AMENDED & RESTATED CONTENT HOSTING SERVICES AGREEMENT
This Amended & Restated Content Hosting Services Agreement, including the Order
Form, the Metadata Feed, and the exhibits attached hereto and incorporated by
reference herein (the “Agreement”), is entered into as of ________, 2014 (the
“Effective Date”) by and between Sony Pictures Television Inc., a Delaware corporation,
and its Affiliates, with offices located at 10202 W. Washington Blvd., Culver City, CA
90232 (“Provider”) and Google Inc., a Delaware corporation, with offices located at
1600 Amphitheatre Parkway, Mountain View, CA 94043 (“Google”), and hereby amends
and restates that certain Content Hosting Services Agreement between the parties dated
as of November 19, 2007, as amended by that certain First Amendment to Content
Hosting Services Agreement dates as of April 16, 2009, and as further amended by that
certain Second Amendment to Content Hosting Services Agreement dated as of July 9,
2010.
DEFINITIONS
“Ad Manager” means a Google-approved and Provider-approved ad manager that
Google has approved to serve ads on the YouTube Website, Monetized Content (where
applicable and technically feasible) and Monetized Platforms (where applicable and
technically feasible) and has fully integrated with the applicable Google systems. As of
the Effective Date of this Agreement, the parties agree that FreeWheel is approved as
an Ad Manager. Google’s own ad management system may be considered an “Ad
Manager” if used by Provider.
“Advertising Inventory” means display and video advertising inventory exhibited in
connection with the playback of Provider Content.
“Ad Revenues” means recognized revenues from ads provided by Google, or Provider,
or an approved third party, and displayed or Streamed on Playback Pages, Provider
Channel pages, or in or on the YouTube Video Player with the Streaming of Provider
Content and/or Monetized Content. The number of queries, impressions of and clicks on
ads, as reported by Google Ad Manager or the third party Ad Manager (as applicable,
depending on which Ad Manager is used by the Provider), will be the number used in
calculating Ad Revenue payments hereunder.
“Affiliate” means any entity that directly or indirectly controls or is controlled by, or is
under common control with, a party, and the term “control” of an entity shall mean the
power to unilaterally direct the policies and management of such entity, whether through
the ownership of voting securities or otherwise.
“Block” means the Usage Policy available in the Content Management Tools for
Provider to specify that a Video Match be blocked from playback on the YouTube
Website and/or Google Video (if and to the extent enabled for that property) in the
Territories designated by Provider.
“Brand Features” means the names, logos, trademarks, designs and trade names of a
party.
“CIMA” means that certain Content Identification and Management Agreement between
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Google and Sony Pictures Television, Inc. effective as of March 31, 2009, as amended.
“Content ID Participants” means third parties for which Google may make available
certain content identification services which may incorporate or otherwise utilize the
Content Management Tools.
“Content Management Tools” means certain tools and systems provided by Google
intended to assist Provider in the identification and management of Works on the
YouTube Website and if and to the extent enabled by Google in its sole discretion,
Google Video, and that enable Provider to set usage policies for such Works.
“End User” shall refer to each unique user authorized to receive an exhibition of content
as part of the Google Services, as either a registered user or end user of the Google
Services.
“Free Video-On-Demand” or “FVOD” means the point-to-point delivery of a single
program to a viewer in response to the request of a viewer (i) the exhibition start time of
which is at a time specified by the viewer in its discretion; (ii) which is susceptible of and
intended for viewing by such viewer that received delivery of such program from the
service provider; (iii) for which no charge is assessed for the program to the viewer by
Google or its YouTube platform distribution partners and (iv) the display of such content
is supported by revenue derived by Google or Provider from advertising, i.e., on an adsupported basis. “FVOD” shall not include subscription video-on-demand, transactional
video-on-demand, pay-per-view, electronic sell-through, in store digital-on-demand,
manufacture-on-demand, premium pay television, or basic television or free broadcast
television exhibition.
“Google Ads” means advertisements sold by Google for inclusion on the Google
Services.
“Google Services” means Google websites, applications, products and services,
including but not limited to the YouTube Website, applications, APIs, embeds, and any
of the foregoing that are made available for syndication
“Google Software” means the content preparation software that may be used by
Provider under the terms and conditions of this Agreement.
“Google Video” means the Google branded video destination with its main US
homepage at video.google.com
“ID File” means the unique binary data that describes a Work and is used for the
automatic identification of that Work. ID Files may be provided by Provider to Google or
created by Google using the Reference Files and/or Provider Content.
“Metadata Feed” means an XML feed (further described in Exhibit A) or other method
specified by Google used by Provider to supply necessary information about Provider
Content.
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“Monetize” means the Usage Policy available to Provider in the Content Management
Tools for Provider to license a Video Match to Google in the Territories pursuant to this
Agreement.
“Monetized Content” means a Video Match designated as Monetize by Provider.
“Monetized Platforms” has the meaning set forth in Section 1.2.3 of this Agreement.
“Personal Use” means the personal, private viewing of a program and shall not include
any viewing or exhibition for which (or in a venue in which) an admission, access or
viewing fee is charged by Google to an End User to view Provider Content, or any other
public exhibition or viewing by End Users of Provider Content.
“Playback Pages” means a page or pages on the YouTube Website where users will be
able to playback at no cost the selected Provider Content, Monetized Content and
Tracked Content, and to view more detailed information relating to the foregoing.
Subject to Section 3.2 below, Playback Pages on the YouTube Website may be revised
or modified by Google in its sole discretion.
“Provider Ads” means advertisements sold by Provider, for inclusion on the Playback
Pages and/or within the YouTube Video Player or Monetized Platforms in conjunction
with the display of Provider Content and/or Monetized Content.
“Provider Channels” means each of those pages of the YouTube Website that are
dedicated to the Provider Content according to the categories and/or brands of content,
such categories or brands to be updated, changed or rebranded by Provider from time to
time, and whose look and feel may be customized by Provider using functionality
provided in the YouTube Website templates. Provider Content on a Provider Channel, if
offered to End Users, must be offered to End Users on a FVOD basis.
“Provider Content” means the audiovisual content, received by or made available to
Google from or by Provider via the delivery means described in Exhibit A and as set
forth and described in the Metadata Feed or Google-provided interface to the Metadata
Feed, and all data and information contained within or provided to Google in association
with such content, including but not limited to all information provided in the Metadata
Feed or Google-provided interface to the Metadata Feed, text, images, closed
captioning, metadata, and compositions and sound recordings of any music, and any
copies that Google makes of any or all of the foregoing. Provider may designate
additional content for hosting, indexing and displaying to End Users by providing to
Google additional content and Metadata Feeds via approved delivery methods. Any
such added content will be considered “Provider Content” and subject to the terms and
conditions of this Agreement.
“Provider Site” means the Provider web site(s) located at the URL(s) designated in the
Metadata Feed (and any successor site(s) thereto).
“Reference Files” means the Works provided by Provider to Google by those means set
forth in Exhibit A.
“Streaming” shall mean the transmission of a digital file containing audio-visual content
from a remote source for viewing concurrently with its transmission, which file may not
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be stored or retained (except for temporary caching or buffering) for viewing at a later
time.
