Legal

Exclusive YouTube Network & Video Distribution Agreement

 

The following is the Exclusive YouTube Network and Video Distribution Agreement (the “Agreement”) between you and Verge Records International, Inc. dba ONErpm (“ONErpm”).  Please read the Agreement carefully as it is a binding contract between you and ONErpm.

 

You understand that by submitting your YouTube channel for inclusion in ONErpm’s network, by uploading any videos for distribution or other use by ONErpm, or by otherwise using the Services offered by ONErpm through the Site, you agree to be bound by the terms set forth below. If you do not accept this Agreement in its entirety, do not sign up for or opt into any YouTube- or video-related Services of ONErpm.  The “Effective Date” of this Agreement is the date on which you first opt into or sign up for any of the Service and/or submit Content or the Channel to ONErpm for exploitation or use as authorized hereunder.

 

1.         Services.  ONErpm facilitates and manages the distribution and exploitation of music, audiovisual recordings and other content through the Internet platform and service known as YouTube and any related Google service (collectively referred to herein as “YouTube”) and through other third party service providers (e.g., Vevo, Apple Music, Tidal) (individually and collectively referred to herein as the “Third Party Platforms”) for the purposes of distributing such content to consumers and exploiting such content for income (the “Service(s)”).  You own or otherwise control the rights to the content on the YouTube channel submitted by you to ONErpm, including any directly related or affiliated channels (individually and collectively, the “Channel”), and any other audiovisual recordings (the “Videos”) and content submitted by you to ONErpm for distribution, exploitation or other use. All such content shall be referred to herein as the “Content.”

 

2.         Term.   The term of this Agreement shall be two (2) years from the Effective Date (“Initial Term”) and will automatically renew for additional, successive, unlimited one (1) year periods until terminated in accordance with the Agreement (the Initial Term and all renewal periods shall be collectively referred to herein as the “Term”).  You shall have the right to terminate the Term, effective as of the expiration of the then current period, by giving written notice to ONErpm no less than ninety (90) days prior to the end of the then current period. ONErpm shall have the right to terminate this Agreement at any time, upon notice to you, effective immediately.

 

3.         Territory. The territory of this Agreement will be the universe, unless otherwise agreed to in writing by the parties (the “Territory”).

 

4.         Grant of Rights. You hereby grant to ONErpm the following rights throughout the Territory and during the Term:

 

a.          The right and license to convert, digitize, encode, integrate, make, cause or otherwise reproduce the Videos in any digital or electronic format now known or hereafter devised for the purposes of distributing, exploiting or using the Videos as granted herein;

 

b.         The exclusive right and license to digitally distribute, reproduce, transmit, license, sell (including without limitation via downloading, streaming, subscription services and burning), advertise, publish, publicly perform, broadcast, and otherwise use and exploit the Videos in any electronic or digital format now known or hereafter devised during the Term to consumers throughout the Territory through any platforms or services of the Third Party Platforms. Such rights shall include the right to make, display, reproduce, and distribute separate images (e.g., thumbnails) of video stills from the Videos in connection with the promotion, advertising, and marketing of the Videos and the Services;

 

c.         The exclusive right to administer, collect all revenue, and exploit all rights to the Content (including but not limited to any musical compositions embodied therein) on the Channel, including but not limited to, the exclusive right to:

 

(i) identify potential claims against any unauthorized individuals who are using your Content on YouTube prior to or during the Term of Agreement without your specific authorization;

 

(ii) claim and negotiate settlements with such unauthorized persons on your behalf on terms and conditions that ONErpm will elect in its sole discretion;

 

(iii) negotiate and grant on your behalf all the licenses and sub-licenses necessary for YouTube or any affiliated Google service to carry out its services, which include but are not limited to host, cache, route, index, transmit, store, copy, embed, stream, perform, distribute, reproduce, display, reformat, synchronize (in timed relation or otherwise), edit, modify, catalog, add metadata, add content ID tags, sell advertising against, and otherwise exploit and make available your Content on YouTube; 

 

(iv) include your Content and the Channel within the network of YouTube channels owned or controlled by ONErpm;

 

(v) monetize the Content and the Channel by licensing the exploitation of the YouTube Content and/or the Channel for distribution and exploitation on YouTube;

 

(vi) monetize the Content and the Channel by selling advertising and sponsorships;

 

(vii) procure, solicit, and arrange product, brand, or services integrations in or in association with the Content and/or the Channel (“Integrations”), subject to your approval;

