a. In addition to terms deﬁned elsewhere in the Agreement, the terms below are deﬁned as follows:
“Actual Revenue” means all amounts actually received by Bongo for its own account from Google in connection with Your Channel. It shall be noted that Actual Revenue for a Billing Period may differ from the ‘estimated revenue’ as visible on Your Channel’s analytics page due to corrections made on Google’s end, outside the control of Bongo.
“Ad” means an advertisement: (a) served with, in, on or in relation to Your Videos or Your Channels, including pre-roll, in-stream, post-roll, overlay and synchronized banner advertisements that have been sold speciﬁcally against Your Videos or Your Channels (as opposed to, for example, banner advertisements and advertising inventory appearing on Platforms or Channels, other than Your Channels, that are not directly and speciﬁcally sold against Your videos or Your Channels); and (b) the revenue generated from which can be tracked and directly tied to Your Videos. For the avoidance of doubt, Ads exclude Sponsorship Arrangements.
An “Affiliate” of a person means any other person that directly or indirectly controls, is controlled by, or is under common control with such person, except that for purposes of the Agreement, RTL Canada Limited and RTL Group S.A. shall be deemed not to directly or indirectly control Bongo and are therefore not “Afﬁliates” of Bongo. For purposes of this deﬁnition, a person ‘controls’ another person if such person possesses, directly or indirectly, the power to direct the management and policies of that other person, whether through ownership of voting securities, by contract or otherwise and “controlled by” and “under common control with” have similar meanings.
“Agreement” means the following collectively: (a) Cover Sheet signed by You with Bongo in relation to Your Youtube Channel and (b) this Annex 1.
‘‘Allowable Costs” means, in connection with a Sponsorship Arrangement, all costs incurred by Bongo or an Afﬁliate of Bongo, or both, in the production of Your Video that is subject to such Sponsorship Arrangement, up to such maximum amount as may be agreed to by You and Bongo.
“Annex 1” means the section of the Agreement titled as “Annex 1 – General Terms and Conditions”.
“Bongo” means the entity mentioned in section A(1) of the Cover Sheet and its Affiliates.
“Bongo Channels” means all Channels owned or controlled by Bongo or any of its Affiliates, in whole or in part, but does not include Your Channels or any other Channels in the Bongo Network under Content Provider Agreements between Bongo or an Afﬁliate of Bongo and Providers such as You.
“Bongo Network” means all Channels under Content Provider Agreements between Bongo or an Afﬁliate of Bongo and Providers such as You, and all Channels and Platforms owned or controlled by Bongo, in whole or in part, or through which Bongo distributes content, including the Bongo Channels.
“Bongo Platform” means a Platform owned or controlled by Bongo or an Afﬁliate of Bongo, in whole or in part.
“Channel” means an online, wireless, broadcast or digital medium, whether now known or hereafter created or devised, on which Video Content is distributed or displayed. For greater certainty, “Channel” includes TV channels; channels accessible via Video Content websites such as YouTube; channels accessible via software applications such as mobile applications, desktop applications, and web-based applications; and websites that You own or control that distribute or display Your Videos. A Channel may also be a Platform.
“Claim, Claimed”, or “Claiming” means to protect and/or enforce, through manual or automated means, Your intellectual property rights, including copyright, in User Content through technology and processes provided, used, or speciﬁed by or for the beneﬁt of You and/or Bongo in accordance with the policies mutually agreed upon by the Parties.
“Claimed Content” means User Content, or any element or part thereof, that has been Claimed by or on behalf of You or Bongo. For the purposes of the Agreement, Claimed Content is not included as part of Your Content.
“CMS” means Bongo’s content management system with Google, in the case of YouTube content management, and in the case of other Platforms, with the owner or operator of such Platform.
“Controls” in relation to a Channel means the right of a person or entity who is not the owner or operator of the Platform that such Channel is within, to distribute Video Content on such Channel to the exclusion of all third parties, or all third parties other than such Platform owner or operator.
“Cover Sheet” means the document “YOUTUBE CONTENT PROVIDER AGREEMENT – Cover Sheet” signed by You with Bongo in relation to Your Youtube Channel.
“Direct Ad” means an Ad sold by, or with the consent or authorization of, Bongo (other than Google Ads).