“Term” has the meaning given to it in Section 12.1 of this Agreement
“Territory” or “Territories” means, as applicable, territories designated by Provider in
the Metadata Feed, Google-provided interface to the Metadata Feed, or the Content
Management Tools with respect to each item of Provider Content and Monetized
Content.
“Track” means the Usage Policy available in the Content Management Tools allowing
Provider to monitor but take no further action with respect to a Video Match in the
Territories selected by Provider.
“Tracked Content” means a Video Match designated as Track by Provider.
“Usage Policy” means Monetize, Track, or Block, or such other policies as may be
made available by Google from time to time.
“User Video” means any video submitted to the YouTube Website and/or Google Video
by a user.
“Video Match” means (a) User Videos determined by the Content Management Tools to
match an ID File, and (b) User Videos claimed by Provider to contain a Work using the
search functionality that may be offered by the Content Management Tools.
“Work” means audio and audiovisual works owned or controlled by Provider.
“YouTube Ad Policies” means, collectively, those certain policies, guidelines,
specifications and the like applied by Google with respect to the delivery of
advertisements in connection with Provider Content and Monetized Content, as may be
revised by Google from time to time, the current versions of which are located at:
www.youtube.com/t/advertising_policies
and
www.google.com/youtube/adspecspolicies.html.
“YouTube Embed” means the Google Service that Provider may enable with respect to
each video of Provider Content and Monetized Content that makes available an embed
code that enables display of such videos within the YouTube Video Player in nonYouTube-branded products, services and applications, including but not limited to those
of third parties, and in Google Services.
“YouTube User Account” means a user account or accounts that Provider creates on
the YouTube Website and with which Provider Content will be associated. Such
YouTube User Account will provide various functionalities to, by way of example and not
limitation, permit Provider to manage the display of Provider Content on the Google
Services.
“YouTube Video Player” means one or more digital media players made available to
End Users which is used or useful in the transmission, performance and/or playback of
multimedia content, including but not limited to Provider Content, so that the digital data
that embodies the audio or audiovisual recording concerned can be perceived by and
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communicated to a user of such digital media player when used in conjunction with the
aid of a machine or device.
“YouTube Website” means the Google Service known as YouTube located at
http://www.youtube.com, including all mirror and derivative sites, all replacements or
successor versions thereof, and all international versions thereof. At all times during the
Term, the YouTube Website will be: (i) branded as “YouTube”, and (ii) wholly owned and
operated by Google.
1.
LICENSES AND CONTENT DELIVERY.
1.1
Content License.
Provider hereby grants Google a non-exclusive, nontransferable, non-sublicensable (except as expressly set forth herein) limited right (but
not the obligation, e.g., this is not a “must carry” agreement) and license to host, cache,
route, transmit, store, copy (for the sole purpose of making server copies or cached
copies for distribution), modify (solely as described herein), distribute, perform, display,
reformat, excerpt, analyze, create algorithms based on and otherwise use the Provider
Content and Monetized Content in order to: (a) host the Provider Content and Monetized
Content on servers owned or controlled by Google solely for use on the YouTube
Website and Monetized Platforms; (b) index the Provider Content and Monetized
Content; (c) display, perform and distribute the Provider Content and Monetized Content,
in whole or in part on the YouTube Website and/or Monetized Platforms and/or in the
YouTube Video Player in the Territories on a FVOD basis to End Users for reception as
a Personal Use and d) use the Provider Content solely for internal testing and
development purposes (including, but not limited to, improvements to Google’s search
algorithm) on Google’s non-public internal systems, solely in order to make continuing
improvements to the Google Services. For avoidance of doubt, the licenses granted in
this Section 1.1(c) do not include the right to alter the sequence of scenes, dialogue,
artistry or "look and feel" embodied in the subject content. [The foregoing includes all
necessary rights to use of the compositions and sound recordings of any music
included in the Provider Content, Provider Ads and Monetized Content in order to
host, index, display, perform and distribute the Provider Content, Provider Ads
and Monetized Content (except for the necessary rights and permissions for the
public performance in the Territories in which Google maintains a localized
YouTube Website of the musical compositions embodied in Provider Content and
Monetized Content (“Music Performance Rights”), which, as between Google and
Provider, are Google’s responsibility).]
1.1.2 Restrictions on License. Google agrees that it is of the essence of this
Agreement that, without the specific written consent of Provider, or except as
otherwise set forth herein: (a) the license granted hereunder may not be
assigned, licensed or sublicensed in whole or in part; (b) Google will not
authorize the Provider Content to be exhibited other than for Personal Use (c)
Google will not, and will not enable or authorize, the delivery, transmission or
exhibition of the Provider Content other than as set forth herein; and (d) Google
will not authorize any person or entity to do any of the acts forbidden herein,
including burning, downloading, recording, or copying the Provider Content.
Google will use commercially reasonable efforts to notify Provider as soon as
possible of any unauthorized transmissions or exhibitions of any Provider
Content of which it becomes aware.
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1.1.3.
PROMOTIONAL SHORT-FORM CONTENT ONLY; NONPRECEDENTIAL. THE PARTIES HEREBY UNDERSTAND AND AGREE THAT
THIS AGREEMENT IS LIMITED TO PROMOTIONAL SHORT-FORM CONTENT
ONLY.
NOTHING CONTAINED HEREIN SHALL BE CONSIDERED
PRECEDENTIAL WITH RESPECT TO ANY FUTURE AGREEMENTS
BETWEEN THE PARTIES, INCLUDING WITHOUT LIMITATION, AN
AGREEMENT FOR LONG-FORM CONTENT.
THE TERMS OF THIS
AGREEMENT HAVE BEEN ENTERED INTO BY THE PARTIES ON A NONPRECEDENTIAL BASIS.
1.2
Mechanisms for Provider to Control Distribution and Display of Content.
1.2.1 Turn Off YouTube Embeds: Provider may disable YouTube Embeds for
any and all Provider Content and Monetized Content via the Metadata Feed or
Google provided interface to the Metadata Feed. Google shall provide Provider
with specific controls that allow Provider to turn YouTube Embeds off only with
respect to certain domain names. For the avoidance of doubt, YouTube Embeds
are default “on”. Further, for the avoidance of doubt, if Google enters into any
commercial agreement with a third party for the distribution, exhibition or
exploitation of the YouTube Embeds, Provider shall be able to disable such
distribution, exhibition or exploitation of Provider Content.
1.2.2 Territories and IP Restrict. Provider may specify in the Metadata Feed
or Google-provided interface to the Metadata Feed the Territories for each
individual item of Provider Content. As further set forth in the CIMA, Provider may
designate a Block Usage Policy in specific Territories to Video Matches. Through
Google-provided interface to the Metadata Feed, Google will use commercially
reasonable efforts to restrict access to playback of Provider Content and
Monetized Content to those IP addresses as received by Google that correspond
to the Territories.
1.2.3 Monetized Platforms. Google will make available, and Provider may
enable a feature that restricts Provider Content from playback on Monetized
Platforms or otherwise control offweb syndication of Provider Content.
