Channel Affiliate Agreement This Channel Affiliate Agreement

16 Pages·2014·0.21 MB·English

Channel AffiliateAgreement
This Channel AffiliateAgreement(“Agreement”) is entered into by and between
Machinima, Inc. (“Machinima”), located at 8441 Santa Monica Blvd, West Hollywood California 90069
and the party listed below (“Affiliate”)as of the Effective Date indicated below. This Agreement
incorporates the standardterms and conditions attached hereto as Exhibit A(the “Terms and
Conditions”) as well the contents of this cover sheet (“Cover Sheet”). Capitalized terms used herein
and not otherwise defined shall have the meanings assigned to such terms in the Terms and Conditions.
In the event of any conflict between this Cover Sheetand the Terms and Conditions, thisCover Sheet
shall control.
For good and valuable consideration (the receipt and sufficiency of which is hereby
acknowledged by the parties hereto), the parties hereto hereby agree as follows:
Effective Date
AffiliateName and Name:
Address
Address:
Email:
Phone:
Overview Affiliatemanages the Affiliate Content Channel(s) (defined below)and is the
producer/creator/authorized licensee of content that appears therein. Affiliate
desires, in exchange forthe payment to Affiliate of the amountspayable hereunder, for
the Affiliate Content Channel(s)to become part of the distribution network owned or
controlled by Machinima or through which Machinima distributes content (the
“Machinima Distribution Network”). Affiliate understands that Machinimahas
invested significant time, money and skills to help Affiliates in the Machinima
Distribution Network increase their views, realize broader distribution, improve total
monetization and operationalize best practices related to online content distribution,
creation and monetization.
Affiliate Content “Affiliate Content Channel(s)” means the channels currently located at:
Channel(s) weemcast
www.youtube.com/______________
The “Affiliate Content Channel(s)” will also automatically include channels or URLs that
refer back to the Affiliate Content Channels and, at Machinima’s election, any
substantially similar YouTube or such other applicable video distribution partner
channels launched by Affiliate prior to or during the Term (e.g., featuring the same or
similar subject matter or content, Affiliate’s name, channel name or trademark or logo).
Exclusive Rights: During the Term, Affiliate hereby grants to Machinima the exclusive right to represent,
Advertising sell, and manage any and all ad inventory and sponsorships on the Affiliate Content
Channel(s) and the content contained thereon (other than through the independent,
direct sales efforts, if any, of Machinima’s video distribution platforms or networks,
including, without limitation, YouTube), including but not limited to any ad sales or
sponsorship opportunities displayed in connection with any form of content contained
therein, inclusion of advertising by ad networks, advertising that may be included as
part of live-streaming content, new units that Machinima’s video distribution platforms
or networks may make available or that Machinima or Affiliate may devise, usage of
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annotations and related features insofar as such usage may be part of an advertising or
promotional campaign, and the serving and monitoring of all campaigns (including by
use of tracking services or technologies, which may, for example, involve the placement
of ‘pixels’, etc.). Machinima shall have the right to sublicense any of the foregoing rights
to any third party or engage any third party to perform such rights on this behalf.
Exclusive Rights: During the Term of this Agreement, Affiliate grants to Machinima the exclusive right to:
Branded (i) sell so-called ‘branded integrations’ or ‘product placements’ with respect to content
Integrations and on Affiliate Content Channel(s); provided that any such opportunity and terms
Distribution associated therewith are approved by Affiliate and (ii) except as otherwise provided in
the “Exclusivity” section below, distribute the Affiliate Content Channel(s) and the
content thereon through any video distribution platform or network, via any means
(whether through advertiser supported video on demand, subscription video on
demand or otherwise) or method (whether through a link, an embedded video player
or otherwise)of distribution, throughout the world, and on any device, platform or
outlet.
Method of Payment Unless otherwise agreed to by Affiliate and Machinima or Machinima no longer offers a
method of payment, all payments shall be paid via the following method of delivery:
☐Direct Deposit (US Only) –attach a copy of a voided check
The following payment methods may be subject to bank processing fees:
☐Wire Transfer(International Only) -Information to be provided separately by
Affiliate
☐Other (International Only):_________________________________________________________
YouTube VOD For each month during the Term, Machinima shall pay to Affiliate _8_0____%of Net
Compensation: Revenue (as defined in Section 4.1of the Terms and Conditions)(the “YouTube VOD
Revenue Share”),with respect to allvideo-on-demand content (including Recorded
Live Stream Content(as defined below)) (“VOD Content”) on Affiliate Content
Channel(s) on YouTube; provided however, that, until such time as YouTube has
provided Machinima the ability to calculate the Net Revenue generated by a recorded,
unaltered version of an itemof Live Stream Content (“Recorded Live Stream
Content”) as a separate itemof contentfrom such item ofLive Stream Content, then
the Recorded Live Stream Contentshall be deemed “Live Stream Content” for purposes
of this Agreement and excluded from the definition of “VOD Content”.