“Direct Ad Net Revenue“ received by Bongo for any period means the revenue earned and actually received by Bongo or Afﬁliate of Bongo, whichever is the seller, in such period from Direct Ads, less the following amounts charged, levied, paid or payable by Bongo or such Afﬁliate in relation to such revenue:
- a. 5% of such revenue as a commission retained by Bongo or such Afﬁliate;
- b. applicable advertising-related rebates and commissions (including commissions due to employees or consultants of Bongo or such Afﬁliate) and cost of inventory, if any;
- c. amounts due to advertising providers, if any;
- d. taxes (other than net income taxes) and other government levies;
- e. the Google Fee, if any (to the extent not deducted prior to Bongo’s or such Affiliate’s receipt of such revenue); and
- f. the Rights Fee, if any.
“End User” means the person(s) accessing Your videos via a Platform, or via a Channel within a Platform.
“Effective Date” means the date as stipulated in the Cover Sheet.
“Google” means Google lnc. or any of its Afﬁliates, including YouTube LLC, or their successors or assigns.
“Google Ad” means an Ad sold by Google with respect to Your Videos or Your Channels on YouTube.
“Google Fee” means any amount charged by Google, in the case of YouTube, or in the case of any Other Platform, charged by the owner or operator thereof, in relation to the monetization of all or any part of Your Content.
“Google Net Revenue” for any period means the revenue earned and actually received by Bongo in such period from Google Ads and Google Subscriptions with respect to Your Content on YouTube, less the following amounts charged, levied, paid or payable in relation to such revenue: (a) taxes (other than net income taxes) and other government levies; (b) the Google Fee, if any (to the extent not deducted prior to Bongo’s receipt of such revenue); and (c) the Rights Fee, if any.
“Google Subscriptions” means a subscription-based service on YouTube offered or facilitated by Google whereby End Users may access Your Videos, the timing and selection of which is at such End User’s discretion and for which the End User is charged a pre-determined, periodic fee to access such content as often as the End User selects during the period covered by the fee. For the avoidance of doubt, Google Subscriptions includes the Google-branded service, “YouTube Red”, and any successor or replacement thereof.
“Net Revenue” for any period means the revenue earned and actually received by Bongo in such period from a revenue generating activity permitted under the Agreement, less any and all applicable deductions. For the avoidance of doubt, Net Revenue includes Sponsorship Revenue, Direct Ad Net Revenue, Google Net Revenue, Other Net Revenue, Other Platform Ad Net Revenue, and any other forms of Net Revenue contemplated under the Agreement.
“Other Net Revenue” for any period means the revenue earned and actually received by Bongo in such period from the distribution, monetization, and/or exploitation of Your Content in a manner other than through the sale of Google Ads, Google Subscriptions, Direct Ads, Other Platform Ads, or Sponsorship Arrangements, but includes revenue earned and actually received by Bongo in connection with Your Content from, with respect to Other Platforms, subscription fees, and from, with respect to any Platform including YouTube, rentals, in-app purchases, download-to-own methods of monetization, and the monetization of Claimed Content, less the following amounts charged, levied, paid or payable in relation to such revenue: (a) taxes (other than net income taxes) and other government levies; (b) applicable advertising-related rebates and commissions (including commissions due to employees or consultants of Bongo) and cost of inventory, if any; (c) amounts due to advertising providers, if any; (d) the Google Fee, if any (to the extent not deducted prior to Bongo’s receipt of such revenue); (e) the Rights Fee, if any; and (f) amounts due to Bongo’s content aggregators, if any.
“Other Platform” means a Platform other than YouTube.
“Other Platform Ad” means an Ad sold by an Other Platform with respect to Your Videos on such Platform.
“Other Platform Ad Net Revenue” for any period means the revenue earned and actually received by Bongo in such period from Other Platform Ads less the following amounts charged, levied, paid or payable in relation to such revenue: (a) taxes (other than net income taxes) and other government levies; (b) the Google Fee, if any (to the extent not deducted prior to Bongo’s receipt of such revenue); and (c) the Rights Fee, if any.
“Platform” means a technology, service, product, tool, interface, vehicle or system, whether now known or hereafter created or devised, on which one or more Channels or Video Content are hosted, powered, operated, managed, accessed, displayed, distributed, or viewed. For greater certainty, “Platform” includes websites such as YouTube and Facebook, and other third party websites that are not owned or controlled by You; software applications such as mobile applications, desktop applications, and web-based applications; television; radio; ﬁlm; videotape or audiotape; CD’s; and DVD’s; but any Channels within a Platform, such as YouTube Channels within the YouTube Platform or Facebook pages within the Facebook Platform, are not themselves separate Platforms but instead form part of the Platform they are on or within. A Platform that does not have separate Channels is also a Channel.
