The terms and conditions (the "Terms and Conditions") which follow govern the relationship between you (the "Content Provider") on the one hand, and NAGATO (TOURN MEDIA AB), a Stockholm Sweden based Company (the "Company"), on the other hand, with regard to the YouTube channel(s) broadcast over the internet (collectively, the "Properties") described in the application (the "Application") submitted to Company. By accepting these Terms, you covenant and agree to be bound by the Application and the Terms (collectively, the "Agreement").
In consideration of the mutual agreements and undertakings of the parties set forth herein below, and for good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto hereby agree as follows:
1. Properties/Content. Content Provider represents and warrants that Content Provider exclusively owns and/or has all necessary rights to control the Properties during the Term of this Agreement, as well as all content (both audio and visual) exploited through such Properties (collectively, the "Content").
2. License. Content Provider hereby grants to Company the exclusive, worldwide right and license, during the Term hereof, to exploit, manage and monetize (through enabling and selling advertising) the Properties and the Content as part of Company's branded YouTube network(s). Without limiting the foregoing, Company will have the exclusive right throughout the Term hereof to represent, sell and manage all advertising inventory pertaining to the Properties, including but not limited to any advertising sales and/or sponsorship opportunities, inclusion of advertising by advertising networks, use of annotations and related features, and the serving and monitoring of all advertising and/or sponsorship campaigns and programs. Company will collect all revenue generated from the Properties directly (e.g., through Ad Sense, Video Ad Sense, YouTube direct sales, Company's direct sales, etc.) (collectively, the "Revenue"), and pay Content Provider its share of such Revenue in accordance with the terms of this Agreement. Without limiting the foregoing license, Content Provider further grants to Company any and all rights and licenses reasonably required for Company to perform and enjoy its rights under this Agreement.
a. At such time as monetization of the Content via Facebook and/or other forms of social media becomes available, Content Provider shall further grant to Company the exclusive, worldwide right and license, during the Term hereof, to exploit, manage and monetize (through enabling and selling advertising) the Content via all forms of social media including but not limited to Facebook. In such cases, Company will collect all revenue generated from the Content directly from the social media source (e.g. Facebook), and pay Content Provider its share of such Revenue in accordance with the terms of this Agreement.
3. Revenue Share and Payment Terms. All Revenue generated hereunder with respect to the Properties and/or Content shall be allocated and paid twenty (20%) to Company and eighty percent (80%) to Content Provider, respectively, if not a seperate agreement has specified something else. Company will pay Content Provider its share of all Revenue due to Content Provider hereunder, if any, on a monthly basis in accordance with the terms of this Agreement, within thirty (30) days after the end of each calendar month; provided that if the money payable is less than one dollar (US$300) in any given month, then Company need not make payment to Content Provider hereunder until such time as there is an aggregate of at least one dollar (US$300) due and payable to Content Provider hereunder. Notwithstanding anything to the contrary contained herein, Company may deduct from any and all Revenue otherwise payable to Content Provider hereunder all wire transfer fees, ACH fees, and other reasonable administrative fees (such administrative fees not to exceed 3% of the amount of Revenues payable to Content Provider in any given month) that are charged to Company in connection with the carrying out of its duties in accordance with this Agreement and/or otherwise incurred by Company in connection with monetizing the Properties and/or Content hereunder.
a. Notwithstanding the foregoing, all Revenue generated as a result of so-called claimed views (“Claimed Views”), i.e. views that are a) generated by third-party, user-generated content, and b) claimed by Company on Content Provider’s behalf, shall be allocated and paid forty percent (40%) to Company and sixty percent (60%) to Content Provider, respectively. All other payment terms described in Paragraph 3 above shall remain unchanged.
4. License to Use Intellectual Property. Content Provider also grants to Company a non-exclusive, worldwide, royalty-free license to use any trademarks, trade names, trade dress, slogans, designs, copyrights and/or logos that are provided by Content Provider in connection with the Properties and/or the Content in connection with Company's performance of its duties hereunder and/or in connection with Company's promotional activities.
6. Term of Agreement. This Agreement shall begin on the Effective Date and may be terminated at any time upon thirty (30) days' prior written notice by either party. Until such time as the Agreement is terminated, if ever, by either party, the Agreement shall remain in full force and effect. The period of time during which this Agreement is in effect is referred to herein as the "Term".
If Content Provider receives a copyright takedown notice from YouTube or any third party, Content Provider shall immediately notify Company in writing of same. Content Provider's failure to send such notification may result in suspension from YouTube and the termination of this Agreement.