YouTube Live “Live Stream Content” means, collectively, real-time or near real-time, streaming of
Stream “live” content of any kind, including commentary, discussion, game play, e-sports, etc.
Compensation Exclusively
During the Term, Affiliate shall live stream all of its Live Stream Content ________________
on the Affiliate Content Channel(s) (or on such other Machinima controlled channel or
platform as mutually agreed upon by Machinima and Affiliate) during the Term. For
each month during the Term, Machinima shall pay to Affiliate _6_0____%of Net Revenue
(“YouTube LiveStream Revenue Share”) generated in connection with distribution
of the Affiliate’s Live Stream Contenton YouTube.
All Other Platforms For each month during the Term, Machinima shall pay to Affiliate 50%of Net Revenue
Compensation (the “Other Platform Revenue Share”) with respect to allVOD Content and Live
Stream Content that is displayed on Affiliate Content Channel(s) and that is exploited
on a distribution platform or network other than YouTube (e.g., Machinima’s Xbox
application or iOS applications).
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Advertising Units Affiliatemust activate and turn on alladvertisingunits thatYouTubeor such other
applicable video distribution platform or network makes available on eachitem of
video contenton the AffiliateContent Channel(s).In the event that Affiliate fails to
activate and turn on alladvertisingunits madeavailable on anitem of video content,
Affiliate authorizes Machinima to activate and turn on such advertising units on behalf
of Affiliateand Machinima shall have no obligation to pay any amounts owed with
respect to such item of video content while such advertising units were not activated.
Payment Terms As more fully set forth in Section 4.2of the Terms and Conditions:
At the end of each calendar month, Machinima shall calculate the aggregate (i) YouTube
VOD Revenue Share, (ii)YouTube Live Stream Revenue Sharepayable to Affiliate with
respect to such month. Machinima shall pay Affiliatethe aggregate amountowed
hereunder within forty-five (45) business days following the end of suchmonth.
At the end of each calendar month (or such longer period as may be required or
necessitated by the applicable distribution platform or network’s reporting and
payment procedures), Machinima shall calculate the aggregate Other PlatformRevenue
Share payable to Affiliate with respect to period. Machinima shall pay Affiliatethe
aggregate amountowed hereunder within forty five(45) business days following the
end of suchperiod.
In the event that any payment for a period due to Affiliate is less than $100, Machinima
shall have the right to defer payment of such amount until such time as the amount
owed to Affiliate is greater than $100.
1 Years
Term The “Initial Term” means_____________.
Each Extension Term following the Initial Term will be 12 months.
With respect to each Extension Term, the notice period for non-renewalis 60days.
Exclusivity In exchange for Machinima’s agreement to pay the payments described above, Affiliate
acknowledges and agrees that during the Term, with respect to any video content that
is exhibited, distributed or exploited on the Affiliate Content Channel(s), it shall not
exhibit, distribute or exploit any such video content through any third party or
application, whether through advertiser supported video on demand, subscription
video on demand or otherwise, other than (i) on the Affiliate Content Channel(s) or (ii)
through a link to the Affiliate Content Channel(s), or embedded YouTube player
distributing the Affiliate Content Channel(s), on the Affiliate’s personal Facebook
account, Google + page, Twitter account or website (if and as agreed to byMachinima).
In addition, Affiliate agrees that during the Term, it shall not license to, or enter any
agreement to produce a work made for hire for or otherwise assign or transfer to, any
direct competitor of Machinima (for example, IGN, MakerStudios, Break, Fullscreen,
Curse, Twitch) any video content or, except as otherwise permitted by clause (ii) of the
foregoing sentence, permit any third party other than YouTube or Machinima to
distribute the Affiliate Content Channel(s).
Affiliate understands and agrees that neither Affiliate nor any third party (other than
Machinima, its sublicensees, agents ortheindependent, direct sales efforts, if any, of
Machinima’s video distribution platforms or networks, including, without limitation,
YouTube) shall havethe right to sell advertising of any kind (included sponsorships or
branded integrations) or monetize the Affiliate Content Channel(s)or the content
thereinin any way other than through Machinima under the terms of this Agreement
or with Machinima’s express written approval.
