LAST MODIFIED ON 10/24/2019
MOVIBITS CONTENT PARTNER AGREEMENT
This BitMovio Content Partner Agreement (“Agreement”) contains the terms and conditions that govern your participation in the BitMovio Content Partner Program (“Program”), which is operated by BitMovio, Inc. and its Content Partners (collectively, “we”, “us”, “our” or “BitMovio”). Any person or entity that participates or attempts to participate in the Program (such person or entity, “you”, or an “Content Partner”) must accept this Agreement without change.
By uploading content to the BitMovio platform and submitting an application to the Program, you have agreed to the terms and conditions of this Agreement, without change and have entered into a legal contract between you and BitMovio; provided, however, that this Agreement shall not be effective until we determine that you are eligible to participate in the Program as further described in Section 2. The BitMovio Terms of Service (the “Terms of Service ”) separately govern your use of the BitMovio Service. To the extent there is any conflict between this Agreement and the Terms of Service, this Agreement will take precedence. All capitalized terms not defined in this Agreement have the respective meanings set forth in the Terms of Service.
1. Description of the Program
The Program permits you to monetize the broadcasting, streaming, distribution, and exhibition of your User Content through the products, services or programs described herein.
2. Eligibility and Compliance
2.1 General Eligibility
As part of the enrollment process into the Program, you must submit a complete and accurate Program application (including all forms, documents, or certifications as may be required to satisfy any tax obligations with respect to payments under this Agreement). If you are an individual, you must be at least 13 years of age. If you are between the ages of 13 and 18 (or between 13 and the age of legal majority in your country of residence), you may only participate in the Program under the supervision of a parent or legal guardian who agrees to be bound by this Agreement. We will evaluate your application and notify you of its acceptance or rejection. We will determine your eligibility at our sole discretion.
If we (a) reject your application or (b) terminate your account in connection with any violation or abuse, including, but not limited to any violations of the Terms of Service and the Community Guidelines, you cannot attempt to re-join the Program without our advance written authorization.
If you violate this Agreement, the Terms of Service or the MoviBits Acceptable Use Policy, in addition to any other rights or remedies available to us, we reserve the right to withhold (and you agree you will not be eligible to receive) Program Fees otherwise payable to you under this Agreement, whether or not directly related to such violation.
3. Program Fees
You may be eligible to receive the following fees under this Agreement as part of the Program (collectively, the “Program Fees”):
4. Payment and Reporting
4.1. Payment Terms
Program Fees payable by BitMovio to you will be paid to you on a monthly basis, within forty-five (45) days after the end of each calendar month, in United States Dollars, less (a) billing and payment costs (which may include monthly and pre-transaction processing charges and merchant bank fees); and (b) returns, refunds, chargebacks, discounts and credits; provided that you have timely delivered to BitMovio all documentation necessary and appropriate to effectuate payment (e.g., W9, and the like). If we are obligated to pay you any Program Fees in a currency that is not United States Dollars, we will convert such Program Fees at an exchange rate that we or our bank determine, which may include fees and charges for the conversion. We will pay you any Program Fees you may have earned via PayPal only. You must have a valid PayPal account in order to receive any Program Fees. Please visit www.paypal.com to get started.
To ensure proper payment, you are further responsible for providing and maintaining accurate contact and payment information through the BitMovio Service. Any changes to your contact and payment information will not be effective until at least seven days after submission to us. BitMovio will not be obligated to make a payment if the total amount to be paid to you under this Agreement is less than $100 (the “Payment Threshold”), and may instead accrue such payment obligation until such time as its overall obligation to you is at least the Payment Threshold. If any excess payment has been made to you for any reason whatsoever, we reserve the right to adjust or offset the same against any subsequent fees payable to you under this Agreement.
The following paragraph only applies to you if you reside in the USA or in a country that is not currently a member of the European Union:
If at any time there has been no substantial activity on your Program account for at least twelve consecutive months, and you have not earned at least $100 in Program Fees during that twelve month period, we may close your inactive account and terminate this Agreement. If you have accrued Program Fees in your account, a maintenance fee will be deducted from your remaining balance. The maintenance fee will be the lesser of the accrued Program Fees in your account or $25. Any remaining balance will be paid to you.
The following paragraph only applies to you if you reside in a country that is currently a member of the European Union:
If at any time there has been no substantial activity on your Program account for at least twelve consecutive months, and you have not earned at least $100 in Program Fees during that twelve month period, we will have the right, upon seven (7) days’ written notice, to (i) close your inactive account and terminate this Agreement and (ii) deduct a maintenance fee from your remaining balance. The maintenance fee will be the lesser of the accrued Program Fees in your account or $25. Any remaining balance will be paid to you.
