Freedom Network Contract Agreement (07/24/16)

The terms and conditions (the “Terms”) which follow govern the relationship between you
(“the “Talent”) and any.TV Limited, D.B.A. Freedom (“FDN”) with respect to the content (the
“Talent’s Channels”) described in the application (the “Application”) submitted to FDN. By
accepting these Terms, you covenant and agree to be bound by the Application and the Terms
(together, the “Agreement”).
Until this Agreement terminates, FDN and the Talent agree as follows:
1. Overview. Talent is the owner of Talent’s Channels, and also the
producer/creator/authorized licensee of content that appears on Talent’s Channels. In
exchange for the payment to Talent of the fees identified in Section 4, the Talent agrees
to:
(a) move Talent’s Channels and the videos and other content appearing on the
Talent’s Channels (“Talent Content”) into FDN (the “Network”) to take advantage
of FDN’s Google AdSense and YouTube direct sales advertising revenue
opportunities;
(b) make Talent’s Channels eligible for the advertising we sell;
(c) allow one of FDN’s support managers to assist with talent support services
(some examples might be helping Talent with optimizing videos, technical
support, using social media to help boost your video views, connecting with
other Network talent, access to a royalty-free music library for use videos, etc);
(d) while this Agreement is in effect, you grant to FDN a non-exclusive right to sell
and manage any and all advertising inventory on Talent’s Channels;
(e) while this Agreement is in effect, you grant to FDN a non-exclusive right to sell
brand integration into videos (i.e., wearing something in, or putting a product
into, a video) on Talent’s Channels, subject to written approval in each instance,
except that Talent (but no other third party) may also find and sign your own
brand integration deals (Talent keeps all the money from deals you find and sign);
(f) while this Agreement is in effect, you grant to FDN a non-exclusive, transferable,
worldwide, royalty-free license to use Talent’s name, image and likeness in
connection with promoting the Network, individual channels on the Network and
the Talent’s Channels;
(g) while this Agreement is in effect, you grant to FDN a non-exclusive, transferable,
worldwide, royalty-free license to display your trade-marks and logos in
connection with promoting the Network, individual channels on the Network and
the Talent’s Channels;
(h) use best efforts to regularly generate new content and promote Talent’s
Channels through the use of social media accounts (i.e., posting hyperlinks to
Talent’s Channels on Facebook or Google+, Tweeting them out, interacting with
fans, etc.); and,
(i) agree to add the current “FDN TM” logo to Talent’s Channels’ banner.
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2. Channel Views/Rollup. As of the Effective Date and throughout the Term of this
Agreement, all channel views (including viewership for so-called "live streaming" content
or delivery of content through any other means via the Talent’s Channels) for the
Talent’s Channels will be included or "rolled up" exclusively into FDN's total numbers on
YouTube and FDN will be entitled to receive any and all payments in connection
therewith directly from YouTube. This will include, but is not limited to, any content
made available on the Talent’s Channels, through any means (streaming Video on
Demand (VOD), "live-streaming," or other models of delivery as may be made available
by YouTube) and through any devices enabled by YouTube, as FDN may determine.
Furthermore, Talent will notify YouTube (based on their rules) that until this agreement
terminates Talent’s Channels are part of the Network, and all payments from YouTube
for the commercialization of Talent’s Channels should be sent directly to FDN.
3. Live Stream Content.
3.1. As of the Effective Date, Talent will coordinate with FDN in good faith regarding
all "live streaming" content that Talent may create, (i.e., real-time or near
real-time, streaming of "live" content of any kind, including commentary,
discussion, game play, e-sports, etc. (collectively, the "Live Stream Content"))
on the Talent’s Channels (or on such other FDN controlled channel on YouTube
as mutually agreed upon by FDN and Talent).
3.2. The parties will coordinate and agree on whether Live Stream Content will be
recorded, edited and distributed on the Talent’s Channels (or on such other FDN
controlled channel on YouTube as mutually agreed upon by FDN and Talent) for
Video on Demand (“VOD”) viewing following the conclusion of the applicable live
stream.
