By submitting the Content (defined below) for upload to this platform, which is owned and operated by HipHopTV, LLC (to soon be converted to HipHopTV, Inc.), a California limited liability company (“HHTV”), you hereby accept this content license and agree to be legally bound by the terms and conditions herein (“Agreement”). This Agreement shall become effective on the date that you upload the Content (the “Effective Date”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. CONTENT. You own or controls the content that you intend to upload to HHTV’s platform, including any sound recordings, musical compositions, written and spoken words, sounds that are synchronized or timed in relation to visual images, performances, audiovisual works, still images, photographs, and other materials that may or may not be mentioned but are embodied therein (the “Content”). You hereby grant to HHTV the non-exclusive rights as set forth herein to use and exploit the Content on its platforms and monetize it through third parties, including, without limitation, Digital Entertainment Services. As used herein, “Digital Entertainment Service(s)” shall refer to video-sharing websites, online video channels, wireless services, or any other third party platforms in digital format, accessible to consumers or businesses, on-line programming, cloud computing services and other entertainment, news and information products, that are legally authorized to reproduce, sell, license, display, perform, and/or broadcast video content, audiovisual works, sound recordings, compositions, and other materials for promotional or commercial purposes, including, but not limited to, YouTube, Vimeo, Twitter, Facebook, Instagram, Linkedin, and TikTok, delivered through any transmission to the consumer, whether sound alone, sound coupled with an image, or sound coupled with data, in any form now known or later developed, and any other forms of transmission now known or hereafter devised, whether or not such transmission is made on-demand or near on-demand, whether or not a direct or indirect charge is made to receive the transmission, whether or not such transmission results in a specifically identifiable reproduction by or for any transmission recipient, whether part of a subscription or non-subscription model, or whether on an interactive or non-interactive basis.
2. CONTENT DELIVERY. You will deliver the Content via uploading to HHTV’s platform pursuant to HHTV’s requirements and specifications. Delivery requirements and specifications may be updated from time to time, in HHTV’s sole discretion.
3. CONTENT LICENSE. You hereby grant to HHTV, its parents, members, managers, directors, shareholders, partners, representatives, subsidiaries, affiliates, sponsors, successors, assigns, and licensees the irrevocable, non-exclusive, royalty-free, transferrable, universal, unconditional, perpetual, sub-licensable right, license, privilege, and authority to use, reproduce, transmit, publish, monetize, publicly display, publicly perform, exhibit, distribute, index, comment on, modify, host, edit, adapt, translate, embellish, create derivative works based upon, or otherwise exploit the Content, in whole or in part, for an unlimited number of times in all media formats and channels whether now known or hereafter devised, in HHTV’s sole discretion, including, without limitation, any use of the Content on HHTV platforms or in connection with Digital Entertainment Services, all forms of television (broadcast, pay, pay-per-view, cable, satellite, OTT or otherwise), home video, motion pictures, compilations, printed media, Internet platforms (broadband and wireless), podcasts, electronic devices, new media, emerging and future technologies (i.e., NFTs), products and services, and in any and all advertising (including, without limitation, display ads, sponsored or commercial use in connection with online banner, “pre-roll,” “post-roll,” and/or targeted advertising, graphic overlay in-video ads, in-stream ads, and watermarking), publicity, promotion, or merchandising relating to any of the foregoing. You further grant HHTV all necessary power and authority to protect the Content, including but not limited to, working with Digital Entertainment Services to monitor and monetize user-generated video content that contains unauthorized uses of the Content. You agree to not send a takedown notice to a Digital Entertainment Service without HHTV’s prior written consent. Once the Content is posted on HHTV’s platform or a Digital Entertainment Service, you agree that it may be shared by users of the platform or service. Without limiting the foregoing grant of rights, your grant includes the right to use any names (legal, performing, and usernames), voices, likenesses, biographical information, appearances, and performances in and in connection with the Content.
4. OWNERSHIP. You will retain full ownership of, and absolute liability for, the Content, including all material contained therein, whether related to its creation, procurement, uploading, or other activity.
5. TERM. The term of this Agreement (the “Term”) will commence upon the Effective Date and will continue until you notify HHTV in writing at least sixty (60) days prior to the termination date.
