STANDARD TERMS & CONDITIONS

 

 

The following Standard Terms & Conditions are incorporated into the License between the Parties. All capitalized terms shall have the same meaning as set forth thereunder. We reserve the right to revise and update the terms of the Standard Terms & Conditions from time to time. The License, the Standard Terms & Conditions, and any exhibits or attachments thereof are collectively the “Agreement.” In consideration of the mutual promises and obligations, the sufficiency of which is hereby acknowledged, the Parties agree as follows:

1.      DEFINITIONS

(a)    “Administrative Expenses” shall mean all operation expenses connected with the general administration of the REVRY business and shall include but are not limited to rent, utilities, insurance, fringe benefits, human resource personnel, accounting, information technology, the depreciation expense for equipment and space used in administration, as well as supplies, utilities, equipment, etc.

(b)     “Ad-Sponsored Video on Demand Rights” or “AVOD” shall mean the VOD exploitation of a program on a platform that inserts commercial breaks or other forms of advertising into the Program(s). AVOD can apply to a number of platforms, regardless of the means by which the consumer watches the Program (e.g. IP TV, the Web, mobile device, smart phone, tablet or otherwise).

(c)    “Authorized Transmission” shall mean the authorized transmission of a Program within the Territory via the rights granted under this Agreement, by any and all means of electronic transmission now known or hereafter devised, by which an end user is authorized to view and/or receive the Program, which transmission means may include, but are not limited to, broadcast, cable, satellite, telephonic lines, DSL, broadband, fiber optic, over-the-air wireless transmission, closed systems, virtual private networks, or via the TCP/Internet Protocol, regardless of the device to which the Program is delivered.

(d)    “AVOD CPM” shall be defined as the individual CPM that REVRY actually receives for the AVOD distribution of the Program(s) hereunder.

(e)    “CPM” shall mean every one thousand views of the individual Program(s) on the Service by unique Subscribers. 

(f)     “CPM License Fees” shall mean all licenses formulating around a CPM.

(g)    The “Creator Fund” shall be defined herein as a twenty-five percent (25%) allocation of REVRY’s IPTV Linear Gross Proceeds attributable to a given IPTV Linear distribution, sale, deal, package, or model. The Creator Fund shall be allocated and determined Quarterly.

(h)     “Distribution Expenses” shall mean all actual third-party costs and expenses paid, advanced or incurred by REVRY (net of all discounts, rebates and the like) or any of its affiliates in and in connection with the distribution, exploitation and turning to account of the Programs of whatever kind or nature and apportioned on a fair and equitable basis. Without limiting the generality of the foregoing, the following particular items as applicable shall be included in distribution expenses hereunder, subject to the above criteria:  (i) all encoding, transport, and mastering costs; (ii) all shipping and delivery charges; (iii) all upload or other fees charged by website or application hosting companies or other third parties for the upload, maintenance, processing, “up-rezing” or other manipulation or exploitation of the Program(s) for the purpose of providing access to Program(s) via the Service and/or otherwise; (iv) if applicable, costs to obtain and protect the copyright of the Programs and costs incurred by reason of claims asserted by third parties (including reasonable outside attorney’s fees); and (v) costs in connection with the collection of monies including but not limited to costs for processing of payment by Service users and all money owed to performing artists societies (e.g. BMI, ASCAP, etc.). 

(i)     “Free Video On Demand” or “FVOD” shall mean VOD programming offered to consumers free of charge. FVOD programming may include on-demand advertising and on-demand programming offered as part of a basic VOD package.

(j)      “Home-Video Rights” shall mean the right to sell, market, license, or otherwise exploit the Program(s) on the following formats: Digital Video Disk (“DVD”) and Blu-Ray Disk (“BRD”), including the authoring and encoding, replication, packaging, and delivery of the Program(s).

(k)    “Incidental Rights” shall mean the following:

           i.     Name and Likeness:  The right, subject to any pre-existing contractual restrictions thereon of which Licensor shall give REVRY timely written notice, to use and authorize others to use the name, likeness and/or voice of any person who rendered services in connection with the Program(s) for the purpose of advertising, promoting or publicizing the Program(s), the Service, REVRY, Licensor and/or otherwise;

          ii.     Promotion:  The right, to advertise, promote and publicize the Program(s) or authorize others to do so, and such advertising, promotion and publicity may include synopses of or excerpts from the Program(s) or pre-existing advertisements, publicity pieces and promotional materials, in whole or in part, for the Program(s); and

(l)      “Internet Provided Television,” “Internet Provided Television” or “IP TV” shall mean all platforms, devices, technologies, and, now existing or future, means of digital distribution of digital content (including but not limited to traditional television or film content, and other types of data) via the public Internet, as opposed to distribution via terrestrial television via an aerial, cable television, or satellite television systems.