Monetized Platforms include those specifically optimized for distribution via
mobile devices or televisions. Google will use commercially reasonable efforts to
(i) maintain the ad breaks designated by Provider in the Metadata Feed on the
Monetized Platforms if the ad loads of the Monetized Platforms support such ad
breaks, and (ii) so long as technically feasible, carry the Provider Ads served via
the Provider Ad Manager. In the event that the Monetized Platforms do not
support such ad breaks, then Provider may turn the Provider Content to a
“private” setting in the Content Management System and set Monetized Content
“private” to “block” in the Content ID system on the Monetized Platforms or other
offweb syndication.
1.2.4 Metadata Feed Conflicts. It is understood and agreed that to the extent
there are any conflicts between (a) the Metadata Feed, or any metadata or rules
indicated by Provider in the Content Management Tools, and (b) any terms in this
Agreement, the information in (a) of this Section 1.2.4 will control.
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1.3
Brand Features License. Provider grants to Google a limited, non-exclusive,
non-transferable, worldwide, royalty-free license to use its Brand Features
(including all of its Brand Features pertaining to the Provider Content), (i) for the
marketing and promotion of the Provider Content available for exhibition on the
YouTube Website and/or Monetized Platforms in the Territories in accordance
with the marketing and promotion restrictions set forth herein , (ii) and in order to
fulfill its obligations under this Agreement, upon Provider’s prior written approval
in each case, for use in presentations, marketing materials, and customer lists
(which includes, without limitation customer lists posted on Google’s web sites
and screen shots of Provider Content contained on the YouTube Website and/or
Monetized Platforms), and (iii) upon Provider’s prior written approval as to each
proposed use, for use in financial reports and press releases.
1.4
Reservation of Rights. Except for the licenses granted hereunder: (a) as
between Google and Provider, all rights, title and interest (including without
limitation all intellectual property rights) in and to the Provider Content, Monetized
Content, Reference Files and ID Files furnished by Provider to Google, and
Provider Brand Features will remain with Provider in accordance with and subject
to applicable law, (b) as between Google and Provider, all rights, title and interest
(including without limitation all intellectual property rights) in and to Google
Services (except for the Provider Content, Reference Files and ID Files furnished
by Provider to Google, and Monetized Content contained in the foregoing),
Google Software, Content Management Tools, related information and files,
other Google systems, technology, and any Google Brand Features will remain
with Google in accordance with and subject to applicable law, and (c) neither
party grants, and the other party will not acquire, any right, title or interest
(including, without limitation, any implied license) in or to any Brand Features of
the other party. Any use by a party of the other party’s Brand Features (including
any goodwill associated therewith) will not inure to the benefit of the other party.
As between Google and Provider, Google has the sole right and decision making
authority with respect to the design, appearance, functionality, hosting,
performance, and maintenance of the YouTube Website, and all other Google
Services. Except as otherwise set forth herein, this Agreement does not affect
any right or defense that either party would have had, or will have, independent
of the Agreement including but not limited to rights under the U.S. Copyright Act
or analogous laws in other jurisdictions. For the avoidance of doubt, all licenses,
rights and interest in, to and with respect to the Provider Content, the elements
and parts thereof, and the media of exhibition and exploitation thereof, not
specifically granted herein to Google, including, without limitation, theatrical, nontheatrical, home video, video-on-demand, pay-per-view, sell-through, in store
digital-on-demand, manufacture-on-demand, pay television, basic television, and
free broadcast television, shall be and are specifically and entirely reserved by
and for Provider. Without limiting the generality of the foregoing, Google
acknowledges and agrees that Google has no right in the Provider Content or the
images or sound embodied therein, other than the rights granted in this
Agreement. It is explicitly understood that the entering into of this Agreement
shall not be construed as granting to Google or any other person or entity any
interest in the copyright or any other right in the Provider Content or the images
or sound embodied therein, and nothing contained in this Agreement is intended
to convey or will convey to Google any ownership or other proprietary interests in
the Provider Content or the images or sound embodied therein and Provider
retains the right to fully exploit the Provider Content without limitation.
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1.5
Provider Content Delivery and YouTube User Account. During the Term,
Provider will deliver to Google the Provider Content in the manner specified in
Exhibit A. Provider will create a YouTube User Account(s) with which delivered
Provider Content will be associated. Provider will not deliver any Provider
Content comprised substantially of third party materials unless Provider is an
authorized licensee of online distribution rights for the underlying material in the
Territory. If a third party provides Google with a claim of ownership of any
material contained within Provider Content or Monetized Content, then (a) the
Provider Content or Monetized Content may be blocked from the YouTube
Website and the YouTube Video Player only until such time as the dispute is
resolved, (b) payments accruing to Provider pursuant to Section 6 for such
particular piece of Provider Content or Monetized Content may be suspended or
cancelled, (c) upon request by Provider, Google will provide Provider with the
contact information provided in the notification by the third party that claimed
ownership of any material contained within Provider Content or Monetized
Content, and (d) if Provider disputes the third party claim, Provider will participate
in such dispute resolution procedures as set forth in Section 5 of the CIMA.
1.6
No Content Commitment. Provider is not obligated to exhibit any minimum
amount of Provider Content under this Agreement.
1.7
Terms of Service. Without limiting any other obligation of Google hereunder,
prior to making Provider Content available hereunder, Google shall (i) provide
conspicuous notice of the terms and conditions pursuant to which End Users
may use the YouTube Website and receive Provider Content (“Terms of
Service” or “TOS”). The YouTube Website TOS, as the Effective Date, are set
forth at http://www.youtube.com/t/terms. Google may update the TOS in its sole
discretion but shall include in any modified TOS, provisions that include the
following concepts: (i) that the End User is obtaining a license under copyright to
the Provider Content, and (ii) except the rights explicitly granted to End User, all
rights in the Provider Content are reserved by Google and/or Provider.
2.
CONTENT TAKEDOWNS.
2.1
Provider Takedowns. Provider may delete any Provider Content from the
YouTube Website and Monetized Platforms at any time by means of the
YouTube User Account(s) or by information provided in the Metadata Feed.
Provider may apply a different Usage Policy at any time during the Term. Subject
to the CIMA, if any, in the event that any Provider Content, or Video Matches
formerly designated Monetized Content or Tracked Content which has been
changed to Blocked Content, continue to appear in the Google Services more
than forty-eight (48) hours after Provider has correctly initiated removal of
Provider Content through the Metadata Feed or the YouTube User Account or
has changed a Usage Policy to Block via the Content Management Tools,
Provider may notify Google of the URL of such material in the manner specified
by Google from time to time. Google will use commercially reasonable efforts to
remove such material from display in the designated Territories within ten (10)
days of confirmed receipt of such notice.