 

(viii) collect any and all revenues generated by the Channel and/or Content from YouTube and related services and Integrations; and

 

(ix) manage, access and administer the Channel for purposes of carrying out the Services listed and exercising the rights granted above, including but not limited to the cross-promotion of YouTube Content, the adding of links, product placements, images, videos, annotations and other channels to YouTube Content and to the Channel at ONErpm’s sole discretion and to promote and advertise the YouTube Content and the Channel within YouTube and Google’s advertising platforms. You agree not to disable any features that would interfere with ONErpm’s ability to carry out these Services and exercise the rights granted herein.  The Channel shall be included exclusively in ONErpm’s network and all Channel views will consequently be incorporated into ONErpm’s total network view count for purposes of analytics and reporting systems;

 

d.         the non-exclusive right and license to use in the Territory the approved name, likeness, and biography of you and each person who contributed to the Content, and to make, display, reproduce, and distribute video clips and separate images (e.g., thumbnails) of video stills from the Content, in connection with the exploitation of the Content hereunder and the advertising, publicizing or promotion of the Content in all configurations and by any and all media, provided that (i) all materials provided by you to ONErpm shall be deemed approved for purposes hereof, (ii) you understand that credit may not be provided in connection with all uses of the Content granted hereunder and, (iii) you unconditionally waive, on behalf of yourself and all third parties having an ownership interest in the Content any and all moral rights with respect to the right of attribution that you may have in respect of the Content to the extent permitted by applicable law; and

 

e.         The non-exclusive right and license to exploit the musical compositions embodied in the Content, if any, to the extent needed for ONErpm to exploit the rights granted to it hereunder. In the event that you do not own or control such musical compositions, you shall obtain licenses for such compositions pursuant to subsection 6(c) below.

 

f.          Unless otherwise specifically specified herein, the foregoing grant of rights are exclusive throughout the Territory during the Term such that you shall not grant the rights granted to ONErpm hereunder to any third party for any purpose or independently exploit the rights granted to ONErpm hereunder for any purpose throughout the Territory during the Term. You acknowledge and agree that ONErpm may utilize third parties to exercise the rights granted to it hereunder.

 

5.         Reservation of Rights. ONErpm shall not edit, remix, resequence or otherwise alter any Content delivered by you to ONErpm in any manner, except as otherwise set forth herein or as expressly elected, opted into or authorized by you.  All rights not specifically granted to ONErpm herein are expressly reserved for you.

 

6.         Your Obligations.        

 

a.         Upon the Effective Date and throughout the Term you shall:

 

(i)                          deliver to ONErpm the Videos in a digital or electronic format approved by ONErpm or by any other format approved by ONErpm;

 

(ii)                        transfer to ONErpm control over the management and administrative functions of the Channel; provided that you shall retain all rights, including full ownership of and absolute liability for, the Content and the Channel.  ONErpm may remove or may require you to remove any Content immediately upon a notice of copyright violation, or violation of any party’s rights, or concern thereof, or if such Content is in violation of the terms of this Agreement or violates any laws, rules, or regulations, including ONErpm’s or YouTube’s (or its parent company’s or affiliates’) terms, rules, policies, guidelines, or other business interests, in such party’s sole and reasonable determination; and

 

 

b.         Some of the Services provided by ONErpm may be subject to payment of a one-time, up-front fee by you to ONErpm. These Services are optional to you, and you will be made aware of any required fees prior to opting in to the applicable Service. All fees are due upon time of opt in and payments shall be made via the Site.

 

c.         You shall obtain and pay for any necessary clearances and licenses in the Territory for all of the Content (including, but not limited to, any musical compositions embodied in the Content, unless otherwise handled and paid directly by YouTube or the applicable Third Party Platform, which shall be your responsibility to verify in writing). Accordingly, you shall be responsible for and pay any and all royalties and other income due to artists, side artists, producers, writers, publishers and other record royalty participants from exploitations or other uses of the Content, including but not limited to, mechanical royalties, public performance royalties, all payments that may be required under collective bargaining agreements applicable to the Content, and any other royalties, fees, and or monies payable by you with respect to the Content, unless you have verified in writing that YouTube or the applicable Third Party Platform has paid such royalties. You hereby agree to fully indemnify ONErpm and hold ONErpm harmless from and against any and all claims, damages, costs (including attorneys’ fees), and sums related to tax, third party, or any other payment obligations related to the exploitation of the Content and sums received by you hereunder. 