(m)   “IPTV Linear” shall mean the IP TV distribution and/or exhibition of the Program(s), where the timing of such distribution and/or exhibition is pre-determined rather than being at the viewer’s discretion (i.e., not VOD). IPTV Linear distribution may be in connection with the viewer being charged a fee or access charge, whether transactional, recurring, periodic, or other and/or where authenticated viewers may be required to watch advertisements at various points throughout the viewing (i.e. Pre-Roll, Mid-Roll or Post-Roll) and may consist of exhibition or distribution on third party platforms (whether or not such platform contains a REVRY-branded “channel” or otherwise) and/or on the Service and all REVRY-owned Platforms now existing or hereafter developed, adapted, or invented. For clarity, IPTV Linear shall not include any terrestrial television provided via aerial, cable television, or satellite television systems.

(n)    “IPTV Linear Gross Receipts” shall mean one hundred percent (100%) of all sums actually received by REVRY from a given third party, including but not limited to advertisers, for the linear exploitation of content which includes, but may not be limited to, the Program(s).

(o)    “IPTV Linear Gross Proceeds” shall mean the IPTV Linear Gross Receipts, less proportionate Distribution Expenses, Marketing Expenses, Administrative Expenses, and Taxes.  REVRY and Licensor acknowledge and agree that REVRY has made no representation that the Program(s) will generate any IPTV Linear Gross Proceeds or any particular amount of IPTV Linear Gross Proceeds. IPTV Linear Gross Proceeds are at all times subject to retroactive adjustments for returns, refunds, credits, settlements, rebates and discounts.

(p)     “Marketing Expenses” shall mean all actual costs and expenses paid, advance or incurred by REVRY (net of all discounts, rebates and the like) or any of its affiliates in and in connection with the advertising and marketing of the Program(s) of whatever kind or nature and apportioned on a fair and equitable basis. Without limited the generality of the foregoing, the following particular items as applicable shall be included in marketing expenses hereunder, subject to the above criteria: all costs in connection with selling, promoting and advertising the Programs, including publicity, promotional trailers, premium items, design/mechanical production work, marketing presswork, posters, ad slicks, trade advertising, consumer advertising, artwork, fulfillment, co-op advertising, e-mail announcements, website production, screenings and creation and duplication of “on-air” spots of whatever length or nature for exhibition in any media.

(q)    “Merchandising Gross Receipts” shall mean one hundred percent (100%) of all sums actually received by REVRY for the Merchandising exploitation of the Series (including, without limitation, from sales directly to consumers) less (i) taxes collected by REVRY or deducted from payments due REVRY, and (ii) less actual, direct, verifiable out-of-pocket (aa) costs of shipping and handling, (bb) costs of manufacturing, (cc) costs of digital delivery, hosting analytics and reasonable developer costs and fees (as applicable), and (cc) unaffiliated, arms-length third party sales commissions.

(r)     “Merchandising Gross Proceeds” shall mean Merchandising Gross Receipts, less proportionate Distribution Expenses, Marketing Expenses, Administrative Expenses, and Taxes. Videogram Gross Proceeds are at all times subject to retroactive adjustments for returns, refunds, credits, settlements, rebates and discounts.

(s)    “Mobile” shall mean any application, streaming service, device, or platform now known or hereafter developed, where audio, video, and other media is delivered via a mobile application including, but not limited to, iOS, Android, and Windows operating systems.

(t)     “Non-Theatrical Rights” shall mean the right to license the Program(s) to non-theatrical markets, including, but limited to, museums, hospitals and affiliated medical facilities, motor coaches and buses, chambers of commerce, government agencies and entities, religious institutions, non-profit organizations, day-care centers, senior-citizen residences, businesses, conference centers, mobile-home parks, private clubs, parks and recreation facilities, trains operating within the Territory, and remote-living facilities for direct projection though 35mm motion picture film, DVD, BLU-RAY, closed-circuit transmission, internet-based delivery or intranet-based delivery.

(u)    “Over the Top” or “OTT” shall mean any over-the-top content streaming service, device, or platform now known or hereafter developed, where delivery of audio, video, and other media is conducted over the Internet without the involvement of a multiple-system operator in the control or distribution of the content.

(v)    “Processing Fees” shall mean the fees imposed by REVRY’s third party developer for TVOD sales or rentals prior to any disbursement of funds to REVRY. The Processing Fees are calculated per individual transaction by a customer and amount to the following: a ten percent (10%) distribution fee plus Fifty United States Cents (US50¢).

(w)    “Rental Fee” shall mean the individual price, per transaction, for the rental of the Program(s) via the TVOD Distribution Rights (if any) to consumers (either by individual episode or for the entire season) via the Service.

(x)    “Sales Fee” shall mean the individual price, per transaction, for the sale of the Program(s) via the TVOD Distribution Rights (if any) to consumers (either by individual episode or for the entire season) via the Service.

