following any termination or expiration of this Agreement, any provision which, by its nature or express terms should survive will survive such termination or expiration, including, but not limited to, Sections 1, 2, 3, 4 and 5
- Indemnification. You will indemnify, defend and hold harmless Streamlette, its officers, directors, employees, shareholders, affiliates, subcontractors, successors and assignees, from and against any and all third-party claims, actions, causes of action, demands, judgments, liabilities, damages, losses, injuries, costs and expenses (including, without limitation, reasonable attorneys’ fees and court costs) brought against Streamlette that arise from or relate to: (a) any breach or alleged breach by you of any of your representations, warranties or obligations set forth herein; or (b) any claim that Streamlette’s exercise of the rights granted by you under this Agreement violates any law or regulation or the right(s) of any third party (individually, a “Claim,” and collectively, the “Claims”). You will not consent to the entry of a judgment or settle a Claim without our prior written consent, which may not be unreasonably withheld. You will use counsel reasonably satisfactory to us to defend each Claim. If we reasonably determine that a Claim might adversely affect us, we may take control of the defense at our expense (and without limiting your indemnification obligations). Your obligations under this Section 2 are independent of your other obligations under the Agreement.
- Limitation of Liability. STREAMLETTE WILL NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR FOR ANY OTHER CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, EVEN IF STREAMLETTE HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. STREAMLETTE WILL NOT BE LIABLE TO YOU FOR DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR OTHER THEORY) OR OTHERWISE, FOR AN AGGREGATE AMOUNT IN EXCESS OF THE AMOUNT OF FEES DUE AND PAYABLE BY STREAMLETTE UNDER THIS AGREEMENT FOR THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM. NOTWITHSTANDING THE FOREGOING, THIS SECTION 3 WILL NOT BE DEEMED TO WAIVE ANY OF YOUR RIGHTS AT LAW OR IN EQUITY TO ENFORCE THIS AGREEMENT WITH RESPECT TO UNDISPUTED LICENSE FEE PAYMENTS DUE TO YOU BY STREAMLETTE HEREUNDER. THE SERVICE IS MADE AVAILABLE ON AN “AS IS” BASIS AND STREAMLETTE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SERVICE, INCLUDING WITHOUT LIMITATION, (I) THAT THE SERVICE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, OR OPERATE WITHOUT ERROR OR (II) AS TO THE VOLUME OF SALES OR LICENSE FEES THAT WILL BE GENERATED BY TITLES CONTENT ON THE SERVICE.
- Confidentiality. You will not, without our express, prior written permission: (a) issue any press release or make any other public disclosures regarding the terms of this Agreement; (b) disclose Streamlette Confidential Information (as defined below) to any third party or to any employee other than an employee who needs to know the information; or (c) use Streamlette Confidential Information for any purpose other than the performance of this Agreement. You may however disclose Streamlette Confidential Information as required to comply with applicable law, provided you: (i) give us prior written notice sufficient to allow us to seek a protective order or other appropriate remedy; (ii) disclose only that Streamlette Confidential Information as is required by applicable law; and (iii) use reasonable efforts to obtain confidential treatment for any Streamlette Confidential Information so disclosed. "Streamlette Confidential Information" means (1) any information regarding Streamlette, its affiliates, and their businesses, including, without limitation, information relating to our technology, customers, business plans, promotional and marketing activities, finances and other business affairs, (2) the nature, content and existence of any communications between you and us, and (3) any sales data relating to the sale of digital videos or other information we provide or make available to you in connection with the Program. Streamlette Confidential Information does not include information that (A) is or becomes publicly available without breach of this Agreement, (B) you can show by documentation to have been known to you at the time you receive it from us, (C) you receive from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (D) you can show by documentation that you have independently developed without reference to any Streamlette Confidential Information. Without limiting the survivability of any other provision of this Agreement, this Section 4 will survive three years following the termination of this Agreement.
- Miscellaneous. All rights granted to Streamlette under this Agreement may be exercised by Streamlette, its affiliates, and subcontractors providing services in connection with the Service. Any Streamlette affiliate may join as a party to this Agreement and will notify you if it does so. The joining Streamlette affiliate will be entitled to exercise the rights that you grant under this Agreement. Each Streamlette party is severally liable for its own obligations under this Agreement and is not jointly liable for the obligations of other Streamlette parties. In addition, each Streamlette party is solely responsible with respect to its exercise of its rights and compliance with its obligations in connection with the territory specified with respect to that party in this Agreement or the applicable notice.You may not assign any of your rights or obligations under this Agreement without the prior written consent of Streamlette. A waiver by either party of any breach or default by the other party under this Agreement will not constitute a waiver of any other or subsequent breach or default by such other party. The failure of either party to enforce any term of this Agreement will not constitute a waiver of such party’s rights to subsequently enforce the term. The remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity. For the purposes of this Agreement, Streamlette and you are independent contracting parties, and nothing herein will be construed as creating an agency relationship, a fiduciary relationship, an employer-employee relationship, a partnership, a joint venture, or an obligation to form any such relationship or entity between Streamlette and you. Any dispute or claim arising from or relating to this Agreement or the Program is subject to the binding arbitration, governing law, disclaimer of warranties and limitation of liability. You agree to those terms by entering into this Agreement or using the Program. The United States Federal Arbitration Act, applicable United States federal law, and the laws of the State of Utah, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and Streamlette relating to this Agreement or the Program. To be effective, except where specified otherwise in this Agreement, any notice hereunder by either party must be in writing and delivered (i) if by Streamlette, via email, posting on the Program Site or message through your Program account or (ii) if by you, via email, to firstname.lastname@example.org with a copy to email@example.com. Notices will be effective and deemed received on the date transmitted or posted. This Agreement constitutes the complete and final agreement of the parties pertaining to the subject matter of this Agreement and supersede the parties’ prior agreements, understandings, and discussions related to the subject matter of this Agreement. If any term of this Agreement is held to be invalid, void or unenforceable, then the remaining terms of this Agreement will be unaffected and will be valid and enforceable to the fullest extent permitted by law. Nothing in this Agreement will restrict Streamlette from exercising any right it has pursuant to another applicable permission or would have at law in the absence of this Agreement.
NON-TRANSACTIONAL ACCESS RATES
In all territories worldwide, non-transactional access rates shall be calculated as follows: Streamlette will set aside 50% of net revenue (which shall be calculated as gross revenue minus merchant’s fees) and divide it among filmmakers at an hourly rate. The rate at which is is distributed will be a function of the number of Titles on the platform and the number of hours watched by users in the respective pay period, shall vary from month to month, and shall be capped at $0.20 per hour.
MINIMUM THRESHOLD IN ACCRUED LICENSE FEES