2.2
Google Takedowns. Subject to the CIMA, while Google does not intend, and
does not undertake, to monitor the Provider Content, Tracked Content or the
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Monetized Content, if Google is notified by Provider or otherwise becomes aware
and determines in its sole discretion that: (A) the Provider Content, Tracked
Content or the Monetized Content, or any portion thereof or the Provider Brand
Features (i) violates the intellectual property rights or any other rights of any third
party, (ii) violates any applicable law or is subject to an injunction, (iii) is
pornographic, obscene or otherwise violates Google’s hosting policies or other
terms of service as may be updated by Google from time to time in its sole
discretion, (iv) is being distributed by Provider improperly, or (v) may create
liability for Google; or (B) the display of the Provider Content, Tracked Content or
the Monetized Content is impacting the integrity of Google servers (i.e., users are
unable to access such content or otherwise experience difficulty), Google may
withdraw from, not display or cease displaying that Provider Content, Tracked
Content and/or the Monetized Content in Google Services with no liability to
Google; provided, however, that Google shall make available to Provider
information regarding any such removed Provider Content either through email
notification or other account management tools or interfaces.
2.3
Anti-Piracy Efforts. Google will comply with the Anti-Piracy Cooperation
practices set forth in Exhibit B attached hereto and incorporated herein. In the
event of Google’s breach of any of its obligations set forth in this Section 2.3,
Provider and Google will discuss in good faith the causation of such breach by
Google and potential remedies for such breach for at least a 48 hour period.
After such time period, Provider may,as its sole remedy for such breach, exercise
its right to terminate for no cause under Section 12.2.
2.4
Intentionally Deleted.
.
3.
HOSTING, SERVING, STORING, INDEXING AND DISPLAY.
3.1
Hosting, Serving, Storage, and Indexing. Except as set forth in Section 2.2
above and provided that Provider is in compliance with its obligations hereunder,
Google will store Provider Content and Monetized Content on servers hosted or
controlled by Google and host at the direction of Provider, Provider Content and
Monetized Content at Google’s sole cost and expense. Google will provide
technical support to End Users regarding the Google Services, pursuant to and
consistent with its existing customer support practices.
3.2
Provider Channels, Playback Pages, YouTube Video Player, and Click-toBuy Links. Google will make available to Provider Playback Pages for Provider
Content and Provider Channels that prominently display the Provider Brand
Features and contains a collection of Provider Content. Google will provide the
same enhanced templates, tools, and or branding to Provider for use in
connection with the Playback Pages and Provider Channels that it offers to
similarly-situated third party television network and/or movie studio content
providers that license advertising-supported original web, television and/or movie
audiovisual content to Google at the same time it offers such enhanced
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templates, tools, or branding to such third party content providers. Google shall
provide the ability for Provider to display Provider’s logo within the YouTube
Video Player in a visible location when the YouTube Video Player is Streaming
Provider Content. Upon availability of tools provided by Google to enable this
function, Provider shall have the right to place a card of approximately five (5)
seconds in length after pre-roll advertising, but immediately preceding playback
of Provider Content licensed hereunder. Such cards may include Provider’s (or
one or more of Provider’s Affiliates) name, logo, trademark, domain name,
bumper or emblem identifying Provider (or such Affiliates) as the source of the
Provider Content, in such manner, position, form and substance as Provider may
elect in its sole discretion. Additionally, in the event that Google provides
dynamic serving of such branded cards to any other similarly-situated third party
content provider, Google shall offer such same dynamic serving at such time to
Provider. Provider shall have the ability and discretion to program and format the
Provider Channels within the general template or parameters specified by
Google. Google shall display in connection with Provider Content and Monetized
Content programmatically rendered links to third party platforms where users
may purchase Provider goods or services (the “Click-to-buy Links”). For the
avoidance of doubt, any revenue generated from such Click-to-buy Links will not
be included within the definition of Ad Revenues hereunder.
3.3
Content Protection – [Rachel to send us an email detailing Google’s
technical protections so that we can share such technical efforts with SPE
Digital Policy. Content protection is still under review by SPE and is
subject to further comment.]
3.4
Traffic and User Data. Google will provide to applicable Internet marketing
research companies (such as Comscore) ("Research Companies") information or
authorizations necessary to allow the Research Companies to track and attribute
to Provider video-level traffic related to Provider Content that is available on
Provider Channels on the YouTube Website, using the technological tools for
tracking and attribution that Google makes available to Research Companies at
the relevant time, which may be updated from time to time at Google's discretion.
This tracking and attribution will follow a model of Matrix Attribution Reporting.
For purposes of this Agreement, “Matrix Attribution Reporting” means
reporting that attributes individual video playback traffic for Provider Content
displayed on Provider Channels video-level views and number of unique viewers
to both Google and Provider. Google agrees to work with Research Companies
to allow Research Companies to attribute to Provider video-level traffic related to
Provider Content that is available on Provider Channels on Monetized Platforms,
using the technological tools for tracking and attribution that Google makes
available to Research Companies at the relevant time, which may be updated
from time to time at Google's discretion. Any failure by Google in providing the
solution referenced in the previous sentence shall not be a material breach of this
Agreement, provided, however, if Google makes such solution generally
available to similarly situated YouTube content partners, it will make such
solution available to Provider.
3.5
Retransmission. As between Provider and Google, (a) Provider is the owner of
all retransmission and off-air videotaping rights in the Provider Content and all
royalties or other monies collected in connection therewith and (b) Google shall
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not exhibit or authorize the exhibition of Provider Content by means of
retransmission or to authorize the off-air copying of Provider Content. For the
avoidance of doubt, YouTube Embeds and Video Claims are not retransmissions
of Provider Content and Monetized Content.
4.
CONTENT IDENTIFICATION AND MANAGEMENT. The parties acknowledge
that the CHSA referenced in the CIMA shall, as of the Effective Date, be this
Agreement.
5.
ADVERTISING.
5.1
Provider Ads. Provider will have the right to directly sell and place Provider Ads
on the Advertising Inventory associated with Provider Content and Monetized
Content, as further described in documentation provided by Google, which will at
least include inventory on Playback Pages where Provider Content and/or
Monetized Content is displayed. Such Provider Ads may be sold and will appear
in the style and format offered by Google and as may be modified from time to
time by Google; provided that, such modifications are applied consistently to all
similarly-situated content providers under agreements with Google and not solely
to Provider. Provider must enter into the standard YouTube insertion order
supplied by Google for any Provider Ads that are not submitted via an Ad
Manager. Provider Ads must comply with the YouTube Ad Policies. Google
reserves the right to modify the YouTube Ad Policies in its sole discretion at any
time during the Term; provided that, such modifications are applied consistently
to all similarly-situated content providers under agreements with Google and not
solely to Provider. In the event Google modifies its YouTube Ad Policies, such
that it materially affects Provider’s ability to sell advertisements in Provider’s sole
discretion, then Provider shall have the right to turn the Provider Content to a
“private” setting in the Content Management System and to set Monetized
Content to “block” in the Content ID system, or may terminate this Agreement
upon thirty (30) days prior written notice to Google. Provider Ads may be sold,
placed and managed using an Ad Manager. For the avoidance of doubt, Google
is under no obligation to permit the display of any Provider Ads that fail to comply
with the YouTube Ad Policies. Google may require Provider to remove from
display any Provider Ads that Google notifies Provider as failing to meet the
YouTube Ad Policies, and Provider will promptly remove such Provider Ads from
the Ad Manager. Further, for ads placed through the Google Ad Manager or
directly through an insertion order, Google is under no obligation to display any
Provider Ads before the start date or past the end date of any Provider Ad
campaign, or after the time when a Provider Ad campaign has reached its budget
limit as furnished to Google by Provider.