(y)    “Scaled Licensors” shall mean all licensors of content, currently on the Service, who receive a scaled CPM-based license fee for the licensing of content whereby the license fee is reducible based on the total amount of SVOD Gross Proceeds compared to maximum amount owed to all similarly situated licensors.

(z)    The “Service” shall mean all applications, distribution platforms, services, or other means of content distribution (including but not limited to the Mobile, Web, OTT, and other IPTV based service and distribution platforms) owned, maintained, operated, and otherwise controlled exclusively by REVRY, whether such means are branded as “REVRY” or otherwise. The Service does not include any channels, stations, subcategories, or other distribution means that are owned, maintained, operated, or otherwise controlled by third parties, whether or not such channels, stations, or subcategories are branded as “REVRY” or any variation thereof.

(aa)  “Subscribers” shall mean separate and distinct accounts for users of the Service where each account holder(s) pays a Subscription Fee and where the viewing of the Program(s) requires the payment of such fee.

(bb) “Subscription Fees” shall mean the fees that REVRY charges for access to the subscription-based Service.

(cc)  “Subscription Video on Demand Rights” or “SVOD” shall mean the VOD exploitation of the Program(s) on a platform that charges the consumer a periodic flat fee to access the Program(s) from a library of programs for a specific time period, regardless of the means by which the consumer watches Program(s) (e.g. TV, the Internet, mobile device, smart phone, tablet or otherwise).

(dd) “SVOD Gross Proceeds” shall mean the SVOD Gross Receipts, less proportionate Distribution Expenses, Marketing Expenses, Administrative Expenses, and Taxes.  REVRY and Licensor acknowledge and agree that REVRY has made no representation that the Program(s) will generate any SVOD Gross Proceeds or any particular amount of SVOD Gross Proceeds. SVOD Gross Proceeds are at all times subject to retroactive adjustments for returns, refunds, credits, settlements, rebates and discounts.

(ee)  “SVOD Gross Receipts” shall mean the aggregate of one hundred percent (100%) of all sums actually received by REVRY from Subscription Fees, excluding sums received by REVRY and/or affiliates which represent sales taxes, value added taxes, excise taxes, and similar taxes which are collected by REVRY and/or affiliates as required by any requisite taxing authorities of any government.

(ff)    “Taxes” shall mean all taxes which are levied upon or payable by REVRY and its affiliates with respect to all or part of the revenues derived from the exploitation of the Licensed Rights, or upon remittance of all or part of such revenues, but specifically excluding corporate income taxes levied on net profits of REVRY and its affiliates.  In no event shall the deductible amount of any such taxes (however denominated) imposed upon REVRY or its affiliates be decreased (nor the Gross Receipts increased) because of the manner in which such taxes are elected by REVRY to be treated in filing net income, corporate franchise, excess profits or other tax returns.

(gg)  “Television Rights” or “TV Rights” shall mean the right to deliver or exhibit the Program(s) by means of over-the-air signals, cable, satellite, or any other electronic or non-tangible medium (whether analog or digital, or via the Internet, or any other electronic or non-tangible medium, now known or hereafter devised), including, but not limited to, free TV (where the consumer may, but need not, be charged a reoccurring access fee), basic pay TV (where the consumer is charged a reoccurring access fee for a specified package of programming, e.g. USA, TNT, History, etc.), and premium pay TV (where the consumer is charged a reoccurring access fee for a premium package of programming, which is in addition to what is offered through basic pay TV, e.g. HBO, Showtime, Starz).

(hh) “Theatrical Rights” shall mean the right to license the Program(s) to theatrical markets, including, but not limited to in cinema halls and movie theaters, in all methods and media including for direct projection though 35mm motion picture film, DVD, BLU-RAY, closed-circuit transmission, internet-based delivery or intranet-based delivery.

(ii)   “Transactional Video on Demand Rights” or “TVOD” shall mean the VOD exploitation of the Program(s) on a platform that charges the consumer a distinct fee for the transmission of the Program(s) to the consumer, regardless of the means by which the consumer watches the Program(s) (e.g. TV, the Internet, mobile device, smart phone, tablet or otherwise). Transactional VOD Rights include “Electronic-Sell-Through rights (“EST”),” digital rental rights, and digital downloads rights, which allow the consumer to keep a copy of the Program(s) permanently following the one-time transmission, regardless of the means by which the consumer thereafter watches or stores the Program(s), including the use of Ultra Violet or similar technologies. Transactional VOD Rights also include “Pay-Per-View” (“PPV”) Rights, which shall mean the right to distribute, exhibit, license, market, sell, publicize, promote and otherwise exploit the Program(s) by means of “pay-per-view” formats, including, but not limited to, addressable draft transmission to a consumer of temporary copies of the Program(s) via Authorized Transmission, for which a per program fee is charged to the consumer who selects the Program(s) for viewing at a variable time that the Licensor designates.

