FINANCIAL DISTRIBUTION AGREEMENT
Please read these terms and conditions very carefully before registering for the ClearBits content creator media distribution program (“Services”). The terms and conditions of this Distribution Agreement (“Agreement”) govern you providing content to Matson Systems, Inc. and its affiliates (“ClearBits”, “we”, or “us”) for possible inclusion in the Service. This Agreement between you (“you” or, if an entity, then “you” means that entity) and ClearBits, is subject to change by us as described below. By clicking the “I Accept” button below, you (i) accept this Agreement; (ii) agree to be bound by these terms and conditions; and (iii) have entered into a binding agreement between you and ClearBits. If you are entering into this Agreement on behalf of an entity, you represent that you have full legal authority to bind such entity to this Agreement.
1. Content. By entering into this Agreement, you are agreeing to provide us your content so that we may promote, exhibit, solicit financial contributions (“Sponsorship”) for your content subject to the terms of this Agreement. You will provide us content, in a digital form (“Content”). You will own all right, title and interest in and to your Content.
2. Non-Exclusive. This Agreement is non-exclusive, and may be terminated by either party at any time with 60 days written or email notice.
3. Use of Content. We may use your Content to perform the following services during the Term (as defined below) throughout the universe (“Territory”):
• We may make your Content available on http://www.clearbits.net (“clearbits.net”)
• We may enable peer-to-peer sharing of your Content using file sharing systems including, but not limited to, Bittorrent
4. Pricing. We reserve the exclusive right to ask for Sponsorship or set a price or no price for your Content on clearbits.net. In an effort to promote your Content and clearbits.net, we may from time to time offer our customers special discounts or promotions.
5. Payments. We will pay you the following for any Content for which we receive payment, including Sponsorship payments (“Payments”):
For all Content distributed through clearbits.net for which an Sponsorship is received from Non-paying Members and guests to the website.
85% of Payment received by ClearBits
For all Content distributed through clearbits.net for which an Sponsorship is received from Paying Members (>= $10/month).
100% of Payments received by ClearBits
6. Amendments. We may revise the terms of this Agreement by providing the new terms for you to accept or reject when you next log in to clearbits.net or by sending notice to you at your email address of record. You must accept or reject the new terms within 5 days from the date the notice was sent to you, by logging into clearbits.net or as otherwise designated by us, and accepting or rejecting the new terms. If you do not reject the new terms within the 5 day period, you will be deemed to have accepted and be bound by the new terms.
7. Removal of Content. We may, in our sole discretion and at any time (i) reject Content; or (ii) refuse to list, or remove, any Content from clearbits.net. We will notify you of all rejected or removed Content (which may be via e-mail). We will determine how to handle customer returns and disputes in our sole discretion.
8. Fees; Taxes.
a.Payment Terms. A Sponsorship will be deemed to have taken place at the time that a clearbits.net visitor or member assigns a Sponorship for the Content and we have received payment. We will pay you the Payments quarterly, within 30 days after the end of the quarter in which we receive payment, provided the total due from us exceeds $100.00. If the Payment during a quarter does not exceed $100, we shall pay you within 30 days of the end of each calendar year upon your request. If you have outstanding amounts payable hereunder, then we will have the right to set off such amounts against any Payments then payable.
b.Third Party Fees. You shall be responsible for residuals, royalties, reuse fees, mechanical rights fees or any other fees or costs of any kind required for use of any performance or composition contained in the Content.
c.Taxes. You will be responsible for determining taxes you owe on Payments you receive under this Agreement. You agree to pay all applicable taxes or charges imposed by any government entity in connection with this Agreement.
9. Licenses; Ownership.
a.Content. Subject to the terms of this Agreement, you grant to us a nonexclusive, worldwide license to (i) create digital versions of Content you provide in any format; (ii)create digital copies of your Content; (ii)distribute your Content through clearbits.net in digital form or using any other distribution mechanism now or hereafter devised; (iv) create promotional clips from your Content; and (v)distribute, display, transmit, perform and use the promotional clips and any descriptive materials to advertise and promote the Content in all media now or hereafter devised, including through clearbits.net;. In addition, we may use text from the Content, including creating or using closed caption text, subtitles, or transcripts as the basis for returning search results to visitors to clearbits.net and to display excerpts of such text. You further grant to us those rights and licenses necessary to technically effectuate the rights granted to us herein, including the right to reproduce and adapt the Content.
b.Related Parties; Ownership. We may sublicense the rights granted to us herein to any third party designated or engaged by us or acting on our behalf for purposes of fulfilling our obligations under this Agreement. Subject to the licenses set forth in this Section and the following sentence, and as between the parties, you own all right, title and interest in and to the Content. We will own all right, title and interest in and to the templates and other materials created, provided or used by us in the fulfillment of obligations in this Agreement, including all intellectual property rights therein.
