APPLICATION SERVICES AGREEMENT
CONFERENCECAST, Inc., a Delaware corporation (the “Company”) has created an application, located at ConferenceCast.tv (the “Application”), which allows users to upload, display, and stream video content, including, but not limited to, video recordings of reports, speeches, presentations, classes, workshops, training sessions, conducted at various trade and professional conferences, workshops and other equivalent events (the “Content”).
The undersigned (the “User”) desires to utilize the Application in order to stream the Content, which either belongs to the User, or which the User has licensed, on an exclusive basis (the “User Content”) to User’s customers and/or followers (the “User Customers”), and the Company desires to let the User utilize the Application in order to stream the User Content to the User Customers.
The following CONFERENCECAST APPLICATION SERVICES AGREEMENT (this “Agreement”) outlines the terms pursuant to which the User can utilize the Application. By clicking on the I AGREE button in the User’s personalized control panel within the Application, the User agrees to be bound by, and to perform and observe, the terms and conditions of this Agreement.
Section 1. APPLICATION SERVICES
- The User shall be required to setup a user account in the Application by providing the following information: Business name, Phone number, contact email, website URL. Upon setting up a user account in the Application, the User shall be provided with a personalized control panel, a profile within the Application, which shall contain the following: any and all of the User Content uploaded by User or the Company to the Application and made available to User Customers, as well as the Content description and management tools, enabling the User to provide access to the User Content to the User Customers via the Application, access settings for the User Content (prices, discount programs and prepaid access programs), end-user statistics, information about the User, and User’s compensation terms.
- The User is hereby granted a limited, non-exclusive, non-transferable, revocable, cancellable license to use the Application in order to (i) upload the User Content to the Application, and publish it through the Application to the Application’s end-users, and (ii) stream, reproduce, or display by use of any medium such uploaded User Content to the end-users of the Application, including, but not limited to, the User Customers, and (iii) install on the User’s website a widget for the Application, which shall be connected to the User’s control panel within the Application, allowing the User to stream the User Content directly to the User’s website. The User shall not use the Application in any other way or manner except as otherwise explicitly allowed by the terms of this Agreement.
- The User hereby grants to the Company a non-exclusive, transferable, revocable, cancellable license to (i) stream, reproduce, and display by use of any medium uploaded User Content to end-users of the Application, and (ii) modify and create derivative works of the User Content in order to produce short previews of the video recordings, which could be used to promote the Content to end-users of the Application, or for inclusion in composite video recordings.
- The Company may produce short preview video recordings for the User Content, which can be used to promote the Content to end-users of the Application, and/or to the User Customers.
- The User shall at all times during the term of this Agreement comply with each and every provision of the Company’s Terms of Service, a copy of which can be found at https://docs.conferencecast.tv/tos.html (the “TOS”). In the event of conflict between the terms of this Agreement, and the terms of the TOS, the terms of this Agreement shall prevail.
- In the event the User Content contains a reference to the User, or the User’s name, such attribution shall be presented to end-users of the Application in accordance with the preferences and specifications of the User.
- The Company shall (A) provide end-users with access to streaming the Content, either free of charge or for a fee, to be set by the User, in User’s sole discretion, except as otherwise provided for in this Section 1, (B) inform regularly the User of the Application end-users’ statistics vis-à-vis the User Content, and the amount of fees collected from end-users for streaming the User Content, and (C) transfer to the User, upon request, and with prior consent of end-users, any and all personal data received from the end-users streaming the User Content, including directly through the Application, or by utilizing the widget, installed on the User’s website.
- The User covenants and agrees to (A) provide the uploaded User Content with correct description, including, bun limited to, names of the uploaded video recordings, key search terms and words, as well as other necessary requisites, (B) notify the Company in writing within three business in the event that the User loses User’s legal rights to any of the video recordings comprising the User Content, and (C) where the User is not the exclusive, legal owner of the video recordings comprising the User Content, to provide competent evidentiary and documentary support that the User has the right to upload the User Content at issue.
- The Company may (A) modify any description of the User Content, or the keywords associated therewith, as provided by the User, in order to make the Content more visible and/or attractive to end-users of the Application, (B) remove the Content from the Application, in the event of breach of the material terms of this Agreement by the User, and (C) remove any Commercially Unattractive Content, upon one (1) week prior written notice to the User, where “Commercially Unattractive Content” is defined as Content, which has been streamed less than three (3) times within six (6) months from the date such Content was uploaded to the Application, and published by the User.
