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PLEASE READ THESE VEOH PRO PUBLISHER TERMS AND CONDITIONS ("VEOH PRO PUBLISHER TERMS") CAREFULLY. IT IS A LEGAL DOCUMENT. IT CONTAINS BINDING OBLIGATIONS. BY CLICKING "I AGREE" AT THE END OF THIS DOCUMENT, YOU ("you" or "your" as applicable) ARE AGREEING TO BE BOUND BY THESE VEOH PRO PUBLISHER TERMS. IF YOU ARE ACCEPTING ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR SUCH ENTITY TO THESE VEOH PRO PUBLISHER TERMS. "YOU" MEANS YOU OR, IF YOU ARE ACCEPTING ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, "YOU" MEANS THAT EMPLOYER OR ENTITY.
The Veoh Service is described in the Terms of Use ("TOU"), which is incorporated by reference. In addition, the Veoh Service may include the services described from time to time on Veoh's website, provided, however, that Veoh reserves the right to change, improve and/or update the Veoh Service from time to time in its sole discretion. As part of the Veoh Service, Veoh enables rights holders ("Publishers") to upload, manage and distribute their content directly to end users through various distribution channels, including, but not limited to, (i) their own, proprietary website/s, (ii) through the Veoh Service itself, and/or (iii) anywhere Veoh enables such content to be accessed.
In order to upload and publish content on the Veoh Service, You must have "accepted" these Veoh Pro Publisher Terms and the TOU, and You must have an active, authorized account with Veoh. All content made available by you, other than "User Material," as defined in the TOU, is referred to as either "Video Material" or "Publisher Material." "Video Material" for purposes of this Agreement is the video you upload to the Veoh Services. "Publisher Material, for purposes of this Agreement, is any other material you provide and includes without limitation music, animation, text, software, scripts, graphics, images, audio, information and interactive features. You are solely responsible for all Video Material and Publisher Material You transmit or submit to Veoh, whether created by or for You. You may not submit Video Material and Publisher Material that contains any pornographic, infringing, hate-related, violent or illegal content. You may only upload and publish Video Material and Publisher Material on the Veoh Service to which You have sufficient rights and licenses to permit the distribution of your Video Material and Publisher Material via the Veoh Services. At all times, in using the Veoh Service, You must observe and abide by these Veoh Pro Publisher Terms and the TOU as they may be amended from time to time.
Each party retains any and all pre-existing right, title and interest in and to its website/s, intellectual property, including copyrights and trademarks, technology, content and all components thereof, in whole or in part. Accordingly, You own Your Video Material and Publisher Material, and Veoh owns the Veoh Service. Neither these Veoh Pro Publisher Terms nor the TOU shall be construed in any manner as transferring any rights of ownership of or license to the foregoing, and/or to the features or information therein, except as expressly set forth in these Veoh Pro Publisher Terms and the TOU. Under no circumstances will these Veoh Pro Publisher Terms be construed as granting, by implication, estoppel or otherwise, a license to any intellectual or other property or components thereof other than as specifically granted in these Veoh Pro Publisher Terms or the TOU.
License to Veoh. You hereby grant Veoh a limited, non-exclusive, worldwide, revocable, sublicensable license to perform such acts in connection with Your Video Material and Publisher Material as are necessary to provide the Veoh Service. Specifically, the foregoing license includes, without limitation, and to the extent necessary to provide the Veoh Service, permission for Veoh, to: (i) publicly display, publicly perform, transmit, distribute, copy, store, reproduce and/or provide Your Video Material and Publisher Material on or through the Veoh Service, either in its original form, copy or in the form of an encoded work; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms based on Your Video Material and Publisher Material; (iii) distribute, transmit, and/or display Your Video Material and Publisher Material and encoded works via such technologies as are supported by Veoh from time to time; and (iv) display advertisements in connection with any display of Your Video Material and Publisher Material and encoded works. For the avoidance of doubt, Veoh expressly acknowledges and agrees that the Veoh Service does not include taking title to any Video Material and Publisher Material supplied by You.
Commercial License. In the event you choose to monetize Your Video Material and Publisher Material through the Veoh Service, You hereby grant to Veoh and its distribution partners a limited, non-exclusive, worldwide, revocable license to use, reproduce, publicly perform, distribute and display Your Video Material and Publisher Material for commercial purposes, including monetary consideration, through the Veoh Service and to engage in further actions in connection with Your Video Material and Publisher Material as may be necessary or appropriate in order to facilitate the distribution and monetization of Your Video Material and Publisher Material.
