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PIVOTSHARE PUBLISHER AGREEMENT
THIS PIVOTSHARE PUBLISHER AGREEMENT IS ENTERED INTO BY AND BETWEEN PIVOTSHARE, INC. ("PIVOTSHARE") AND THE ENTITY THAT IS APPLYING TO BECOME A PUBLISHER OF, AND OBTAIN ACCESS TO, THE PIVOTSHARE PLATFORM ("PUBLISHER"). YOU ACKNOWLEDGE AND AGREE THAT, BY INDICATING YOUR ACCEPTANCE OF THIS PIVOTSHARE PUBLISHER AGREEMENT, YOU ARE ENTERING INTO SUCH AGREEMENT ON BEHALF OF PUBLISHER. YOU ALSO REPRESENT THAT YOU HAVE BEEN DULY AUTHORIZED BY PUBLISHER TO LEGALLY BIND PUBLISHER TO SUCH AGREEMENT.
By using or accessing the Pivotshare Platform, Publisher agrees to be bound by this Pivotshare Publisher Agreement (this "Agreement"). Publisher agrees that Pivotshare may update the terms of this Agreement by giving Publisher notice through the communications scheme set up through Services offered as part of the Pivotshare Platform and that any such changes will take effect thirty (30) days after notice of such changes. The most current version of this Agreement will always be posted at www.pivotshare.com/publisher-agreement/.
1.1. Pivotshare Platform General Description. Pivotshare operates an online media platform (the "Pivotshare Platform") that permits Publisher to submit Publisher's Content ("Publisher's Content") to Pivotshare for Pivotshare to display Publisher's Content through the Pivotshare Platform. Pivotshare Platform includes websites or areas of websites ("Pivotshare Sites") designated by, operated by or under the control of Pivotshare used to display or distribute Publisher's Content.
1.2. Publisher Services. The Pivotshare Platform provides various services to Publishers ("Publisher Services") through in part, a website operated by Pivotshare to allow Publishers to control the uploading and removal of Publisher's Content, display and distribution of Publisher's Content and other services related to displaying and distributing Publisher's Content. Multiple individuals or entities (including Publisher) may also submit content for display or distribution by Pivotshare through the Pivotshare Platform and such individuals or entities are referred to as "All Publishers" and individually as just "Other Publisher" and the submitted content from All Publishers is referred to as "General Content."
1.3. End User Viewers. Individuals who can view any content including Publisher's Content displayed or distributed by Pivotshare are called "End User Viewers."
2. ACCOUNT MANAGEMENT FOR PUBLISHERS
2.1. Access For Publishers. Publishers use Publisher Services through an account ("Account") that is accessed through a user name issued by Pivotshare. Accounts are password protected.
2.3. Usernames and Passwords. All usernames assigned to Publisher to access Accounts ("Usernames"), and all passwords associated with such usernames ("Passwords"), are for use only by Publisher's employees and other agents duly authorized by Publisher.
2.4. Maintenance of Passwords. Publisher will be fully responsible for maintaining the confidentiality of its Usernames and Passwords. Publisher will not disclose any of its Usernames or Passwords to any persons other than its employees and other agents duly authorized by Publisher to access Publisher's Account. If Publisher learns or otherwise suspects that the Password for any of its Usernames has been disclosed to any individual who is not an employee or other agent of Publisher, Publisher will promptly change such Password and immediately notify Pivotshare.
2.5. Responsibility For Account Activity. Publisher will be fully responsible for any and all activities conducted through an Account including without limitation, any activities related to Publisher's Content conducted by any persons using any of its Usernames.
3. PIVOTSHARE PLATFORM AND SERVICES GENERALLY
3.1. Services May Change. Pivotshare reserves the right to modify the specific type of Publisher Services made available and the manner in which Publisher's Services are offered at any time.