4. Payments.
4.1. VOD Content. FDN does not require a minimum number of viewers or
subscribers on a Channel for the Talent to join the Network. Preference will be
given to those who can show that they are currently accepted and in good
standing with another network. FDN, however, reserves the right to reject any
Application for any or no reason. Subject to Talent's compliance with the terms
and conditions of this Agreement and the terms and conditions of any other
agreements Talent may have with FDN (and provided that Talent is not a
consultant, affiliate or employee of FDN), for each piece of video content that is
displayed in streaming VOD format on Talent’s YouTube Channels hereunder,
Talent will be entitled to receive from FDN an amount (inclusive of all applicable
sales and value added taxes) specified in the Application as accepted by FDN all
advertisement supported video views generated (in territories where ad
monetization and reporting are provided to FDN by YouTube) by way of
streaming online VOD distribution on the Talent’s YouTube Channels. Talent and
FDN agree that FDN will, in its discretion, acting reasonably and using information
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provided to it by YouTube, be the party solely responsible to determine the
relevant number of ad supported views generated and applicable hereunder.
4.2 Payment Terms. For a Talent’s Channel Application and acceptance, the Talent
shall receive an amount equal to the Talent’s Commission, less standard
commission fees for premium advertising or sponsorship campaigns that FDN
may sell on the Talent’s behalf, which it is entitled to receive and retain in any
particular calendar month pursuant to each Talent’s Agreement. As specified in
the Application as accepted by FDN, FDN will pay Talent any fees owed hereunder
within thirty (30) business days following FDN's receipt of payment from
YouTube in connection with the Talent’s Channels. Payments will be made by
cheque, Paypal, wire or any other form at FDN's election to an account that
Talent specifies and may, at FDN's election, be combined with any other
payments that may be owed to Talent. For clarity, a different revenue share may
apply in instances where the Talent’s Channels includes third-party licensed
materials (e.g., cover video). All references herein to dollars will be to United
States dollars.
Notwithstanding the foregoing, FDN will have no obligation to pay any amounts,
and is permitted to deduct or withhold any amounts owed, determined or
reasonably suspected by FDN, in its sole discretion, to have resulted from: (i)
Action Fraud (as defined in the section titled "Action Fraud" below), including
without limitation through any clicks originating from Talent's IP addresses or
computers under Talent's control, solicited by payment of money, false
representation or request for end users to click on Ads, or (ii) fraudulent,
misleading or false activities or activities that FDN or YouTube believe to be
fraudulent or misleading or in violation of either of their respective terms of
service, guidelines, rules, or privacy policies. FDN reserves the right to withhold
or deduct payment, if applicable, pending FDN's reasonable investigation of any
of the foregoing or any breach of this Agreement by Talent.
4.3 For the purposes of Section 4.2 above, “Talent’s Commission” means 60% of
FDN’s share of Advertising Revenue.
5. Ownership/Control. As between the parties, Talent will retain full control and
ownership of, and absolute liability for, the Talent’s Channels and all content contained
therein. This will include creation, procurement, and uploading of any and all content
therein, and the ongoing management and look and feel of the Talent’s Channels. FDN
will not have the ability to upload content, alter the design or layout, etc. of the Talent’s
Channels; provided, however, that FDN will have the absolute right to require Talent to
remove content immediately upon any notice of copyright violation, or violation of any
party's rights, or concern thereof. Any video content or other content (live streaming,
text, annotations, or otherwise) that is in violation of the terms of this agreement or
violates any laws, rules or regulations, including YouTube's and/or FDN's terms, rules,
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policies or other business interests, will also be removed immediately upon request.
Talent will not use annotations or other similar YouTube tools and features in a manner
that would conflict or interfere with FDN's promotional or sales efforts and ongoing
advertising campaigns.
6. Right to Sell Advertising on a Talent’s Channels.
6.1. FDN will have the right, throughout the Term of this Agreement, to represent,
sell, and manage any ad inventory on the Talent’s Channels, including any ad sales
against content contained therein, inclusion of advertising by ad networks,
advertising that may be included as part of live-streaming content, new units that
YouTube may make available or that FDN or Talent may devise, usage of
annotations and related features insofar as such usage may be part of an
advertising campaign, and the serving and monitoring of all campaigns. FDN will
collect all revenues generated from its work with the Talent’s Channels directly
(including, for example, through AdSense, Video AdSense, YouTube direct sales,
FDN's direct sales, or sales by any other party on the Talent’s Channels), and then
make payments to Talent in accordance with this Agreement (as set forth
below). FDN will have the right to turn YouTube's ad sales "off' (i.e. not allow
YouTube to sell the Talent’s Channels directly or through AdSense). Each party
acknowledges and agrees that Talent may have external advertising relationships
(“External Advertising Relationships”) that will be managed by Talent. In every
case, FDN will coordinate with Talent to work harmoniously with such External
Advertising Relationships.