 

d.         You shall register for an account with ONErpm through the Site in order to receive amounts payable to you pursuant to section 7 below.

 

7.         Payments.

 

a.          In full consideration of the rights granted to ONErpm hereunder, ONErpm shall pay to you, in accordance with the accounting provisions set forth in the Agreement:

 

(i) Seventy (70%) percent of Net Receipts derived from YouTube, any related Google Service directly in connection with the Content and/or the Channel (excluding Net Receipts generated in connection with Integrations)

 

(iiFifty (50%) percent of Net Receipts resulting from exploitations of the Videos via Third Party Platforms, excluding YouTube; and

 

(iii) Fifty (50%) percent of Net Receipts generated in connection with Integrations, including, without limitation, any product placements or Channel- or Content-specific sponsorships or partnerships procured, initiated, or negotiated by ONErpm.

 

b.         “Net Receipts” shall mean all monies collected and actually received by ONErpm from YouTube or the applicable Third Party Platforms directly in connection with the exploitations of the Content as granted hereunder, the Channel, and Integrations involving the Content, as applicable, less any money transfer transaction processing fees, applicable sales taxes and required tax withholding in applicable territories, and union scale fees (where applicable).

 

c.         Your share of Net Receipts shall be inclusive of all publishing, mechanical royalties, and other payments due to all royalty participants associated with the Content and the musical compositions embodied therein, if any, unless otherwise paid directly by YouTube or the other applicable third party service provider. In the event that ONErpm pays any publishing income, royalties, or other payments directly to any third party, as directed by you or required by law, including, without limitation, to performance rights organizations, such amounts shall be deducted from your share of Net Receipts. You shall be responsible for the payment of all taxes assessed to you with respect to all income received by you pursuant to this Agreement. ONErpm shall have the right to rely on accounting, usage, and other statements received from ONErpm’s sublicensees (including, but not limited to, YouTube Analytics) for all purposes hereunder.

 

d.         ONErpm shall account to and pay your share of Net Receipts on an approximately monthly basis. Payments will be made to you in USD via Paypal via the Site, and you are required to have a Paypal account in order to withdraw payments. Once you have initiated a withdrawal, it may take up to seven (7) business days for funds to appear in your account. Any objection relating to any accounting statement, or any lawsuit arising therefrom, must be made (and any lawsuit commenced), no later than one (1) year after the date the statement is rendered, and you hereby waive any longer statute of limitations that may be permitted by law.

 

8.         Representations and Warranties; Indemnification

 

a.          You represent and warrant that: (i) you have the full right, power, and authority to enter into this Agreement, grant the rights set forth herein, and perform all of your obligations hereunder; (ii) you have not granted and will not grant nor exercise, during the Term of this Agreement, any such rights which would conflict with or impair the rights, privileges, duties, and responsibilities of ONErpm under this Agreement, (iii) you are the sole owner of the intellectual property rights associated with the Content or you have all appropriate licenses, authorizations, and rights related to the Content, on a Worldwide basis for the Term, to enter into this Agreement and grant the rights set forth herein; (iv) the Content shall be in full compliance with the Third Party Platform Agreements (as defined below); (v) Content provided by you and ONErpm’s provision of the Services and exercise of the rights granted by you to it herein will not violate or infringe upon any rights, including without limitation copyright, contractual rights, and rights of privacy and publicity, of any third party; and (vi) you know of no material claims, nor basis for such claims, which may affect the ownership or validity of the content.

 

b.         You agree to indemnify, defend and hold ONErpm, its affiliates, assigns, and licensees and their directors, officers, shareholders, agents, and employees harmless from and against any and all losses, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or connected with any breach or alleged breach by you of your representations, warranties, covenants, agreements or undertakings pursuant to this Agreement. ONErpm shall have the right to withhold payment of any and all moneys hereunder in reasonable amounts related to such claim or action.

 

c.         You agree to be bound by the Terms of Use, Privacy Policy, and other agreements entered into by you on the Site (the “Site Agreements”) located on the website onerpm.com (the “Site”), as the same are amended or updated from time to time on the Site, which are incorporated herein by reference. To the extent the terms of the Site Agreements conflict with this Agreement, the terms of this Agreement shall govern. You further agrees to be bound by YouTube’s, Google’s and the Third Party Platforms’ terms of use, privacy policies and related agreements (the “Third Party Platform Agreements”) as they pertain to you, the use of YouTube’s or the Third Party Platforms’ services, the Content, and the rights granted hereunder.