“Rights Fee” means amounts due to third party rights holders, if any, for the use or distribution of such third party’s sound recordings, compositions, logos, trademarks, or other audio, visual or audio-visual elements or rights, where the right to use such elements or rights was provided to You by or through Bongo.
“Sponsorship Arrangement” means an arrangement pursuant to which:
- a. Your Video includes the appearance of a branded product or service within the video itself and within the context of the subject-matter of the video for the purposes of the promotion of such product or service, including product placements; or
- b. Your Video contains or is accompanied by a notiﬁcation to the effect that Your Video has been sponsored or otherwise supported by, or a promotional consideration has been made by, a speciﬁed brand or third party, where You, Bongo and/or an Afﬁliate of Bongo has received, or is entitled to receive, consideration from the owner or promoter of such brand or third party in return for such appearance.
“Sponsorship Revenue” received by Bongo for any period in respect of a Sponsorship Arrangement means the revenue actually received by Bongo in such period pursuant to such Sponsorship Arrangement, less the following amounts charged, levied, paid or payable in relation to such revenue: (a) taxes (other than net income taxes) and other government levies; (b) Allowable Costs, if any; and (c) the Rights Fee, if any.
“T&Cs” has the same meaning as Annex 1, and shall, along with the Cover Sheet, regulate the full terms and conditions of the Agreement.
“User Content” means copies of Your Content or any element or part thereof, which are posted on a Platform from time to time by users of such Platform other than You or Bongo, without prior authority from You or Bongo to do so.
“Video Content” means any audio, visual or audio-visual media content.
“You” means the natural person or legal entity mentioned in section A(2) of the Cover Sheet. For avoidance of doubt “Your” shall be deemed to indicate a proprietary arrangement of ownership by the natural person or legal entity mentioned in item A(2) of the Cover Sheet.
“Your ID” means Your name, likeness, trademarks, brands, logos, trade names and any other monikers, trade dress or the
like identifying You or Your Content.
“YouTube” means the internet video-sharing website known as “YouTube” on which users can upload, share and view videos, at www.youtube.com, including all mirror and derivative sites, and any and all other localized or international versions of such website, and includes any successor or replacement thereof.
“YouTube Channel” means a Channel on or within YouTube.
“Your Channels” means the Channels defines as such on the Cover Sheet and shall mean all Channels which You own, control, license, or to which You otherwise claim rights, during the Term of the Agreement, but excludes any such Channels which are specifically subject to a separate Content Provider Agreement between You and Bongo, whether entered into before or after the Effective Date. For the avoidance of doubt, at any time during the Term, the Parties may conﬁrm in writing (e.g. via email) the identity of all YouTube Channels added to the scope of the Agreement after the Effective Date (such YouTube Channels would be deemed Your YouTube Channels).
“Your Content” means Your Channels and Your Videos, and includes the following contained within or related to Your Channels and Your Videos: (i) graphics, music, sounds, images, files, photos, animation, artwork, text, data, information, messages, hypertext, links, script, or other materials, and (ii) all metadata; and for greater certainty, Your Content includes Your ID, but only to the extent Your ID is contained in Your Videos.
“Your Platforms” means the Platforms on which Your Videos are displayed, exhibited, performed, distributed, published, transmitted, streamed or broadcasted.
“Your Revenue” means the amounts owing to You in accordance with the Agreement as set out in the Cover Sheet and Clause 5 of Annex 1.
“Your Videos” means all audio, visual and audio-visual content which You own, control, license, or to which You otherwise claim rights, during the Term of the Agreement, including all such content appearing on Your Channels, but excludes any such content which is speciﬁcally subject to a separate Content Provider Agreement between You and Bongo, whether entered into before or after the Effective Date.
“Your YouTube Channel” means the subject matter YouTube Channel owned or controlled by You.
b. No provision of the Agreement will be construed against either Party by virtue of that Party having drafted and prepared the Agreement. All headings are inserted for reference only. The term ‘including” is not limiting, and means “including without limitation”. All references in the Agreement to monetary amounts are in U.S. dollars unless otherwise specifically stated elsewhere. The singular includes the plural and vice-versa, unless the context otherwise requires.
2. Your Best Efforts. During the Term, You will make best efforts to:
a. Promptly take all such action as may be required by Bongo in order to permit
(i) Your Content to be included in Bongo’s CMS; and
(ii) the views of Your Content and Claimed Content to be included or “rolled up” exclusively into Bongo’s views, impressions, and other reporting metrics;
b. Create or acquire Your Videos on a frequency and at a level of quality consistent with Your Content uploaded to Your Channels or Your Platforms prior to the Effective Date, and promptly upload them to Your Channels or Your Platforms and provide copies to Bongo in a form acceptable to Bongo;
c. Maintain and manage the development of Your Channels; and
d. Provide to Bongo all metadata for Your Videos and where available, video previews for Your Videos, in a form acceptable to Bongo.