Subject to full compliance with these Veoh Pro Publisher Terms, Veoh hereby grants You, and You hereby grant Veoh, a non-exclusive, non-transferable (except as provided herein), royalty-free right to reproduce and display the other's logos, trademarks, trade names and other similar identifying material (the "Marks") solely for the purposes described herein and in accordance with Veoh's or Your, as applicable, established usage policies and procedures, as may be modified from time to time in Veoh's or Your, as applicable, sole discretion and as supplied by link or in writing to the other party, and, in the case of Veoh, to grant sublicenses thereto on the same terms and conditions to end users and Veoh's affiliates and partners to the extent necessary in connection with the provision of the Veoh Service. In connection with such licenses, each party shall have the unilateral right to establish such quality standards and additional terms and conditions as such party deems necessary to reasonably protect its Marks. These licenses may be revoked by the granting party at any time upon notice to the other and will otherwise terminate automatically upon the termination of these Veoh Pro Publisher Terms between You and Veoh.
By using the publisher portion of the Veoh Service, You may select options regarding the presentation, management, distribution of and end user access to Your Video Material and Publisher Material. You may change Your selections regarding each option to the extent permitted by the publisher portion of the Veoh Service. In all cases, Your last selections reflected in Veoh's database shall be conclusive in the event of any dispute.
Veoh provides you with the option of charging viewers to view the material you upload to the Veoh Services. If you select such an option, (for example, a pay to own option or a pay to rent option) Veoh will share revenue with you, in accordance with what is described on Veoh's website. In all cases, any revenue to be shared with You shall be based only upon amounts actually collected by Veoh, and shall be less any applicable reductions, which shall include: (i) commissions, fees and other amounts paid or payable by Veoh to third parties in connection with such revenues collected; (iii) sales, excise, value-added and other taxes paid or payable by Veoh in connection with its collection of gross receipts; and (iv) if applicable, credit card and processing fees. Veoh makes no representation or guarantee that You or Veoh will obtain any orders for or receive revenue from any Video Material and Publisher Material. Veoh shall pay Your revenue share to You within 45 days after the end of the end of each month in which Your account has a positive balance, provided, however, that Veoh shall not be required to remit any payment to you if the balance of the revenue share owed to you is less than $100, and in that event, Veoh shall credit such amount to Your account for future payment. Any dispute or claim concerning calculation or remittance of Your share of revenue must be brought to the attention of Veoh by e-mail at such designated e-mail address as Veoh shall identify on the Veoh website from time to time [or insert email address], within forty-five (45) days following the payment due date, accompanied by the details forming the basis for such dispute or claim. Failure to follow the procedure set forth in the preceding sentence shall serve as sufficient reason for Veoh to reject such claim without further liability.
You acknowledge that Veoh does not endorse, evaluate or guarantee any Video Material and Publisher Material and you may not state or imply any such endorsement, evaluation or guarantee. Veoh does not guarantee that any Video Material and Publisher Material will be made available on the Veoh Service, whether continuously or at all. Veoh shall have no obligation to monitor any Video Material and Publisher Material. However, Veoh and its agents shall have and do reserve the right to monitor any Video Material and Publisher Material from time to time for any lawful purpose. Veoh may, without notice to you, remove or block content of any Video Material and Publisher Material from the Veoh Service.
Veoh reserves the right to suspend its performance or any aspect thereof under these Veoh Pro Publisher Terms at any time, without giving prior notice, for any act which Veoh, in its sole discretion, determines to be harmful to any end user of the Veoh Service, the Veoh Service itself or which Veoh determines in good faith violates or fails to comply with any applicable law or regulation.