5.2
Google Ads. Provider acknowledges and agrees that in the event Provider has
not placed Provider Ads on all available Advertising Inventory, then Google may
serve Google Ads on such inventory, subject to the terms and conditions of this
Section 5. All ads sold by Google pursuant to this section shall be sold on a
“blind” basis, without regard to the "Sony Pictures", "Crackle" brand or an Affiliate
brand (e.g. “Animax”). All Google Ads will comply with the YouTube Ad Policies.
In the event that Provider objects to any Google Ad by providing email notice of
such objection to Google, Google shall promptly remove such Google Ad.
Google Ads displayed by Google on pages that include the Provider Content or
SPT CHSA – 3.5.14 SPT DRAFT
11
Monetized Content shall be consistent with advertisements displayed on
similarly-situated content providers’ content elsewhere on the YouTube Website
or Monetized Platforms. Google shall not identify any Provider Content,
Monetized Content, Playback Page or Provider Channel as being “Sponsored
By,” “Brought to you by” or by any similar designation without the prior written
consent of Provider. For the avoidance of doubt, Google Ads shall not include
any promotional barter ads or “house” ads for Google Services.
5.3
Limitations.
Provider shall deliver to Google any Provider Content incorporating
promotions, sponsorships, or other advertisements (collectively, “Embedded
Sponsorships”) not less than ten (10) business days prior to the planned display
of such Provider Content on the YouTube Website. For purposes of clarity, in
the event that Provider has not placed Provider Ads on the Advertising Inventory
associated with Embedded Sponsorships, Google may serve Google Ads on
such Advertising Inventory, provided that Google may elect not to serve any ads
in conjunction with such Provider Content incorporating Embedded
Sponsorships.
5.4
Ad Managers.
5.4.1 Use of the Ad Manager. Provider may use the Ad Manager to directly sell
and place Provider Ads in connection with the streaming of Provider Content and
Monetized Content subject to the following restrictions: (a) Provider may not use
the Ad Manager to serve unpaid ads for Provider services and products; (b)
Provider may only use the Ad Manager to deliver Provider Ads to those territories
where Google allows that Ad Manager to serve ads; (c) Google may, in its
discretion, restrict the ad formats that may be served via the Ad Manager; (d)
Google may, in its discretion, limit the frequency by which the Ad Manager may
serve certain ad formats; provided that, (i) such frequency limitations with respect
to ad formats are applied consistently to all similarly-situated content providers
under agreements with Google and not solely to Provider, and (ii) in the event
such frequency limitations materially affects Provider’s ability to sell
advertisements in Provider’s sole discretion, then Provider shall have the right to
turn the Provider Content and Monetized Content “private” or may terminate this
Agreement upon thirty (30) days prior written notice to Google; (e) Provider will
comply with Google’s reasonable technical requirements; and (f) Provider
complies with all other terms and conditions set forth in this Agreement regarding
its right to place Provider Ads. For clarity, Google will provide an Ad Manager
that allows Provider to directly sell and place Provider Ads in connection with
Monetized Content or content uploaded to the YouTube Website or Monetized
Platforms by third parties. Provider acknowledges that Google does not and
cannot guarantee the performance of the Ad Manager.
5.4.2 Ad Reporting.
To the extent that Provider uses an Ad Manager to deliver Provider Ads, in
addition to any other reporting required under this Agreement, Provider will
authorize and request the Ad Manager to provide to Google on a daily basis a
report stating (i) the number of impressions per video per Territory for that day;
(ii) ad targeting information; and (iii) advertiser name; and (iii) any other
information as set forth in the documentation provided by Google to Provider
during the Term, as commercially reasonable. Provider will request that each
SPT CHSA – 3.5.14 SPT DRAFT
12
report be delivered to Google directly from the Ad Manager via the transmission
method requested by Google. All revenues in the reports must be stated in US
Dollars, and where necessary currency conversions calculated using an
independent, third party, publicly available, certified exchange rate to calculate
that currency conversion (with the associated exchange rate used and the
source of that exchange rate included in the reports). All days must be stated in
Pacific Standard Time (‘PST’). Provider acknowledges that it is responsible for
facilitating the Ad Manager’s delivery of these reports; any inaccuracies or delay
may cause inaccuracies and delay in reporting, invoicing, and payment by
Google. Google will use the reports to calculate (such calculation to be based on
impressions actually served) and generate invoices for the amount of revenues
due from Provider to Google hereunder. Any necessary reconciliation for errors
in the reports will occur no later than 60 days after the end of the calendar year.
5.4.3 Usage Data. Provider shall not use the Ad Manager to gather traffic data,
demographic data, or other information regarding end users of Google Services
or the operation of Google Services (“Usage Data”) without the prior written
approval of Google, so long as such end users are not also end users engaging
with Provider Content and such information is provided independently by
Freewheel to Provider. In the event that the Ad Manager makes Usage Data
available to Provider, Provider will not use that Usage Data for any purpose and
will notify Google immediately. Provider acknowledges and agrees that Usage
Data constitutes Confidential Information. For clarity, the foregoing does not
prohibit Provider or the Ad Manager from using cookies, web beacons, or other
tracking mechanisms solely for the purpose of providing the reporting required by
Google, to enable creative selection such as frequency capping, or for another
purpose permitted by Google in writing.
5.5 Additional Obligations. Google and Provider shall work together in good faith to
increase ad targeting capabilities on Monetized Content, including without limitation,
targeting based on geography, demographics, and based on ID Files and Reference
Files.
6.
AD REVENUES, PAYMENTS, REPORTING, NONQUALIFYING ADS, TAXES.
6.1
Ad Revenues.
6.1.1 Google Ads. With respect to Google Ads, Provider will receive 55% of
Ad Revenues (or its pro-rata share of 55% if there are multiple claimants
Monetized Content, i.e., the Reference File matches a portion of the ID File as
defined in the CIMA. For example, a mash up of two films may provide for two
separate claimants, Provider and a third party.). Google reserves the right to
retain all other revenues derived from Google Services, including without
limitation, any revenues from ads that may appear on any search results pages.
6.1.2 Provider Ads.
With respect to Provider Ads, Provider will pay to Google 45% of the then-current
advertising rates as set forth in the Google advertising rate card, which such card
Google will provide to Provider. As of the Effective Date, Google does not
support serving Provider Ads on Monetized Content where there are multiple
SPT CHSA – 3.5.14 SPT DRAFT
13
claims, but retains the right to do so. For advertising placed directly with Google
via the insertion order process, Google retains the right to reject any Provider
Ads service agreement totaling less than $10,000 or such other amount as
determined by Google.