8. Ownership and Control of Properties. Content Provider shall retain full control and ownership of, and absolute liability for, the Properties, including the creation, procurement, and uploading of all Content and the ongoing management and look and feel of the Properties.
9. Taxes. All payments made in connection with this Agreement are exclusive of taxes imposed by governmental entities of whatever kind and imposed with respect to the transactions for services provided under this Agreement. Each party shall be responsible for any taxes relating to payments it makes or receives under this Agreement.
10. Assignment. Company shall have the right to assign this Agreement to any party for any reason upon written notice to Content Provider. Content Provider may not assign this Agreement to any party, with the sole exception of an outright sale by Content Provider of Content Provider's Properties and/or Content. In the event that Content Provider desires to sell its Properties and/or Content, Content Provider must first provide to Company i) advance written notice of such sale, and ii) any information about the new owner, including but not limited to name, address, payment details and tax information, which Company may reasonably request in order to fulfill its obligations under this Agreement.
11. Fraud. Content Provider will not, directly or indirectly, authorize or encourage any third party to generate automated, fraudulent or otherwise invalid advertising actions (e.g., “click fraud,” “action fraud” or “impression fraud”). If Company believes in good faith that Content Provider has violated this Section, or in any way has violated YouTube’s terms of service, Company may (i) withhold payments to Content Provider until such suspected fraud and/or violation is resolved and remedied to Company’s satisfaction, and/or (ii) immediately terminate this Agreement.
12. Nature of Relationship. Nothing herein creates a partnership, joint venture, employer/employee or other relationship between the parties other than that of independently contracting parties. It is acknowledged and understood that Company reserves the right to reject any Application for any or no reason.
13. Confidentiality. Neither party will disclose the terms hereof to any third party without the other party's prior written agreement. Further, the parties shall not disclose to any third party any non-public and/or proprietary information disclosed by one party to the other hereunder, and each party shall protect such information from the other with at least the same degree of care used to protect its own confidential information.
15. DISCLAIMER; LIMITATIONS ON LIABILITY. EXCEPT FOR THE EXPRESS WARRANTIES MADE HEREIN, THE PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR THE INDEMNITIES SET FORTH HEREIN: (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR PENALTIES ARISING FROM OR RELATED TO THIS AGREEMENT; AND (II) NEITHER PARTY'S AGGREGATE LIABILITY FOR ANY CAUSE OF ACTION ARISING FROM OR RELATED TO THIS AGREEMENT WILL EXCEED $250,000.
16. Arbitration. Any dispute arising hereunder shall be resolved through confidential binding arbitration conducted in Stockholm, Sweden. There shall be a single arbitrator mutually selected by the parties (or the parties cannot agree, then mutually selected by arbitrators appointed by each of the parties). The determination of the arbitrator shall be final and binding on the parties, and judgment on the award rendered may be entered in any court having jurisdiction.
17. Governing Law and Jurisdiction. This Agreement is entered into in Stockholm Sweden and shall be governed by internal laws of the Sweden without reference to Swedish choice of law principles. Subject to the mandatory binding arbitration provisions set forth above, only the Swedish courts shall have jurisdiction over controversies regarding this Agreement, and any proceeding involving such a controversy shall be brought only in those courts, in Stockholm, and not elsewhere. Any process in such proceeding may be served by, among other methods, delivering it or mailing it, by registered or certified mail, directed to a party. Any such delivery or mail service shall have the same effect as personal service within Stockholm.
18. Limitation of Remedies. No act or omission on the part of Company shall constitute a breach or default of this Agreement unless Content Provider shall first notify Company in writing and Company has not commenced to cure such default within ten (10) business days from its receipt of such written notice. In the event of any such default or breach, Content Provider acknowledges and agrees that it shall be limited to its remedy at law for money damages, if any, actually and proximately caused by such breach, and Content Provider shall not have the right to: (i) terminate or rescind this Agreement or any rights, privileges or benefits granted or licensed hereunder, or (ii) seek injunctive or other equitable relief, or (iii) enjoin or restrain the exhibition, distribution, broadcast, use, advertising, promotion or other exploitation of any of the Properties or Content or any elements thereof or other rights relating thereto.
19. Miscellaneous/Entire Agreement. If any provision hereof shall be held by a court to be invalid or unenforceable, such finding shall not otherwise affect the validity of the other terms of this Agreement. This Agreement contains the parties' entire agreement, and supersedes any and all prior or contemporaneous agreements between the parties, whether oral or written, with respect to the subject matter hereof.
Agreed to with force and effect from and as of the Effective Date.