Smores.tv Content Creator Agreement
Last updated: July 19, 2018
This Content Creator Agreement (the "Agreement"), is effective immediately upon your account approval by Adscend Media LLC, is made by and between Adscend Media, LLC, a limited liability company formed under the laws of the State of Delaware (“Adscend” or “Licensee”) and yourself or the entity you represent which is applying as a content creator (“Creator”). Adscend and Creator may be individually referred to as a “Party” and jointly as the “Parties.”
WHEREAS, Creator is the owner of all right, title and interest in the Work (as defined in the attached Schedule A below and as referred to herein as the “Creator Video(s)”) and wishes to grant to Adscend a license to use the Creator Video(s), and Adscend wishes to obtain a license to the Creator Video(s) for the uses and purposes described herein, each subject to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
a. Grant of Rights. Subject to the terms and conditions of this Agreement, Creator hereby grants to Adscend during the Term (as defined below) a non-exclusive, non-transferable, non-sublicensable license worldwide (the "Territory"), to use, publish, display, transmit, and distribute the Licensed Video solely through Adscend’s Smores.tv platform (the “Platform”) in connection with Adscend’s business of promoting and advertising the goods and services of others.
b. Reservation of Rights. Creator reserves all rights not expressly granted to Adscend under this Agreement. No use by Creator of the Licensed Video in any medium or manner will be deemed to interfere with the limited permissions made to Adscend by Creator herein.
c. Modifications. Adscend shall not translate, recast, edit, alter, modify, or create any derivative works of or from the Licensed Video unless specifically approved in writing by Creator in advance.
2. Payment. As consideration in full for the rights granted herein, Adscend shall pay Creator the amount under the terms set forth in Schedule A hereto.
3. Acknowledgement of Ownership. Except for the licenses expressly granted to Adscend in this Agreement, Adscend acknowledges that all right, title, and interest in and to the Licensed Video are owned by Creator.
4. The Licensed Video shall not contain, incorporate or uses any images, data, software, content, music, copyrights, trademarks, patents or other intellectual property owned by a third party (collectively, “Third Party Intellectual Property”). Creator warrants and represents that it owns or has obtained all necessary licenses and consents with respect to the Licensed Video’s use of Third Party Intellectual Property and that such licenses and contents permit Adscend to use, publish, display, transmit, and distribute Third Party Intellectual Property in conjunction with the Licensed Video pursuant to the terms of this Agreement without the payment of any additional fees or royalties to any party, including without limitation, Creator.
5. Creator acknowledges and agrees that Creator is solely responsible for (i) any breach of Creator’s obligations to third parties with respect to Third Party Intellectual Property and (ii) any claims that the Licensed Video or Adscend’s use, publication, display, transmittal or distribution of the Licensed Video infringes or otherwise violates a third party’s intellectual property rights. Creator shall fully indemnify and hold Adscend harmless with respect to all damages and costs, including attorney’s fees, related to any claim, demand or assertion relating to (x) Creator’s alleged breach of Creator’s obligations to third parties with respect to Third Party Intellectual Property and (y) Creator’s and/or the Licensed Video’s infringement or violation of a third party’s intellectual property or other rights.
6. Representations and Warranties
a. Mutual Representations and Warranties
. Each party represents and warrants to the other party that:
i. it is duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the laws of its jurisdiction of incorporation or organization;
ii. it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder;
iii. the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary organizational action of the party; and
iv. when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
b. Creator's Representations and Warranties. Creator represents and warrants, solely to and for the benefit of Adscend, that it owns the Licensed Video in connection with Adscend's uses permitted hereunder in the Territory.
a. Creator shall defend, indemnify, and hold harmless Adscend, its officers, directors, members, agents, employees, contractors, suppliers, successors and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney’s fees and expenses) arising from or related to the Licensed Video or any actual or alleged breach of any of provision this Agreement by Creator (collectively, the “Indemnified Claims”). Without limiting Creator’s indemnification obligations herein, Adscend reserves the right to assume the exclusive defense and control of the Indemnified Claims. No settlement may be consummated of any Indemnified Claims without Adscend’s express written authorization, which shall not be unreasonably withheld.
b. Notification of Legal Action. Creator shall immediately notify Adscend of any current, impending, or potential legal action against it by a third party for matters relating to the development, distribution and/or use of Creator’s application.
8. Term and Termination
a. The term of this Agreement commences as of the Effective Date and shall be for the term set forth in Schedule A hereto (the "Term").
b. Adscend may terminate this Agreement at any time without cause by providing at least 30 days' prior written notice to Creator.
c. Either party may terminate this Agreement on written notice to the other party if the other party materially breaches this Agreement and fails to cure such breach within 30 days after receiving written notice thereof.
d. Either Party may terminate this Agreement by written notice to the other Party if the other party: (a) becomes insolvent or admits its inability to pay its debts generally as they become due; (b) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 days after filing; (c) is dissolved or liquidated or takes any corporate action for such purpose; (d) makes a general assignment for the benefit of creditors; or (e) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
9. Upon the expiration or termination of this Agreement for any reason, all rights licensed under this Agreement will revert immediately to Creator and, subject to the Wind-Down Period as expressly permitted below, Adscend shall cause to be inactivated and shall erase all digital copies of the Licensed Video in its control and possession and return or, at Creator's written request, destroy, any tangible copies of the Licensed Video.
10. Surviving Rights. ny rights or obligations of the parties in this Agreement which, by their nature, should survive termination or expiration of this Agreement will survive any such termination or expiration, including the rights and obligations set forth in this Section
a. Interpretation. For purposes of this Agreement, (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole. This Agreement is intended to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
b. Entire Agreement. This Agreement, including and together with any related attachments, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
c. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect the enforceability of any other term or provision of this Agreement, or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify this Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
d. Assignment. ANeither Party shall assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other Party. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
e. Choice of Law; Venue. This Agreement and all matters arising out of or relating to this Agreement, including tort and statutory claims are governed by the laws of the State of New York, including its statutes of limitations and applicable choice of law statutes, without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. Either party shall institute any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or state courts in each case located in New York County, New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any legal suit, action, or proceeding.
f. Relationship of the Parties. AThis relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party has authority to contract for or bind the other party in any manner whatsoever.
g. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any third party any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
h. Amendment and Modification. No amendment or modification to this Agreement is effective unless it is in writing and signed by an authorized representative of each party.
i. Waiver. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
j. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.