6.2 Either party may sell 'branded integrations' or 'product placements'
(“Integration”) with respect to content on Talent’s YouTube Channels, provided
any such Integration and terms associated therewith are approved by Talent. The
parties will divide any such Integration revenue as agreed by the parties based on
factors such as each party’s contribution to originating and negotiating each
opportunity. The parties will endeavor to work together on mutually agreed
terms for any Integration. However, Talent may, at Talent’s discretion, execute
any External Advertising Relationship related to Integration without involvement
with FDN.
7. Action Fraud. Talent will not, and will not enable, allow or authorize any party to, directly
or indirectly, generate automated, fraudulent or otherwise invalid advertising actions. If,
in FDN's or YouTube’s determination, activity related to content on Talent’s YouTube
Channels is suspected or determined to be so-called "action fraud," "click fraud" or
"impression fraud," or fraud of any other kind, whether in any automated or human way,
by the use of a person, an automated script or a computer program to click on an any
form of response mechanism, annotation or advertising unit, or any other fraudulent
means, to increase impressions, skew results or imitate a legitimate user of a web
browser, for example, by clicking on an ad unit for the purpose of generating an
improper click value and generating revenue (collectively, "Action Fraud"), FDN may
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withhold any payments owed and have the right to terminate this Agreement
permanently, or until such time as the matter is resolved to FDN's satisfaction.
8. Access to Talent's YouTube Accounts/Reporting to Talent. Talent will provide FDN
with all necessary access and controls relating to the Talent’s Channels and to enable the
Talent’s Channels to become part of the Network in such manner as FDN considers
reasonable or necessary. Access will be limited only to FDN employees or contractors on
a need-to-know or need-to-use basis, and will only be used for purposes necessary to
further the subject matter of this Agreement (i.e., to monitor traffic, views, prepare
reports, check Ad Sense numbers, etc.). FDN agrees to provide Talent with a true and
correct version of the most then-current YouTube report FDN receives with respect to
Talent’s Channels, on no less than a monthly basis or as available to FDN from YouTube.
In addition, Talent reserves the right to confirm the accuracy of the FDN report directly
with YouTube provided such informational requests are conducted through and in
coordination with FDN and limited to no more than once per year. FDN agrees to
provide the Talent with real time revenue visibility within FDN’s proprietary dashboard.
9. Term/Termination/Survival. The term ("Term") of this Agreement will commence on
the Effective Date and continue perpetually unless terminated as set forth herein. Every
twelve (12) months the parties may mutually agree on a payment adjustment for the
Agreement. At any time either party may terminate this Agreement with 30 days written
notice for any reason or no reason. Upon any such termination, neither party will have
any further obligation, rights or duties to the other party, except: (a) that any
undisputed payments owed by FDN to Talent prior to the date of termination will still be
deemed payable in the manner provided in Section 4 above, and (b) those terms and
conditions of the Agreement intended by their nature to survive the termination of the
Agreement will survive termination of the Agreement.
10. Rights & Grants. Talent hereby grants to FDN, on a non-exclusive, worldwide and
royalty-free basis, any and all necessary rights and licenses it may need to perform in
accordance with the terms of this Agreement, including for example the right to use
her/his/its name, likeness, and logo, registered marks if any, names of properties, etc.,
and to represent FDN as representative of any ad inventory/ad units/sales opportunities
for the Talent’s Channels as set forth herein. Notwithstanding anything to the contrary
herein, Talent reserves all rights not granted herein, including the right to monetize
Talent’s intellectual property outside the scope of this Agreement.
11. Independent Responsibilities. Each party agrees that it will be fully responsible and
liable for its own content and any and all third party claims that may arise from its
properties, sites, and content. This Agreement confers no ownership or control and
does not constitute a 'partnership' or 'joint venture' within the legal/corporate meanings
of those terms. The parties remain independent of each other and maintain their
liabilities as their own.