6.2
Payment Terms. Recognized revenues do not include those items listed in
Section 6.4, or any taxes. Payments to Provider for Ad Revenues will be sent by
Google within approximately sixty (60) days after the end of any calendar month,
and payment to Google will be sent by Provider within approximately sixty (60)
days after the date of Google’s invoice, in either case, provided that payee’s
earned balance is $100 or more. When payee's monthly earned balance is less
than $100, there will be no payment and the balance will accumulate until it
exceeds $100, at which time it will be paid to payee in accordance with the
preceding sentence. All payments due to Provider hereunder shall be made in
U.S. dollars and, unless and until Google is otherwise notified in writing by
Provider, shall be made either (a) by wire transfer or electronic funds transfer to
Provider at: Bank of America, Bank ABA/Routing: 026009593, SWIFT code:
BOFAUS3N, Beneficiary Name: Crackle, Inc., Beneficiary Account: 1233050404;
Reference: YouTube Content Hosting License; or (b) by corporate check or
cashier’s check sent to Provider in immediately available funds as follows:
Crackle, Inc., 14687 Collections Center Drive, Chicago, IL 60693, Overnight
mailing address: Bank of America Lockbox Services, 14687 Collections Center
Drive, Chicago, IL 60693; Reference: YouTube Content Hosting License.
Payments to Google will be made by electronic funds transfer pursuant to the
instructions in the Order Form.
6.3
Content Usage Reporting.
6.3.1 By Google. Within thirty (30) days of the end of each month, Google will
furnish Provider with usage reports in the form (category, type, and frequency)
generally made available to similarly-situated providers at that time. Such reports
will contain at a minimum, on a title-by-title basis for all Provider Content and
Monetized Content: (i) the total views and revenue generated for the month; (ii)
the daily views and revenue generated; (iii) the total views and revenue
generated on a territory-by-territory basis; and (iv) the number of unique viewers.
When Google makes the reports described above generally available on a perMonetized Platforms basis, such reports will be made available to Provider on
that basis. Provider shall receive no less of such usage reports, in category, type
and frequency, than Google provides to similarly-situated content providers
under agreements with Google.
6.4
Payment Limitations.
6.4.1
Neither party will be liable for any payment based on:
6.4.1.1 Any amounts which result from invalid queries, or invalid clicks on
ads, generated by any person, bot, automated program or similar device,
including, without limitation, through any clicks or impressions:
(a) originating from the other party’s IP addresses or computers
under the other party’s control or
SPT CHSA – 3.5.14 SPT DRAFT
14
(b) solicited by payment of money, false representation or request
for users to click on ads;
6.4.1.2 Intentionally Omitted.
6.4.1.3 Ads delivered to users whose browsers have JavaScript
disabled (as long as Google does not retain revenue from such Ads); or
6.4.1.4 Any breach by the other party of Section 6.5.
Payment may be withheld or charged back to the other party due to any of the
reasons listed in this Section 6.4 pending reasonable investigation. Each party
agrees to cooperate with the other party in its investigation of any of the
foregoing.
6.5
Prohibited Acts.
Neither party will, 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 Provider Content through any automated,
deceptive, fraudulent or other invalid means, including but not limited to through
repeated manual clicks, the use of robots or other automated query tools and/or
computer generated search requests, and/or the fraudulent use of other search
engine optimization services and/or software. Each of Google and Provider
reserves the right to investigate, at its own discretion, any activity that may
violate this Agreement, including but not limited to any use of a software
application to access ads or any engagement in any activity prohibited by this
Agreement. [Notwithstanding the foregoing, except as provided in Section 6.8 of
this Agreement, neither party is granting to the other party any audit rights of its
internal business practices or software pursuant to this Section 6.5.
6.6
Taxes.
Each party will be responsible for any taxes relating to payments it
makes under this Agreement other than taxes based on the other party's income.
If either party is required to deduct or withhold taxes from any payments made
to the other party and remits such taxes to the local taxing jurisdiction, then such
party will duly withhold and remit such taxes and will pay to the other party the
remaining net amount after the taxes have been withheld. Additionally, if such
deduction or withholding is required by applicable law, Google will within thirty
(30) days of payment, deliver to Provider original documentation or a certified
copy evidencing such payment (“Withholding Tax Receipt”). In the event
Google does not provide a Withholding Tax Receipt in accordance with the
preceding sentence, Google shall be liable to and shall reimburse Provider for
the withholding taxes deducted from Provider’s share of the Ad Revenues.
6.7
Miscellaneous Payment Information. Except as otherwise agreed to, for
purposes of providing Provider payment under this Agreement, Google may
create an account for Provider, where Provider will be able to access information
about Advertising Revenue payments to Provider. Provider understands and
agrees that this account is made available to Provider for this purpose only, and
that the account may not be used for any other purpose unless expressly agreed
to otherwise by Provider and Google. To ensure proper payment, Provider is
SPT CHSA – 3.5.14 SPT DRAFT
15
solely responsible for providing and maintaining accurate contact and payment
information associated with its account. For U.S. taxpayers, this information
includes without limitation a valid U.S. tax identification number and a fullycompleted Form W-9. For non-U.S. taxpayers, this information includes without
limitation a fully-completed Form W-8 or other form, which will likely require a
valid U.S. tax identification number, as required by the U.S. tax authorities. All
payments made in connection with this Agreement are exclusive of taxes
imposed by governmental entities of whatever kind and imposed with respect to
the transactions for services provided under this Agreement.
6.8
Audit. The parties shall keep and maintain complete and accurate books of
account and records at its principal place of business in connection with the
terms hereof. If either party has concerns or questions about the other party’s
revenue reporting and payment obligations under this Agreement, then such
party may provide written notice to the other party specifying such concerns. The
parties will work together to resolve such issues. If a party still has unresolved
concerns after no fewer than thirty (30) days of working with the other party to
resolve them, then such party may request an audit pursuant to this Section 6.8.
Upon thirty (30) days’ prior written notice, either party may request a review and
audit of the other party’s relevant financial records to confirm the performance of
payment obligations under this Agreement, provided that the party requesting the
audit has been paid or reasonably believes it should have been paid at least two
hundred fifty thousand dollars ($250,000) by the other party during any twelve
(12) month period of the Term. Such audit will: (a) be performed by a mutuallyacceptable, nationally-recognized independent accounting firm (which may not
be compensated on a contingency basis); (b) be subject to auditee’s reasonable
security and confidentiality requirements (for the avoidance of doubt, the auditing
party’s auditors may not copy or remove any records from auditiee’s site); (c)
occur no more than once per year and not during the first or last three (3) weeks
of a calendar quarter; (d) apply solely to the previous year’s financial records; (e)
transpire solely during auditee’s normal business hours; and (f) comprise no
more than fifteen (15) consecutive days of onsite work at auditee’s place of
business. The right of either party to audit the other party’s financial records will
expire sixty (60) days following expiration or termination of this Agreement. The
accounting firm may only disclose to the auditing party whether or not the auditee
is in compliance with its payment obligations under Section 6.1 (Ad Revenues)
and, if auditee is not in compliance, the amount of any underpayment or
overpayment and supporting calculations. If the audit shows an underpayment for
any period of time, then the auditee will, within thirty (30) days after the end of
the month in which the audit was completed, pay or credit such underpaid
amounts to the auditing party and, in the event that the audit shows an
underpayment to the auditing party of ten percent (10%) or more, the auditee will
reimburse the auditing party its reasonable costs actually incurred for carrying
out such audit. If the audit shows an overpayment to the auditing party for any
period of time, then the auditing party will, within thirty (30) days after the end of
the month in which the audit was completed, pay such overpaid amounts to the
auditee. Except as otherwise set forth above, all expenses associated with such
audit will be paid by the auditing party.