6. TERMINATION OF AGREEMENT. All rights granted hereunder shall immediately revert to you on the termination date. Upon the termination date, HHTV shall immediately cease all exhibition or broadcast of the Content; however, HHTV is not liable for instances where the Content continues to be shared by third parties after the Term.
7. CLEARANCES. You are solely responsible for obtaining and paying for and will obtain, any and all rights, licenses, clearances, permissions, approvals, and the like that may be necessary or required with respect to the use of the Content prior to delivering the Content to HHTV. Such obligations herein may include but are not limited to, written clearances from record labels for the use of sound recordings, written clearances from music publishing companies for use of musical compositions, agreements for the appearance of a people, licenses for the use of trademarks, copyrighted materials, or other intellectual property, compliance with applicable collective bargaining, guild and/or performing rights society requirements, and payment of any re-use or license fees to the appropriate person or entity. You shall not deliver Content that infringes on the rights of any third party.
8. TRADEMARK LICENSE. You hereby grant to HHTV an irrevocable, non-exclusive, royalty-free license throughout the universe to use your trademarks, service marks, logos, or trade names (“Your Marks”) in connection with the Content and in connection with the advertising and promotional efforts for the Content and HHTV.
9. NET REVENUE SHARE. HHTV agrees to pay you sixty percent (60%) of Net Revenue (HHTV shall retain 40%). “Net Revenue” shall be defined as gross revenue that HHTV collects from its efforts related to licensing, advertising, or other revenue sources directly related to the Content, less any costs or expenses incurred by HHTV in connection therewith.All payments made in connection with this Agreement are exclusive of taxes imposed by governmental entities of whatever kind and imposed with respect to the transactions for services provided under this Agreement. You shall be responsible for any taxes relating to payments that you receive under this Agreement, and you agree to defend and indemnify HHTV from any claim based on the contrary. You must submit a completed IRS Form W-9 (www.irs.gov) to HHTV prior to receiving payment. The division of Net Revenue may be updated from time to time, at HHTV’s sole discretion.
10. ACCOUNTING AND PAYMENT. HHTV shall have the right to collect gross revenue and calculate and distribute your portion of the Net Revenue. HHTV will provide instructions on how to set up an account to receive payments. HHTV will issue payments to you on a calendar quarterly basis. All payments will be processed by HHTV and delivered to you within thirty (30) days of when HHTV reconciles funds received during the previous quarter. Any wire transfer fees, ACH fees, or other reasonable administrative fees charged to HHTV to process payments shall be deducted from your portion of the Net Revenue. Upon request, HHTV shall provide you with monetization data through a Digital Entertainment Service’s analytics, if available (i.e., YouTube Analytics).Youacknowledge and agree that there is no guarantee that the Content will generate any advertising revenue. HHTV has not made and does not hereby make, any representation or warranty with respect to the amount of revenue that may be generated.
11. INTELLECTUAL PROPERTY RIGHTS. HHTV acknowledges that you or your licensor(s) are the sole owners of all intellectual property rights in and to the Content and Your Marks. You acknowledge that HHTV or its licensors are the sole owners of all intellectual property rights in and to its platforms and any derivative works of the Content created by, or for, HHTV.
12. REPRESENTATIONS AND WARRANTIES. You represent and warrant to HHTV that: (a) you wholly own the Content or have the sole and exclusive right to grant the rights and fulfill your obligations hereunder; (b) you have the necessary rights to grant the licenses granted hereunder; (c) the Content and Your Marks, and the use thereof as contemplated and authorized in this Agreement, do not and will not infringe upon the intellectual property rights of any third party; (d) the Content, and the use thereof as contemplated and authorized in this Agreement, does not and will not violate the publicity or privacy right of, or defame, any third party; (e) You have obtained necessary written privacy and publicity rights releases from each person whose image, likeness, and voice appears in the Content and the rights to use said elements in the exploitation of the Content and to license those rights; (f) there are no liens, encumbrances, or suits (threatened or actual) pending against or related to the Content, (g) if any minors appear in the Content, you have secured the irrevocable written permission from the parents or duly appointed guardian(s) of such minor(s) to grant the necessary rights for the minor’s contribution to the Content as set forth herein. HHTV does not make any representations or warranties relating to the advertising or the substance of advertisements served with the Content as part of the advertising and disclaims any and all liability relating thereto.