12. Limited Confidentiality. Each party and its affiliates understand and acknowledge the
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terms of this Agreement are confidential. From time to time during the performance of
this Agreement each party may also receive certain information from the other party
marked confidential. Neither party and its affiliates will, without the express written
consent of the other, disclose any confidential information disclosed by one party to the
other and designated confidential to any third party, nor to any employees, contractors,
vendors, consultants or affiliates other than those employees who have an actual need
to know such information in order to perform their duties. The parties acknowledge and
agree that this Agreement may be made publicly available or available to third-parties.
13. Representations and Warranties; Covenants. Talent represents, warrants and agrees
that: (a) it has the full right and power to make and perform this Agreement without the
consent of any third party; (b) it has any and all necessary rights or clearances it may
need in connection with the Talent’s Channels (to the extent it would be necessary for
the specific use, i.e., display on YouTube); (c) that FDN's use of, and sale of advertising
on, the Talent’s Channels as set forth herein will not infringe on the rights of any person
or entity, defame any person or entity, or violate any right of publicity or privacy of any
person or entity; and (d) that Talent will not include in any Talent’s Channels any content
or materials that would violate any laws, rules or regulations, including YouTube's or
FDN's general rules, terms and policies.
14. Indemnity; Limitation on Liability.
14.1. Indemnity. Talent hereby agrees to indemnify and hold harmless FDN, its
shareholders, its affiliates, officers, directors, employees, agents, successors,
licensees and assigns, from and against any and all causes of action, claims,
damages, obligations, losses, liabilities, costs or debt, and expenses (including
but not limited to attorney's fees) (collectively, "Claims") arising out of any
breach by Talent of any of the obligations, agreements, representations and/or
warranties made hereunder or Talent’s negligence or willful misconduct.
14.2. Except with respect to breaches of section 12 (confidentiality) and
indemnification payments owed to third parties, fraud, gross negligence or willful
misconduct, fdn will not be liable to the talent for amounts in excess of that
payable by fdn to talent under section 4 of agreement, or otherwise for special,
consequential or incidental damages or for lost profits.
15. Assignment. Neither party may assign this Agreement without the prior written
permission of the other party, however, Talent understands and agrees that FDN may
freely assign this Agreement in the event of a sale of all or substantially all of its stock or
assets.
16. Miscellaneous.
16.1. Talent as Independent Contractor and Responsibility for Personnel. This
Agreement will not render the Talent an employee, partner, agent of, or joint
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venturer with the Company for any purpose. The Talent is and will remain an
independent contractor in relationship to the Company. FDN will not be
responsible for withholding taxes with respect to the Talent’s compensation
hereunder. The Talent will have no claim against the FDN hereunder or otherwise
for vacation pay, sick leave, retirement benefits, social security, worker’s
compensation, health or disability benefits, unemployment insurance benefits, or
employee benefits of any kind. Talent’s representatives and all personnel supplied
directly by Talent will be deemed employees or subcontractors of Talent and will
not be considered employees, agents or subcontractors of FDN for any purpose
whatsoever.
16.2. Choice of Law and Arbitration. this agreement will be construed under, and
governed by, the laws of hong kong without regard to its principles of choice of
law as if all transactions were conducted in hong kong and both parties hereby
submit and consent to the jurisdiction and venue of said process. the parties
agree that jurisdiction and venue for any legal proceedings arising from or in any
way connected to this agreement will lie in hong kong.
16.3. Severability. If any provision or clause of this Agreement or compliance by any of
the parties with any provision of this Agreement constitutes a violation of any
law, or is or becomes unenforceable or void, then such provision will be deemed
modified to the extent necessary so that it is no longer unenforceable.
16.4. Currency. All currency in this Agreement is expressed in United States Dollars.
16.5. Acceptance. For the convenience of the parties, the parties may signal
acceptance of this Agreement by electronic mail or such other means as may be
stipulated from time to time.
16.6. Entire Agreement. Once the Application has been accepted by FDN, this
Agreement between the parties, as of the Effective Date, supersedes any and all
prior written or oral agreements between the parties in connection with the
subject matter hereof. This Agreement may not be modified or amended except
in writing signed by the parties hereto (save for the addition of channels as
contemplated in Section 1, above, which may be affected by email).
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