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Promotion At the request of Machinima, Affiliateshall include the Machinima logoon the Affiliate
Content Channel(s)to denote that the AffiliateContent Channel(s)are part of the
Machinima Distribution Network. The size, placement and location of such logoon the
Affiliate Content Channel(s) shall be determined by Machinima. In addition, at the
request of Machinima, Affiliateshall include the Machinima Distribution Network
identification pre-rollprovided to Affiliateby Machinimain each item of video content
on the AffiliateContent Channel(s).
Affiliateshall also be required, from time to time upon written notice from Machinima
to engage in the following promotional effortsrelating to Machinima and the Affiliate
Content Channel(s):
(a) Subscribe to www.youtube.com/machinimaor any other Machinima
channel designated by Machinima (collectively,the “Machinima
Channels”) and designate the Machinima Channels as a “featured channels”
on the main page of the YouTube channels operated by Affiliate;
(b) include “annotations” in items of video content as part of advertising or
sales campaigns that Machinima secures, or to promoteand market
Machinima, Affiliate, or other third party video content in the Machinima
Distribution Network;
(c) use Affiliate’s accounts on Twitter, Facebook, Google+, YouTube or any
other social media to promote designated items of video content or other
content distributed through the Machinima Distribution Network as
designated by Machinima in writing (including “liking” such video,
designating it as a “favorite” video, etc.); and
(d) such other promotional services as reasonably requested by Machinima.
Additional From time to time, Machinima may make additional promotional or other commercial
Opportunities opportunities available to Affiliate. In the event that Machinima makes such
opportunities available to Affiliate and Affiliate agrees to participatein such
opportunities, the terms and conditions of Affiliate’s participation will be mutually
agreed to by the parties.
Confidentiality AFFILIATEUNDERSTANDS AND ACKNOWLEDGES THAT THE EXISTENCE OF AND
TERMS OF THIS AGREEMENT SHALL BE STRICTLY CONFIDENTIAL, AS MORE FULLY
DESCRIBED IN SECTION12OF THE TERMS AND CONDITIONS.
[Remainder of Page Left Blank]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first
written above.
MACHINIMA, INC.
Machinima Signature:
Print Name:
Title:
Date:
AffiliateSignature:
Print AffiliateName: _______________________________
AffiliateTitle(if applicable):______________________
Date of Birth: _______________________________________
Date:
Are you 18 or over? YES NO
IF AFFILIATE IS UNDER THE AGE OF EIGHTEEN (18) OR IS OTHERWISE DEEMED A MINOR OR INCAPABLE
OF ENTERING INTO A BINDING CONTRACT UNDER APPLICABLELAWS, SIGNATURE BY A PARENT OR
AUTHORIZED GUARDIAN WITH THE LEGAL AUTHORITY TO BIND AFFILIATE IS REQUIRED, BELOW, IN
ADDITION TO AFFILIATE’S SIGNATURE:
Guardian Name: Guardian Email: Guardian Number:
I represent and warrant that I am a legal guardian of Affiliateand acknowledge that I have read the
foregoing Agreement and am familiar with each and all of the terms, covenants and conditions
contained therein; I am satisfied that said Agreement is fair and equitable, and I hereby give my
express consent to the execution thereof and will not revoke my consent thereto at any time
hereafter.
Name of Parent/Guardian: ___________________________________
Signature: ______________________________________________________
Date: ___________________________________________________________
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Exhibit A
Machinima Standard Terms and Conditionsfor Channel AffiliateAgreement
Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Cover
Sheet.
1. Additional AffiliateContent Channel(s). the AffiliateContent Channel(s)(or on such other
Additional channels that Affiliatemay launch or desire Machinima controlled channel on YouTube as mutually
to include as part of this Agreement as AffiliateContent agreed upon by Machinima and Affiliate) for VOD
Channel(s), that are not otherwise automatically viewing following the conclusion of the applicable live
included hereunder by the terms of this Agreement, may stream.Except as otherwise set forth on the Cover Sheet,
be added by mutual consent of the parties in writing (for any such recorded Live Stream Content shall be deemed
this purpose, email shall suffice, provided the email is VOD Content for purposes of this Agreement.
from an authorized Machinima representative, clearly
sets forth the name of the channel(s) to be added, and 4. Payments
Affiliateresponds confirming Affiliate’s consent to add
such channel(s)). 4.1 Net Revenue.
