CONTENT PROVIDER AGREEMENT
This Content Provider Agreement (this “Agreement”) is entered into as the date of the electronic execution of this Agreement (the “Effective Date”) by and between AdRev, a division of AudioMicro Inc., a Delaware corporation (“AdRev”), and the undersigned entity or individual (“Provider”, and together with AdRev, the “Parties”, and each a “Party”).
a. Provider creates video content (the “Provider Content”) and displays the Provider Content on the YouTube (“YouTube”) channel(s) listed by provider at the time of the electronic execution of this Agreement (the “Provider Channel”).
b. AdRev operates a YouTube Network (the “AdRev Network”), which offers various services and opportunities to YouTube channels that are a part of the AdRev Network.
c. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties wish to make the Provider Channel a part of the AdRev Network, pursuant to the terms and conditions set forth herein.
1. Duties and Obligations. Subject to the terms and conditions of this Agreement, the Parties shall perform services as follows:
a. AdRev. AdRev shall:
- i. Integrate the Provider Channel into the AdRev Network.
- ii. Manage, market, and sell all advertising inventory on the Provider Channel.
- iii. Collect and disburse all revenues of the Provider Channel, including but not limited to advertising revenue, actually paid by YouTube and distributed to AdRev (the “Channel Revenues”).
- iv. Provide Provider with reasonable access to certain support services (the “AdRev Services”). The AdRev Services may include promotional services, technical support, social media assistance, and access to a music and sound effects library. AdRev shall have full and absolute discretion to determine what AdRev Services to provide to Provider. The failure by AdRev to provide any AdRev Services to Provider shall not be deemed to be a breach of this Agreement.
b. Provider. Provider shall:
- i. Maintain, generate, and / or post Provider Content to the Provider Channel.
- ii. Manage the Provider Channel including logistical development and maintenance; provided, however, that AdRev shall have the exclusive, perpetual right to sell and manage any and all advertising inventory on any and all Provider Content uploaded to the Provider Channel prior to and during the Initial Term or any Renewal Term (as defined below) of this Agreement.
- iii. Promote the Provider Channel and the AdRev Network through reasonable channels, including through Provider’s social media accounts, websites, blogs, or other online resources belonging to Provider and related to the Provider Content or the Provider Channel, in a manner agreed upon by the Parties.
- iv. Comply with all policies and procedures of the AdRev Network as may be in effect from time to time, provided that such policies have been provided to Provider in writing.
- v. Provide AdRev with graphics suitable for the identification of Provider and the Provider Channel by viewers.
- vi. Notify YouTube of the Provider Channel’s inclusion in the AdRev Network, and that all payments from YouTube for the commercialization of the Provider Channel should be sent directly to AdRev, pursuant to YouTube’s policies regarding such notification.
2. Financial Terms.
- a. Provider Revenues. Provider shall be entitled to fifty-five percent (55%) of the Channel Revenues (the “Provider Revenues”). AdRev shall be entitled to the remaining fourty-five percent (45%) of the Channel Revenue. AdRev shall disburse the Provider Revenues to Provider via Paypal, to the Paypal email address listed in the Provider’s AdRev account, within thirty (30) days following the end of each calendar month that AdRev receives payment for the Channel Revenues. Provider Revenues shall be disbursed to Provider each month, so long as they exceed five dollars ($5.00USD). In the event the Provider Revenues do not exceed five dollars ($5.00USD) in any particular month, AdRev shall roll forward the unpaid Provider Revenues and remit them to Provider at such time when the cumulative unpaid Provider Revenues exceed five dollars ($5.00USD).