3. Your Conduct
b. Required and Prohibited Conduct. During the Term, You will (in addition to Your other obligations set out elsewhere in the Agreement):
(i) Comply with all:
– applicable policies, procedures, or End User agreements and privacy policies of Your Platforms (each a “Content Guideline“); and
– applicable laws, rules, and regulations;
(ii) Not, and will not authorize any third party to, distribute any content or attempt to monetize any content that infringes on the rights of others or violates any Content Guidelines; and
(iii) Not, and will not authorize or encourage any third party to, directly or indirectly generate queries, impressions of or clicks on any Ad(s) or to obtain access to Your Content through:
– any automated, deceptive, fraudulent or other invalid means, including through repeated manual clicks, the use of robots or other automated query tools and/or computer generated search requests, or the fraudulent use of other search engine optimization services and/or software;
– clicks or impressions originating from Your IP address or Your computers;
– the payment of money, false representation or requests for users to click on Ads; or
– any other means designed to imitate a legitimate End User or otherwise skew results (collectively, “Action Fraud”).
c. Bongo’s Remedies. Notwithstanding any provision to the contrary in the Agreement, if Bongo reasonably determines in its sole discretion that any of Your Content is generated or arises from any breach by You of any of Your obligations under the Agreement, including this Clause 3, Bongo reserves the right to: (A) withdraw, takedown, limit, or otherwise remove any of Your Content from any Platform and/or the Bongo Network; (B) release any Claims related to Your Content; (C) release or otherwise disconnect Your Content from Bongo‘s CMS; (D) immediately terminate the Agreement; and/or (E) take any other action or measure to protect Bongo’s business interests or reputation, as determined in its sole discretion.
d. No Obligation. Bongo has no obligation to pre-screen, monitor, review, edit or otherwise approve, any of Your Content. Although Bongo may conduct reviews of Your Content from time to time in its sole discretion, it shall not be bound to do so. You acknowledge and agree that You are solely responsible for all Your Content and Bongo does not endorse any of Your Content and disclaims all liability relating thereto.
4. Your Grant of Rights to Bongo During the Term. During the Term, You grant to BONGO the following transferable, sub-Licensable, worldwide, and royalty-free rights (but not the obligations) and licenses:
a. The exclusive right (other than the independent rights, if any, of Your Platforms to sell Ads) to sell and represent any and all Ad inventory in relation to Your Content and Claimed Content;
b. The exclusive right (as between BONGO and any other third party, but not excluding You) to sell and represent Your Content and Claimed Content for the purposes of securing Branded Entertainment Arrangements, subject to Your written approval in each instance, such approval not to be unreasonably withheld or delayed;
c. The exclusive right to monetize Your Content by methods other than those set out in Clauses 4(a) and 4(b);
d. The exclusive right to display, exhibit, perform (publicly or otherwise), distribute, advertise, promote, publish, transmit, translate, stream, broadcast, adapt, modify, prepare derivative works based on, compile, encode, host, cache, route, store, copy, reformat, excerpt, analyze, create algorithms based on, and otherwise use or deal with Your Content or Claimed Content in any manner and in or on any form, method, Platform, or media now known or hereafter devised throughout the universe, including to display BONGO’s and any of its sub-licensee’s promotional material on or in connection with Your Content or Claimed Content, and to associate Your Content or Claimed Content with any brand owned (in whole or in part) or operated by BONGO or its sub-licensees from time to time;
e. The non-exclusive right to use or deal with Your ID (including to undertake all activities referred to in Clause 4(c) to promote Your Content and Claimed Content, the BONGO Network, and any brand owned (in whole or in part), licensed or operated (in whole or in part) by Bongo, its Affiliates or its sub-licensees from time to time, and Your Platforms;
f. The exclusive right to Claim in relation to User Content; and
g. The exclusive right to otherwise use Your Content and Claimed Content to perform all obligations, and exercise all rights, of BONGO as set out in this Agreement In addition, You agree to waive, and to the extent permitted by law, You hereby waive, all moral rights You may have in or to Your Content created or acquired after the Effective Date, and You hereby waive all moral rights You may have in or to Your Content existing at the Effective Date.