2. Channel Views/Rollup. (a) “NetRevenue” means (A)
IndirectRevenue plusDirectRevenueless(B) (i) any
2.1 As of the Effective Date and throughout the payments, costs, fees, taxes, commissions and expenses
Term of this Agreement, all information and metrics relating to distribution, marketing,sales,promotion and
relating to the Affiliate Content Channel(s), including advertising, including but not limited to, sales
impressions, visitors andvideo views of content commissions, content delivery network costs,make-
distributed or delivered through the AffiliateContent goods and allowances for doubtful accounts(ii) a
Channel(s)via any method of distribution and via any distribution fee of 30%of Direct Channel Sales (as
device including, without limitation, (i) Live Stream defined below)and (iii) revenue share and other
Content and (ii) VOD Content,shall be included or ‘rolled payments, fees, or expenses payable to or deducted by
up’ exclusively into Machinima’s total numbers on Machinima’s video distribution platforms or networks,
YouTube or such other applicable video distribution including, without limitation, YouTube.
platform or network.
(b) “IndirectRevenue” means
2.2 Affiliate acknowledges and agrees that revenue (other than sponsorships and brand integrations,
Machinima shalluse information provided to it by for which a separate fee may be payable to Affiliate on a
Machinima’s video distribution platforms or networks, case by case basis) actually earnedby Machinima from
including, without limitation, YouTube, to determine indirect monetization of the Affiliate Content Channel(s)
amount of revenue generated by the Affiliate Content or content thereon by third partiesother than Machinima,
Channels and content thereon, as well asthe relevant including but not limited to Google AdSense for Video and
number of video views generated and monetizable other advertising networks, or by an applicable video
hereunder. The parties acknowledge and agree that such distribution platform or network.
video distribution platforms or networks may, from time
to time, change or modify (i) their advertising policies, (c) “Direct Revenue” means
terms and conditions, (ii) their methodsof calculating revenue (other than sponsorships and brand integrations,
revenue or video views generated or (iii) their for which a separate fee may be payable to Affiliate on a
monetization policies, including the criteria for case by case basis) actually earned by Machinimafrom(i)
determining which video views are “monetizable”. In the direct sales of advertisingby Machinimadisplayed on the
event of any such change or modification, the parties Affiliate Content Channel(s) where the advertiser
agree that Machinima shall have the right to change or specifically requests advertising to appear to viewers of
modify itsadvertising policies, terms and conditions, or such Affiliate Content Channel(s) pursuant to a written
itsmethods or criteria for calculating video views insertion order accepted by Machinima(“Direct Channel
generated or for determining which such views are Sales”) and (ii) monetization of the Affiliate Content
“monetizable” to conform tosuch change or modification. Channel(s) or content thereon by Machinima via
Machinima shall notify Affiliate of any material change or advertising that is run against multiple affiliate channels
modification if YouTubeor such other video distribution (e.g., “run of network” and category ad buys)(“Non-
platform or networkhas not publicly announced such Specific Ad Buys”) as if such Non-Specific Ad Buys were
change. Any such change or modification by Machinima indirectly monetized via Google AdSense for Video and
shall not be deemed a breach of this agreement. other advertising networks.
3. Live Stream Content. All Live Stream Content 4.2 Payment Terms. Payments may, at
shall be recorded through, edited for, and distributed on Machinima’s election, be combined with any other
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payments that may be owed to Affiliate. All references to 7. Revenue Collection; Right of Withholding and
currency herein shall be to United States dollarsunless Offset.
otherwise set forth on the Cover Sheet. Notwithstanding
the foregoing, Machinima will have no obligation to pay 7.1 Machinima will collect all payments with
any amounts, and is permitted to deduct or withhold any respect to and revenues generated bythe Affiliate
amounts owed, determined or reasonably suspected by Content Channel(s)and the content thereon, including
Machinima in its sole discretion to have resulted from: (i) payments and revenue from AdSense for Video, YouTube
Action Fraud (as defined below), or (ii) fraudulent, direct sales, Machinima’s direct sales, or sales by any
misleading or false activities or activities that Machinima other party or ad network on the Affiliate Content
and/or Machinima’s video distribution platforms or Channel(s)), and then make payments to Affiliate in
networks, including, without limitation, YouTube,believe accordance with this Agreement.