- b. Non-Qualifying Ads. The Parties shall not be entitled to any payment based upon views of Provider Content or clicks on advertisements connected with Provider Content (collectively, “Impressions”) that YouTube determines to be invalid, which may include (i) Impressions generated by any bot, automated program, or similar device; (ii) Impressions originating from IP addresses or computers under Provider’s control; (iii) Impressions generated by individuals whom Provider has paid, requested, or otherwise induced to make such Impressions; (iv) Impressions connected to advertisements for charities or other non-profit entities; or (v) Impressions connected to advertisements for the products or services of either of the Parties. The Channel Revenues shall be determined by YouTube based on the number of Impressions that YouTube deems to be valid, and AdRev shall not have any authority or ability to influence YouTube’s determinations of the validity of any Impressions.
- c. Expenses. Provider will bear all expenses Provider incurs in connection with its performance under this Agreement, without reimbursement or advancement by AdRev.
3. Channel Data and Content
- a. Access to Analytical Data. Nothing in this Agreement shall be deemed to preclude Provider from accessing any analytic data related to the Provider Channel. Provider shall have full access to all analytic data related to the Provider Channel, including all analytic data relating to the Provider Channel and made available by YouTube.
- b. Control of Provider Content. Provider shall be the sole owner of the Provider Channel and all Provider Content. Provider shall retain full control over the Provider Channel and all Provider Content, subject to the rights of AdRev as set forth in this Agreement.
- c. Right to Remove Improper Content.AdRev shall have the right to require Provider to remove from the Provider Channel any Provider Content that AdRev believes or suspects (i) to be in violation of any law or regulation that Provider, the Provider Channel, or the Provider Content is subject to, including any rules or regulations established by YouTube, Google, or other entities involved in hosting or monetizing the Provider Channel and Provider Content; (ii) to be infringing upon any third party’s intellectual property rights; or (iii) will have a negative impact upon AdRev’s reputation or business (collectively, “Improper Content”). AdRev shall notify Provider of any Improper Content in writing, and Provider shall remove such Improper Content from the Provider Channel within five (5) days of receipt of such notice. AdRev shall have the discretion to immediately terminate this Agreement for any breach by Provider of this Section 3(c).
4. Intellectual Property.
- a. Licenses. Provider grants AdRev the following rights:
- i. A non-exclusive, transferable, worldwide, royalty-free license to use, publish, reproduce, broadcast, exhibit, and display the name, image, and likeness of Provider, the Provider Channel, and any Provider Content in connection with the marketing and promotion of the AdRev Network, individual channels on the AdRev Network, and the Provider Channel.
- ii. A non-exclusive, transferable, worldwide, royalty-free license to use, publish, reproduce, broadcast, exhibit, and display Provider’s and the Provider Channel’s trademarks and logos in connection with the marketing and promotion of the AdRev Network, individual channels on the AdRev Network, and the Provider Channel.
- b. Ownership. Notwithstanding the foregoing, the Parties acknowledge and agree that any intellectual property rights, including any copyrights, trademarks, service marks, trade names, trade dress, patents or other intellectual property, that has been or will be provided by either Party to the other Party hereunder shall remain the sole and exclusive property of the Party providing such rights (a “Providing Party”). The Parties shall take such action as may reasonably be requested by a Providing Party to confirm such Providing Party’s intellectual property rights and ownership of any intellectual property.
5. Term and Termination.
- a. Term. The term of this Agreement shall commence on the Effective Date and continue for three (3) years (the “Initial Term”). This Agreement will automatically renew for a subsequent periods of three (3) years (each, a “Renewal Term”) unless a Party gives notice of termination not more than one-hundred and twenty (120) days and not less than sixty (60) days prior to the expiration of the Initial Term or any Renewal Term.
- b. Termination. This Agreement shall terminate upon any of the following occurrences:
- i. Either Party may terminate this agreement immediately upon breach by the other Party of this Agreement, unless the breaching Party remedies such default within fifteen (15) days of receipt of written notice of the non-breaching Party’s intent to terminate this Agreement.
- ii. Provider may terminate this agreement by removing all or substantially all of the Provider Content from the Provider Channel.
- iii. AdRev may terminate this agreement immediately if this Provider Channel receives one ore more copyright strikes and/or DMCA takedown requests.