10. Representations and Warranties. You represent and warrant that (i) you will comply with all laws, rules, regulations and orders regarding your performance hereunder; (ii) you have all right, power and authority to enter into this Agreement and perform your obligations hereunder; (iii) there shall be no defects in the chain-of-title to the Content, the screenplay or any other literary, musical or dramatic material upon which the Content are based; (iv) you are granting us the rights, licenses and authorizations hereunder free and clear of any encumbrances; (v) you have obtained all rights and permissions to grant the licenses hereunder that are necessary for us to exercise the rights granted under this Agreement; (vi) the Content (and our use thereof) are not defamatory, libelous, obscene, or otherwise illegal, do not invade any right of privacy, and do not infringe upon any intellectual property right or right of publicity of any third party, and any recipe, formula, or instruction contained in the Content is accurate and is not injurious to the user; (vii) the Content comply with all aspects of the Content Policy, as may be updated from time to time; (viii) the main and end Content, credit block and all descriptive materials and Content contain all necessary and proper credits for the actors, directors, writers and all other persons who are entitled to receive such credit and fully comply with all applicable contractual, guild, union and statutory requirements and agreements; (ix) all rights, clearances, consents and approvals necessary to the use and exploitation of all footage included in the Content are in place and you have written documentation to this effect with respect to all performers, contributors, persons or entities having performed services with respect to or appearing in the Content in a manner consistent with customary practices; and (x) you acknowledge the Content will be available as a Digital Video on clearbits.net, without the use of DRM.
Additional Terms and Conditions
11. Indemnification; Limitation of Liability.
a.Indemnification. You will indemnify, defend and hold us and our Affiliates (and the respective employees, directors and representatives of each) and any operator of clearbits.net harmless from and against any and all claims, judgments, damages and expenses (including reasonable attorneys’ fees) (“Claims”) to the extent that such Claim arises out of any breach or alleged breach by you of this Agreement, including breach of the representations and warranties contained herein. If you have any reason to think that an infringement claim may occur with respect to any Content, you will immediately notify us in writing.
b.General Limitations. CLEARBITS (INCLUDING ITS AFFILIATES) WILL NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR ANY OTHER CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF CLEARBITS HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. LEGALTORRENT’S (INCLUDING ITS AFFILIATES’) AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED THE LESSER OF (i) $1,000, OR (ii) THE PAYMENTS PAID TO YOU AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
12.Termination. upon termination: (i) we may fulfill any pending customer orders; and (ii) we may continue to maintain digital copies of your Content in order to provide "refresh" copies or otherwise support customers who have received Content prior to termination. Sections 9, 10, 11, 12, and 13 shall survive the termination of this Agreement.
a.Relationship of the Parties; Publicity. Nothing contained in this Agreement will create a partnership, joint venture, or agency relationship between the parties. The parties will act as independent contractors hereunder, and neither will have the authority to bind the other with respect to any third party. You may disclose that your Content is available on clearbits.net and you may otherwise reference ClearBits, provided all references must be truthful and accurate. Upon notice from us you agree that you will remove any references that we determine are harmful or otherwise improper. You may not issue press releases without prior written consent relating to us, Affiliates, clearbits.net, or this Agreement (or any trade name, trademark, service mark, logo, commercial symbol, or any other proprietary right) in any materials. We may issue notification to our membership and press releases regarding you and the Content in our discretion and you further agree that we may include your name, trade name and logo on publicly displayed customer lists and the clearbits.net website.
b.Assignment; No Assurances. You may not assign any of your rights or obligations under this Agreement without our prior written consent. Any attempted assignment will be void. You acknowledge and agree that we are not making any assurance, and you have no assurance, that we will sell any number of Content under this Agreement. We make no promise or representation that we will exercise any right granted herein for any Content or any portion thereof.
c.Notices. Any notice hereunder will be in writing. Notice is effective: (i) when delivered personally; (ii) three business days after sending by certified mail; (iii) on the business day after sending by a nationally recognized courier service; (iv) on the business day after sending by facsimile with electronic confirmation to the sender; or (e) if to you via the email address provided by you. Either party may change the addresses specified in this Section by giving the other party notice in accordance with this Section.
d.Governing Law; Jurisdiction. This Agreement will be governed by the laws of the State of California, without reference to its conflicts of law provisions. You irrevocably submit to venue and exclusive personal jurisdiction in the federal and state courts in Santa Clara County, California, for any dispute arising out of this Agreement, and waive all objections to jurisdiction and venue of such courts.
e.Waiver; Severability; Rights; Construction. The failure of either party to enforce any provision of this Agreement will not constitute a waiver of the party’s rights to subsequently enforce the provision. If any provision of this Agreement is determined by any court or governmental authority to be unenforceable, the parties intend that this Agreement be enforced as if the unenforceable provisions were not present and that any partially valid and enforceable provisions be enforced to the extent that they are enforceable. In resolving any dispute or construing any term hereof, there will be no presumptions made or inferences drawn: (i)because one of the parties drafted the Agreement; or (ii)because of the drafting history of the Agreement.
f.Force Majeure. We will not be liable or otherwise responsible to you or any third party for any delay, default, or failure of performance arising out of any reasonably unforeseeable act, matter, cause, contingency or circumstance beyond our control, including, without limitation, any acts of God, third party acts or governmental action.
g.Passwords. Your password for clearbits.net may be used only to access clearbits.net, use the Services, electronically set up your Content, and review any reports or other features we make available to you. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party and are solely responsible for any use of or action taken under your password on the clearbits.net.
h.Entire Agreement. This Agreement, together with all policies, which are incorporated by this reference, constitutes the complete and final agreement of the parties pertaining to the subject matter of this Agreement and supersedes the parties’ prior agreements, understandings, and discussions related to the subject matter of this Agreement. No modification of this Agreement by you will be binding unless it is in writing and signed by us.