to be fraudulent, misleading or in violation of their
respective terms of service, guidelines, rules, or privacy 7.2 Machinima has right to withholdor deduct
policies. payment owed hereunder pendingor followingthe
resolution or adjudicationof any breach, claim or loss
4.3 “Action Fraud” means so-called "click related to this Agreement, any other agreementor
fraud" or "impression fraud,” or fraud of any other kind, otherwise.Machinima shall notify Affiliate in the event
whether in any automated or human way, including, that it is withholding or deducting payments pursuant to
without limitation, by the use of a person, an automated this Section.In addition, Machinima has the right to offset
script or a computer program (for example, online robots any amounts owed by Machinima toAffiliate underthis
or "bots") to click or otherwise activate any form of view, Agreement against any amounts owed to Machinima by
response mechanism, annotation or advertising unit, or Affiliate underthis Agreement, any other agreement or
any other fraudulent means, to increase views, otherwise.
impressions, skew results or imitate a legitimate user of a
web or mobile browser or other software application for 8. Access to Affiliate’s YouTube
viewing on any device, for example, by clicking on an ad Accounts/Reporting to Affiliate. Affiliateshall provide
unit for the purpose of generating an improper click value Machinima with all necessary access and controls to its
and generating revenue. applicable distribution platform and/or network
account(s) (e.g., YouTube) in connection with the
5. Ownership/Control. As between the Parties, various AffiliateContent Channel(s)and the content
Affiliateshall retain full control and ownership of, and thereonto enable AffiliateContent Channel(s)to become
absolute liability for, the AffiliateContent Channel(s) part of the Machinima Distribution Network, including
and all content contained therein. This shall include for example in Machinima’s YouTube “CMS” or content
creation, procurement, and uploading of any and all management system or any other content management
content therein, and the ongoing management and look system that Machinima may use. This access shall only
and feel of the AffiliateContent Channel(s). Machinima be used for purposes necessary to further the subject
will not have the ability to upload content, alter the matter of this Agreement (e.g., to monitor traffic, views,
design or layout, etc. of the AffiliateContent Channel(s); prepare reports, check Ad Sense numbers, etc.).
provided, however, that Machinima may require Affiliate Machinima agrees to provide Affiliatewith a true and
to remove content immediately upon any notice of correct version of the most then-current report
copyright violation, or violation of any party’s rights, or Machinima receives with respect to AffiliateContent
concern thereof. Affiliateagrees it shall not remove, Channel(s), on no less than a monthly basis or as
designate as “private,” alter or modify content from the available to Machinima from the applicable video
AffiliateContent Channel(s)(after it has been uploaded) distribution platform or networkif longer. In addition,
throughout the Term of this Agreement without the Affiliatereserves the right to confirm the accuracy of the
prior written approval of Machinima, or unless Machinima report directly with the applicable video
requested by Machinima or YouTube. Any video content distribution platform or networkprovided such
or other content (text, annotations, or otherwise) that is informational requests are conducted through and in
in violation of the terms of this Agreement or violates coordination with Machinima and limited to no more
any laws, rules or regulations, including Machinima’s or than one time per year.
any of Machinima’s video distribution platforms’ or
networks’, terms, rules, policies, guidelines or other 9. Term/Termination/Survival/Right of First
business interests, shall also be removed immediately Opportunity and Last Refusal.
upon request. Affiliateshall not use annotations or
other similar tools and features in a manner that would 9.1 The term of this Agreement shall
conflict or interfere with Machinima’s promotional or commence on the Effective Date and continue for the
sales efforts and ongoing advertising campaigns. Initial Term. The Initial Term shall automatically renew
for each Extension Term unless Affiliateprovides
6. [RESERVED]. Machinima not less than the number of days written
notice prior to the end of the Initial Term or the current
Extension Term, as applicable, as described in the Cover
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Sheet. The “Extension Term”, together with each other opportunities (other than YouTube as and if applicable)
Extension Term and the Initial Term, is referred to herein for the AffiliateContent Channel(s).
as the “Term.”