5. Your Revenue.
a. BONGO will pay You Your Revenue within 60 days following of the end of the month in which the applicable Net Revenue was received by BONGO, provided that Your earned balance is Twenty Dollars (US$20.00) or more. We will also provide You with a monthly report of Your Revenue up to the latest date reasonably available.
If Your earned balance is less than Twenty Dollars (US$20.00) but greater than One Dollar (US$1.00), BONGO will pay Your earned balance within approximately 45 days following the end of the calendar year, or the end of the calendar month in which Your earned balance exceeds Twenty Dollars (US$20.00), whichever comes ﬁrst. In the event that the Agreement is terminated, BONGO shall pay Your earned balance to You within approximately 90 days after the end of the calendar month in which BONGO recognizes that the Agreement has been terminated, but in no event shall BONGO make payments for any earned balance less than Ten Dollars (US$10.00).
All amounts owing to You under the Agreement shall constitute a debt owed by Bongo to You and You shall have no ownership or other interest in any Net Revenues. Bongo may deduct and withhold from amounts due to You hereunder all amounts which Bongo is so required to deduct and withhold pursuant to applicable law, and may remit the same to the applicable authority, and Bongo shall have no liability to You therefor.
Note that if any of the above info conflicts with the Cover Sheet signed by You, then the Cover Sheet will prevail to the extent of the conflict.
b .Your Payment Accounts. In order to receive Your Revenue, You must have a valid PayPal account associated with Your YouTube account, or such other form of payment account as Bongo may require from time to time. You agree that You will abide by any relevant Terms of Service or other legal agreement applicable to such account. You will receive any monies due to You pursuant to the Agreement in accordance with such terms.
c. Payment information. In the event that any payments due cannot be processed through to You as a result of incorrect payment information provided by You, including an incorrect PayPal address, You shall forfeit Your right to receive such payments, and any and all such payments shall belong exclusively to Bongo:
(i) after Bongo has made commercially reasonable efforts to contact You to obtain the correct payment infom1ation and to process such payments once a month for two (2) months following termination of the Agreement; and
(ii) otherwise, after six (6) months following termination of the Agreement. Bongo shall have no obligation to attempt to contact You in respect of such payments or any incorrect payment information provided by You, it being Your sole responsibility to ensure that all payment information is correct and sufﬁcient for the processing of payments.
d. Independent Contractor. You will be an independent contractor and not an employee or agent of Bongo and Bongo will not be responsible for remitting any taxes on Your behalf. All amounts paid by Bongo to You are inclusive of any and all taxes and other government-related fees, charges or other levies which You may be required to collect from Bongo and/or or pay in respect of such amounts or otherwise in respect of the Agreement.
e. Exceptions Notwithstanding any other provision in the Agreement, Bongo shall not be liable for, and may charge back to You, any payment based on:
(i) any amounts which arise or result from any of the prohibited conduct set out in Clause 3 above;
(ii) Action Fraud, regardless of whether condoned or initiated by You;
(iv) Ads created or produced for Bongo or the Platform on which the Ad appears for their own products and/or services; and
(v) any political or regulatory sanctions with respect to certain territories and/or activities. Bongo reserves the right to withhold payment otherwise due to You pending Bongo’s reasonable investigation of any activity referred to in this Clause 5(e) or of any breach or suspected breach of the Agreement by You. You agree to cooperate with Bongo in its investigation of any of the foregoing.
a. Termination Rights. Either Party may terminate the Agreement:
(i) in the event of a material breach by a Party of the Agreement that is not cured within 30 days after written notice of such breach has been given to such Party by the other Party; or
(ii) immediately upon notice, if either Party becomes insolvent or seeks protection under any bankruptcy, receivership, creditor’s arrangement, or comparable proceeding.
b. Bongo’s Rights. Further to Clause 6(a) above, Bongo may terminate the Agreement:
(i) for any reason with at least 30 days‘ written notice to You; or
(ii) immediately in the event of a violation of Clause 3 or Clause 11 (Confidentiality) or a breach of any of Your representations and warranties made under the Agreement.
c. Unauthorized Unlinking. You acknowledge and agree that, notwithstanding that YouTube may provide You with the ability or functionality to release or otherwise disconnect Your Channel from Bongo’s CMS, or remove Bongo’s access to Your Channel via Bongo’s CMS, prior to the expiry of the current Term (in each instance, an “Unauthorized Unlinking’), under no circumstance shall such Unauthorized Unlinking release You from the Agreement or any terms and conditions contained herein.