3.2. Revenue Models. Publisher Services currently permit Publishers to display or distribute Publisher's Content and collect revenue from End User Viewers in several ways and the current revenue models offered are listed as follows:
3.2.1. Subscription Model. End User Viewers pay a fee to view Publisher's Content for a 30 day period.
3.2.2. Pay-Per-View Model. End User Viewers pay a fee to view specific Publisher's Content for a specific time period.
3.2.3. Purchase. End User Viewers pay a fee to purchase and download, as well as stream specific Publisher's Content for a specific time period.
3.2.4. Tip Jar. End User Viewers may contribute a donation after viewing Publisher's Content, whether is way free, pay-per-view or purchased.
3.2.5. Channels. General Content is always viewed in a channel ("Channel") – a portion of the Pivotshare Platform where certain General Content gets grouped together for viewing by End User Viewers. Channels may be organized or set up in different ways based upon type of General Content available. Each of All Publishers can either designate their portion General Content be displayed in a Channel organized by them or placed into a Channel organized by another one of All Publishers. Anytime one of All Publishers chooses to have their portion of General Content viewable in a Channel not organized by them, they are deemed a "Channel Participant" of the Other Publisher organizing the Channel.
4.1. Display of Publisher Logo. Publisher grants to Pivotshare the worldwide, non-exclusive right to display Publisher's name and logo on Pivotshare's marketing materials and websites used to operate the Pivotshare Platform as necessary to identify the availability of Content, the origin of Content, the participation by Publisher as part of the Pivotshare Platform.
5. PUBLISHER'S CONTENT AND OTHER PUBLISHER RIGHTS.
5.1. Publisher's Content License. Publisher grants to Pivotshare a worldwide, non-exclusive license to do the following with Publisher Content:
5.1.1. Display Publisher Content on Pivotshare Platform;
5.1.2. Distribute copies of Publisher Content designated by Publisher as available for download by End User Viewers;
5.1.3. Reproduce Publisher Content as necessary to exercise any rights in Publisher Content granted by Publisher, operate the Pivotshare Platform, create archive and backup copies and facilitate operation of the Pivotshare Platform;
5.1.4. Modify and create derivative works of Publisher Content as is necessary for Pivotshare to facilitate operation of the Pivotshare Platform, place advertisements into or alongside Publisher Content and to create XML, HTML, Flash or other versions of Publisher Content required for technical reasons so that Pivotshare can exercise other rights in Publisher Content granted by Publisher;
5.1.5. Delete any portions of Publisher Content as necessary for Pivotshare to remove any content that does not comport with the requirements of this Agreement or is deemed by Pivotshare as potentially causing harm to Pivotshare or the Pivotshare Platform;
5.2. Representations Regarding Publisher's Content. Publisher represents and warrants the following about Publisher's Content:
5.2.1. Any exercise by Pivotshare of rights granted by Publisher in Publisher's Content will not cause either Publisher or Pivotshare to infringe the intellectual property rights of any third party or violate any third party's rights of publicity or privacy or similar rights;
5.2.2. Publisher's Content does not contain any libelous, obscene, defamatory or pornographic content;
5.2.3. Publisher has all rights, licenses and permissions necessary to grant the licenses in Publisher's Content granted under this Agreement;
5.2.4. Publisher's Content does not contain any viruses, harmful code or any other data, content or materials that will cause harm to Pivotshare or the Pivotshare Platform;
5.2.5. Publisher's Content does not contain any advertising or commercials.
5.3. Publisher Ownership Rights. Publisher does not grant any ownership rights in Publisher's Content to Pivotshare and all rights granted by Publisher to Pivotshare in Publisher's Content are by license only.
5.4. Take Down Rights. Pivotshare may remove or modify any Publisher's Content if Pivotshare reasonably believes that the continued display of Publisher's Content through the Pivotshare Platform may cause harm to Pivotshare, cause Pivotshare to breach a contractual obligation or as is necessary for Pivotshare to comply with Pivotshare's obligations under the Digital Millennium Copyright Act.