Section 2. COMPENSATION
- The User Content shall generate revenue in three distinct ways: (A) streaming of the User Content through the Application for direct payment to the Company, (B) streaming of the User Content through the User’s website, utilizing the Company’s widget, for payment to the Company, and (C) streaming of the User Content through the Application for prepaid payment to the User (collectively, the “Revenue”).
- The Company and the User shall share the Revenue in accordance with the percentage shares as reflected in the User’s personalized control panel within the Application.
- Except as otherwise set forth below, the Company shall collect any and all Revenue it receives from the end-users of the Application, and shall transfer the User Revenue to the User in accordance with the provisions of this Agreement. During the term of this Agreement, the Company shall transfer any and all User Revenue collected over the previous calendar month during the first five (5) business days of the subsequent calendar month; provided, however, that if the amount of the User Revenue to be transferred hereunder is less than one hundred dollars ($100), in the aggregate, than the transfer shall be deferred until the next calendar month.
- From time to time, the User may request the Company to issue a special, pre-payment code, which grants the right to access the Application, and stream and view the User Content. The User may then distribute such code to the User Customers, upon receipt by the User of payment for said code from the User Customer. For each such pre-paid code being applied to access the Application and view the User Content, the User shall owe to the Company the amount of Company Revenue such code generated. At the time of transfer of User Revenue, as set forth above, the Company shall account for all of the prepaid codes applied during the previous calendar month, and shall credit and offset the aggregate amount of Company Revenue owed by the User to the Company against the aggregate amount of User Revenue owed by the Company to the User; provided, however, that if there is a deficit, the Company shall invoice the User for the deficit amount, which the User shall be required to pay within five (5) business days from the date of receipt of the invoice. Notwithstanding anything contrary to herein, if the amount of the Company Revenue to be paid by the User hereunder is less than one hundred dollars ($100), than the payment shall be deferred until the next calendar month.
- Although the price of access to the video recording comprising the User Content shall be set initially in accordance with the User’s requirements and sole discretion, the Company shall have the right to reduce the price upon prior written approval with the User for such access to a particular video recording comprising the User Content after a certain period of time elapses from the date such video recording is uploaded to, and published on, the Application in accordance with the following schedule: (A) upon expiration of six (6) months from such publication date, up to thirty percent (30%) of the initial price, (B) upon expiration of one (1) year, up to fifty percent (50%) of the initial price, (C) upon expiration of two (2) years, up to ninety percent (90%) of the initial price, and (D) upon expiration of three (3) or more years, up to ninety nine percent (99%) of the initial price. The Company shall notify the User of the price reduction in writing, and if the User fails to provide a reasonable objection within seven (7) business days from the date of receipt, the Company shall be entitled to go forward with the proposed price reduction. Notwithstanding anything contrary to in this Section, in order to expand the audience of end-users of the Application and/or increase the overall popularity of the User Content, the Company shall be entitled to reduce the price for end-user access to the video recordings comprising the User Content up to thirty percent (30%) of the then current price of access without the consent or prior written notice to the User; provided, however, that such reduction shall not be in effect for longer than sixty (60) business days.
Section 3. NATURE OF RELATIONSHIP
The User’s relationship with the Company is that of an independent contractor, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture, joint employment, or employment relationship.
Section 4. CONFIDENTIAL INFORMATION AND IP OWNERSHIP
- “Confidential Information” as used in this Agreement shall mean any and all business-related information disclosed by the one party hereto to the other in connection with the performance of this Agreement, including, without limitation, any trade secret, financial, business, and proprietary information, techniques, models, inventions, know-how, processes, algorithms, programs, formulas, source and object code, documents, customer preferences, product plans, and customer or vendor lists.
- The parties shall use the Confidential Information solely to perform their obligations hereunder, for the benefit of the other party. The receiving party agrees that, except with the disclosing party’s prior written permission, the receiving party shall not, directly or indirectly, use, disclose, reproduce, distribute, reverse engineer, or otherwise appropriate or misappropriate any Confidential Information, in whole or in part, and shall take no action that may cause, or fail to take any action necessary to prevent causing, any Confidential Information to lose its character as Confidential Information. The receiving party shall treat all of the Confidential Information with the same degree of care as the receiving party accords to the receiving party’s own confidential information, but, in any event, no less than reasonable care. The receiving party shall immediately give notice to the disclosing party of any unauthorized use or disclosure of the Confidential Information. The receiving party shall assist the disclosing party in remedying any such unauthorized use or disclosure of the Confidential Information.