You have the right to revoke certain licenses You are granting to Your Video Material and Publisher Material under these Veoh Pro Publisher Terms. If You choose to revoke any of Your revocable licenses, Veoh will use commercially reasonable efforts to remove Your Video Material and Publisher Material from the Veoh Service within three business days after receipt of Your notice of revocation but shall have no liability for failure to remove such Video Material. You acknowledge and agree that Veoh has limited practical ability to control or monitor possible infringement of Your intellectual property rights by other parties and that Veoh assumes no responsibility for controlling or monitoring such intellectual property rights and shall have no liability for such possible infringement. In addition, Veoh is not responsible for enforcing Your intellectual property rights, including filing suit or taking other legal action against infringers or against Veoh's distribution partners who fail to cease using Your Video Material and Publisher Material upon revocation. Veoh respects the licensing choices publishers may provide viewers, including Creative Commons type licenses, but assumes no responsibility for enforcing such liability hereunder.
Corporate. You represent and warrant at all times that: (i) You are duly organized and validly existing and in good standing under the laws of the state of Your incorporation; (ii) You have full corporate power and authority to enter into these Veoh Pro Publisher Terms and the TOU and to carry out the provisions hereof and thereof; (iii) You are duly authorized to execute and deliver these Veoh Pro Publisher Terms and the TOU and duly authorized to perform the obligations hereunder and thereunder; (iv) these Veoh Pro Publisher Terms and the TOU are legal and valid obligations, binding and enforceable in accordance with their terms; and (v) neither the execution, delivery and performance of these Veoh Pro Publisher Terms nor the TOU conflicts with any agreement, instrument, or understanding, oral or written, to which You are a party or by which You may be bound, or violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over You.
Ability to Accept these Veoh Pro Publisher Terms. You affirm that You are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to accept, make and/or perform the terms, conditions, obligations, representations and warranties set forth in these Veoh Pro Publisher Terms and the TOU, and to abide by and comply with the terms hereof and thereof.
No Infringement. You represent and warrant that You either own fully and outright or otherwise possess and have obtained all rights, approvals, licenses, consents and permissions as are necessary to perform Your obligations hereunder and under the TOU and to grant the licenses granted by You under these Veoh Pro Publisher Terms and the TOU.
Representations About Your Video Material and Publisher Material. You specifically represent and warrant that Your Video Material and Publisher Material and the distribution and/or publication of Your Video Material and Publisher Material through the Veoh Service or through and/or by any affiliate or partner of Veoh, directly or indirectly, does not, and shall not, infringe or misappropriate the rights of any third party, nor shall doing so violate any right of any person. You further represent that You have paid all license fees and/or other fees required to be paid to third parties for performance of Your obligations or exercise of Your rights hereunder, for the grant of the licenses hereunder and for any other act by You under these Veoh Pro Publisher Terms ("Third Party Fees"), and You covenant to timely pay any and all Third Party Fees required to be paid in the future for such actions. You further expressly agree that, as between You, on the one hand, and Veoh and its affiliates, subsidiaries and distribution partners on the other hand, any obligation to pay Third Party Fees as a result of distribution of Your Video Material and Publisher Material pursuant to these Veoh Pro Publisher Terms shall be Your obligation and not the obligation of Veoh or any of its affiliates, subsidiaries or partners.
You agree to defend, indemnify and hold harmless Veoh and its affiliates, subsidiaries and distribution partners and their respective officers, directors, employees and/or agents (collectively, "Veoh Indemnitees") from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys' fees) arising from: (i) your violation of any term of these Veoh Pro Publisher Terms, including any breach of any representation, warranty, covenant or agreement made by You herein; (ii) your violation, alleged or actual, of any third party right, including without limitation any copyright, property, or privacy right; (iii) any claim that any of Your Video Material and Publisher Material caused damage to a third party, or (iv) Your gross negligence or willful malfeasance (collectively, "Claims"). You are solely responsible for defending any such Claims, and for payment of losses, costs, damages or expenses resulting from the foregoing to both a third party and to the Veoh Indemnitees. Veoh shall have the right to withhold any payments due to You, if any, to offset any liabilities and expenses covered by this indemnity. Veoh shall have the right, in its sole discretion, to select its own legal counsel to defend the Veoh Indemnitees from any Claims (but by doing so shall not waive Your indemnity obligations), and You shall be solely responsible for the payment of all reasonable attorneys' fees incurred by the Veoh Indemnitees in connection therewith. You shall notify Veoh immediately if You become aware of any actual or potential claims, suits, actions, allegations or charges that could affect Your or Veoh's ability to fully perform its respective duties or to exercise its respective rights under these Veoh Pro Publisher Terms. You shall not, without the prior express written approval of Veoh, settle, dispose or enter into any proposed settlement or resolution of any Claim (whether having been finally adjudicated or otherwise) brought against You, if such settlement or resolution results in any obligation or liability for any Veoh Indemnitee. This defense and indemnification obligation will survive the term of these Veoh Pro Publisher Terms.