5.5. Rejection of Particular Publisher's Content. Pivotshare reserves the right to not accept any Publisher's Content if Pivotshare believes that any display or distribution of such Publisher's Content will cause harm to Pivotshare or will cause Pivotshare to breach a contractual obligation.
5.6. Rating Information. Publisher agrees to submit any rating information as is needed for Pivotshare to comply with any gating or age-rating requirements for the display or distribution of content.
5.7. Procedure For Submission of Publisher's Content. Publisher will upload Publisher's Content to Pivotshare by following Pivotshare's then current procedures for receiving General Content and submitting information about Publisher's Content such as by example only, rating information or technical information about content format as further specified by Pivotshare in Pivotshare's then current "Content Submission Policies" document at http://pivotshare.com/content-policies/.
6. PUBLISHER GENERAL OBLIGATIONS
6.1. Publisher Prohibitions. Publisher agrees not to engage in any of the following activities:
6.1.1. restrict or inhibit any other authorized third party from using the Pivotshare Platform;
6.1.2. "hack" any computers, servers or other systems, or reverse engineer, decompile, disassemble, or otherwise attempt to gain access to, any software, HTML or other code, that are used by Pivotshare or any of its suppliers in connection with the operation of the Pivotshare Platform;
6.1.3. provide access to, or otherwise make available, the Pivotshare Platform or any page thereof, to any third parties;
6.1.4. "frame" or "mirror" any portion of the Pivotshare Platform or Pivotshare Sites;
6.1.5. harvest or otherwise collect any information about any End User Viewers or any Other Publishers;
6.1.6. use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, "data mine" or reproduce or circumvent the navigational structure or presentation of the Pivotshare Platform or Pivotshare Sites; or
6.1.7. disclose to any third parties any features or functionality of the Pivotshare Platform or Pivotshare Sites that have not been publicly disclosed by Pivotshare.
6.2. Publisher Compliance. Publisher will at all times comply with all applicable laws and provide reasonable cooperation with and assistance to Pivotshare in any investigation directed by Pivotshare regarding any attacks upon the Pivotshare Platform or in any investigation of any Other Publisher who may be dealing with any General Content that is infringing or causing harm to the Pivotshare Platform. Publisher will provide all cooperation with Pivotshare as necessary for Pivotshare to exercise its rights and obligations under the Digital Millennium Copyright Act.
6.3. Publisher Confidentiality. Publisher will not disclose any information about Pivotshare Platform or Services that is not publicly known without the written permission of Pivotshare.
7. FINANCIAL TERMS
7.1. Pivotshare Collection of Revenue.
7.1.1. End User Revenue. Pivotshare will collect fees owed by End User Viewers for accessing or viewing Publisher's Content ("End User Fees").
7.1.2. Pivotshare Collection of Advertising Revenue. Pivotshare will collect fees owed by third parties purchasing advertising ("Advertising Fees").
7.1.3. Collection Logistics. Pivotshare has full discretion in procedures implemented to collect End User Fees and Advertising Fee. Publisher agrees not to contact any End User Viewers to collect End User Fees or communicate any pricing information for the Pivotshare Platform to End User Viewers and not to contact advertisers who have purchased advertising to be displayed through the Pivotshare Platform in order to collect any Advertising Fees.
7.1.4. Actual Fees. The actual End User Fees collected by Pivotshare as a result of any refunds, credits or uncollectable debt that were granted or suffered by Pivotshare is referred to as "Actual End User Fees." The actual Advertising Fees collected by Pivotshare as a result of refunds, credits or uncollectable debt that were granted or suffered by Pivotshare is referred to as "Actual Advertising Fees."
7.2. Publisher Allocation
7.2.1. Publisher Share of Actual End User Fees. Publisher and their Channel Participants will receive seventy percent of Actual End User Fees ("Publisher Fee Share") allocated by Publisher in accordance with Publisher's then current formula ("Fees Allocation Formula") used by Publisher to allocate Publisher Fee Share.
