FORA.tv PARTNER CONTENT AGREEMENT
Last Updated: March 5, 2013
This FORA.tv Partner Content Agreement ("Agreement") is made as of the date of Partner's acceptance of the terms of this Agreement ("Effective Date"), by and between you ("Partner") and FORA.tv, Inc. ("FORA.tv") for the purpose of making Partner Content made available to third parties through the FORA.tv Site and the FORA.tv Network.
- CERTAIN DEFINITIONS.
- "Ads" means advertising content including but not limited to artwork, written content, images, photos, graphics, music, animation, data, text, information, URLs, hypertext links, scripts and the content and material included in such components.
- "FORA.tv Network" means the websites, media platforms, networks and other distribution means owned or controlled by FORA.tv's third party distribution partners. See Schedule A for a listing of current member websites part of the FORA.tv Network.
- "FORA.tv Site" means the website located at http://library.fora.tv, any successor sites or other sites owned, operated or controlled by FORA.tv (including Partner Channels), and accessible by any or all means or devices now know or hereafter developed.
- "FORA.tv Services" means the FORA.tv Partner Generated Content System made available by FORA.tv through the FORA.tv Site to enable Partner to submit Partner Content to FORA.tv for possible display and distribution on or through the FORA.tv Site and/or FORA.tv Network, and related account management services.
- "Partner Site" means the website owned, operated or controlled by Partner as identified in Partner's enrollment application for the FORA.tv Services.
- "Partner Channel" means a Partner dedicated webpage or URL part of the FORA.tv Site where Partner Content is provided and the Partner's brand (including its Marks) are showcased.
- "Promotional Content" means certain promotional materials related to or created from the Partner Content including, without limitation, advertising material, posters, stills, artwork, promotional clips, cue sheets, scripts, cast and credit lists, color slides, trailers, photos, synopses and other textual and graphic matter.
- FORA.TV SERVICES.
- Partner Content. Partner will provide content to FORA.tv in a format to be agreed upon between the parties and, in addition, will permit FORA.tv to capture and retain content, including but not limited to by filming, taping or recording it, however provided or captured to include the FORA.tv Partner Generated Content System, the FORA.tv File-Transfer-Protocol (FTP) Site, or other means, from spoken-word or other performance events, (any and all such content, in whole or in part, however provided or captured, "Partner Content"). Partner hereby grants to FORA.tv a non-exclusive, worldwide, fully transferable, royalty free, fully-paid right and license to (i) use, host, cache, store, reproduce, copy, modify, create derivative works based upon, reformat, excerpt, render into audible format, distribute, transmit, broadcast, cablecast, record, publicly and privately perform and display the Partner Content, in whole or in part, and in any all media and all distribution and delivery systems now known or hereafter created including but not limited to the right to make Partner Content available via the FORA.tv Site, FORA.tv Network and other third parties distribution or media channels; and (ii) create Promotional Content from the Partner Content. Partner hereby agrees that FORA.tv may sublicense the foregoing rights through multiple tiers of sublicensees, and the foregoing rights also include the right of users and others to exercise the foregoing rights with respect to Partner Content. FORA.tv also has the right to provide additional services as set forth in Section 5. Partner acknowledges and agrees that FORA.tv may make Partner Content available for free or for a fee or other form of consideration on a stand-alone basis or bundled with other content, and may offer a la carte pricing, bundled pricing, discounts or other incentives (including without limitation free access) to some or all third parties.
- FORA.tv Network. FORA.tv may add new members to the FORA.tv Network from time to time in its sole discretion. FORA.tv will honor Partner's reasonable requests that particular Partner Content not be provided to certain FORA.tv Network members.