11. Independent Responsibilities. Each party
9.2 If Affiliatecontemplates entering into a agrees that it will be fully responsible and liable for its
similar relationship with a third party following the own content and any and all third party claims that may
expiration of this Agreement, Affiliateagrees to provide arise from its properties, sites, and content. This
Machinima with a first opportunity to negotiate anda last Agreement confers no ownership or control and does
right of refusal (to match the third party’s terms) prior to not constitute a ‘partnership’ or ‘joint venture’ within
actually entering into any contract or agreement with the the legal/corporate meanings of those terms. The
third party. The parties agree to promptly negotiate any parties remain independent of each other and maintain
potential renewal or right of first opportunity in good their liabilities as their own. Each party remains
faith. responsible for any and all permissions, rights or
clearances it may need in connection with its own
9.3 Notwithstanding anything to the contrary business, site, or channel operations, and responsible for
contained herein: (A) Affiliatemay terminate this any risks, liabilities, fees or payments it may be required
Agreement at in the event that (i) Machinima is in to make in connection therewith or in connection with
material breach of the Agreement and such breach their respective content.
remains uncured for a period of more than thirty (30)
days following notice to Machinima of such breach, or (ii) 12. Confidentiality.
Affiliateceases business operations provided, however,
that Affiliate’s existing content on the AffiliateContent 12.1Affiliateunderstands and acknowledges
Channel(s)shall remain available to end users, including, that the existence of and terms of this Agreement shall be
without limitation, on YouTube,and under the terms of strictly confidential. Affiliateshall not, without the
this Agreement continue to be represented exclusively by express written consent of Machinima, disclose the terms
Machinima, and that Affiliatenot create a similar or of this Agreement or any other information disclosed by
competitive channel for a period of one year after such Machinima to Affiliateto any third party, nor to any
termination; and (B) Machinima may terminate this employees, contractors, vendors, consultants or affiliates
Agreement (i) in its sole discretion, at any timewithout other than those employees who have an actual need to
cause upon the provision to Affiliateof thirty(30) days’ know such information in order to perform their dutiesor
noticeatthe address or email first set forth above (or as if required to do so pursuantto a subpoena or other
updated by Affiliateby providing Machinima with written similar legal process, provided that Affiliateprovides
notice); (ii) in the event that Affiliateis in material breach Machinimaprompt notice of the disclosure requirement
of the Agreement and such breach remains uncured for a such that the latter may contest such disclosure or seek a
period of more than thirty (30) days following notice to protective order.
Affiliateof such breachor (iii) immediatelyfollowing
notice, in the event of Action Fraud or a material breach 12.2Affiliateshall refer any questions that
by Affiliateof any terms of Machinima’s or YouTube’sor Affiliatemay receive in connection herewith to Affiliate’s
other applicable platform’s or network’srules or policies. contact at Machinima for guidance on how to
appropriately respond. Any questions Affiliatemay have
9.4 Upon any such termination by Machinima, with respect to the Affiliate Content Channel(s), their
neither party shall have any further obligation, rights or distribution platforms, other distributionopportunities,
duties to the other party, except: (a) that any undisputed sponsorship opportunities, etc., shall also be addressed
payments owed by Machinima to Affiliateprior to the directly to Affiliate’s contact at Machinima.
date of termination shall be deemed payable (excluding
payments withheld,deducted or offsetpursuant to 13. Representations and Warranties; Covenants.
Section7.2), and (b) the following provisions of this Affiliaterepresents, warrants and agrees that: (a) it has
Agreement shall survive: Sections 7.2, 9, 11, 12, 13, 14, the full right and power to makeand perform this
and 15-27. Agreement without the consent of any third party; (b) it
has any and all necessary rights or clearances it may
10. Rights & Grants. In addition to the other rights need in connection with the AffiliateContent Channel(s)
and licenses granted to Machinima by Affiliatein this and the content thereon(to the extent it would be
Agreement, Affiliatehereby grants to Machinima any necessary for the specific use, e.g., display on YouTube
and all necessary rights and licenses it may need to or any applicable platformor network)in order to grant
effect the terms of this Agreement(including, for Machinima the rights granted hereunder; (c)
example, Machinima’s sales, marketing and promotional Machinima’s distribution and use of, and sale of
efforts), including for example the right to use advertising on,the AffiliateContent Channel(s)and the
her/his/its name, likeness, biography,and logo, content thereonas set forth herein will not infringe on
registered marks if any, names of properties, etc., and to the rights of any person or entity, defame any person or
represent Machinima as the exclusive representative of entity, or violate any right of publicity or privacy of any
any ad inventory/ad units/sales/sponsorship person or entity; (d) Affiliatewill not include in any
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AffiliateContent Channel(s)any content or materials deemed employees or subcontractors of Affiliateand
that would violate any laws, rules or regulations, will not be considered employees, agents or
including Machinima’s or any Machinima video subcontractors of Machinima for any purpose
distribution platform’s or network’s general rules, whatsoever. Affiliateassumes full responsibility for the
terms, guidelines and/or policies; and (e) Affiliatewill actions of all such personnel and for the payment of
not undertake any activities or enter into any their compensation (including, if applicable, withholding
agreements that are either in conflict with this of income taxes, and the payment and withholding of
Agreement or that are directly competitive to social security and other payroll taxes), workers’
Machinima. Affiliatefurther representsthat Affiliateis compensation, disability benefits and the like to the
at least of 18 years of age or otherwise legally capable of extent applicable to the personnel involved.