7.2.2. Calculation of Formulas. The Fees Allocation Formula and Advertising Allocation Formula are proprietary to Pivotshare and is confidential but in general, allocations are made based upon metrics designed to measure the relative differences in amount of time spent watching specific content contributed from a specific member of All Publishers on a Channel.
7.2.3. Payment of Shares. Publishers will receive their share of Publisher Fee Share and Publisher Advertising Share thirty (30) days after the end of the month in which Actual End User Fees and Actual Advertising Fees are collected by Pivotshare.
8. TERM AND TERMINATION
8.1. Term. This Agreement shall remain in effect until terminated by either party. Either party may terminate this Agreement at any time for any reason.
8.2. Notification of and Duties Upon Termination. Either party may notify the other party of that party's intent to terminate this Agreement. Such communication ("Termination Notice") must take place through the communication procedure offered through the Pivotshare Platform as part of Publishers Services. Upon delivery of a Termination Notice, Pivotshare will use commercially reasonable efforts to cease any further display or distribution of Publisher's Content and will cease any display or use of Publisher's logos and names as soon as commercially reasonable.
9. PLATFORM LIMITATIONS, DISCLAIMERS AND LIABILITY LIMITATIONS
9.1. Platform Limitations. Pivotshare does not make any guarantees about the performance of Publisher Services or the Pivotshare Platform and Publisher acknowledges that performance of Publisher Services or the Pivotshare Platform is dependent upon general Internet performance issues not under any control of Pivotshare.
9.2. Disclaimers of Warranties. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, PIVOTSHARE AND ITS AFFILIATES, AND ITS AND THEIR LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE PIVOTSHARE PLATFORM, PIVOTSHARE SITE, PIVOTSHARE SERVICES AND ALL OTHER ASPECTS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Without limiting the generality of the foregoing, none of Pivotshare and its affiliates, and its and their licensors, suppliers, advertisers, sponsors and agents, makes any representations or warranties (a) that Publisher's use of the Pivotshare Services, Pivotshare Platform or the Pivotshare Site will be uninterrupted, error-free or secure, or that defects will be corrected, or (b) regarding the amounts to be received by Publisher under this Agreement. Publisher assumes all responsibility and risk for Publisher's use of the Publisher Services, Pivotshare Platform, Pivotshare Site and Publisher's Content. No opinion, advice or statement of Pivotshare or its affiliates will create any warranty.
9.3. Limitation of Liabilities. In no event will Pivotshare be liable for any special, incidental, consequential or indirect damages of any kind regardless of whether Pivotshare has been notified of the possibility of such damages and in no event will Pivotshare's liabilities under this Agreement exceed the amounts received as Pivotshare Payments. Except for and without limiting Publisher's obligations under Sections 6.3 and 10, in no event will Publisher be liable for any special, incidental, consequential or indirect damages of any kind regardless of whether Publisher has been notified of the possibility of such damages.
Publisher will indemnify, defend and hold Pivotshare and its affiliates, and its and their licensors, suppliers, advertisers, sponsors and agents, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys' fees) and other expenses that arise directly or indirectly from (a) Publisher's breach of this Agreement; or (b) any other acts or omissions of Publisher in connection with Publisher's Content or Publisher's use of the Pivotshare Platform or Pivotshare Site.
11. GOVERNING LAW AND VENUE
This Agreement is governed by the laws of the State of California notwithstanding its conflict of law provisions. The parties agree that the venue for any legal actions must be the state or federal courts located in Orange County, California.
12. GENERAL LEGAL TERMS
If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions. Publisher may not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without Pivotshare's prior written consent. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns. No waiver by either party of any breach or default hereunder will be effective unless in writing or be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained in this Agreement is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof. No provision of this Agreement will be construed against either party by reason of the fact that it was drafted by such party. This Agreement constitutes the entire agreement between Publisher and Pivotshare relating to the subject matter hereof and supersedes any and all prior and contemporaneous written or oral agreements and communications between the parties with respect to such subject matter.