- Accuracy of Information Provided. Partner agrees that the information that Partner provides to FORA.tv upon enrollment, and at all other times will be true, accurate, current and complete. Partner agrees to promptly update its FORA.tv account information with any new information that may affect the operation of its FORA.tv account, including but not limited to updating account information if there is a change in credit card validity or expiration date related to the Payment Method. Partner authorizes FORA.tv, directly or through third parties, to make any inquiries FORA.tv considers necessary or appropriate to verify Partner's FORA.tv account information. Partner is responsible for safeguarding and maintaining the confidentiality of its password and corresponding FORA.tv account information and agrees not to disclose its password to any third party. Partner agrees to immediately notify FORA.tv of any unauthorized use of its username, password or FORA.tv account. Partner agrees that it shall be solely responsible for any activities or actions under its FORA.tv account, whether or not Partner has authorized such activities or actions.
Fees and Billing.
Access to FORA.tv Services requires payment of subscription and access fees, all of which may be updated from time to time ("Service Fee"). The applicable Service Fee and payment terms will be provided at the point of purchase and payable in United States dollars.
Partner agrees to pay FORA.tv all Services Fees at the prices then in effect for access to and use of the FORA.tv Services by Partner or other persons using Partner's FORA.tv account, and Partner hereby authorizes FORA.tv to collect such fees, any applicable tax and any other charges Partner may incur in connection with Partner's access to or use of the FORA.tv Services by charging the credit card Partner provides to FORA.tv as part of Partner's FORA.tv account information or otherwise, either directly or indirectly via a third party online payment service, such as PayPal or Apple's iTunes ("Payment Method"). Sales tax on will be based on the bill-to address and the sales tax rate in effect at the time the transaction is processed.
Any agreement Partner has with its Payment Method provider will govern Partner's use of its Payment Method. Partner agrees that FORA.tv may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle, as applicable. Without limiting any other terms of this Agreement, if for some reason FORA.tv does not receive payment via the Payment Method, Partner agrees to pay all amounts due on Partner's FORA.tv account upon request. FORA.tv may periodically authorize the Payment Method in anticipation of subscription or related charges. Unless otherwise set forth at the point of purchase or herein, all Service Fees will be billed in advance.
All Service Fees and charges are nonrefundable and there are no refunds or credits for partially used subscriptions periods or otherwise. At any time, and for any reason, FORA.tv may provide a refund or discount or other consideration ("Credits"). The amount and form of such Credits, and the decision to provide them, are at our sole discretion. The provision of Credits in one instance does not entitle Partner or its agents to Credits in the future for similar instances, nor does it obligate FORA.tv to provide Credits in the future, under any circumstance.
- MARKETING & PROMOTION.
- Promotional Efforts.
(a) Partner agrees that FORA.tv may list Partner as one of its partners on the FORA.tv Site, including recognizing Partner as a featured partner, and refer to the parties' relationship in its marketing materials and presentations.
(b) While Partner is providing Partner Content to FORA.tv both FORA.tv and Partner will promote their relationship under this Agreement through available communication channels including the FORA.tv Site and the Partner Site and other means as from time to time that may be described in an addendum to this Agreement mutually agreed to by the parties.
- Trademark License. Subject to the terms and conditions of this Agreement, each party grants to the other party a limited, worldwide, non-exclusive, revocable and non-transferable, license to use and reproduce the other party's Marks solely as necessary to perform the marketing activities set forth in this Section 3. "Marks" mean a party's trademarks, service marks, trade names and associated logos that the party may provide to the other party for use in connection with this Agreement ("Partner Website, Marks and Services"). Any use by one party of a Mark of the other party must correctly attribute ownership of such Mark to the other party and must be in accordance with applicable law and the other party's then-current trademark usage guidelines. Each party acknowledges and agrees that any and all goodwill and other proprietary rights that are created by or that result from such party's use of a Mark of the other party as permitted hereunder inure solely to the benefit of the other party.
- Ownership. FORA.tv retains all right, title and interest in and to the FORA.tv Site, all materials created in performing FORA.tv Services, Promotional Content and its Marks (including but not limited to any intellectual property rights therein). Partner retains all right, title and interest in and to the Partner Site, Partner Content and its Marks (including but not limited to any intellectual property rights therein).