In the event that there has been, or Bongo has received notice of Your request to YouTube for, an Unauthorized Unlinking, Bongo reserves the right to treat either such actions as a material breach of the Agreement, and without limiting any of Bongo’s remedies, Bongo shall have the right to withhold any and all further payments due to You under the Agreement as an early termination fee (the “Termination Fee”) equal to the total amount of Google Net Revenue that Bongo would have earned pursuant to the Agreement in the time period remaining in the then current Term of the Agreement from and after the date of the Unauthorized Unlinking (the “Unlinking Date”) to the end of the Current Term (regardless of whether Bongo terminates the remainder of the Agreement early) (the “Bongo’s Estimated Loss”). Bongo’s Estimated Loss shall be calculated by:
(i) subtracting the total Google Net Revenue paid or otherwise payable to You pursuant to the Agreement in respect of the period (the “Elapsed Period”) from commencement of the current Initial Term or renewal term of the Agreement, as the case may be, to the Unlinking Date, from the total Google Net Revenue received by Bongo in respect of such Elapsed Period,
(ii) dividing the remainder by the number of days in the Elapsed Period, and then
(iii) multiplying the resulting quotient by the number of days remaining in the current Initial Term or renewal term of the Agreement, as the case may be, commencing on the day after the Unlinking Date. In the event that the Termination Fee is more than the Net Revenue received by Bongo at the end of the Term, You will pay the portion of the Termination Fee remaining within 30 days of being notiﬁed by Bongo of the amount of the Termination Fee remaining outstanding. The Parties hereby acknowledge and agree that the Termination Fee is intended to represent estimated actual damages and shall not be considered as a penalty.
d. Consequences of Termination. Upon termination of the Term of the Agreement, or termination of the Agreement pursuant to Clause 6(a) or 6(b) above, Bongo shall make commercially reasonable and good faith efforts to release or otherwise disconnect or take down Your Content and Claimed Content from Bongo’s CMS, all Bongo Channels and all Bongo Platforms. Without limiting any provision in the Agreement, upon Bongo’s release or disconnection of Your Content and Claimed Content from Bongo’s CMS, all Bongo Channels, and Bongo Platforms, Bongo will not be liable in any way for Your Content and Claimed Content thereafter. Neither the inadvertent display of Your Content or Claimed Content on any Bongo Channels or any Bongo Platforms after the termination of the Term, nor the inadvertent failure to release Your Content and Claimed Content from any Bongo CMS, shall be a breach of contract, but Your sole remedy shall be to request in writing that Your Content and Claimed Content be removed or released by Bongo.
7. Intellectual Property.
a. Subject to Clause 7(b) below, and unless the Parties agree otherwise in writing, the Parties acknowledge and agree that any proprietary property and rights, including any copyrights, trademarks, service marks, trade names, monikers, trade dress, patents or other intellectual property, that has been or will be provided by either Party to the other Party hereunder will remain the sole and exclusive property of the providing Party. In particular, as between You and Bongo, Bongo retains all right, title, and interest in and to Bongo’s Services and the proprietary technology, websites, software, products, services, processes, infom1ation, or materials used in the provision of such services (collectively, “Bongo Property”). Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect Bongo Property or any of Bongo’s rights or interests therein or any other Bongo intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to Bongo Property that are not expressly granted in the Agreement are reserved by Bongo.
b. Feedback. You may from time to time provide suggestions, comments or other feedback to Bongo with respect to Bongo’s Services (“Feedback”). Feedback, even if designated as conﬁdential by You, shall not create any conﬁdentiality obligation for Bongo notwithstanding anything else. You shall, and hereby do, grant Bongo a non-exclusive, worldwide, perpetual, irrevocable, transferrable, sub-licensable, royalty-free, fully-paid-up license to use the Feedback for any purpose.
8. Representations and Warranties.
a. Representations and Warranties of the Parties. Each Party represents and warrants that it has full power and authority to enter into the Agreement and that the Agreement constitutes the valid and binding obligations of such Party. You additionally hereby represent and warrant the following: (i) You have, and will have, the necessary licenses, rights, consents, clearances, permissions, and have paid all monies necessary, to grant the rights and licenses herein to Bongo and for Bongo to exercise such rights and licenses without being liable to any third party in anyway, including legally or ﬁnancially; (ii) You have not, and will not, take any action or enter into any agreements that conﬂict with or are inconsistent with the rights or benefits herein granted to Bongo, or authorize any third party to do any of the foregoing; (iii) there are no existing or threatened claims or litigation that would adversely affect or impair any of the rights and licenses granted herein; (iv) Your Content, or any element or part thereof: (A) do not and will not, directly or indirectly, violate, infringe or breach any duty toward or rights of any third party; (B) do not and will not violate any Content Guidelines, any requirements of the Agreement or any applicable laws, rules, or regulations; and (v) any metadata provided by You will be complete and accurate and will conform to all of Bongo’s parameters for metadata and content speciﬁcations. The foregoing shall be a continuing representation and warranty given by You throughout the Term of the Agreement and shall apply to all of Your Content created or acquired by You as at and after the Effective Date of the Agreement.
