EME Streaming is a Nevada corporation (“EME Streaming”, “us” or “we”), social network, crowdfunding platform, streaming platform, and digital distribution platform consisting of websites, services, software applications, embeddable players, and/or syndicated widgets (the “EME Streaming Services”).
This Streaming Agreement (the “Streaming Agreement”) for the EME Streaming Services is a legal contract between you, an individual user of at least 18 years of age or a single entity (“you”, “User”, “user”,“Filmmaker” or, collectively, “Users”, “users” or “Filmmakers”), and EME Streaming regarding the provision and streaming of your content via the EME Streaming Services.
The EME Streaming Services allow certain users called Filmmakers to distribute and display their films in the form of streaming videos (the “Films”) and to distribute, post and display textual and photographic comments (“Filmmaker Comments”) and personally identifiable information commonly known as name and likeness (“Filmmaker Name and Likeness”). Films, Filmmaker Comments and Filmmaker Name and Likeness, together with all other text, files, images, photos, video, sounds, musical works, works of authorship, applications, preview clips and artwork created from Films, Filmmaker Comments and Filmmaker Name and Likeness (pursuant to this Agreement) or any other materials submitted, displayed, published, posted or transmitted through or on the EME Streaming Services by Filmmakers are collectively referred to as “Filmmaker Submissions”.
The “Effective Date” of this Streaming Agreement is the date upon which you submit any Filmmaker Submissions to EME Streaming for streaming.
1. Terms of Service
2. Modification of Streaming Agreement
We may modify or amend this Streaming Agreement at any time. We shall use our best efforts to notify you of any such amendment, but our inadvertent failure to so notify you shall not be deemed a breach of this Streaming Agreement or any of your rights.
3. Grant of Rights
Although you retain all ownership in your Filmmaker Submissions, you hereby grant EME Streaming the worldwide, fully assignable, unrestricted, non-exclusive, royalty-free rights and licenses for the duration of the Term (as defined hereinbelow) solely to:
i. create preview clips and artwork from your Filmmaker Submissions and make available your preview clips and artwork via the EME Streaming Services to users;
ii. encode, transcode, compress or convert your Filmmaker Submissions into any format, any bit rate, and using any Codec now known or later developed;
iii. store your Filmmaker Submissions on one or more servers in order to deliver streams, display your Filmmaker Submissions to users and for routine archival purposes;
iv. use and publish, and to permit others to use and publish, the name(s), trademarks, likenesses and biographical materials of you and all persons rendering services in connection with your Filmmaker Submissions;
v. edit, reproduce, distribute, publicly perform, stream (including without limitation by SVOD), display, transfer and host your Filmmaker Submissions (and/or portions thereof) for EME Streaming promotional purposes only (no material or substantive changes will be made by us to the complete Filmmaker Submissions without Filmmaker’s prior approval); and
vi. publicly perform any musical compositions that may be embodied in the Filmmaker Submissions; and
vii. edit and reproduce any musical compositions that may be embodied in the Filmmaker Submissions.
viii. advertise and promote the Titles as it sells subscriptions to the Distributor Service(s).
ix. to insert advertising and other promotional materials in, on, or around the Titles (e.g., pre-roll, end-roll, trailers) and otherwise include advertising on the Distributor Service(s).
x. create, distribute and exhibit teasers, clips, sneak peeks, and other marketing materials based on the Titles and use such marketing materials in any and all media, manner and format, whether now or hereafter devised
Such rights and licenses will apply to any form, media, or technology now known or hereafter developed.
4. Representations and Warranties
Each party represents and warrants to the other that: (a) it is duly organized and validly existing under the laws of the state of its formation; (b) it has full power and authority to enter into this Agreement and to fully perform its obligations and grant the rights granted hereunder, and there is no contract or other obligation that would otherwise interfere with or hinder the performance of the obligations or the rights granted hereunder; and (c) it will not violate the rights of third parties and will perform its obligations under this Agreement in compliance with all applicable laws.
Licensor additionally represents and warrants to Distributor that: (a) it presently has and will continue to have, at all times during the Term, all rights necessary (including with regard to any trademarks and copyrights included in the Licensed Content); (b) any and all content (soundtracks, music, visuals, etc.) included in the Licensed Content is properly cleared for use as contemplated hereunder, and (c) Licensor has obtained from all third-parties, all necessary waivers, releases, consents, and rights necessary to use such party’s intellectual property, name, likeness, biographical materials, music, and other intellectual property (collectively the “Third Party IP”) in connection with the rights licensed hereunder with respect to the Licensed Content and the promotion thereof.