(jj)    “TVOD Net Profits” as defined herein shall mean the aggregate of 100% of sums actually received by REVRY from the Sales Fee and/or the Rental Fee, respectively. For clarity, the TVOD Net Profits are determined after the Processing Fees have been deducted.

(kk)  “Video On Demand” or “VOD” shall mean the exploitation of the Program(s) on a platform that makes the content available to a consumer for viewing via interactive technology systems which allow users to select, watch, listen to, and/or otherwise consume, digital content (video, audio, or otherwise)—either in real time or to download for viewing at a later time--rather than having to watch at a specific, predesignated time (e.g. traditional broadcast television). Includes delivery to computers, high-end cellular telephone sets, and advanced digital media devices such as OTT devices and other IP TV technologies. The definition of VOD shall include AVOD, SVOD, TVOD, and any other video on demand exploitation.

(ll)   “Videogram Gross Receipts” shall mean one hundred percent (100%) of all sums actually received by REVRY for the Videogram exploitation of the Series (including, without limitation, from sales directly to consumers) in perpetuity excluding amounts collected or deducted for sales taxes and for shipping and handling, less deductions for actual, direct, verifiable out-of-pocket costs of:  (i) manufacturing and packaging, (ii) commercially reasonable quantity or trade discounts, (iii) co-op advertising and promotion (capped at 8% of gross receipts), and (iv) unrelated third party sales commissions (capped at 14% of gross receipts).

(mm) “Videogram Gross Proceeds” shall mean Videogram Gross Receipts, less proportionate Distribution Expenses, Marketing Expenses, Administrative Expenses, and Taxes. Videogram Gross Proceeds are at all times subject to retroactive adjustments for returns, refunds, credits, settlements, rebates and discounts.

2.      DISTRIBUTION & CALCULATION OF LICENSE FEES.

(a)    SVOD Distribution:  When the Program(s) are distributed via the SVOD Distribution Rights under a CPM model of profit participation, the License Fee shall be payable from the quarterly SVOD Gross Proceeds. In the event that the quarterly SVOD Gross Proceeds do not meet or exceed the amount necessary for REVRY to compensate all Scaled Licensors under their maximum CPM rates for a given quarter, the CPM rates shall be equitably reduced amongst all Scaled Licensors to an amount necessary to permit remittance of payment to the same. In no event will the CPM for Scaled Licensors be reduced any lower than is necessary to achieve the foregoing. In the event that no quarterly SVOD Gross Proceeds are collected, no License Fees will be due. By way of example only, please refer to the following scenario: Licensor A and Licensor B both receive up to a $10 per CPM for the licensing of their content. For Quarter A, Licensor A receives 3 CPMs and Licensor B receives 1 CPM but REVRY’s SVOD Gross Proceeds amount to $36. Because the SVOD Gross Proceeds for Quarter A do not permit the payment of the maximum CPM rate ($10) to Licensor A and Licensor B, the rate will be reduced to $9 per CPM for both licensors in order to permit REVRY to make payment to all Scaled Licensors. Therefore, Licensor A would receive $27 and Licensor B would receive $9 for Quarter A. If on the other hand, REVRY’s SVOD Gross Proceeds for Quarter A are $40 or greater both licensors would receive the maximum CPM rate for Quarter A with Licensor A receiving $30 and Licensor B receiving $10.

(b)    TVOD Distribution: When the Program(s) are distributed via the TVOD Distribution Rights, Licensor shall be paid from the TVOD Net Profits.

(c)    AVOD/FVOD Distribution: When the Program(s) are distributed via the AVOD or FVOD Distribution Rights either (i) on the Service, or (ii) on any third party distribution platforms that pay based on a CPM model of distribution (e.g. YouTube) ­– but not including any IPTV Linear distribution – REVRY shall pay Licensor twenty-five percent (25%) of the AVOD CPM payable in accordance with the Payment Schedule.

(d)    IPTV Linear Distribution When the Program(s) are distributed via the IPTV Linear Distribution Rights, Licensor shall be entitled to a percentage of the Creator Fund every Quarter equal to the following: the total cumulative running time of the Program(s) programmed during a given Quarter divided by the total amount of time programmed for the same Quarter (“IPTV Linear Fee”). For example, if the total cumulative running time for the Licensed Picture during the Quarter is 10,080 minutes (i.e. 120 minute-long Licensed Picture programmed 84 times during the Quarter) and the total hours programmed during this quarter equals 129,960 minutes (i.e. 24 hours a day for 3 months), Licensee shall pay Licensor approximately 8% of the the Creator Fund for that Quarter (the product of 84 x 120 divided by 129,960 equals .078). Payment of the IPTV Linear Fee shall be made in accordance with the Payment Schedule defined in the License.

