Terms Of Service
Version 1.0: Updated 05/04/2020
Except as otherwise modified or superseded by the specific terms of any simultaneously executed content distribution agreement (the “Content Distribution Agreement”), which is incorporated herein by this reference, the terms of service set forth herein, constitute the full and complete agreement between You (as hereinafter defined), and OTT Studio, LLC, a California limited liability company (“OTT”), for OTT to distribute Partner Content (as hereinafter defined) across any Output (as hereinafter defined) (collectively, the “Agreement”).
1. DEFINITIONS. Capitalized terms not otherwise defined in this Agreement are defined herein:
1.1 "Business Day" shall mean Monday through Friday, 9am to 5pm PST, excluding United States Federal holidays.
1.2 “Company”, “Service Provider”, “we”, “us”, “our”, or “OTT” shall mean OTT Studio, LLC, a California limited liability company.
1.3 “End User” shall mean any consumer of any Partner Content distributed via any Output
1.4 “Partner Content” shall mean any text, photos, graphics, images, audio/visual content, trademarks, logos, materials, feeds, multimedia, and information uploaded or provided by Partner for distribution across any Output.
1.5 “Operator” shall mean the third party owner/operator of any Output or Platform.
1.6 “Output” shall mean any Operator or OTT owned and/or operated application (“app”), channel, network, live/linear content broadcast or stream, video on demand delivery, or other means of End User digital content delivery now known or hereafter devised, where Partner Content may be distributed.
1.7 “Platform” shall mean any Operator or OTT owned and/or operated means for, or endpoint of, delivering, or supporting the delivery of, any Output.
1.8 "Service” shall mean the service provided by OTT as further described herein, and within in the corresponding Content Distribution Agreement.
1.9 “You,” “Your,” or “Partner” shall mean You, and/or the company, person or entity utilizing the Service.
2.1 OTT will offer the Service subject to the terms of this Agreement. Pursuant to the Service, OTT will offer the distribution of Partner Content across one or more Outputs. The Service may also include designing Partner Content artwork for display on various Platforms, search engine optimization (“SEO”) and/or other efforts to promote the availability of Partner Content to End Users, the management of Partner Content for distribution to End Users, and the development of original content to be distributed along with Partner Content, and other related marketing services. Notwithstanding anything set forth herein, OTT shall not be required to highlight, favor, or otherwise promote any specific Partner Content, and shall have the right in its sole and exclusive discretion to refuse to provide the Service to any Partner.
2.2 OTT shall begin providing the Service on the initial start date set forth in the Content Distribution Agreement (or as otherwise defined in the Content Distribution Agreement) (the “Effective Date”), subject to Partner’s delivery of Partner Content to be distributed.
2.3 Notwithstanding anything to the contrary set forth in the incorporated Content Distribution Agreement, OTT will be Partner’s non-exclusive distributor of Partner Content via any Output.
3. TERM AND TERMINATION.
3.1 The term of this Agreement shall commence on the Effective Date and will continue for twelve (12) months (the “Initial Term”). This Agreement will auto-renew for subsequent twelve (12) month terms (each, a “Renewal Term”) unless Partner sends written confirmation no later than sixty (60) days prior to the end of the then-current Term notifying OTT of its intention to terminate this Agreement. All Partner termination notices must be submitted in writing to firstname.lastname@example.org. Termination Notices given by phone, physical mail or other means, or sent to any other email address will not be honored. The Initial Term together with any Renewal Terms are hereby collectively referred to as the “Term.”
3.2 Notwithstanding anything set forth in Section 31. Above, this Agreement shall terminate upon prior written notice (a) by Partner if OTT materially breaches this Agreement and fails to cure such material breach within thirty (30) days written notice thereof; or (b) by OTT (i) if Partner materially breaches this Agreement, or any of the representations and warranties contained herein; or (ii) if OTT elects to terminate at its sole discretion for any reason, or no reason. In the event of any termination hereunder, OTT’s obligations to provide the Service shall immediately cease.