By distributing or disseminating Filmmaker Submissions through the EME Streaming Services, you hereby grant to each user of the EME Streaming Services that is authorized to access your Filmmaker Submissions a personal, non-exclusive license to access and view your Filmmaker Submissions. You represent and warrant that you have all rights and authority to grant the rights and licenses provided for herein, and to agree to this Streaming Agreement and abide by its terms; any violation by you of the foregoing representation and warranty shall be deemed a material breach of this Streaming Agreement, for which the indemnification, defense, and hold harmless provisions hereof and as provided for in the Terms of Service shall apply.
5. The Term
The time period that this Streaming Agreement is in effect begins on the Effective Date and continues for a minimum term of two (2) years and which shall automatically renew for successive additional one (1) year terms (the “Term”); provided, however, that Filmmaker shall have the right to terminate such automatic renewal if written notice of same is provided to us at least forty-five (45) days prior to the expiration of any such term or renewal term (as applicable); provided further, however, that Filmmaker shall have a one-time option to terminate the Term as of the date that is six (6) months after the Effective Date by providing advance written notice of at least thirty (30) days to us prior to such 6-month anniversary. We can terminate this Streaming Agreement at any time by sending you a notice of our intention to terminate.
6. Data and Metrics
EME Streaming is the sole owner of all data and metrics it observes or collects during or after the Term as part of providing the EME Streaming Services or otherwise. Upon written request, EME Streaming agrees to share all data and metrics information to the Filmmaker with respect to such Filmmaker’s Filmmaker Submissions only, on no less than a quarterly basis; provided, however, that EME Streaming shall at all times retain ownership of such information unless otherwise agreed in writing signed by us and Filmmaker. Filmmaker agrees to and shall not disclose any such information without approval from EME Streaming.
7. Filmmaker Payments
EME Streaming subscribers will pay a fee to subscribe to view your Film(s) (“Subscribers”). Payments to you based on viewings of your Filmmaker Submissions will be subject to and in accordance with EME Streaming’s standard pricing models (i.e. how much we charge the Subscribers), which are subject to adjustment at any time, with or without notice, by EME Streaming. EME Streaming will allocate 50% of every subscriber payment collected to the filmmaker royalty pool each month, and you will receive a pro-rata share of such amounts based on minutes watched by Subscribers of your Filmmaker Submissions each month as determined by Company pursuant to its regular record-keeping methods and procedures. Your portion of such amounts shall be deemed the “Filmmaker Payments” and you will be accounted to on a quarterly basis (within 30 days of the end of each quarter) and paid sums due to you if and to the extent any such revenue is earned by you. You and we agree that the Filmmaker Payments shall be net of any and all associated fees or charges (e.g., credit card fees and stripe processing fees) with respect to your Filmmaker Submissions and any other deductions made by us pursuant to the terms and conditions herein and on the EME Streaming Services. We reserve the right to withhold payment if we in good faith determine that additional documentation is necessary to make the payment (e.g. W-9 or identification). You agree that you will be responsible for all taxes incurred as a result of the Filmmaker Payments and indemnify and hold us harmless for any liability with respect to same.
Royalties collected for filmmakers or distribution companies based outside of the US are subject to separate taxation. EME Streaming is required to withhold 30% of royalties to be paid directly in federal taxes. Foreign companies and individuals are advised to review their country’s treaty status with the United States which may entitle them to a preferable tax rate per column 11 in this table. If the foreign company is in a treatied territory, they can receive this preferable tax rate if they have a Foreign Taxpayer Identification Number (an FTIN is a taxpayer identification number issued by a country other than the United States). They would then submit the following documentation: If receiving payment as an individual, W-8BEN; if receiving payment as a Business/Entity, W-8BEN-E; if receiving payment as a Foreign Flow-Through Entity, W-8IMY. This does not amount to all the tax liabilities a foreign company may incur, and EME Streaming strongly recommends seeking professional tax advice.
Please note: Filmmakers are not permitted to stream their films or series on loop as a means to increase their minutes watched and thus their revenue share. If EME Streaming suspects an individual filmmaker of playing his or her project on repeat to increase minutes watched, we will take immediate action to remedy the situation, including possibly removing the filmmaker’s project from the platform. We expect all our filmmakers to act with honesty and integrity and to earn their fair share of minutes watched.
8. Filmmaker Conditions Precedent and Representation
Filmmaker has and hereby grants to EME Streaming all of the rights necessary to comply with the terms of this Streaming Agreement, for EME Streaming to perform its obligations hereunder, and with respect to the EME Streaming Services.
The indemnification, defense, and hold harmless provisions of this Streaming Agreement shall survive termination or expiration of this Streaming Agreement, as shall those provisions serving to limit EME Streaming’s liability hereunder.