We will provide you with access to our dashboard which will provide data relating to Program Fees (“Reporting Data”). You acknowledge and agree that all Reporting Data is and will at all times be exclusively owned by us and will remain our confidential information.
You may charge and we will pay applicable national, state or local sales or use taxes or value added taxes that you are legally obligated to charge (“Taxes”), provided that such Taxes are stated on the original invoice that you provide to us and your invoices state such Taxes separately and meet the requirements for a valid tax invoice. We may deduct or withhold any taxes that we may be legally obligated to deduct or withhold from any payment made to you under this Agreement, and payment to you as reduced by such deductions or withholdings will constitute full payment and settlement to you of such payment under this Agreement.
Throughout your participation in the Program, you will provide us with any forms, documents, or certifications as may be required for us to satisfy any information reporting or withholding tax obligations with respect to any payments under this Agreement. Failure to do so will render you ineligible to participate in the Program and collect any Program Fees that may otherwise be payable to you.
Other than as set out expressly herein, the Terms of Service and in the Digital Content License Agreement [link], to which by uploading any content to the BitMovio Service you shall become automatically bound, neither party will acquire any right, title or interest in any intellectual property rights belonging to the other party or to the other party’s licensors.
6. Data Privacy
7. Representations and Warranties
You represent, warrant, and covenant that (a) you are at least 13 years of age and have not been previously removed from or prohibited from receiving the BitMovio Services, (b) you will participate in the Program in accordance with this Agreement, (c) your participation in the Program will not violate any applicable laws, ordinances, rules, regulations, orders, licenses, permits, industry standards, judgments, decisions, or other requirements of any applicable governmental authority (including all such rules governing communications and marketing), (d) you have the full corporate right, power and authority to enter into this Agreement and to perform the acts required hereunder; (e) your execution of this Agreement, and your performance of your obligations and duties hereunder, do not and will not violate any agreement to which you are a party or by which you are otherwise bound; and (f) the information you provide in connection with the Program is accurate and complete at all times. You can update your information by contacting us through the BitMovio Service.
We do not make any representation, warranty, or covenant regarding the amount of Program Fees you can expect at any time in connection with the Program, and we will not be liable for any actions you undertake based on your expectations.
8. BitMovio Service Customers
Our customers are not, by virtue of your participation in the Program, your customers. As between you and us, all pricing, terms of sale, rules, policies and operating procedures concerning customer orders, customer service and product sales set forth on the BitMovio Service will apply to those customers, and we may change them at any time. You will not handle or address any contacts with any of our customers, and, if contacted by any of our customers for a matter relating to interaction with the BitMovio Service, you will state that those customers must follow contact directions on the BitMovio Service to address customer service issues.
9. Term and Termination
The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either you or us. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. We may withhold accrued unpaid Program Fees for a reasonable period of time following termination to ensure that the correct amount is paid (e.g., to account for any cancelations or returns). Upon any termination of this Agreement, all rights and obligations of the parties will be extinguished, except that the rights and obligations of the parties under Sections 8 and 11-17 will survive the termination of this Agreement. If you terminate the Agreement and your earned balance equals or exceeds the Payment Threshold, we will pay you your earned balance within approximately 45 days after the end of the calendar month in which the Agreement is terminated, pursuant to Section 4.1. Any earned balance below the Payment Threshold will remain unpaid. No termination of this Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Agreement prior to termination.
BitMovio reserves the right, at our discretion, to change, modify, add, or remove portions of this Agreement at any time (for example to reflect updates to the BitMovio Service or to reflect changes in the law). If BitMovio changes this Agreement, we will provide you notice of these changes, such as by sending an email, posting a notice on the BitMovio Service or updating the “Last Updated” date above. Please check this Agreement periodically for those changes. Modifications may include, for example, changes to the Program Fees, Program eligibility, payment procedures, and other Program requirements.
IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE EFFECTIVE DATE OF ANY MODIFICATION (E.G., THE DATE OF OUR POSTING OF A CHANGE NOTICE OR REVISED AGREEMENT OR THE DATE SPECIFIED IN ANY EMAIL TO YOU REGARDING SUCH MODIFICATION) WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) THE PROGRAM AND THE CONTENT AND MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY BITMOVIO; (B) BITMOVIO, AND ITS PARTNERS AND SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE PROGRAM, INCLUDING ANY INFORMATION, CONTENT OR MATERIALS CONTAINED THEREIN; (C) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, BITMOVIO DOES NOT MAKE ANY REPRESENTATION OR WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BITMOVIO FOR THE PROGRAM WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 11, THE TERM “BITMOVIO” INCLUDES BITMOVIO’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.