- Feedback. Feedback is welcome and encouraged. Partner may submit feedback by contacting FORA.tv. Partner agrees, however, that (i) by submitting unsolicited ideas to FORA.tv or any of its employees or representatives, Partner automatically forfeits its right to any intellectual property rights in these ideas; and (ii) unsolicited ideas submitted to FORA.tv or any of its employees or representatives automatically become the property of FORA.tv. Partner hereby assigns and agrees to assign all rights, title and interest in such feedback and ideas to FORA.tv together with all intellectual property rights therein.
- FORA.tv reserves the right to display Ads in any place and in any manner in connection with any Partner Content (including on or in the FORA.tv Site, FORA.tv Network or elsewhere). FORA.tv is not obligated to provide any Ads or content (including any Partner Content), in or on the FORA.tv Site, FORA.tv Network or elsewhere. FORA.tv may refuse to accept or remove any content or Ads (including any Partner Content) from the FORA.tv Site, FORA.tv Network or elsewhere that such content or Ads are made available at any time for any reason or no reason in its sole discretion.
- NEW FORA.TV SERVICES. From time to time, FORA.tv and Partner may enter into one or more statements of work describing or setting forth additional services to be provided by FORA.tv (each a "Statement of Work"). Each such Statement of Work will specifically identify this Agreement, and when executed by both parties, will form a part of this Agreement and be subject to the terms and conditions contained herein. FORA.tv will provide the services described in each executed Statement of Work in accordance with the terms set forth in such Statement of Work and this Agreement. To the extent that there are any conflicts or inconsistencies between this Agreement and any executed Statement of Work, the provisions of the Statement of Work will govern and control.
- TERM AND TERMINATION
- Term. This Agreement will begin on the Effective Date and will remain in effect for an initial one (1) year term ("Initial Term"), unless terminated earlier in accordance with the terms of this Agreement. At the end of the Initial Term, this Agreement will automatically renew for successive one (1) year terms unless either party provides the other with written notice of non-renewal at least thirty (30) days prior to the end of the Initial Term or any renewal terms.
- Termination. Either party may terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days of receipt of written notice of the breach.
- Effect of Termination. Upon any termination or expiration of this Agreement FORA.tv will remove Partner Content from the FORA.tv Site and, to the extent commercially reasonable, from the FORA.tv Network, provided however that sublicenses previously granted to third parties will survive in accordance with their terms. The rights and the obligations of the parties under Sections 3.3 (Ownership); 3.4 (Feedback); 6.3 (Effect of Termination); 7 (Confidentiality); 8 (Warranty); 9 (Disclaimer); 10 (Limitation of Liability) and 11 (General) will survive any termination or expiration of this Agreement.
- CONFIDENTIAL INFORMATION. "Confidential Information" means any business or technical information of FORA.tv or Partner including but not limited to any information relating to a party's products, plans, finances, marketing plans, business opportunities, research, development or know-how that is designated in writing as "confidential" or "proprietary" at the time of disclosure or, if orally disclosed, is reduced to writing within thirty (30) days of such disclosure. Partner Content is not considered Confidential Information. The parties will not use one another's Confidential Information except as necessary for the performance of this Agreement and will not disclose one another's Confidential Information to any third party. The parties will use all reasonable efforts to maintain the confidentiality of one another's Confidential Information, but in no event less than the efforts that they ordinarily use with respect to their own proprietary information of similar importance. The foregoing obligations will not restrict the parties from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that one party gives reasonable notice to the other to enable it to contest the order or requirement.
- WARRANTY. Partner represents and warrants that: (i) it has all the rights, power and authority (including but not limited to any and all required third party licenses, consents or permissions) to enter into this Agreement and to grant the rights granted herein, and (ii) the Partner Content does not contain material that (a) is false or misleading; (b) is defamatory; (c) invades another's privacy or violates another's rights; (d) is obscene, pornographic, or offensive; (e) promotes bigotry, racism, hatred or harm against any individual or group; or (f) violates any applicable law or regulation or any material of which the receipt, capture, reproduction, modification, display, or distribution would give rise to liability. Partner will indemnify and hold FORA.tv, its officers, directors, consultants and employees harmless from and against any claim, suit or action brought against FORA.tv, and pay any of FORA.tv 's costs, damages, liabilities and expenses (including but not limited to reasonable attorneys' fees) to the extent based upon a breach of its representations and warranties under this section.
