1. YOUR CONTENT
Uploading or providing us with content
When you upload, post, or otherwise provide content to us by any means, in connection with our Services (all such content “User Content” which shall include without limit any audio or video material, images, trademarks, data, information, or executable code, in any medium or form) you warrant, represent and undertake that you have full power and authority to do so and to enter into this Agreement; you have obtained, and shall maintain throughout the period for which such User Content remains on, within or connected in any way to our Services, all rights, licences, permissions, clearances and consents necessary in order for us to fully exercise the rights granted to us in the next section or otherwise under this Agreement; the User Content shall not infringe any rights, including the intellectual property rights, of any person or business, shall comply with all applicable laws and regulations, shall contain nothing that is defamatory, illegal, obscene, blasphemous or indecent or which may cause religious or racial hatred; and you will do all things as may be requested by us from time to time (including providing information, signing documents and consents and submitting forms) in order to enable us to provide Services in relation to the User Content. To the extent that any moral rights in or to the User Content are not transferable or assignable, you hereby waive and agree never to assert any such moral rights, or to support, maintain or permit any action based on any such moral rights. You expressly release SocialFuel Media and all of SocialFuel Media’s agents, partners, subsidiaries, affiliates, licensees, successors, and assigns from any and all claims, demands, liabilities, and causes of action, whether now known or unknown, for defamation, copyright infringement, violation of moral rights, and invasion of the rights to privacy, publicity, or personality or any similar matter, or based upon or relating to the use of your User Content. Notwithstanding the foregoing, you should let us know immediately (by email to email@example.com) if you object to any uses of your User Content on or through the Services or in the promotion of the Services.
We have the right to remove any User Content uploaded on or posted to our Services for any or no reason and to disclose your identity to any third party who is claiming that any User Content posted or uploaded by you to our Services constitutes a violation of their intellectual property rights, or of their right to privacy.
You must not: (i) misuse our Services by knowingly introducing viruses, trojans, worms, logic bombs or other material, which is malicious or technologically harmful; (ii) in any way misuse and/or abuse any functionality on any platform (including, by way of example only, the ‘Content ID’ functionality on YouTube) in connection with our Services; (iii) attempt to gain unauthorised access to our Services, any servers on which our Services are stored or any server, computer or database connected to our Services; or (iv) attack any of our Services via a denial-of-service attack or a distributed denial-of service attack. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our Services will cease immediately.
Rights you grant to us
When you upload or post User Content or otherwise deliver User Content to us by any means in connection with our Services, you grant to SocialFuel Media a worldwide, exclusive, royalty-free, transferable licence (with right to sublicense) to use, reproduce, distribute, syndicate, modify, create derivative works of, display, publish, perform and otherwise fully exploit that User Content in any media formats and through any media channels in connection with our provision of Services; and an exclusive royalty-free, transferable licence (with right to sublicense) to sell advertising inventory in connection with such User Content. The rights granted in this paragraph include the rights to use your name, image, voice, likeness, and any videos, photographs or artwork made available by or on your behalf through the Services in connection with advertising, marketing, or promoting you, your User Content, SocialFuel Media, or the Services. The rights granted by you under this paragraph in respect of any User Content shall terminate when you or SocialFuel Media remove(s) or delete(s) that User Content from the Services, or otherwise when this Agreement is terminated in accordance with its terms.
“Revenue” shall for the purposes of this Agreement mean the sum of all revenue actually received by us less any actual out of pocket expenses and any applicable third party fees.
Where you upload or otherwise provide us with User Content and the grant to us the rights set out under this Agreement we will pay you all Revenue we receive from the syndication, distribution, licensing, sale of advertising in relation to, or other use of your User Content in accordance with the terms of this Agreement, after first deducting our fee of thirty-five per cent (50%) of such Revenue and any fees payable to publishers of your User Content. This paragraph will not apply to our management of your Channel(s) (to which the “Management of your Channels” section below shall apply).
Reporting and revenue settlement
We will collect all Revenue (if any), and within 45 days of the end of each calendar month will provide a report to you detailing (for such calendar month) your share of any such Revenue. We will pay your share of such Revenue within fifteen (15) days of delivery of the report to you, subject to our receipt of an invoice from you in respect of such Revenue. All payments to you will be remitted to your bank account.
Notwithstanding the above paragraph, we will not provide any report or make any payments to you in respect of any month in which the sum payable to you is less than fifty pounds (£50). On such occasions any unpaid amounts will be carried forward to the succeeding month and at the end of the Term all outstanding payments shall be made to you.