You hereby release and agree to defend, hold harmless, and indemnify us, and/or our subsidiaries, Content Partners, directors, officers, employees, agents, successors and assigns from and against any allegation or claim based on, or any loss, damage, settlement, cost, expense and any other liability (including but not limited to reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification), arising from or related to: (a) any act or omission by you, including, without limitation any breach of this Agreement (including your representations and warranties in Section 7 above) or allegation or claim of negligence, strict liability, willful misconduct or fraud of you; or (b) your access to or use of the Program.
13. Limitation of Liability
NEITHER WE NOR ANY OF OUR CONTENT PARTNERS OR LICENSORS WILL BE LIABLE TO YOU FOR LOST REVENUE, LOST PROFITS, LOST BUSINESS, OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS AGREEMENT OR THE PROGRAM. FURTHER, OUR AGGREGATE LIABILITY TO YOU, UNDER ANY THEORY OF LIABILITY, IN CONNECTION WITH THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
14. Relationship of Parties
You and we are, and will remain at all times, independent contractors, and nothing in this Agreement will be construed to create an agency, employment, fiduciary, representative or any other relationship between you and us. You will not represent yourself to be an employee, representative, or agent of us. You understand and agree that you do not have authority to bind us in any manner, or enter into any agreement or incur any liability on behalf of us.
15. Governing Law, Jurisdiction, and Venue
This Agreement is governed in accordance with the laws of the State of California, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the laws of the State of California to the rights and duties of the parties. Any legal suit, action or proceeding arising out of or relating to this Agreement by a party will be resolved by litigation in the courts located within the City and County of Santa Clara in the State of California. The parties hereby consent to the exclusive jurisdiction and venue of such courts, will accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to them.
Any dispute or claim relating in any way to this Agreement, the terms thereof, or your participation in the Program that arises between the parties (including the parties’ respective parent, Content Partner and/or subsidiary entities) will be resolved by binding arbitration as described in this paragraph, rather than in court, except that (a) you may assert claims in a small claims court if your claims qualify, and (b) either party may bring suit by submitting to the courts in the aforementioned jurisdiction and waiving such party’s respective rights to any other jurisdiction to enjoin infringement or other misuse of intellectual property rights. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. For you to begin an arbitration proceeding, you must send a letter requesting arbitration and describing the claim to BitMovio’s registered agent, Corporation Service Company, 2710 Gateway Oaks Drive, Suite 150N, Sacramento CA 95833. Arbitration shall be conducted by the American Arbitration Association (“ AAA ”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules. We will reimburse those fees for claims totally less than $10,000 unless the arbiter determines the claims are frivolous. Likewise, we will not seek attorneys’ fees and costs from you in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on submissions, or in person in the county in which you are located, or the agreed upon jurisdiction described above. The parties agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, the parties each waive any right to a jury trial.
You may not assign this Agreement, by operation of law or otherwise, without our express prior written approval. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Any attempt to assign in violation of this section is void in each instance. We may assign this Agreement in connection with any merger, consolidation, reorganization, sale of all or substantially all of our assets or any similar transaction.
17.2. Further Assurances
You will take or cause to be taken such further actions, and will execute, deliver and file or cause to be executed, delivered and filed such further documents and instruments, and will obtain such consents, as may be reasonably required or requested by us in order to effectuate fully the purposes, terms and conditions of this Agreement.
The waiver by us of a breach of or a default under any provision of this Agreement will be in writing and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay or omission on our part to exercise or avail itself of any right or remedy that we have or may have hereunder operate as a waiver of any right or remedy.
Any determination that any provision of this Agreement, or any application thereof is invalid, illegal or unenforceable in any respect in any instance will not affect the validity, legality and enforceability of such provision in any other instance, or the validity, legality, or enforceability of any other provision of this Agreement, and such provision shall be deemed to be reinstated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law.
17.5. Captions and Section Headings
The captions and section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.
17.6. Entire Agreement
This Agreement contains the complete understanding between the parties with respect to their respective subject matter hereof and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and will not be modified except in writing, signed or otherwise agreed to by both parties, or by a change to this Agreement made by BitMovio as set forth in Section 10 above.