Notwithstanding the foregoing, AdRev may terminate this Agreement immediately upon any breach of Section 3(c) by Provider, without giving Provider any advance notice of AdRev’s intent to terminate this Agreement.
- c. Actions Following Termination. Following the termination of this Agreement, AdRev shall take all reasonable steps to return control of the Provider Channels to Provider, including notifying YouTube to remove the Provider Channel from the AdRev Network.
- d. Provisions Surviving Termination. Sections 1(b)(ii), 2(c), 4(b), 6, 7, 8, and 9 shall survive the termination of this Agreement.
- 6. Representations and Warranties.Each Party represents and warrants that it has authority to enter into this Agreement. Provider represents and warrants that (i) Provider is the owner of all rights related to all content displayed on the Provider Channel, (ii) Provider has the right and power to license and/or sell such content, (iii) neither the content displayed on the Provider Channel nor use of the Provider Channel infringes upon the rights of any third party, and (iv) Provider has not granted any other party the right or authority to act on behalf of Provider in any manner that would conflict with either Party’s rights under this Agreement. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS AGREEMENT, THE PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: (i) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (ii) WARRANTIES AS TO THE QUALITY OR PERFORMANCE OF THE MATERIALS, INFORMATION, GOODS, SERVICES, TECHNOLOGY AND/OR CONTENT PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE DELIVERY OR AVAILABILITY OF ANY ADVERTISEMENTS, AND ANY LIMITATIONS ON END USER ACCESS TO OR USE OF PROVIDER CONTENT; AND (iii) WARRANTIES AS TO THE PERFORMANCE OF COMPUTERS, NETWORKS, OR ADS, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES REGARDING THE PLACEMENT OF ADS. ADREV MAKES NO WARRANTY THAT THE ADREV NETWORK AND WEBSITES INCLUDING YOUTUBE WILL PERFORM WITHOUT INTERRUPTIONS OR ERRORS, OR THAT INFORMATION OBTAINED FROM THE ADREV NETWORK OR WEBSITES INCLUDING YOUTUBE WILL BE ACCURATE OR RELIABLE. PROVIDER ACKNOWLEDGES THAT NONE OF ADREV, ADREV, OR ANY OF THEIR AFFILIATES SHALL BE LIABLE TO PROVIDER FOR ANY CONTENT FEATURED ON CHANNELS IN THE ADREV NETWORK, OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
- 7. Indemnification.
- a. Provider agrees to indemnify and hold harmless AdRev and all of AdRev’s shareholders, directors, officers, employees, agents, subsidiaries, and affiliates from and against any and all third party civil and criminal claims, liabilities, judgments, or penalties, and all costs and expenses (including reasonable attorney fees) incurred in connection with Provider’s breach of its representations, warranties, and covenants in this Agreement.
- b. AdRev agrees to indemnify and hold harmless Provider and all of Provider’s shareholders, directors, officers, employees, agents, subsidiaries, and affiliates from and against any and all third party civil and criminal claims, liabilities, judgments, or penalties, and all costs and expenses (including reasonable attorney fees) incurred in connection with AdRev’s breach of its representations, warranties, and covenants in this Agreement.
- 8. Limitation of Liability; Remedies.
- a. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ADREV OR ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO ADREV’S PERFORMANCE HEREUNDER, THE PERFORMANCE OF THE ADREV NETWORK, OR THE CONTENT PROVIDED BY OTHER PERSONS OR ENTITIES TO ADREV FOR DISTRIBUTION OR PROMOTION ON THE ADREV NETWORK, EVEN IF ADREV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADREV ASSUMES NO RESPONSIBILITY FOR DOWNTIME OF THE ADREV NETWORK OR FOR THE LOSS OF INFORMATION, DATA RECORDS, OR TITLES. Notwithstanding any damages that Provider may incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of AdRev under any provision of this Agreement and Provider’s exclusive remedy for all of the foregoing will be limited to the amount actually paid by AdRev to Provider in the last twelve months under this Agreement. The foregoing limitations, exclusions, and disclaimers will apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
- 9. Miscellaneous.