3.3 Except as otherwise set forth herein, upon any termination of this Agreement, the rights and obligations of the parties shall cease except that Sections 1, 7, 8, 9, 10, 12, 14 and 15 shall survive termination and continue in full force and effect.
4. REVENUE SHARRING
4.1 As part of the Service, OTT and Partner agree to share certain revenue generated by OTT through OTT’s delivery of Partner Content via the Service. Upon actual receipt of any revenue by any Operator or Platform, pursuant to the applicable terms and conditions, and accounting procedures and schedules, of the Operator, Platform, or other advertising network or applicable third party, and regardless of when such revenue was earned by OTT, OTT will remit the share set forth in the applicable Content Distribution Agreement (“Net Receipts”) to Partner as set forth in Section 4.3 below. As used herein, “Net Receipts” means any and all gross revenue collected by OTT as set forth herein, less all out-of-pocket costs determined by OTT in its sole discretion, which may include, without limitation, any third party fees paid by or on behalf of OTT in connection with providing the Service, as well as any monies paid in connection with the design of Partner Content artwork for display on various Platforms, SEO and/or other promotional efforts, Partner Content management, facilitating ad serving, user transactions, and so-called “app store fees,” as applicable.
4.2 Partner is responsible for any and all applicable taxes imposed on any Net Receipts received by Partner from OTT.
4.3 OTT shall account to Partner on the thirtieth (30th) day of the month following the end of each calendar quarter, or as soon thereafter as is reasonably practicable, for all relevant Net Receipts. All such accounting statements shall completely and accurately reflect all gross revenues generated from the Service in that quarter, as well as all costs incurred by OTT in that quarter. Partner’s acceptance of any payments made by OTT hereunder shall prevent Partner from disputing, at a later date, any amount owed, and prevent Partner from demanding more information regarding payments finally due. All payments for each calendar quarter are due to Partner by OTT within forty-five (45) days of Partner’s receipt and approval of each quarterly accounting statement. OTT shall not make any distributions hereunder for any calendar quarter in which Net Receipts do not exceed one hundred dollars ($100), and OTT is entitled in its sole discretion to establish a reserve in an amount to be determined by OTT prior to making any distributions hereunder.
5. PARTNER CONTENT RIGHTS; LICENSE GRANT.
5.1 Partner owns, solely and exclusively, all right, title and interest in and to all Partner Content made available by Partner to OTT for distribution through the Service. OTT DOES NOT ACQUIRE ANY TITLE OR OWNERSHIP RIGHTS IN PARTNER CONTENT THAT PARTNER SUBMITS TO OTT FOR DISTRIBUTION VIA THE SERVICE. After Partner submits, uploads, transmits, displays or otherwise makes available to OTT any Partner Content, Partner continues to retain any such rights that Partner may have therein, subject to the rights, licenses and privileges granted herein.
5.2 In consideration for OTT’s distribution of Partner Content via the Service, Partner hereby grants OTT an unlimited, worldwide, non-exclusive, sub-licensable, fully paid-up, non-revocable, perpetual and royalty-free right and license (i) to use, reproduce, distribute, adapt (including, without limitation, the ability to edit, modify, translate and reformat the Partner Content in any way), create derivative works of, transmit, publicly display, publicly perform and/or digitally perform Partner Content, in any media now known or hereafter developed, (ii) to sublicense the foregoing rights, through multiple tiers, to the maximum extent permitted by applicable law, and (iii) to block, disable or remove Partner Content in OTT’s sole discretion (“License for Partner Content”) solely in connection with (a) the provision of the Service, including, without limitation, serving as Partner’s agent in connection with the distribution and promotion of Partner Content, and (b) the displaying, exhibiting, marketing and featuring of the same in connection with the promotion of OTT and/or the Services (in each instance, without notification or other obligation to you or any third party).
5.3 Partner should not submit, upload, transmit, display or otherwise make available, in any manner, any Partner Content that OTT deems to be Unauthorized Material (as defined herein). OTT has the right, but not the obligation, to review any Partner Content and to delete, remove, move, edit or reject, without notice to Partner, for any reason or for no reason whatsoever, any Partner Content, including, without limitation, any Unauthorized Partner Content; provided, however, that OTT shall have no obligation or liability to Partner or any third party for failure to do so or for doing so in any particular manner. As used herein, the term “Unauthorized Material” means any Partner Content that: (a) is or may be construed as violating this Agreement; or (b) is deemed to be unacceptable to OTT, as determined in OTT’s sole discretion.