- Notwithstanding the obligations set forth in Section 4(b), the Confidential Information shall not include information that the receiving party can prove (i) was generally available to the public, (ii) was known to the receiving party, without restriction, at the time of disclosure by the disclosing party, (iii) is disclosed by the prior written approval of the disclosing party, (iv) was independently developed by the receiving party without any use of the Confidential Information, (v) becomes known to the receiving party, without restriction, from a source other than the disclosing party without a duty of confidentiality to the Company, or (vi) is disclosed in response to an order or requirement of a court, administrative agency, or other government body; provided, however, that (A) the User must himself vigorously oppose the disclosure and provide prompt advance notice of the proposed disclosure to the Company to enable it to appear and contest the disclosure or obtain a protective order or other confidential treatment for the Confidential Information; and (B) any of the Confidential Information so disclosed shall otherwise remain subject to the provisions of this Section 4. The burden of proof in establishing that any of the Confidential Information is subject to any of the foregoing exceptions shall be borne by the receiving party. The receiving party may disclose Confidential Information to employees or agents under the control of the receiving party who have a need to access such information in connection with performance of this Agreement, and who have, as a condition of their engagement with the receiving party or accessing the Confidential Information, agreed to confidentiality obligations at least as restrictive as the obligations set forth in this Section 4.
- The Application, and any and all of the intellectual property comprising the Application, shall remain the sole property of the Company, and the User shall own no right to, or title therein whatsoever, except as otherwise explicitly set forth herein. The Company shall own no right or title to the User Content, except as otherwise provided for in this Agreement.
- The User acknowledges and agrees that the Company’s remedy at law for a breach or threatened breach of any of the User’s obligations under Section 4 of this Agreement would be inadequate and, in recognition of this fact, in the event of a breach or threatened breach by the User of any of the obligations under Section 4 of this Agreement, the User agrees that, in addition to its remedy at law, at the Company’s election, it shall be entitled without posting any bond to obtain, and the User agrees not to oppose a request for, equitable relief in the form of specific performance, temporary restraining order, temporary, preliminary, or permanent injunction, or any other equitable remedy which may then be available. Nothing contained in this Section 4(e) shall be construed as prohibiting the Company from pursuing, in addition, any other remedies available to it for such breach or threatened breach.
Section 5. USER’S REPRESENTATIONS AND WARRANTIES
The User hereby represents and warrants to the Company that the User (a) is the sole, exclusive owner of any and all title to, or interest in, the Content, or has the exclusive, legal right to upload the User Content to the Application, and enter into this Agreement, (b) the User Content does not contain any material that is illegal in any way, or violates the rights of any third party, (c) has the right, power and authority to enter into and perform this Agreement, without violating any third party rights, (d) will comply with all the relevant, applicable laws and regulations in the course of performance of this Agreement, and (e) will comply at all times during the term of this Agreement and in all respects with the provisions of the TOS.
Section 6. INDEMNIFICATION
The User shall indemnify and hold harmless the Company, its officers, directors, shareholders, employees, agents, contractors and invitees (collectively, the “Company Indemnitees”) from and against all claims, judgments, liabilities, losses, injuries and damages of every nature (including attorney’s fees) caused by (i) the User’s breach of any of the terms or provisions of this Agreement, including, without limitation, the User’s representations and warranties set forth herein, and (ii) a claim that the User Content infringes the intellectual property rights or violates any other property rights of a third party. The Company and the User shall promptly notify each other of any such claims, defenses, damages, expenses, costs, and liabilities, and shall cooperate with each other in every reasonable way to facilitate the settlement, defense, and/or mitigation of the same in every reasonable way to facilitate the settlement or defense of the same. The User shall, at [his/her] own expense, indemnify, defend and hold harmless the Company Indemnitees from and against all costs of defending, settling, and/or mitigating such claims, defenses, damages, expenses, costs, and liabilities, including reasonable legal fees and expenses (including those incurred by the Company Indemnitees in enforcing this indemnification provision). The User shall keep the Company informed of, and consult with the Company in connection with the progress of any litigation, settlements, settlement negotiations, and/or mitigation efforts. The User shall not have any right, without the Company Indemnitees’ written consent, to settle any such claim unless such settlement includes a full release of the Company Indemnitees and all other conditions of this Section have been satisfied by the User.