If we receive a claim that our distribution of your Filmmaker Submissions or any other materials provided or authorized by you violates any third party rights or if a claim arises from your breach or alleged breach of the representations, warranties, covenants, or agreements made by you herein, you agree to fully indemnify and hold us harmless, and upon our request, defend us and our licensees and affiliates (and our and their respective directors, officers, shareholders, members, employees, agents, representatives, and contractors), collectively the “releasees”, from and against any and all losses, liabilities, damages, costs and/or expenses (including reasonable attorneys’ fees and costs) concerning any such claim and any resulting liability therefrom.
Accordingly, you agree to reimburse the releasees on demand for any payments made in resolution of any liability or claim that is subject to indemnification under this paragraph. We will use reasonable efforts to promptly notify you of any such claim, and by obtaining, posting and maintaining an adequate bond for our benefit you may assume control of the defense of such claim, provided that we will have the right in all events to participate in the defense thereof. Additionally, you agree to indemnify, defend, and hold the releasees harmless from and against anything including all losses or liabilities (including reasonable attorneys’ fees, costs, and expenses) arising out of any claims by any person that relates to your withdrawal of your Filmmaker Submissions (such as claims alleging unfair business practices, or price discrimination).
This Streaming Agreement and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by EME Streaming without restriction. Any assignment attempted to be made in violation of this Streaming Agreement shall be void. This Streaming Agreement will be binding on the assigns, heirs, executors, personal representatives, administrators, and successors (whether through merger, operation of law, or otherwise) of each of the parties.
11. Governing Law; Dispute Resolution
This Agreement will be governed by and will be construed and enforced in accordance with the laws of the State of New York applicable to agreements entered into and performed within such state. The parties agree that any dispute between them regarding any matter related to or arising out of this Agreement (an “Arbitrable Dispute”) shall be resolved by binding, confidential arbitration in New York County, New York, by a single arbitrator from Judicial Arbitration & Mediation Services, Inc. (“JAMS”), who must be a retired judge, having served on any federal court located in California or New York, or the Los Angeles or New York superior court, or a higher court of the states of California or New York. The rules and procedures for JAMS, including JAMS’ Emergency Relief Procedures, shall govern the proceedings, including the selection of the arbitrator. The parties each hereby waive any claim that New York, NY, is an inconvenient forum, or that either personal or subject matter jurisdiction is lacking in New York, NY. Without limiting the generality of the foregoing, the parties each agree that all questions as to whether or not an issue constitutes a dispute subject to arbitration under this section shall be resolved by arbitration in accordance with this section. The arbitrator shall have the power to impose any sanction against any party permitted by New York law. The filing and prosecution by any party in any court of an action alleging any Arbitrable Dispute is a breach of this Agreement, and the non-breaching party shall be entitled to recover damages for such breach through an arbitration pursuant to this section. The occurrence of such arbitration proceedings and the arbitration proceedings themselves shall be maintained as confidential and shall be treated as confidential information of each of the parties. The arbitrator shall render a single written decision setting forth an award and stating with reasonable detail the reasons for the decision reached. Any award issued as a result of such arbitration shall be final and binding, and a judgment rendered thereon may be entered in any court having jurisdiction thereof; provided, however, that to the extent possible, the parties will keep the specifics and pleadings related to the arbitration confidential and will request that any court action relating to entry of judgment on the arbitration award shall be conducted under seal.
The parties hereby agree that they will not publicly criticize, ridicule, disparage, or defame each other, any affiliated entity, or their related personnel, or make statements to the press or third parties that may be derogatory or detrimental to any of their good name or business reputation; or otherwise commit any act that is reasonably likely to reflect unfavorably on such party or any affiliated entity, or bring such party or any affiliated entity into public disrepute, contempt or scandal.
Each of the parties hereto will regard and preserve as confidential the existence and terms of this Agreement and all information related to the business of the other party as may be obtained by either party or their agents from any source as a result of this Agreement; provided, however, that either party shall have the right to disclose such information to their respective affiliates, employees, officers and directors (all to the extent required to perform its obligations hereunder), advisors, insurers and financing entities who need to know such information to carry out their obligations hereunder or exercise any rights under this Agreement, provided that such persons are bound by confidentiality obligation that are at least as protective of such information as the terms of this paragraph (and in no event using less than reasonable care). The parties shall use reasonable care to protect the other party’s confidential information, but in no event less than the standard it uses to protect its own confidential information of a similar type. As used herein, confidential information does not include, (a) information that is, or becomes, publicly available without a breach of this agreement; (b) information disclosed by a third party, provided such disclosure by the third party is not in violation of any confidentiality agreement or obligation; or (c) information disclosed pursuant to any judicial or governmental request, requirement, or order.