14. INDEMNIFICATION. You will indemnify, defend, and hold HHTV and its officers, directors, agents, affiliates, and employees, harmless from and against any and all damages, awards, judgments, liabilities, costs, or expenses, including reasonable attorneys’ fees and costs resulting from any third-party allegation, claim, action, or proceedings arising out of or related to your breach or alleged breach of any obligation, representation, or warranty in this Agreement. As an express condition to your obligation under this paragraph, you must: (a) promptly notify HHTV in writing of the claim; (b) grant HHTV sole control of the defense and settlement of the claim; and (c) provide HHTV, at your expense, with all assistance, information, and authority reasonably required for the defense and settlement of the claim. This defense and indemnification obligation will survive your use of HHTV’s platform.
15. LIMITATION OF LIABILITY.
15.1. Disclaimers. HHTV EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
15.2. Total Liability. WITH THE EXCEPTION OF INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, HHTV’S TOTAL LIABILITY UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, WILL BE LIMITED TO THE PAYMENTS ACTUALLY MADE BY HHTV TO YOU UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO ANY LIABILITY.
15.3. Exclusion of Damages. IN NO EVENT WILL HHTV BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE ADVERTISING, THE USE OR PERFORMANCE OF THE CONTENT OR ARISING OUT OF ANY SERVICES PROVIDED BY HHTV HEREUNDER, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
15.4. Failure of Essential Purpose. The parties have agreed that the limitations specified in this paragraph will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
16. GENERAL PROVISIONS.
16.1. Fraud. HHTV will have no obligation to pay any amounts and is permitted to deduct or withhold any amounts owed, determined or reasonably suspected by HHTV in its sole discretion to have resulted from: Click fraud, including without limitation through any clicks originating from your IP addresses or computers under your control, solicited by payment of money, bots, false representation or request for end users to click on Ads, or fraudulent, misleading or false activities.
16.2. Assignment. You may not assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without HHTV’s prior written consent. Any attempt to assign or transfer this Agreement, without such consent, will be null and of no effect. HHTV may freely assign the Agreement without your consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
16.3. Applicable Law and Venue. This Agreement has been entered into in the State of California, and the validity, interpretation, and legal effect of this Agreement shall be governed by the internal laws of the State of California without regard to choice of law principles. Venue for any legal action shall be in the state and federal courts in Los Angeles County, California. The prevailing party in any action for breach of this Agreement shall be entitled to its attorneys’ fees and costs.
16.4. Breach. HHTV shall not be in breach of this Agreement unless you provide a notice to HHTV in writing specifying the alleged breach and HHTV fails to cure such breach within thirty (30) days thereafter.
16.5. Injunctive Relief. It is the essence of this Agreement that you specifically waive any right to injunctive relief, or any other equitable relief, with respect to any claim you may assert against HHTV or its affiliates, licensees, and assigns, arising under this Agreement.
16.6. Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in full force and effect.
16.7. Waiver. You waive any right to inspect or approve the final display or other exploitation of any derivative of the Content created by HHTV, now or in the future, whether or not that use is known. Unless otherwise indicated, you waive any right to royalties or any other compensation arising from or related to the use of the Content. The failure by HHTV to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
16.9. Force Majeure. HHTV will not be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, failure of the Internet, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, pandemic (and government orders related thereto), or acts of God.
16.10 . Relationship of Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. You will have the power to bind HHTV to any obligations without its prior written consent.
16.11. Entire Agreement. This Agreement, along with all other HHTV platform documents, constitutes the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties.
16.12 . Binding Agreement. You acknowledge and agree that uploading or posting the Content shall be the equivalent of your signature and acceptance of this Agreement and these terms and have the same effect as if you had physically signed. Upon HHTV’s request, you agree to sign a version of this Agreement containing these terms and, until such time, a printed version of this Agreement shall be admissible in judicial, administrative, or arbitration proceedings based upon or relating to this Agreement and these terms to the same extent and subject to the same terms and conditions as other business documents and records originally generated and maintained in printed form.