Section 7. TERM AND TERMINATION
- This Agreement shall be effective as of the Effective Date and shall continue for a period of one (1) year from the Effective Date. Unless one of the parties provides the other party with written notice of non-renewal, at least thirty days from the date of first yearly anniversary of the Effective Date, the Agreement shall renew for another one (1) year term, and shall continue renewing for subsequent one (1) year terms, until one of the parties provides the other with a written notice of non-renewal, in accordance with the terms of this Section 7(a).
- This Agreement may be terminated (i) by mutual agreement between both parties, or (ii) by either party to this Agreement, upon written notice to the other party if the other party breaches any material provision of this Agreement, or of the User TOU, and fails to cure such breach within thirty (30) days after receipt of written notice of such breach. Notwithstanding the foregoing, in case of breach by the User of any of the provisions of Sections 4 or 5 of this Agreement, the Company may, at its own option, terminate this Agreement immediately. The election by the Company to terminate this Agreement shall not be deemed an election of remedies, and all other remedies provided by this Agreement or available at law or in equity shall survive any such termination.
- The Company shall discontinue access through the Application to any of the User Content as of the date of termination of the Agreement.
- Notwithstanding any other provision herein, the provisions of Sections 4 through 10 shall survive any termination or expiration of this Agreement.
Section 8. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY, ITS DIRECTORS, EMPLOYEES AND AGENTS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, ECONOMIC LOSS, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE ARISING OUT OF, OR IN CONNECTION WITH ANY BREACH OF CONTRACT OR ANY TORT (INCLUDING NEGLIGENCE, MISREPRESENTATION, ANY STRICT LIABILITY OBLIGATION OR DUTY), OR ANY BREACH OF STATUTORY DUTY, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY TO THE USER UNDER THIS AGREEMENT EXCEED THE AMOUNT OF COMPENSATION PAID BY THE COMPANY TO THE USER PURSUANT TO THE TERMS OF THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF INJURY AT ISSUE.
Section 9. ARBITRATION
Any action to enforce or interpret this Agreement, or to resolve disputes with respect to this Agreement, shall be settled by binding arbitration in accordance with the rules of the American Arbitration Association. Any party may commence arbitration by sending a written demand for arbitration to the other parties. Such demand shall set forth the nature of the matter to be resolved by arbitration. The place of arbitration shall be New York, New York. The substantive law of the State of New York shall be applied by the arbitrator to the resolution of the dispute. The parties shall share equally all initial costs of arbitration. The prevailing party shall be entitled to reimbursement of attorney fees, costs, and expenses, including initial costs of arbitration, incurred in connection with the arbitration as determined fair and reasonable by the arbitrator. All decisions of the arbitrator shall be final, binding, and conclusive on all parties. Judgment may be entered upon any such decision in accordance with applicable law in any court having jurisdiction thereof. The arbitrator (if permitted under applicable law) or such court may issue a writ of execution to enforce the arbitrator’s decision.
Section 10. MISCELLANEOUS PROVISIONS
- The provisions of this Agreement shall be binding upon and inure to the benefit of the heirs, personal representatives, successors, and assigns of the parties.
- Any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be deemed given: (i) when sent by facsimile or electronic mail, with a confirmation page or printout of the electronic mail, (ii) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iii) one (1) working day after deposit with a commercial overnight carrier, with written verification of receipt. All communications shall be sent to the contact information as may be designated by a party by giving written notice to the other party pursuant to this Section 10(b).
- This Agreement may be amended or modified only in writing signed by both of the parties hereto.
- No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
- If any provision of this Agreement, or its application to any person, place or circumstance, is held by a court of competent jurisdiction, if applicable, to be invalid, unenforceable or void, such provision will be enforced to the greatest extent permitted by law, and the remainder of this Agreement and such provision as applied to other persons, places and circumstances will remain in full force and effect.
- This Agreement constitutes the entire contract among the parties hereto with regard to the subject matter hereof.
- This Agreement shall be governed by and shall be construed in accordance with the laws of the State of Delaware.
By clicking on the “I ACCEPT” button in the User’s personalized control panel within the Application, the User agrees to be bound by, and to perform and observe, the terms and conditions of this Agreement and it’s future revisions and updates that will be published and can be accessed at any time at the following link: https://docs.conferencecast.tv/application_service_agreement.html.
The failure to deliver originally signed copy of this Agreement shall have no effect upon the binding and enforceable nature of this Agreement.
- The attachments such as exhibits, schedules and annexes attached to this Agreement are incorporated herein and shall be considered a part of this Agreement for the purposes stated herein, except that in the event of any conflict between any of the provisions of such exhibits and the provisions of this Agreement, the provisions of this Agreement shall prevail.