EXCEPT AS EXPRESSLY PROVIDED IN THESE VEOH PRO PUBLISHER TERMS, VEOH MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND TO YOU, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER IN CONNECTION WITH THESE VEOH PRO PUBLISHER TERMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE, SUITABILITY OR OTHERWISE. THE VEOH SERVICE IS PROVIDED ON AN "AS IS" BASIS ONLY, AND VEOH MAKES NO REPRESENTATION, WARRANTY OR ASSURANCE TO YOU THAT IT WILL BE ERROR-FREE OR PERFORM IN ACCORDANCE WITH ANY PARTICULAR STANDARD, LEVEL OR METRIC. YOU ALSO EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE VEOH SERVICE RELIES UPON THIRD-PARTY SOFTWARE FOR CERTAIN FUNCTIONS, INCLUDING, WITHOUT LIMITATION, THE ENCODING AND APPLICATION OF SECURITY AND DIGITAL RIGHTS MANAGEMENT FUNCTIONALITY AND PROTECTIONS. VEOH MAKES NO REPRESENTATION OR WARRANTY TO YOU THAT SUCH SOFTWARE WILL BE ERROR FREE, ACCOMPLISH THE SPECIFIED INTENT OR PERFORM IN ACCORDANCE WITH ANY PARTICULAR STANDARD, LEVEL OR METRIC, AND VEOH SHALL NOT BE LIABLE FOR ANY FAILURE THEREOF TO YOU OR ANY THIRD PARTY. YOU ALSO ACKNOWLEDGE AND AGREE THAT TECHNOLOGY MAY EXIST OR BE DEVELOPED TO COPY, DOWNLOAD OR OTHERWISE ACQUIRE YOUR VIDEO MATERIAL AND PUBLISHER MATERIAL WITHOUT YOUR AND/OR VEOH'S AUTHORIZATION AND/OR KNOWLEDGE, INCLUDING, WITHOUT LIMITATION, VIDEO MATERIAL AND PUBLISHER MATERIAL DELIVERED THROUGH STREAMING TECHNOLOGY.
IN NO EVENT SHALL VEOH OR ITS AFFILIATES, SUBSIDIARIES OR DISTRIBUTION PARTNERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND/OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS OR REVENUE, LOST BUSINESS, BUSINESS INTERRUPTION OR OTHERWISE) ARISING DIRECTLY OR INDIRECTLY FROM THE PERFORMANCE UNDER OR FAILURE OF PERFORMANCE OF ANY PROVISION OF THESE VEOH PRO PUBLISHER TERMS. UNDER NO CIRCUMSTANCES SHALL VEOH BE LIABLE FOR DAMAGES IN EXCESS OF AMOUNTS PAID OR PAYABLE TO YOU HEREUNDER.
SOME JURISDICTIONS RESTRICT THE LIMITATION OF LIABILITY OR DAMAGES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IF ANY PART OF THE LIMITATION OF LIABILITY SET FORTH ABOVE IS UNENFORCEABLE UNDER APPLICABLE LAW, VEOH'S AND ITS SUPPLIERS' AGGREGATE LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
Each party agrees not to disclose the other party's Confidential Information without such other party's prior written consent. "Confidential Information" includes, without limitation: (i) all intellectual property, including, without limitation, all software, technology, programming, technical specifications, materials, guidelines and documentation relating to each party's respective business; (ii) any click-through rates, financial information (including pricing), business information, including, without limitation, operations, planning, marketing interests, products and any other reporting information; and (iii) any other information designated in writing as "Confidential" or with an equivalent legend or that would otherwise be reasonably considered confidential or proprietary given its nature or the circumstances under which it was disclosed. Confidential Information does not include any information that has become publicly known through no breach of the above confidentiality obligations by You or Veoh, or information that (a) is in or enters the public domain other than by a breach of the above confidentiality obligations or (b) is rightfully received from a third party without a breach of confidentiality by such third party. Notwithstanding the foregoing, neither party shall be prevented from disclosing the other party's Confidential Information to the extent required by law, rule, regulation or bona fide legal process, provided that party required to so disclose takes all reasonable steps to restrict and maintain confidentiality of such disclosure and provides prior written notice to the other party.