b. Disclaimer. The Parties make no representations or warranties other than those expressly stated in the Agreement. The Parties disclaim all other warranties, express or implied, including Warranties of merchantability, fitness for a particular purpose, and non-infringement. Without limiting the generality of the foregoing, Bongo makes no warranty:
(i) that Bongo’s services or those of its sub-licensees will be uninterrupted, timely or error-free;
(ii) that the results or information obtained from use of Bongo’s or its sub- Licensees’ services will be accurate or reliable;
(iii) regarding any amounts that you may receive pursuant to the Agreement;
(iv) as to growth or engagement of viewers of your content; or
(v) that any user content will be claimed by Bongo. You acknowledge and agree that all projections, estimates, and other future oriented information provided on or through Bongo’s Services are inherently uncertain and are not guaranteed. Actual results could differ substantially due to a variety of risks and uncertainties, and Bongo accepts no responsibility or liability therefor.
9.Indemnity. You hereby agree to indemnify, release and hold harmless Bongo, its successors, licensees, sub-distributors and assigns, and the directors, ofﬁcers, employees, shareholders, representatives and agents of each of the foregoing (collectively, the ‘Bongo Parties”), from any and all causes of action, claims, costs, damages, demands, expenses, judgments, liabilities and losses, including attorney’s fees and costs, (collectively, “Damages”) arising out of, resulting from, or in relation to:
a. any actual or alleged breach by You of any representation, warranty, or any other provision of the Agreement;
b. Your Content, including any claims arising out of or relating to any use by Bongo of Your Content or any exercise by Bongo of the rights granted under the Agreement, but excluding only any Damages directly resulting from the willful misconduct of Bongo; and
c. any negligence or willful misconduct by You. You will cooperate as fully required by Bongo in the defense of any claim. Bongo reserves the right to assume the exclusive defense and control of any matter subject to indemniﬁcation by You, and You will not in any event settle any claim without the prior written consent of Bongo.
10. Limitation of Liability. To the maximum extent permitted by applicable law, in no event will the Bongo Parties be liable to you for any loss of use, data, goodwill, revenues, or profits (whether or not deemed to constitute a direct loss), or any consequential, special, indirect, incidental, punitive, or exemplary loss, damage, or expense of any kind arising out of or in any way related to your content or this agreement, even if foreseeable or even if any of the Bongo parties have been advised of or should have known of the possibility of such damages. the Bongo Parties assume no responsibility for downtime of Bongo’s CMS or computers, the Bongo network or for the loss of information, data records, your content 0r claimed content. ln no event will the Bongo Parties’ total liability to you for all damages, losses or causes of action exceed the total amount of all types of net revenue actually received and retained by Bongo in the three (3) months prior to the event which gave rise to the liability, after deducting therefrom amounts paid 0r due to you in respect thereof.
11. Conﬁdentiality. You will not disclose the terms of the Agreement or any proprietary or other conﬁdential information of Bongo (“Conﬁdential Information”) to any third party except: (a) as may be required by any court of competent jurisdiction, governmental agency, law or regulation (in such event, You shall notify Bongo before such disclosure so as to give Bongo an opportunity to apply for a conﬁdentiality order or similar remedy); (b) as part of the normal reporting or review procedure to Your accountants, auditors, employees, legal counsel, and employees of partners, parent and subsidiary companies, provided such persons have executed a written agreement substantially as protective of Conﬁdential Information as the Agreement prior to any disclosure and only that Conﬁdential Information which such persons strictly need to know to perform their regular responsibilities to You may be disclosed to such persons, and provided further that You will be responsible to Bongo for any unauthorized disclosure of Conﬁdential information by them; (c) information which has entered the public domain through no fault of You or any persons to whom You have provided Conﬁdential Information as permitted hereunder; and (d) with the prior written consent of Bongo. You shall not use any Conﬁdential Information except as necessary for the express purpose of carrying out Your obligations under the Agreement.