Advertising on your User Content
2. LIMITATION OF LIABILITY
Nothing in this Agreement shall exclude or limit our liability for losses which may not be lawfully excluded or limited by applicable law. Subject to the foregoing, in no event shall SocialFuel Media or its suppliers, or their respective officers, directors, employees, or agents be liable with respect to the Services or the subject matter of this Agreement whether such liability arises in contract, tort (including negligence), misrepresentation (other than fraudulent misrepresentation), breach of duty or otherwise for any amount (in aggregate) in excess of the revenue received (and retained) by SocialFuel Media in connection with its provision of the Services to you during the twelve-month period immediately preceding the event (or series of events) giving rise to any such liability; for any indirect, incidental, punitive, or consequential damages of any kind whatsoever (including without limit any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, or any loss of opportunity); for data loss or cost of procurement of substitute goods or services; or for any matter beyond SocialFuel Media’s reasonable control.
This Agreement shall remain in full force and effect while you use the Services. We may terminate or suspend your access to the Services at any time, for any reason, and without warning. Either party may terminate or suspend any and all Services immediately, without prior notice or liability, if the other party commits a material breach of the terms or conditions of this Agreement. Upon termination of this Agreement for any reason, your right to use the Services, any SocialFuel Media Content or any other content or material within the Services will immediately cease, all outstanding sums payable by either party to the other shall immediately become due and payable and each party shall promptly return (or, if so authorised by the other party, to the extent possible using reasonable commercial endeavours, destroy or delete) the confidential information of the other, save that we will be entitled to keep copies of your confidential information for internal purposes. All provisions of this Agreement, which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
If some Services are terminated, but we continue to provide other Services to you, the above paragraph will only apply in relation to the Services terminated.
Unless stated otherwise, all sums payable under this Agreement are exclusive of any value added tax, goods and services tax and similar sales and other taxes in any jurisdiction and any taxes imposed in substitution for the foregoing (together “VAT”). Any VAT on any sums payable hereunder shall be paid on the due date for payment of such sums.
Should either party to this Agreement receive any confidential information of the other party, including without limit information relating to the business affairs, customers, clients or suppliers of the other party, or of any member of the group of companies to which the other party belongs then the party in receipt of such confidential information shall not at any time disclose such confidential information to any other person save for (a) any disclosure to that party’s employees, officers, representatives or advisers who need to know such information for the purposes of exercising any rights or carrying out obligations under or in connection with this Agreement; and (b) any disclosure required by law, a court of competent jurisdiction or any governmental or regulatory authority. Neither party shall use one another’s confidential information for any purpose other than to exercise rights and perform obligations under or in connection with this Agreement.
By using or accessing the Services you agree to indemnify SocialFuel Media and all of SocialFuel Media’s agents, partners, subsidiaries, affiliates, licensees, successors, and assigns and shall keep them indemnified at all times against any and all claims, proceedings, demands, damages, liabilities, costs and expenses (including reasonable legal costs) incurred howsoever as a result of, or in connection with, any breach of any of your warranties, representations or undertakings under this Agreement.
We shall not be in breach of this agreement nor liable for delay in performing, or failure to perform, any of our obligations under this agreement if such delay or failure result from events, circumstances or causes beyond our reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
Except insofar as this Agreement expressly provides that a third party may in his own right enforce a term of this Agreement, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement.
No failure or delay by us to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
This Agreement shall constitute the whole agreement between you and SocialFuel Media and shall supersede any previous arrangements, understandings or agreements between you and SocialFuel Media relating to the subject matter they cover. Both you and SocialFuel Media acknowledge and agree that in entering into this Agreement you do not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
Nothing in this Agreement shall be deemed to constitute a partnership between you and SocialFuel Media.
We will be entitled to assign, transfer, sub-license, sub-contract, or otherwise deal in any other manner with any or all of our rights and obligations under this Agreement without your prior written consent.
If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of you and SocialFuel Media.
A notice given under this Agreement shall be in the English language and, in the case of notices to us shall be sent by email to firstname.lastname@example.org and, in the case of notices to you, shall be sent by email to the email address you provided to us when submitting your content, or otherwise any email address provided to us for the purposes of receiving such notices, or otherwise any email address you have provided us with. Without prejudice to any earlier time at which a notice or other communication may be actually given and received, a properly addressed notice will in any event, if no delivery failure is reported to or by the sender’s e-mail server, be deemed to have been given and received on the date such e-mail was sent (or, if such day is not a business day, then the next business day).
This Agreement, its subject matter and its formation (and any non-contractual disputes or claims) are governed by English law. We both agree to the exclusive jurisdiction of the courts of England and Wales. Notwithstanding this, you agree that SocialFuel Media shall still be allowed to apply for injunctive remedies (or other equivalent types of urgent legal remedy) in any jurisdiction.