3.      REVRY PROPERTY

It is hereby agreed and understood by the Parties that REVRY and any property and rights, and all associated intellectual property thereof, including without limitation all audio, copyrights, trademarks, service marks, insignias, technology, websites, softer, products, services, processes, applications, information, materials, and/or any other rights therein, and the Service and all elements thereof, as well as all information and data regarding the REVRY users and their activity (“Analytics”) are owned by or sublicensed to us and are protected by copyright, trademark, trade secret, and other laws (“REVRY Property”). We own and retain all rights, including the worldwide copyright, in all elements of REVRY Property solely and exclusively, for the duration of the rights in each country, in all languages, and throughout the universe, including, without limitation, the copyright in the marketing and promotional materials for the same.

 

4.      LICENSE TO USE THE REVRY MARK

During the Term, REVRY hereby grants Licensor a limited, non-exclusive, royalty-free, revocable license to the REVRY trademarks (including but not limited to the REVRY logo) for the purposes of advertising, marketing, promotion, and publicity of the Program(s) and Licensor, provided that such use conforms to the Social Media Promotions restrictions contained in the License and any additional branding guidelines provided by REVRY now or in the future.   

 

5.      LICENSOR CONTENT

By executing this Agreement, you grant to REVRY the Licensed Rights for the purposes stated herein including for the purpose of providing the Service to its users and otherwise, including making the Program(s) available for streaming and download by REVRY users and otherwise. During the Term, REVRY shall have sole and absolute discretion over the exploitation of the Licensed Rights, including, without limitation, the terms of any and all distribution agreements, the identity of any distributors, the media and platforms to exploit the Licensed Rights, and any and all other creative or business decisions related to exploitation of the Licensed Rights. Licensor hereby waives any right that the Licensor may have to inspect or approve the use of the Program(s) or the advertising, marketing, or promotional materials that may be used in connection therewith.

Furthermore, REVRY shall have no obligation to pre-screen, monitor, review, edit, or otherwise approve of your Program(s) or the content featured therein. REVRY may conduct reviews of the Program(s) from time to time but shall have no obligation to do so. You acknowledge and agree that you are solely responsible for the content featured in the Program(s) and we do not endorse the Program(s) and disclaim all liability relating thereto.

For the avoidance of doubt, all opinions and statements expressed by or in the Program(s) are those of the Licensor and/or original authors alone, not of REVRY. Notwithstanding the foregoing, we reserve the right to review, block and/or remove any Program(s), in our sole discretion and without notice or liability to you or any third party.

6.      INSURANCE. 

For all Program(s) for which an Error and Omission policy is in effect upon the date of the execution of this Agreement, Licensor shall, upon REVRY’s request, add REVRY, and each of its respective direct and indirect parents, subsidiaries, affiliated and related entities, and each of the respective principals, shareholders, officers, directors, members, employees, contractors, representatives, agents, successors, licensees and assigns of each of the foregoing (collectively, the “REVRY Parties”) as additional insureds, with no obligation to pay premiums whatsoever. Licensor shall cause its insurer(s) to waive subrogation rights against such additional insureds.  Licensor shall pay all deductibles under all such insurance policies. Licensor’s insurance shall be primary and without right of contribution from any other insurance not specifically purchased by Licensor to be in excess of or in contribution with the required insurance, and shall operate as if there were a separate policy covering each additional insured. Licensor shall also advise REVRY of any and all claims submitted under the applicable Error and Omission policy. In the event that Licensor has not obtained an Error & Omission policy covering the respective Program(s) and any person or entity makes any claims or institutes any suit or proceedings alleging any facts, which if true, would constitute a breach by Licensor of any warranty, representation or agreement herein made, REVRY shall give prompt written notice of same to Licensor and REVRY or their successors in interest shall have the right, but not the obligation, to assume the defense thereof. Notwithstanding the foregoing, Licensor and REVRY shall have the unfettered right to defend themselves from any such claim, suit, or proceeding and REVRY shall have the right to withhold, deduct, and/or recoup its defense costs (including its Error & Omission policy’s deductible) from any compensation owed to Licensor hereunder.

 

7.      REPRESENTATIONS & WARRANTIES

(a)    By REVRY:

REVRY represents and warrants that: (i) REVRY has the full authority and power to enter into and fully perform all of its obligations and agreements hereunder and that no one else’s permission is required; (ii) REVRY is the legal owner and/or authorized representative or administrator of the REVRY software, website, the Service, and/or other proprietary property or technology necessary to grant the rights herein; (iii) all of the rights granted hereunder, including but not limited to the rights to exploit the Program(s), shall only be used by REVRY in accordance with the provisions of this Agreement; (iv) all services will be performed in a professional, timely and competent manner; and, (v) REVRY has complied and will continue to comply with all applicable federal, state and local laws, rules, regulations, ordinances, licensing & permitting requirements and business codes

NOTWITHSTADING THE FOREGOING, LICENSEE PROVIDES REVRY ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND OTHER THAN THOSE INCLUDED HEREIN. REVRY does not warrant or make any representations of any kind including: (w) regarding the use, validity, accuracy, or reliability of, or the results of, or otherwise respecting the Service, or any program available thereon, including but not limited to the Program(s); (x) that the Program(s) will be streamed, transmitted, broadcast, or otherwise exploited uninterrupted, error-free, or otherwise; (y) that the results or information obtained from use of the Service or its sublicensee’s services, including the Analytics, will be accurate or reliable; and, (z) regarding any amounts that you may receive pursuant to this Agreement you acknowledge and agree that all projects, estimate, and other future oriented information provided on or through REVRY are inherently uncertain and are not guaranteed.