12. Non-Disparagement. Neither Party will ridicule, disparage or demean the reputation of the other Party. Nothing herein shall prevent the Parties from making any truthful statement in connection with any legal proceeding or investigation by either Party or any governmental authority.
a. Venue and Choice of Law. This Agreement shall be governed by the laws of Singapore, and by the applicable federal laws of Singapore, without regard to its conﬂict of laws principles. You agree to the non-exclusive jurisdiction of the courts of Singapore.
b. Severability. If any provision of the Agreement is found by a court of competent jurisdiction to be unlawful or otherwise unenforceable, such provision shall be deemed severable from the Agreement to the extent necessary, and will not affect the validity and enforceability of the remaining provisions of the Agreement, which shall remain in full force and effect.
c. Equitable Remedies. You acknowledge that Bongo is relying on the representations, warranties and covenants contained in the Agreement and a breach by You would cause Bongo irrevocable injury and damage that cannot be adequately compensated by damages in an action at law and You therefore expressly agree that, without limiting Bongo’s remedies, Bongo shall be entitled to injunctive and other equitable relief.
d. Dispute Resolution. Except for Bongo’s equitable rights as set forth in the Agreement, the Parties hereby agree to submit any disputes or controversies arising from, relating to or in connection with the Agreement or the Parties’ respective obligations in connection therewith to binding arbitration in Singapore in accordance with the rules of the International Commercial Arbitration Act and only for actual monetary damages, if any. The Parties agree that an arbitration award resulting from any such arbitration shall be binding and conclusive upon the Parties. In the event of any dispute, You shall not be entitled to, and do hereby waive all right to, any equitable relief whatsoever, including the right to rescind the Agreement or any rights granted hereunder or to enjoin, restrain or interfere in any manner with the marketing, advertisement, distribution or exploitation of Your Content.
e. Third Party Beneﬁciary. All Afﬁliates, licensees and sub-licensees of Bongo are third party beneﬁciaries of all representations, warranties, indemnities, licenses and all other obligations, rights, restrictions, and limitations granted, given or undertaken by, or applicable to You in the Agreement, and of all dispute resolution, governing law and other provisions in the Agreement that such Affiliates, licensees and sub-licensees may elect to enforce.
f. Notices. All notices and other communications under the Agreement will be in writing and sent: (i) if to Bongo, to the address ﬁrst written above or by email at notices@Bongo.com, or to any other address subsequently sent to You; and (ii) if to You, to the email first written above.
g. Non-Solicitation. You will not directly or indirectly solicit, entice, persuade or induce any employee of Bongo who You know or ought reasonably to have known is an employee of Bongo to terminate such employment.
h. Independent Legal Advice. You represent and warrant that You have had the opportunity to review the Agreement before signing it and that You have obtained legal counsel or other professional advice or that You have deliberately refrained from doing so without any advice or pressure from Bongo.
i. Miscellaneous. You acknowledge and warrant that the Agreement has not been induced by any representation or assurance not contained herein. This Agreement will be considered to be executed by the Parties and shall become a legally binding agreement when executed by the Parties in the manner required set out under the “Signature Terms” section of the Agreement. This Agreement supersedes and replaces all prior agreements, negotiations or understandings in connection with Your Content; provided that, in the event that You have previously executed another agreement with Bongo with respect to any other speciﬁc Channel or content, the Agreement shall not supersede and/or replace the terms of such previous agreement with respect to that other Channel or content. This Agreement contains the entire understanding of the Parties and shall not be modiﬁed or amended unless mutually agreed by both Parties in writing. The waiver by either Party or consent to a breach of any provision of the Agreement by the other Party shall not operate or be construed as a waiver of, consent to, or excuse of any other or subsequent breach by the other Party. All remedies in the Agreement shall be cumulative and none of them shall be in limitation of any other remedy. Bongo shall have the right to assign freely all or any part of the Agreement and/or its rights hereunder to any person or entity, by operation of law or otherwise. Upon receipt by You of a written acknowledgement of any such assignment by the assignee together with the assignee’s agreement to be bound by the Agreement: (i) Bongo shall be deemed to be released from any and all further obligations to You under the Agreement save and except only those obligations which have accrued prior to the assignment; and (ii) all references in the Agreement to Bongo shall be deemed, from and after the effective date of the assignment, to refer to the assignee and any service, systems, and guidelines, if any, that assignee elects to utilize in lieu of those provided by Bongo. Unless expressly permitted in the Agreement, You may not assign the Agreement or any of Your rights in connection with Your Content without the prior written consent of Bongo. Clauses intended to survive shall survive the termination of the Agreement. The Parties hereto are independent contractors and nothing herein shall permit a Party to act for or bind the other.