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FIlmOn TV Custom Label TV Package Agreement
This Agreement is made on the date appearing below
- FilmOn TV Limited, 1st Floor, 111 Wardour Street, London W1F 0UH (Company No. 06047620) (“we”, “us”, “our”); and
- The person or company named as the Service User on the front page of this Agreement (“you”, “your”)
Purpose and intent of this Agreement
- We are offering to you on the terms and conditions set out in this document (and subject to the various policies referred to) a bespoke branded and designed Internet and mobile interface television/radio/interactive platform utilizing our content, systems, software, know-how and revenue generating facilities through advertising and subscription to: – make content available to users/customers through the use of our – use a website to be created by us with your branding for this purpose. We will provide manage and maintain your customized streaming service to be hosted via the Internet protocol and wireless networks (this known as “Custom Label”);
- Your Custom Label will be streamed by us through to your own or other web domain(s), IP addresses or related networks that you are permitted to use; and
- Any and all advertising and/or subscription revenue generated by the hosting of your Custom Label, through any media shall be split between you and us in the manner set out below.
Now it is hereby agreed as follows:
- In consideration of the Payments, Advertising Revenue Split and Subscription Revenue Split as detailed on the front page of this Agreement and subject to full and continual compliance by you of the terms and conditions of this Agreement, we agree to provide to you throughout the Territory for the Term your Custom Label, which shall include: applications, servers and APIs (herein: Application Program Interface)
- Provision of a Custom Label streaming/hosting service;
- Where required, design and branding of your Custom Label;
- Advertising services and subscription services;
- Fully functional application programming interface (“API”) to enable your Custom Label to operate through all known mobile device applications, such as Android, Windows and Apple devices;
- Full access, editing and updating facilities and content control (subject to compliance with copyright and legal content provision)
- We will exclusively manage and operate at our sole discretion all advertising, in both form and content, all subscriptions generated by the Custom Label and handle all revenue derived therefrom. You may secure and generate your own advertising, but it must always and only be aired, managed and controlled by us at all times. Any breach of this provision will lead to termination.
- You agree, acknowledge, accept, be subject to and abide by the following notices that we publish and from time to time amend:-
- Our general terms and conditions: (http://www.FilmOn.com/page/terms-en); and
- Our DCMA Notice terms and conditions: (http://www.FilmOn.com/page/dmca-notice-en)
In the event of a conflict between the provisions of this agreement and any other agreement or policy we adopt, the terms of this agreement shall prevail.
- Restrictions on unlawful use, warranty and indemnity
- You warrant that your use of the Services, including any content uploaded by you or on your behalf thereto and/or hosted thereon, shall in no way be unlawful. Such responsibilities include taking all necessary technical and legal steps to ensure that access to any channel you operate or any web domain you place your channel on is restricted to individuals by whom such content may legitimately be viewed.
- You agree you will fully indemnify us against any liability we may incur as a result of any use by you of the Services which is unlawful, or which is in breach of these terms.
- You further agree that if any third party brings or threatens any action against us as a result of any alleged act by you in relation to your use of the Services which, if proved, would be unlawful or in breach of these terms, you will indemnify us against our own legal costs in defending such action or threat whether or not the alleged act is proved and whether or not our defense is successful.
- We accept no responsibility for monitoring or editing any content you place or procure to be placed through the Services, but reserve the right to remove and delete any such material; if we do so, we will notify you and give our reasons.
- You agree that the content you place through the Services must be legal throughout the Territory, compliant with our general terms and conditions, not exploit any minor, nor depict images of graphic or extreme violence or sex.
- You warrant and agree that you shall only place content through the Services that you have license or legal right to broadcast and that you are either the copyright owner or have permission from the copyright owner to broadcast the content you place through the Services throughout the Territory and you further agree to indemnify and hold us harmless for any breach of copyright you commit.
- You warrant that you have the legal capacity to enter this Agreement and that this Agreement is personal to you and you shall not transfer, sell, pledge or assign the benefit of this Agreement except with our prior written Agreement.
- Save for death and personal injury, which is expressly excluded under this clause, our liability to you is limited to not more than the total amount charged by us to you for use of the services under the Payments described at the front of this Agreement for one year and in any event we shall have no liability to you in the event of any;-
- Suspension in the Services;
- Fault or delay with the Services;
- Termination in accordance with this Agreement in the Services; and
- Force majeure (eg. fire, storm, tempest, war, act of terrorism, insurrection).
- We shall not be liable to you for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with the service, or from any misrepresentation, whether innocent or negligent, except to the extent that such liability may not be lawfully excluded.
- Notwithstanding the generality of the above, we expressly exclude liability for consequential loss or damage which may arise or for loss of profit, business, revenue, goodwill or anticipated earnings.
In the event that any exclusion or other provision contained in this
- agreement be held to be invalid for any reason and we become liable for loss or damage that could otherwise have been limited, such liability shall be limited to sums paid for the use of the service during the 12 months immediately preceding the accruing of the cause of action.