7.
REPRESENTATIONS AND WARRANTIES.
warrants that:
SPT CHSA – 3.5.14 SPT DRAFT
16
Each party represents and
7.1
It is a company duly organized under the laws of the state of its organization and
has all requisite corporate power and authority to enter into this Agreement and
perform its obligations hereunder.
7.2
The execution and delivery of this Agreement by the parties has been duly
authorized by all necessary corporate action.
7.3
This Agreement has been duly executed and delivered by, and constitutes a valid
and binding obligation of the parties, enforceable against each such party in
accordance with the terms and conditions set forth in this Agreement, except as
such enforcement is limited by bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors’ rights generally, and by general equitable
or comparable principles.
8.
[MUSIC.
8.1
Subject to clause 8.2 below, as between Provider and Google, Provider
shall be solely responsible for paying: (i) all fees for reproduction of
compositions embodied in Provider Content and Advertising Materials and
synchronization royalties or payments payable to composers, lyricists,
authors and publishers of compositions embodied in Included Programs
and Advertising Materials related to the use or other exploitation of
Provider Content hereunder in the applicable Territory; and (ii) for all
necessary rights in sound recordings embodied within the Provider
Content and Advertising Materials (including Google’s use thereof), to the
full extent that it is legally possible and commercially feasible for such
rights to be obtained by Provider in the applicable Territory.
8.2
As between the parties, Google shall be responsible for clearing and
making payments with respect to any “public performance” and/or
“communication to the public” rights (as such terms may be defined or
interpreted in each country within each applicable Territory over the course
of the Term) (collectively, “Communication Fees”) for the exploitation of
the Provider Content and Advertising Materials, if any, payable to any
organizations that are authorized to collect such royalties in the Territory
(“Collecting Societies”) in respect of any musical compositions and/or
sound recordings embodied in the Provider Content and Advertising
Materials, where such clearances and payments arise solely from Google’s
use of the Provider Content and Advertising Materials hereunder and to the
extent such rights (the “Author’s Rights”) are vested in and controlled by
any Collecting Societies (the “Collectively Administered Author’s Rights
Payments”). Provider makes no representation or warranty with respect to
such Collectively Administered Author’s Rights Payments.
8.3
Provider hereby represents and warrants that it has, prior to the Effective
Date, procured clearance of all rights in sound recordings and all rights
other than public performance rights in musical compositions to the
maximum extent permitted by applicable law on a "buy out" basis. Should
any Collecting Society throughout the applicable Territory seek collection
of any fees in addition to the Communication Fees, Provider will provide
every commercially reasonable effort on Google’s behalf to support the
SPT CHSA – 3.5.14 SPT DRAFT
17
position that Provider has already “bought out,” to the extent permitted by
applicable law, any and all rights which are the basis for such payments
otherwise collectable by any Collecting Society.]
9.
DISCLAIMERS. THE PARTIES MAKE NO WARRANTIES OTHER THAN THE
EXPRESS WARRANTIES STATED IN THIS AGREEMENT. THE PARTIES DISCLAIM
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO (A) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NONINFRINGEMENT (B) WARRANTIES AS TO THE
QUALITY OR PERFORMANCE OF THE MATERIALS, INFORMATION, GOODS,
SERVICES, TECHNOLOGY AND/OR CONTENT PROVIDED UNDER OR IN
CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE
DELIVERY OR AVAILABILITY OF ANY ADVERTISEMENTS, AND ANY LIMITATIONS
ON USER ACCESS TO OR USE OF CONTENT; AND (C) WARRANTIES AS TO THE
PERFORMANCE OF COMPUTERS, TECHNOLOGY, NETWORKS OR ADS
(INCLUDING BUT NOT LIMITED TO ALL WARRANTIES REGARDING POSITIONING,
LEVELS, QUALITY OR TIMING OF (I) AVAILABILITY AND DELIVERY OF ANY
IMPRESSIONS, CREATIVE, OR TARGETS; (II) CONVERSIONS OR OTHER
RESULTS FOR ANY ADS OR TARGETS; (III) THE ACCURACY OF ANY PROVIDER
DATA (E.G., REACH, SIZE OF AUDIENCE, DEMOGRAPHICS OR OTHER
PURPORTED CHARACTERISTICS OF AUDIENCE); AND (IV) THE ADJACENCY OR
PLACEMENT OF ADS). GOOGLE MAKES NO WARRANTY THAT GOOGLE
SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE OR THAT THE
RESULTS OR INFORMATION OBTAINED FROM USE OF GOOGLE SERVICES WILL
BE ACCURATE OR RELIABLE.
10.
INDEMNIFICATION.
10.1
Provider Indemnity. Provider will indemnify, defend and hold harmless Google
and its Affiliates and syndication partners, and any of their respective directors,
officers, employees, agents, contractors and licensees from and against any and
all claims, demands, causes of action, debt or liability, including reasonable
attorneys fees (“Losses”) incurred in connection with any third party claim based
upon or otherwise arising out of: (a) Google’s authorized use of any Provider
Content, Monetized Content, Provider Brand Features, or any other materials
made available by Provider to Google under this Agreement, under U.S. law,
infringe upon the trade name, trademark, copyright, music synchronization,
literary or dramatic right or right of privacy of any claimant (in accordance with
Section 8 of this Agreement) or constitute a libel or slander of such claimant; (b)
a claim alleging facts that would constitute a breach of Provider’s
representations, warranties, covenants or obligations under this Agreement; and
(c) a claim that Provider or its Affiliates violated any laws, rules or regulations in
connection with its performance of this Agreement.
10.2
Google Indemnity. Google will indemnify, defend and hold harmless Provider
and its Affiliates and its and their directors, officers, employees, agents,
contractors and licensees from and against any and all Losses arising from any
third-party claim based upon or otherwise arising out of: (a) Provider’s authorized
use of any Google Brand Feature, Google Services, Google’s technology used to
provide the Google Services, Advertising Inventory, or any other materials made
available by Google to Provider under this Agreement, under U.S. law, infringe
upon the trade name, trademark, copyright, trade secret, music synchronization,
SPT CHSA – 3.5.14 SPT DRAFT
18
literary or dramatic right or right of privacy of any claimant or constitutes libel or
slander of such claimant; (b) a claim alleging facts that would constitute a breach
of Google’s representations, warranties, covenants or obligations under this
Agreement; (c) any claim by ASCAP, BMI or SESAC or similar performing rights
organization having jurisdiction in the Territories that Google exercised the
performance rights in the music contained in the Provider Content without
obtaining a valid performance license and/or without payment of a performing
rights royalty or licensee fee, if any is required to be paid in connection with the
exhibition or distribution of Provider Content hereunder, or as otherwise set forth
in Section 8 of this Agreement; and (d) a claim that Google or its Affiliates
violated any laws, rules or regulations in connection with its performance of this
Agreement.