Force Majeure. In the event that either party is prevented from performing or is unable to perform any of its obligations under these Veoh Pro Publisher Terms due to any cause beyond its reasonable control, then that party's performance shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to such occurrence.
Independent Contractors. Veoh and You are independent contractors and nothing herein shall be construed to create a partnership, joint venture or agency relationship between Veoh and You, and neither party has authority to enter into agreements of any kind on behalf of the other.
Assignment. You may not assign any of your rights or obligations under these Veoh Pro Publisher Terms or the TOU without Veoh's express prior written consent. Veoh may assign its rights or assign or delegate any of its obligations under these Veoh Pro Publisher Terms or the TOU to the extent Veoh deems it necessary or desirable to provide or maintain the Veoh Service.
Governing Law, Jurisdiction and Venue. These Veoh Pro Publisher Terms shall be governed by and construed in accordance with the laws of the State of California, without regard to or application of choice of law rules or principles. You expressly consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in Los Angeles County of the State of California for any claim or action arising out of or relating to these Veoh Pro Publisher Terms. You agree that ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE VEOH PRO PUBLISHER TERMS MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. The prevailing party in any litigation will be entitled, in addition to any other relief granted to it, to recover reasonable attorney's fees, expenses and costs incurred in connection with the litigation.
Good Faith. You agree to act in good faith with respect to each provision of these Veoh Pro Publisher Terms and the TOU and any dispute that may arise related hereto or thereto.
Effect of Waiver. The waiver by You or Veoh of a breach or a default of any provision of these Veoh Pro Publisher Terms shall not be construed as a waiver of any succeeding breach of the same or any other provision.
Severability. Each provision of these Veoh Pro Publisher Terms shall be severable from every other provision hereof for the purpose of determining the legal enforceability of any specific provision.
Survival. All terms of these Veoh Pro Publisher Terms which by their nature extend beyond their termination shall remain in effect for as long as necessary to permit their full discharge and apply to each party's respective successors and permitted assigns.
Headings. The section headings and subheadings contained in these Veoh Pro Publisher Terms are included for convenience only, and shall not limit or otherwise affect the terms hereof.
Export and International. The Veoh Service is controlled and offered by Veoh from its facilities in the United States of America. Veoh makes no representations that the Veoh Service is appropriate or available for use in other locations. Those who access or use the Veoh Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.
Notices. All notice required to be given under these Veoh Pro Publisher Terms must be given in writing and delivered either by hand, by e-mail or by recognized overnight delivery service, all delivery charges pre-paid, and addressed as set forth below.
If to Veoh: Veoh Networks, Inc.
7220 Trade Street
Suite 115
San Diego, CA 92121
Attn: General Counsel
Fax: (858) 357-2282
If to You: Via email or transmittal to the address identified by You through Your registration for the Veoh Service shall constitute notice to You.
Use of Your Name. You agree to: (i) permit Veoh to issue a press release using Your name and/or Marks announcing entry into these Veoh Pro Publisher Terms; (ii) permit Veoh to utilize Your name and/or Marks in marketing materials and in connection with the Veoh Service; and (iii) permit Veoh to identify You as a publisher on the Veoh Service.
Entire Agreement. These Veoh Pro Publisher Terms, together with the TOU and Veoh's Privacy Policy license, constitutes the entire understanding of the parties hereto with respect to the matters and transactions contemplated hereby and supersedes all previous agreements between You and Veoh concerning the subject matter hereof. Neither party hereto has relied on any statement, representation or promise of the other party or representative thereof in agreeing to these Veoh Pro Publisher Terms.
Modification of Veoh Pro Publisher Terms. Veoh shall have the right to modify these Veoh Pro Publisher Terms at any time, which modification shall be effective immediately following the earlier of Veoh's posting of such change on its website or upon written notice to You. We recommend that you check the Veoh website regularly for any such changes. Your use of the Veoh Service following such posting or receipt of such written notice shall be deemed to constitute your acceptance of such modification. These Veoh Pro Publisher Terms may not otherwise be changed or modified, except in a writing signed by an authorized representative of Veoh.
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