(b)    By Licensor

Licensor represents and warrants that: (i) Licensor has the full authority and power to enter into and fully perform all of its obligations and agreements hereunder and that no one else’s permission is required; (ii) Licensor is the legal owner, licensor, and/or authorized licensee or distributor of the Program(s) and any elements included in the Program(s) (including without limitation all audio, copyrights, trademarks, service marks, insignias, music, photographs, and/or other copyrighted work embodied in the Program(s)); (iii) no credit, acknowledgement, payment, remuneration, residuals, royalties, contribution, monies and/or any other consideration is required or owed to you and/or any other person and/or entity (including without limitation to any guild, union and/or other collective bargaining organization) for REVRY’s use of the Program(s); (iv) Licensor shall make any and all payments (including without limitation, residuals, re-use fees and any other applicable payments required by any collective bargaining agreements, any other agreement, or by law – except any payments made to performance rights organizations such as BMI or ASCAP which shall be solely the responsibility of REVRY) in connection with any appearances or other material in the Program(s); (v) with respect to the use of music in the Program(s), the undersigned shall be solely responsible for obtaining licenses from the owners of rights in the music and making any payments in connection therewith; (vi) to the extent required by law, all individuals appearing in the Program(s) have expressly given their permission to appear in the Program(s); (vii) the Program complies with all laws and regulations, state and federal, regarding the appearance in any content of individuals under the age of 18 years old, and sexually explicit materials, including but not limited to the Child Protection and Obscenity Enforcement Act of 1988; (viii) Licensor shall solely be responsible for the payment of any and all taxes in connection with the creation and production of the Program(s) and the payment and processing of any compensation due hereunder; and, (ix) during the Term, Licensor shall not knowingly deliver to REVRY any Program which: (I) harasses or advocates harassment of another person; (II) promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (III) promotes activities or conduct that is abusive, threatening, exploitative, obscene, illegal, defamatory or libelous; (IV) infringes, or promotes the infringement of, the rights, including copyright, trademark, and privacy rights, of any third party; (V) violates any law; or (VI) includes pornographic content.

For the avoidance of doubt, you are solely responsible for securing all necessary rights and permissions in connection with the Program(s). You understand that the Program(s) you deliver to us may be available for viewing by REVRY users and other third parties. We reserve the right to refuse distribution or remove any Program delivered by Licensor that is violation of these representations and warranties.

8.      CONFIDENTIALITY

Except as may be required in connection with filings with courts or government agencies or required under applicable law, Licensor and REVRY agree to keep strictly confidential (i) any trade secrets obtained or learned as a result of Licensor’s participation in REVRY or in its dealings with REVRY and the terms and (ii) the provisions of this Agreement and shall not use or disclose such terms and provisions to any other person or entity apart from authorized employees, agents, or independent contracts where such disclosures are necessary for the performance of the third parties’ duties. Licensor shall not, without REVRY’s prior written consent, issue or authorize any publicity or grant any interview or make any statements relating to this Agreement.

 

9.      COPYRIGHT PROTECTION/ADDITIONAL INSTRUMENTS

In the event Licensor shall fail to maintain copyright protection for the Program(s), REVRY shall have the right as attorney-in-fact for Licensor to renew or obtain and register the copyright therein in Licensor's name, and to execute and record such documents as REVRY may deem necessary to evidence REVRY's rights hereunder. REVRY shall also have the right to bring, prosecute, defend and appear in suits, actions and proceedings of any nature regarding any and all (a) copyrights in and to the Program(s) and all renewals thereof, and (b) any infringement or interference with any of the rights hereby granted under said copyrights or renewals thereof. Any such action may be brought in REVRY's own name or in the name of the copyright proprietor, but at the expense of REVRY, and, at REVRY's sole election, REVRY may join such copyright proprietor (and/or Licensor if copyright proprietor is a person or entity other than Licensor) as a party plaintiff or defendant in any such suit, action or proceeding. Without limiting any of its rights to otherwise enforce the terms of this Agreement, in the event Licensor shall breach any other representations and warranties contained in this Agreement, REVRY shall have the right as attorney-in-fact for Licensor to take all reasonable and necessary steps to preserve the Licensed Rights and other rights herein granted, including but not limited to making payments due to third parties, and having done so REVRY may thereafter deduct from the amounts payable to Licensor hereunder any and all payments so made, as well as any and all costs incurred in connection therewith.