entering into binding agreements. If Affiliateis under Notwithstanding and without in any way limiting any
the age of 18 or otherwise incapable of entering into this terms and conditions set forth in this Agreement, all
Agreement,Affiliateshall obtain his or her parent’s or subcontractors of Affiliateshall be deemed to have made
legal guardian’s permission to do so as evidenced by all of the representations and warranties of Affiliateset
their signature below provided,however,that in any forth herein and shall be subject to any obligations of
case Affiliatemust be at least 13 years of age. Each party Affiliatehereunder, and, if requested by Machinima,
shall be solely responsible for the payment of all of its Affiliateshall obtain from each subcontractor its written
own taxes, assessments and all other similar consent to and acknowledgment of the terms of this
withholdings from or assessments on any monies paid Agreement. Affiliateshall be responsible for any breach
hereunder. by any subcontractor of any representations, warranties
or obligations set forth in this Agreement. For the sake
14. Indemnity; Limitation on Liability. of clarity, this is not an agreement for the performance
of any services.
14.1Indemnity. Affiliatehereby agrees to
indemnify and hold harmless Machinima, its parent, 17. Arbitration/ ClassAction Waiver/Jurisdiction.
affiliates, officers, directors, employees, agents,
successors, licensees and assigns, from and against any 17.1 Any and all claims controversies,
and allcauses of action, claims, damages, obligations, disputes, demands, counts, or causes of action between
losses, liabilities, costs or debt, and expenses (including Affiliate and Machinima regarding, arising out of or
but not limited to attorney's fees) (collectively, “Claims”) relating to this Agreement (including, without limitation,
arising out of any breach by Affiliateof any of the its formation, performance or alleged breach), the
obligations, agreements, representations and/or Machinima Distribution Network, Affiliate Content
warranties made hereunder. Channel, or Live Stream Content, shall be resolved
exclusively by confidential binding arbitration in Los
14.2The parties agree and acknowledge that Angeles County, California by a single arbitrator. Affiliate,
Affiliateis not an employee of Machinima, and Affiliate however,shall have the right to participate by phone or
shall indemnify Machinima and hold it harmless against similar means and need not attend the arbitration live in
all Claims related to compensation and benefits to which Los Angeles County, California in order to participate. To
employees may be entitled, including taxes, penalties and the extent that any filing fee to initiate arbitration exceeds
accounting fees. Affiliateand Machinima shall notify the the cost of filing suit instate or federal court in Los
other if either becomes aware of such a claim by any state Angeles County, California, Machinima will reimburse
or federal entity; and Affiliatewill not represent to any Affiliate for the difference.
third party that Machinimaand Affiliateare partners or
joint venturers, nor that Affiliatecan bind Machinima to 17.217.2Arbitration shall be subject to the
any agreement with anyone else. Federal Arbitration Act and not any state arbitration law.
The arbitration shall be conducted before one commercial
14.3Except with respect to breaches of Section arbitrator with substantial experience in resolving
12 (Confidentiality), indemnification payments and commercial contract disputes from the American
obligations, fraud, gross negligence or willful misconduct, Arbitration Association (“AAA”) or JAMS. As modified by
no party shall be liable to the other for special, this Agreement, and unless otherwise agreed upon by the
consequential or incidental damages or for lost profits. parties in writing, the arbitration will be governed by the
AAA’s or JAMS’s rules for commercial arbitration. For
15. Assignment. Affiliateunderstands and agrees more information on AAA, its rules and procedures, and
that Machinima may freely assign this Agreement; how to file an arbitration claim, you may call AAA at 800-
however, because the subject matter hereof is personal 778-7879 or visit the AAA website at
to Affiliateand Affiliate’s content, Affiliatemay not http://www.adr.org. For more information on JAMS, its
assign this Agreement to any person or entity without rules and procedures, and how to file an arbitration claim,
Machinima’s prior written consent. you may call JAMS at 800-352-5267 or visit the JAMS
website at http://www.jamsadr.com.