- a. Notices. Any notice or other communication required or which may be given hereunder will be in writing and will be delivered personally, via email, or sent by certified, registered, or express or overnight (by a reputable carrier) mail, postage prepaid, as follows (as such information may be subsequently changed by notice duly given):
- To the mailing address and email(s) listed in Provider’s AdRev account
- b. Assignment. Except as otherwise specifically provided for in this Agreement, neither Party may assign, voluntarily, by operation of law, or otherwise, any rights or delegate any duties under this Agreement without the other Party’s prior written consent, and any attempt to do so without that consent will be null and void and of no force or effect.
- c. Covenant Not to Sue. In consideration of AdRev’s entering into this Agreement, Provider covenants and agrees, for itself and its respective agents and representatives, not to bring, assert, pursue, maintain, join in or directly and/or indirectly support, assist, fund, lend resources to, or otherwise participate in any litigation against AdRev, Google, or YouTube and throughout the territory of the world.
- d. Governing Law. This Agreement shall be governed by the laws of the State of California, without regard to California’s conflicts of law rules. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration in accordance with the Commercial Rules of the American Arbitration Association (AAA) by a single arbitrator using expedited procedures and located in Los Angeles, California. The Parties shall mutually agree upon the arbitrator and if the Parties cannot agree then one shall be appointed according the AAA rules. Judgment upon the award rendered by the arbitrator may be entered into in any court of competent jurisdiction and shall not be appealable. Furthermore, the prevailing party shall be entitled to reasonable attorneys' fees. This clause shall not preclude any party from pursuing injunctive or equitable relief in any court of competent jurisdiction.
- e. Relationship of the Parties. This Agreement shall not be construed as creating or constituting an employee-employer relationship, a partnership, a joint venture, or a franchise between the Parties. Neither Party may bind the other Party in contracts with third parties or make promises or representations on behalf of the other Party.
- f. No General Waiver. Waiver of any one default will not waive subsequent defaults of the same or different kind, and no failure or delay of either Party to exercise or enforce any of its rights under this Agreement will act as a waiver of those rights.
- g. Entire Agreement; Amendments; Severability. This Agreement is the complete and exclusive agreement between the Parties with respect to the subject matter contemplated by this Agreement, superseding and replacing any and all prior or contemporaneous agreements, communications, and understandings, both oral and written, regarding that subject matter. This Agreement may be amended only by a written agreement signed by authorized representatives of both Parties. If any provision or part of a provision in this Agreement is held to be illegal, invalid, or unenforceable by a court or other decision making authority of competent jurisdiction, then the remainder of the provision will be enforced so as to effect the intention of the Parties, and the validity and enforceability of all other provisions in this Agreement will not be affected or impaired.
- h. Counterparts and Electronic Execution. This Agreement may be executed in counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument. Execution and delivery of this Agreement may be evidenced by electronic signature, electronic mail, or other electronic means and shall be binding upon the Parties at the date on which Provider electronically executes this Agreement via a website or electronic execution service owned or administered by AdRev.
- i. Interpretation of this Agreement. The Parties desire that this Agreement be construed fairly, according to its terms, in plain English, without constructive presumptions against the drafting Party, and without reference to the section headings, which are for reference only. Whenever the terms use “include or including,” it should be understood as illustrative and not exhaustive.
10. Acknowledgement, Acceptance, and Agreement. PROVIDER ACKNOWLEDGES AND AGREES THAT PROVIDER HAS READ AND UNDERSTANDS THE TERMS AND CONDITIONS OF THIS CONTENT PROVIDER AGREEMENT AND UNDERSTANDS THAT PROVIDER IS AGREEING TO BE BOUND BY THIS CONTENT PROVIDER AGREEMENT.