Furthermore, Licensor shall promptly execute, acknowledge and deliver to REVRY all other documents which REVRY may reasonably require to effectuate any of the purposes and intents of this Agreement, including, for purposes of this Paragraph, a power-of-attorney in the form reasonably acceptable to REVRY.

10.   AUDIT RIGHTS

Upon thirty (30) business days prior notice to REVRY, you may appoint a certified public accountant to examine REVRY’s records with respect to the compensation owed under this Agreement (“Audit Rights”). All such audits must occur during REVRY’s normal business hours, and may not occur more than twice in any twelve (12) month period. The cost for any such audit shall be borne by you. Should an audit reveal that the REVRY has underpaid you any compensation by five percent (5%) or more, you shall be entitled to a refund in the amount of the overcharge and reimbursement for reasonable costs associated with the audit.

 

11.   NON-DISPARAGMENT

Licensor agrees that it will not make any disparaging or negative statement, written or oral, or engage in any negative communication about REVRY or the REVRY Parties or the REVRY or REVRY Parties’ work, professional conduct or business including but not limited to REVRY. The Parties agree that a determination of actual damages for breach of this Agreement may be difficult, impractical or impossible to calculate, and Licensor therefore, agrees to liquidated damages in the amount of $5000 per occurrence, plus attorney’s fee and costs, in the event of a breach of this clause. The promises and guarantees made in this section shall survive termination or expiration of this Agreement.

 

12.   TERMINATION

REVRY may terminate this Agreement upon any of the following: (a) Licensor’s material breach of this Agreement if Licensor fails to cure such breach within a ten (10) day notification period; (b) a force majeure event (i.e. an act of God, force majeure, war, blackout, air raid, act of public enemy, riot, fire, earthquake, hurricane, casualty, lockout, strike, labor dispute or threat thereof, of another similar or dissimilar contingency beyond the Parties’ control [hereafter a “Force Majeure Event”]); (c) upon Licensor’s failure to deliver the Deliverables in accordance with Section 3 of the License; or (d) upon thirty (30) days written notice to Licensor. Upon termination of this Agreement, all Program(s) previously authorized hereunder will be removed from all REVRY Platforms and we will immediately pay out any money owed to you, including issuing you a prorated portion of the License Fee, if owed.

Licensor may terminate this Agreement upon any of the following: (a) REVRY’s material breach of this Agreement if REVRY fails to cure such breach within a ten (10) day notification period; or (b) the occurrence of a Force Majeure Event. Upon the end or termination of this Agreement, REVRY shall make commercially reasonable and good faith efforts to release or otherwise disconnect or take down the Program(s) from the Platforms. Without limiting any provision in this Agreement, upon REVRY’s release or disconnection of the Program(s) from the Platforms, REVRY will not be liable in any way for the Program(s) thereafter. Neither the inadvertent display of the Program(s) on any of the Platforms after termination nor the inadvertent failure to release the Program(s) from any Platform after termination, shall be considered a breach of this Agreement provided that the Program(s) are completely removed within 120 days after termination.

13.   LIMITATION OF LIABILITY

To the maximum extent permitted by law, REVRY and the REVRY Parties shall not be liable for (a) any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to damages for loss of profits, goodwill, use, data or other intangible losses, or (b) damages relating to any materials or content on the Program(s), including without limitation, defamatory, offensive or illegal materials or content on the Program(s), even if foreseeable. This limitation applies to all claims, whether based on warranty, contract, tort, or any other legal theory, whether or not REVRY has been informed of the possibility of such damage, and further where a remedy set forth herein is found to have failed its essential purpose.

 

14.   INDEMNIFICATION

Licensor agrees to release, discharge, defend (at REVRY’s election), indemnify, and hold harmless REVRY and the REVRY Parties from and against any and all claims, demands, liabilities, damages and costs (including attorneys’ fees and costs) of every kind and nature based upon, related to, arising out of, or in any way connected to the following: (a) a breach of any of Licensor’s representations, warranties, or agreements hereunder; (b) the negligence or willful misconduct of Licensor or Licensor's agents, contractors, employees, licensees or representatives; (c) materials or content appearing in the Program(s) or otherwise that were provided to REVRY by Licensor including the Deliverables; or (d) Program(s) you deliver, transmit, or otherwise communicate to REVRY or through the Service, including claims that Program(s) or elements thereof violate the copyright trademark rights of any third party. REVRY agrees to notify Licensor in writing of any claim or demand based upon the foregoing promptly upon learning of its existence, and upon REVRY’s request, Licensor shall assume the defense of the claim or demand.