FORA.tv is not responsible for (a) the activities of its users or partners; or (b) content on the FORA.tv Site provided by any third party (including but not limited to Ads) or any FORA.tv partner including but not limited to the accuracy and appropriateness of such content and whether such content infringes third party intellectual property rights or is obscene, libelous or otherwise illegal. Partner acknowledges that FORA.tv has no obligation to pre-screen or monitor Partner Content or Partner's access or use of the FORA.tv Site or FORA.tv Service, but has the right to do so for the purpose of operating FORA.tv Site or FORA.tv Service to ensure Partner's compliance with the terms of this Agreement and to comply with applicable law or the order or requirement of a court, administrative agency or other government body
Without limiting the generality of the foregoing, FORA.tv has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe or are believed to be or are charged with repeatedly infringing the rights of copyright holders. Please see our Copyright Policy at http://library.fora.tv/copyright_policy for further information. Partner hereby agrees that FORA.tv may, in the exercise of FORA.tv's sole discretion, remove or delete any Partner Content or portions thereof that violate the terms of this Agreement, applicable law or that is otherwise objectionable.
- DISCLAIMER. THE FORA.TV SITE AND FORA.TV SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTIES OF ANY KIND. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. FORA.TV MAKES NO GUARANTEES AND DOES NOT WARRANT: (a) THAT PARTNER'S USE OF THE FORA.TV SITE AND FORA.TV SERVICES WILL SECURE ANY SUCCESS OR GENERATE ANY REVENUE; (b) THAT PARTNER CONTENT OR ANY ADS (1) WILL BE SERVED, (2) WILL OPERATE, OR (3) WILL REMAIN IN THE FORA.TV NETWORK OR ON THE FORA.TV SITE OR WITHIN ANY MEDIA NETWORK RELATED THERETO; OR (c) THAT THE OPERATION OF THE FORA.TV SITE OR FORA.TV SERVICES WILL BE ERROR FREE OR UNINTERRUPTED.
- LIMITATION OF LIABILITY. EXCEPT IN CONNECTION WITH SECTION 8, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED, INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES OR GOODWILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. EXCEPT IN CONNECTION WITH SECTION 8, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR THE LESSER OF (I) FIFTY DOLLARS OR (II) ANY AMOUNT IN EXCESS OF THE FEES PAID BY FORA.TV TO PARTNER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM, NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.
- GENERAL. This Agreement will be governed by California law except for its conflict of laws principles and will be adjudicated in the federal or state courts located in the Northern District of California. The parties hereby consent to personal jurisdiction and venue there. If any portion of this Agreement is found to be unenforceable, the remaining provisions of this Agreement will remain in full force. Except in the case of acquisition or the sale of substantially all of its assets, Partner may not assign this Agreement without FORA.tv's prior written consent. This Agreement may be freely assigned by FORA.tv without the notice to or consent of Partner. Any attempt to assign this Agreement other than as permitted above will be invalid. This Agreement is intended for the sole benefit of the parties and is not intended to benefit any third party. Except as expressly set forth in this Agreement, the exercise by a party of any remedies provided in this Agreement will not be deemed an election of remedies, and will be without prejudice to its other remedies under this Agreement or under any other agreement, or at law or equity or otherwise. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of this Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Except as expressly set forth in this Agreement, any waiver, amendment or other modification of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the parties. Except as expressly set forth in this Agreement, all notices, consents and other communications required or permitted to be given under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. The relationship of the parties under this Agreement is that of independent contractors, and nothing contained herein shall be deemed or construed to create any employer/employee relationship or any partnership or joint venture between the parties or their respective directors, officers, employees or independent contractors. This Agreement including all schedules or other documents attached hereto, constitutes the complete and exclusive understanding and agreement between Partner and FORA.tv, superseding all prior or contemporaneous agreements or understandings with respect to such matters.
FORA.tv Network Members
The FORA.tv Network includes, but is not limited to the following organizations:
Australian Broadcasting Corporation