5.4. Partner represents, warrants and covenants that: (a) Partner owns the Partner Content or otherwise has the right to grant the rights, licenses and privileges described in this Agreement and to perform and comply with all of the requirements set forth herein; (b) Partner’s submission, uploading, transmission, display and/or making available of any Partner Content does not violate this Agreement, any rights of any other party or entity, any of your obligations, any law, rule or regulation or violate any intellectual property, proprietary, privacy, moral, publicity or other rights of any party or entity; (c) Partner has the legal right and capability to enter into this Agreement and perform and comply with all of its terms; and (d) Partner holds and shall continue to hold all the ownership, license, proprietary and other rights necessary to enter into, authorize, grant rights and perform Partner’s obligations under this Agreement and shall pay for all royalties, fees, and any other monies owing to any person or entity by reason of the Partner Content.
5.5 EXCEPT AS OTHERWISE PROVIDED HEREIN, PARTNER ACKNOWLEDGES AND AGREES THAT PARTNER IS SOLELY AND ENTIRELY RESPONSIBLE FOR THE CONSEQUENCES OF ALL MATERIALS THAT PARTNER SUBMITS, UPLOADS, OR OTHERWISE MAKES AVAILABLE TO OTT FOR DISTRIBUTION VIA THE SERVICE. UNDER NO CIRCUMSTANCES SHALL OTT BE LIABLE IN ANY WAY FOR THE MATERIALS, INCLUDING, WITHOUT LIMITATION, ERRORS OR OMISSIONS IN ANY MATERIALS (OR THE USE THEREOF), OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF ANY MATERIALS SUBMITTED, UPLOADED, DISPLAYED, TRANSMITTED OR OTHERWISE MADE AVAILABLE, INCLUDING, WITHOUT LIMITATION, THE ACCURACY, INTEGRITY, QUALITY OR CONTENT OF THE SAME, UNLESS DUE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF OTT IN ITS MODIFICATION OF SUCH MATERIALS. PARTNER FURTHER ACKNOWLEDGES AND AGREES THAT ALL MATERIALS MADE AVAILABLE BY MEANS OF OR IN CONNECTION WITH ANY PORTION OF THE SERVICE SHALL BE MADE PUBLICLY AVAILABLE VIA THE SERVICES OR OTHER PLATFORM OR STOREFRONT AND THAT PARTNER HAS NO EXPECTATION OF PRIVACY IN ANY OF THE MATERIALS.
6. UNAUTHORIZED PARTNER CONTENT.
6.1 Partner represents, warrants and agrees that, while using the Service, Partner shall not submit any Partner Content that: (a) would violate any applicable law, rule, regulation, judicial or government order or give rise to civil liability or violate or infringe upon any intellectual property, proprietary, privacy, moral, publicity or other rights of ours or of any other person or entity; (b) is or is likely to be harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene, vulgar or that contains explicit or graphic imagery, descriptions or accounts of excessive violence or sexual acts (including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals), contains a link to an adult website or is patently offensive, promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (c) Partner does not have a right to make available under any law, rule or regulation or under contractual or fiduciary relationships (such as inside information, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), or otherwise creates a security or privacy risk for any other person or entity; (d) encourages conduct that adversely affects or reflects negatively on OTT, its affiliates, the Service, OTT’s goodwill, name or reputation or causes duress, distress or discomfort to us or anyone else, or discourage any person or entity from using all or any portion, features or functions of the Service, or from advertising or becoming a supplier to us in connection with the Service; or (e) any material that contains a software virus, worm, spyware, Trojan horse or other computer code, file or program designed to interrupt, impair, destroy or limit the functionality of the Service or any related software or hardware or telecommunications equipment.