- We do not exclude liability for death or personal injury.
- You further agree:
- not to alter or modify any part of:-
- the Services; or
- without our prior written consent, the look, design, colourway, branding or name of your Custom Label;
- not to knowingly or recklessly upload content or any software that could damage, interfere with, harm or otherwise infect by computer virus or other malware the Services or any platform operated by us;
- not to (or attempt to) circumvent, disable or otherwise interfere with any security related features of the Services
- Not to intercept, divert or redirect and revenue for the Custom Label, nor to separately charge or collect revenue for the Custom Label;
- not to alter or modify any part of:-
- Advertising and Subscription Revenues
- We will be responsible for selling and placing advertising on the Custom Label and selling and managing all subscriptions including all advertising and subscriptions you may secure, which must all be directed to us for processing.
- We shall have sole discretion in determining the form and content of all advertising, including, but not limited to pre-roll, ad tag, pop-up and banner adverts.
- We will pay to you 33 % (thirty three percent) of our Net Revenue (defined in clause 8) from such advertising from audiences viewing your Custom Label. Please note that 33% Gross Revenue (defined in clause 8) is paid to content owner for the usage of the ad supportedfreeview content adopted within your Custom Label. the Services; or branding or name of your Custom Label;
- The following definitions apply in this Agreement:
“Gross Revenue” means all revenue actually received and converted into the Accounting Currency by us from users by way of subscriptions to your channel and amounts actually received and converted into the Accounting Currency by us from advertisers which arise specifically as a result of a viewer watching your Custom Label after the deduction of taxes including VAT in the UK or other taxes outside the UK; “Net Revenue” means Gross Revenue less the following costs (which are only recouped if incurred):
- any commission, revenue share or cost paid to a third party distributor or platform to which we license the content;
- any commission, revenue share or cost paid to a third party relating to advertising revenue generated by the content (or if we or an associate company or affiliate procure such advertising, a commission deductible by us on an arms length basis); and
- any international bank transfer fees for transferring your share to you).
shall be Great British pounds sterling (GBP/£)
- Payment and Statements
The following shall apply to the payments made to you pursuant to this Agreement:
- We shall pay amounts due to you subject to the deduction from such amount of any taxes or amounts required to be deducted by government or fiscal authorities (including withholding tax);
- We shall provide online reports detailing amounts due to you. You shall issue and send us an invoice to match these reports and we shall pay such amounts to your nominated account within 60 days – in line with our advertisers payment terms.
- Such reports and payments shall be made in the Accounting Currency and will only be reported and paid when received in cleared funds in the Accounting Currency at the relevant time.
- Other than in the event of termination, we shall only make a payment when the amount due to you in aggregate exceeds £50.00.
- We may terminate this Agreement at any time if:
- You fail to adhere to the terms of this Agreement;
- You are made bankrupt, go into liquidation or enter into any
- You upload to your Custom Label any material that financial compromise or arrangement with your creditors; is illegal, immoral, subversive or otherwise damaging to us, our systems and platform, or our reputation or likely to cause offence or place another or others at the risk or harm; or
- You fail to make any payment to us as and when it falls due.
- You may terminate this Agreement on not less than 30 days notice.
- We may terminate this Agreement at any time if:
- Each party (“the Receiving Party”) shall keep confidential this Agreement and any information (where such information is either marked as being confidential or might reasonably be assumed to be confidential such as, for example, financial information) disclosed to it by the other (“the Disclosing Party”) and shall not use the same for purposes other than in relation to the performance of the Receiving Party’s obligations under this Agreement.
- The Receiving Party shall not disclose any such confidential information to any person without the consent of the Disclosing Party except:
- to any officer or employee of the Receiving Party who may reasonably need to know it for the purposes of this Agreement; and
- to the auditors and professional advisors of the Receiving Party, or any other persons or bodies having a legal right or duty to have access to or knowledge of the same;
provided that the Receiving Party shall be responsible for ensuring that any person to whom such information is disclosed complies with any conditions of confidentiality applying to such information under this Agreement.
- The obligations in clause shall not apply to any information:
- which is or becomes public knowledge through no act or fault of the Receiving Party, its officers, employees or agents;
- which was already in the Receiving Party’s possession or independently developed by the Receiving Party and at its free disposal prior to disclosure to it by the Disclosing Party;
- which was disclosed to the Receiving Party by a third party at liberty to disclose that information without imposing obligations of confidentiality;
- which the Receiving Party is required to disclose by law.
- The terms of this Agreement are deemed to be confidential.
- This – together with the separate policies and terms expressly referred to herein – constitutes the entire agreement between the parties and there shall be no variation unless agreed between you and us in writing or notified to you by us upon reasonable notice in writing of not less than 30 days.
- Any notices shall be sent to the address given by you and us respectively or notified from time to time.
- This Agreement is governed by the laws of England and any questions arising shall be dealt with only by the English courts.