 

d.         Nothing in this Agreement shall obligate ONErpm to distribute, reproduce, exploit, or otherwise use any of the Videos or other Content, all of which shall be in ONErpm’s sole discretion. ONErpm may choose to not provide, or cease to provide, any Services, with respect to any Video in its sole discretion, including, without limitation, due to poor production quality or hateful, obscene or inappropriate content. Without limiting the foregoing, ONErpm shall have the unilateral right to remove any Content or other materials from the Site and Services that it deems, in its sole discretion, to violate the Site Agreements, the Third Party Platform Agreements, or the terms and conditions of this Agreement.

9.         LIMITATION OF LIABILITY.
 ONERPM'S AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF MONEY PAID BY ONERPM TO YOU DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE BREACH OR ALLEGED BREACH BY ONERPM OF THIS AGREEMENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL ONERPM BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITARY DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS OR LOST DATA ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT.  THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, WHETHER OR NOT THE PARTIES WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.  THE PARTIES AGREE THAT THE AGREEMENTS MADE IN THIS SECTION REFLECT A REASONABLE ALLOCATION OF RISK, AND THAT EACH PARTY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.


10.       Miscellaneous.

 

a.         This Agreement contains the entire understanding and agreement between the parties with respect to the matters referred to herein and may only be modified by a writing electronically accepted and/or signed by the parties. This Agreement supersedes any other prior or contemporaneous agreements, whether written or oral, with respect to the subject matter hereof.

 

b.         If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, or if compliance with any provision in this Agreement is consistent with any court order imposed directly on a party to this Agreement, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and remain enforceable between the parties.

 

c.         As a condition precedent to any assertion by you that ONErpm is in default in performing any obligation contained herein or otherwise in breach of this Agreement, you shall give ONErpm detailed written notice of such default or breach, and ONErpm shall be allowed a period of thirty (30) days after receipt of such written notice within which to cure such alleged default or breach. No default or breach by ONErpm will be deemed to be incurable. The failure of either party to act in the event of a breach of this Agreement by the other will not be deemed a waiver of such breach or a waiver of future breaches.

 

d.         The parties agree and acknowledge that the relationship between the parties is that of independent contractors. This Agreement shall not be deemed to create a partnership or joint venture, and neither party is the other's agent, partner, employee, or representative.

 

e.         ONErpm will have the right to assign this Agreement to any affiliate or successor of ONErpm. You acknowledge and agree that neither this Agreement nor any right or interest hereunder may be assigned or transferred by you without the express written consent of ONErpm.

 

f.          All notices hereunder shall be sent in writing via electronic mail.  If ONErpm provides notice to you, ONErpm will use the contact information provided by you upon registration with ONErpm or as updated by you, or, in the absence of a valid electronic mail address, via any other method ONErpm may elect in its sole discretion, including, but not limited to, via posting to your account on the Site. All notices to ONErpm shall be sent to support@ONErpm.com. All notices will be deemed received: (i) 24 hours after the electronic mail message was sent, if no “system error” or other notice of non-delivery is generated or (ii) upon posting if by other electronic means, if permitted. If applicable law requires that a given communication be “in writing,” you agree that email communication will satisfy this requirement.

 

g.         Those provisions of this Agreement, which by their nature should survive expiration or termination of the Term, including without limitation the relevant provisions of sections 8, 9, and 10, will survive any expiration or termination of this Agreement.

 

h.         This Agreement shall be deemed to have been made in the State of New York, and it’s validity, construction, performance and breach shall be governed by the laws of the State of the New York, without regard to its conflict of laws provisions. 

 

i.          All actions or proceedings seeking the interpretation or enforcement of this Agreement shall be submitted for final binding arbitration under the commercial rules then pertaining of the American Arbitration Association in New York City. Any such action or proceeding shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim, controversy, action or proceeding of any other party. In the event of a claim or dispute, your sole remedy shall be limited to their remedy at law for damages, if any, and you shall not have the right to in any way enjoin or restrain ONErpm’s Site, Services or other activities.

 

You acknowledge that you have been advised to seek independent legal and business counsel with respect to this Agreement and that you have either sought and obtained such counsel or deliberately refrained from doing so. This Agreement shall be deemed to be jointly drafted by the parties and may not be construed against any party by reason of its preparation or word processing.

 

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