6.2 OTT assumes no responsibility for any Partner Content. OTT reserves the right to investigate and take appropriate legal action against anyone who, in OTT’s sole discretion, violates, or is suspected of violating, this section, including, without limitation, reporting Partner or any person for Partner to law enforcement authorities. Further, Partner acknowledges, consents and agrees that OTT may preserve and disclose any Partner Content or other information in OTT’s possession if required to do so by law or if based on a good faith belief that such preservation or disclosure is reasonably necessary to (a) comply with the legal process; (b) enforce this Agreement; (c) respond to claims that any content or information violates the rights of any third party; or (d) protect the rights, property or personal safety of OTT, users or any third parties.
7.1 Partner agrees to fully indemnify, defend and hold OTT, its affiliates, and its respective successors and assigns, directors, officers, employees, representatives, agents, and licensors, harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees and costs) (collectively, “Losses”) arising out of a third party claim resulting from (a) Partner’s breach or violation or alleged breach or violation of Partner’s representations or warranties under this Agreement; and/or (b) any Partner Content.
7.2 OTT agrees to indemnify, defend and hold Partner, and Partner’s respective successors and assigns, directors, officers, employees, representatives, and agents harmless from any and all Losses arising out of a third-party claim resulting from any uncured material breach of this Agreement.
For the purpose of this section, “Confidential Information” includes, but is not limited to, all corporate, financial, economic, legal or other information or knowledge generally concerning OTT or any affiliated entity, including, without limitation, information concerning the Service, and specifically including information regarding intellectual property, know-how and/or trade secrets of OTT, whether disclosed to Partner directly or indirectly, and whether disclosed verbally, by visual inspection or in the form of written material, or otherwise, and whether obtained before or after the execution of this Agreement, regardless of whether such information is specifically identified, described and/or marked as Confidential Information, except information that: (a) is disclosed lawfully to Partner by a third party who has no obligation of confidentiality to Partner with respect to the disclosed information; (b) is, or becomes, generally known to the public, other than by a breach by Partner of its obligations hereunder; (c) is already known by Partner before disclosure by or on behalf of OTT as can be proved by evidence of Partner, and which is not the subject of a previous confidentiality agreement between the parties; or (d) is information independently developed by Partner without reference to OTT’s Confidential Information as evidenced by documentation made in the ordinary course of business. Partner and its employees and agents shall maintain all Confidential Information in strict confidence and shall not, without OTT’s prior written consent, disclose such information to any third party or use such information for any purpose other than to carry out its responsibilities set forth in this Agreement.
9. LIMITATION OF LIABILITY; WARRANTY DISCLAIMER.
THE SERVICE IS DELIVERED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE THAT THE SERVICE WILL BE AVAILABLE FOR USE, OR THAT ANY FEATURES, FUNCTIONS, OR OPERATIONS THEREOF WILL BE AVAILABLE OR PERFORMED AS DESCRIBED. ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE SERVICE ARE HEREBY DISCLAIMED. PARTNER UNDERSTANDS AND AGREES THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, OTT, ITS AFFILIATES, AND ITS RESPECTIVE SUCCESSORS AND ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OPERATORS, SERVICE PROVIDERS, ADVERTISERS AND/OR SUPPLIERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM OTT’S PROVISION OF THE SERVICE TO PARTNER, OR FROM THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES.
The rights of the parties under this Agreement shall inure to the benefit of such parties and their successors and/or assigns. The terms, conditions and covenants of the parties under this Agreement shall be binding upon the parties and their successors and/or assigns. Without limiting the foregoing, each party understands, acknowledges and agrees that its successors and/or assigns, whether by merger, operation of law, acquisition of assets or otherwise, shall continue to perform their obligations under this Agreement and that each party shall remain liable to the other party for such party’s successors’ and/or assigns’ performance hereunder. Partner may only assign its rights and/or obligations under this Agreement upon advanced receipt of OTT’s express written consent, which may be withheld in OTT’s sole discretion for any reason. OTT may freely assign its rights and/or obligations under this Agreement at any time. Provided however, that either party may assign or delegate its rights or duties hereunder to any of its affiliates as part of an internal restructuring or to any successor as part of a merger, change in control or assignment of all or substantially all of the assets of such party.