REVRY shall indemnify, defend, and hold harmless the Licensor, all related employees and its officers, agents, designees, successors, assigns and licensees from and against any and all liabilities, claims, costs, damages, and expenses (including reasonable outside attorneys' fees and disbursements) arising out of or in connection with the following: (a) the breach by REVRY of any term, condition, representation or warranty under this Agreement; or (b) the gross negligence or willful misconduct of REVRY.

The provisions of this paragraph shall survive the termination of this Agreement. 

15.   EXECUTION OF ADDITIONAL DOCUMENTS:

Licensor agrees to execute any documents and to do any other acts as may be required by REVRY or REVRY Parties to further evidence or effectuate REVRY’s rights hereunder.  Upon Licensor’s failure promptly to do so within sixty (60) business days following Licensor’s receipt of REVRY’s request, Licensor hereby appoints REVRY as its attorney‑in‑fact for such purposes (it being acknowledged that such appointment is irrevocable and coupled with an interest) with full power of substitution and delegation.

 

16.   NOTICES

Any notice that Licensor may desire or is required to give hereunder shall be in writing by registered or certified mail or by telefax or personal service (in all cases, all charges prepaid) to the following address:

REVRY Inc.

C/O Business and Legal Affairs                

3030 Andrita St.                                            

Los Angeles, California 90065                                                     

17.   GOOD FAITH NEGOTIATIONS

Prior to the close of the Term, Licensor and REVRY agree to enter into good faith negotiations to extend this Agreement for a subsequent term on the same or similar terms.

 

18.   GOVERNING LAW; DISPUTE RESOLUTION

This Agreement and any action related thereto will be governed by the laws of the State of California without regard to conflict of law provisions. Except as otherwise provided herein, all disputes which arise pursuant to any breach or alleged breach of this Agreement shall be submitted to JAMS, a national alternative dispute resolution (“ADR”) company, in Los Angeles, California. JAMS will have full discretion to choose a neutral and impartial arbitrator, experienced in ADR as well as in the issues underlying the dispute (“Neutral”). The Neutral will have full and binding authority to evaluate any and all disputes between the Parties, and to determine the best method to resolve said disputes, whether through mediation, mini-trial or arbitration, and to issue final and binding decisions fully resolving all disputes. The Parties agree that ADR is proper to resolve such dispute, and each waives its right to a jury trial.

 

19.   GENERAL CONDITIONS

(a)    Entire Agreement: This Agreement constitutes the entire agreement between the parties with respect to the subject matter and supersedes and replaces any previous document, correspondence, conversation or other written or oral understanding relating to the subject matter of this Agreement.

(b)    Right of Assignment: REVRY shall have the right, at any time, to assign or otherwise transfer this Agreement, in whole or in part, or any or all of REVRY’s rights or obligations hereunder to any third party. This Agreement may not be assigned, transferred or encumbered by Licensor, in whole or in part, by operation of law or otherwise, without REVRY's prior written consent, and any such assignment without REVRY's consent will be deemed ineffective.

(c)    Modification: This Agreement may not be modified, waived or amended, except by a written instrument signed by Licensor and REVRY.

(d)    No Continuing Waiver: No waiver by either party hereto of any breach by the other party of any term, covenant or condition of this Agreement shall be deemed a waiver of any other breach (whether prior to or subsequent) of the same or any other term, covenant or condition of this or any other Agreement.

(e)    Applicability: This Agreement, and all rights and obligations hereunder, shall be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, executors, administrators, personal representatives, designees, successors, licensees and assigns.

(f)     No Partnership: No partnership, joint venture, agency, employee-employer, franchiser-franchisee relationship is intended or created by this Agreement. Both Parties are independent contractors.

(g)    Independent Legal Advice: You represent and warrant that you have had the opportunity to review this Agreement before signing it and that you have obtained legal counsel or other professional advice or that you have deliberately refrained from doing so without any advice or pressure from REVRY.

(h)    Headings: The headings of this Agreement or any paragraphs hereof are inserted only for the purpose of convenient reference and it is recognized that they may not accurately or adequately describe the contents of the paragraphs which they head. Such headings shall not be deemed to limit, cover or in any way affect the scope, meaning or intent of this Agreement, or any part thereof, nor shall they otherwise be given any legal effect.

(i)     Counter Parts: This Agreement may be executed in one or more counterparts and may be executed and delivered by facsimile or electronic PDF transmission.

(j)     Void/Invalid Provision: Should any provision of this Agreement be held to be void, invalid or inoperative, the remaining provisions of the Agreement shall not be affected and shall continue in effect as though such provisions were deleted. 

(k)    Customary Provisions: The parties hereby agree that those customary provisions which are normally included in agreements of this type are deemed included herein (including, without limitation, those relating to, incapacity, force majeure, labor dispute, suspension, breach and termination). In the event of a conflict between any customary provisions and the terms of this Agreement, the terms of this Agreement shall control.