16. AffiliateResponsibility for Personnel. Affiliate
and all personnel supplied directly by Affiliateshall be
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17.3The arbitrator, and not any federal, state or contemplated by this Agreement in compliance with all
local court or agency, shall have exclusive authority to applicable laws and regulations.
resolve any dispute arising under or relating to the
interpretation, applicability, enforceability or formation 21. Governing Law. The construction and
of this Agreement, including, but not limited to any claim interpretation of this Agreement shall at all time and in
that all or any part of this Agreement is void or voidable. all respects be governed by and construed according to
Without limiting the generality of the foregoing, the the laws of the United States and the State of California
arbitrator shall have the exclusive authority to interpret (without regard to California conflict of laws provisions)
the scope of this clause, and the arbitrability of the except that the arbitration provision shall be governed
controversy, dispute, demand, count, claim, or cause of by the Federal Arbitration Act. The application of the
action. United Nations Convention on Contracts for the
International Sale of Goods is expressly excluded.
17.4The parties further agree that they may
bring claims only in their individual capacity and not as a 22. Injunctive Relief. Affiliate hereby
plaintiff or class representative in any purported class or acknowledges that it will be impossible to measure in
representative proceeding. The arbitrator may not money the damages that would be suffered if Affiliate
consolidate more than one person’s claims, may not breaches the exclusive rights granted to Machinima
otherwise preside over any form of a representative or hereunder and that in the event of any such breach,
class proceeding and may not award class-wide relief. Machinima will be irreparably damaged and will not
This provision is material and is a condition of the have an adequate remedy at law. Machinima shall,
agreement to arbitrate. In the event that a determination therefore, be entitled to injunctive relief, including
is made that this class action waiver isvoid or specific performance, to enforce such rights and may
unenforceable for any reason, the parties agree that the seek the foregoing in any court of competent
agreement to arbitrate disputes will be null and void. jurisdiction, notwithstanding the provisions ofSection
17 to the contrary. Affiliate’s sole and exclusive remedy
17.5Judgment on the award rendered by the for Machinima’s breach, termination or cancellation of
arbitrator may be entered in any court having jurisdiction this Agreement or any term hereof shall be an action for
thereof. All arbitration proceedings shall be closed to the damages brought pursuant to Section 17 and Affiliate
public and confidential and all records relating thereto irrevocably waives any right to equitable or injunctive
shall be permanently sealed, except as necessary to relief or to enjoin or restrain Machinima and its
obtain court confirmation of the arbitration award. successors, video distribution partners, assigns, and
licensees from exploiting the Affiliate Content Channels
17.6If for any reason a claim proceeds in court hereunder.
rather than in arbitration, the dispute shall be exclusively
brought in state or federal court in Los Angeles County, 23. Captions. Section or other headings contained
California. inthis Agreement are for convenience only and shall not
affect in any way the meaning or interpretation of this
18. Severability. Except as otherwise provided in Agreement.
Section 17, if any provision of this Agreement is, for any
reason, invalid and/or unenforceable, the remaining 24. No Presumption. Affiliaterepresents and
provisions shall continue to be valid and enforceable to warrants that Affiliatehas had the opportunity to review
the fullest extent permitted by law. The parties agree to this Agreement before signing it and that Affiliatehas
replace an invalid and/or unenforceable provision with obtained legal counsel or other professional advice or
a valid and/or enforceable provision which most closely deliberately refrained from obtaining legal counsel or
approximates theintent and economic effect of the other professional advice in connection herewith. This
invalid and/or unenforceable provision. Agreement shall be construed as though jointly drafted
by Affiliateand Machinima with no presumption drawn
19. Non-Waiver; Remedies Cumulative. A waiver against either as drafter.
by either party of any of the terms or conditions of this
Agreement shall not, in any instance, be deemed or 25. Counterparts and Email. For the convenience
construed to be a waiver of such terms or conditions for of the parties, the parties may execute any number of
the future or of any subsequent breach thereof. All counterparts of this Agreement hereto. Each such
remedies, rights, undertakings, obligations and counterpart shall be deemed to be an original
agreements contained in this Agreement shall be instrument but all such counterparts taken together
cumulative and none of them shall be in limitation of any shall constitute one and the same Agreement. This
other remedy, right, undertaking, obligation, or Agreement may be delivered following execution by
agreement of either party. Email or fax with executed originals from Affiliateto be
delivered to Machinima thereafter by mail, to the
20. Mutual Covenants. Affiliateand Machinima address above.
each agree that they will undertake the activities
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