11. FORCE MAJEURE.
Neither party shall be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or as to OTT, interruption in connection with any service offered by OTT or any third party resulting from any cause beyond the reasonable control of a party, including, without limitation, an act of war or terrorism, failure of electricity supply, systems or connections, service interruptions, natural disaster, pandemic, act of God, third party service provider failure or delay in performance, civil commotion, or governmental action.
Any notice required or permitted hereunder shall be in writing and shall be sufficiently given if personally delivered or sent by email or by reputable overnight courier service, addressed to the following or such other address/person as a party designates by written notice hereunder:
If to OTT, to:
OTT Studio, LLC
Attn.: AltView Law Group, LLP
12100 Wilshire Blvd., Suite 800
Los Angeles, CA 90025
If to Partner, to Partner’s contact information provided on the Content Distribution Agreement.
Any notice hereunder shall be deemed given at the time of receipt by the person to whom the notice is addressed or when sent by email, upon the date of the email.
OTT may modify this agreement from time to time, and at any time in its sole discretion. OTT will post or display notices of material changes to this Agreement on the Service and/or notify you via email. Once OTT posts or makes them available on the Service, these changes become effective immediately and Partner will be immediately bound by such changes.
14. GOVERNING LAW; JURISDICTION; VENUE; DISPUTE RESOLUTION.
This Agreement shall be interpreted under the laws of the State of California without regard to any conflict of law provisions. Any and all disputes arising under or related in any way to these terms or OTT’s provision of the Service must be resolved through confidential binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of the Service.
PARTNER AGREES THAT BY ENTERING INTO THESE TERMS, PARTNER IS WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. PARTNER FURTHER AGREES THAT PARTNER MAY BRING CLAIMS AGAINST OTT ONLY IN PARTNER’S CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
14.1 Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) regarding or relating to OTT’s provision of the Service, or this Agreement, shall be exclusively settled through binding and confidential arbitration.
14.2 Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by these terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s rules for commercial arbitration and, if the arbitrator deems them applicable, the procedures for consumer-related disputes.
14.3 The arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction. The arbitrator may award any individual relief or individual remedies that are permitted by applicable law. Additionally, each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and expenses, and then in such instance, the fees and costs awarded shall be determined by the applicable law.
14.4 Notwithstanding these terms to arbitrate, OTT may seek emergency equitable relief before the state or federal courts located in Los Angeles, California, in order to maintain the status quo pending arbitration, and Partner hereby agrees to submit to the exclusive personal jurisdiction of the courts located within Los Angeles, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
14.5 If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the terms and conditions, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If for any reason the entirety of this arbitration provision shall be found null and void, and a claim subject to such provisions proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Los Angeles, California.
14.6 For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
15.1 This Agreement, together with the applicable Content Distribution Agreement, constitutes the entire understanding and agreement between Partner and OTT concerning the Service, and supersedes any and all prior or inconsistent understandings relating to the Service and Partner’s use thereof. This Agreement cannot be changed orally. If any provision of this Agreement is held to be illegal, invalid or unenforceable, such determination shall not affect any other provisions and this Agreement shall be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision which must survive in order to allow OTT to enforce its meaning shall survive the termination of this Agreement; however, no action arising out of this Agreement or Partner’s use of the Service, regardless of the form or basis of the claim, may be brought by Partner more than one year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose). The failure of OTT to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision, or any other in the future.
21.2 This Agreement shall not be deemed to create an agency, partnership, employment or joint-venture relationship between OTT and Partner. Nothing in this Agreement shall be construed as a grant of authority to either party to accept any order, waive any right, incur any obligation or liability, enter into any agreement, grant any release or otherwise purport to act in the name of the other party.
21.3 The section headings herein are for convenience of reference only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any provisions hereof.
21.4 The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.
21.5 The language used in this Agreement shall be deemed the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against either party. Whenever required by the context, any gender shall include any other gender, the singular shall include the plural and the plural shall include the singular.
21.6 This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument.
Version 1.0 - Updated 05/04/2020
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