10.3
Procedure. The obligation to indemnify will be contingent upon the indemnified
party: (a) providing the indemnifying party with prompt written notice for any claim
for which indemnification is sought, (b) cooperating fully with the indemnifying
party, and (c) allowing the indemnifying party to control the defense and
settlement of such claim (provided the indemnifying party will not settle or resolve
any such claim in a manner that imposes any liability or obligation on the
indemnified party or affects the indemnified party’s rights in connection therewith
without the advance written approval of the indemnified party, which will not be
unreasonably withheld or delayed). The indemnified party may, at its own
expense, assist in the defense if it so chooses. Notwithstanding the foregoing,
the failure to provide such prompt notice of an indemnification claim shall
diminish each party’s indemnification obligations only to the extent the other party
is actually prejudiced by such failure.
11.
LIMITATION OF LIABILITY.
EXCEPT FOR (I) AMOUNTS PAYABLE
BETWEEN THE PARTIES AND TO THIRD PARTIES PURSUANT TO THE PARTIES’
INDEMNIFICATION OBLIGATIONS UNDER SECTION 10; (II) PAYMENT
OBLIBATIONS UNDER SECTION 6; (III) A BREACH OF THE CONFIDENTIALITY
OBLIGATIONS UNDER SECTION 13.1; OR (IV) FRAUD OR WILLFUL, INTENTIONAL
OR GROSSLY NEGLIGENT CONDUCT, (A) NEITHER PARTY SHALL BE LIABLE TO
THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED,
PUNITIVE, SPECIAL DAMAGES OR OTHER EXEMPLARY DAMAGES OR
PENTALTIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE, EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBLY OF SUCH DAMAGES AND
(B) NEITHER PARTY’S AGGREGATE LIABILITY (INCLUDING ANY LIABILITY FOR
STATUTORY DAMAGES) FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED
TO THIS AGREEMENT WILL EXCEED [ONE MILLION DOLLARS (US$1,000,000)]
PER EACH YEAR DURING THE TERM; PROVIDED, HOWEVER, THAT THE PARTIES
HERETO ACKNOWLEDGE AND AGREE THAT THE TERMS OF THIS SECTION
SHALL NOT SERVE AS THE BASIS OF OR ESTABLISH ANY PRECEDENT FOR ANY
OTHER CURRENT OR FUTURE AGREEMENT. THE LIMITATIONS OF LIABILITY
SET FORTH IN THIS SECTION 11 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
SPT CHSA – 3.5.14 SPT DRAFT
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MUTUAL AGREEMENTS MADE IN THIS SECTION REFLECT A REASONABLE
ALLOCATION OF RISK, AND THAT EACH PARTY WOULD NOT ENTER INTO THE
AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.
12.
TERM, TERMINATION AND CONTENT REMOVAL.
12.1
Term. This Agreement will commence on the Effective Date and will continue for
two (2) years thereafter, until January 1, 2016. (the “Term”).
12.2
Termination (for Convenience and otherwise). Either party may terminate this
Agreement: (a) immediately upon written notice to the other party if (i) the other
party files a petition for bankruptcy, becomes insolvent, or makes an assignment
for the benefit of its creditors, or a receiver is appointed for the other party or its
business, or (ii) the other party breaches Section 13.1 of this Agreement
(Confidentiality); (b) with thirty (30) days prior written notice for any other breach,
if such breach is not cured within the notice period, or (c) with thirty (30) days
prior written notice to the other party, such right to be at the convenience of either
party, provided, however, that Provider will retain its share of any Ad Revenues
accrued prior to the termination, pursuant to Sections 6.1.1 and 6.1.2 of this
Agreement. The provisions of Sections 1.4, 6.4, 6.8, 8, 9, 10, 11, 12.3, and 13
will survive any expiration or termination of this Agreement. [SUBJECT TO
FINAL REVIEW FOR CROSS REFERENCES]
12.3
Content Removal. Upon expiration or termination of this Agreement, Provider
will immediately remove the Provider Content by means of the YouTube User
Account or such other means as provided by Google. Additionally, except as
authorized by the CIMA or any other separate agreement between the parties
governing the use of Content Management Tools that survives this Agreement, if
any, all claims relating to Video Matches within the Content Management Tools
will be released (inclusive of claims relating to Monetized Content). In the event
that Provider fails to remove the Provider Content upon expiration or termination
(regardless of whether such failure is inadvertent or intentional), the provisions of
Sections 1.1, 1.3 and this Section 12.3 will also survive, but only until such time
that Provider removes the Provider Content. In the event that Provider is unable
to remove the Provider Content because of a technical failure that renders
Provider unable to access the Content Management Tools, Provider may request
via email that Google remove the Provider Content, Google will promptly comply
with such request. Notwithstanding the foregoing, upon expiration or termination
of this Agreement, Google itself will have the right, in its sole discretion, to
remove any or all of the Provider Content.
SPT CHSA – 3.5.14 SPT DRAFT
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13.
GENERAL.
13.1
Confidentiality.
13.1.1 Definition. “Confidential Information” means information that one party
discloses to the other party under this Agreement and that is marked as
confidential or would normally under the circumstances be considered
confidential information. Confidential Information does not include information
that the recipient already knew, that becomes public through no fault of the
recipient, that was independently developed by the recipient, or that was lawfully
given to the recipient by a third party.
13.1.2
Confidentiality Obligations. The recipient will not disclose the
Confidential Information, except to Affiliates, employees, agents or professional
advisors who need to know it and who have agreed in writing (or in the case of
professional advisors are otherwise bound) to keep it confidential. The recipient
will ensure that those people and entities may use the received Confidential
Information only to exercise rights and fulfill obligations under this Agreement,
while using reasonable care to keep it confidential. The recipient may also
disclose Confidential Information when required by law after giving reasonable
notice.
13.1.3 Publicity. Neither party may make any public statement regarding this
Agreement without the other’s prior written approval, except when required by
law after giving reasonable notice to the other.
13.2
Notices. All notices of termination or breach must be in writing and addressed to
the other party's Legal Department, or to such other address as a party may
hereafter specify in advance in writing. The email address for notices being sent
to Google’s Legal Department is [email protected]. In the case of
Provider, to Sony Pictures Television Inc., 10202 West Washington Boulevard,
Culver City, CA 90232, U.S.A., Attention: Executive Vice President, Legal Affairs,
Fax No: 310-244-2169, with a copy to Sony Pictures Entertainment Inc., 10202
West Washington Boulevard, Culver City, CA 90232, U.S.A., Attention: General
Counsel, Fax No: 310-244-0510. Notice will be treated as given on receipt, as
verified by written automated receipt or by electronic logs (as applicable). All
other notices must be in English, in writing and addressed to the other party’s
primary contact.
13.3
Assignment. Neither party may assign any part of this Agreement without the
written consent of the other, except to an Affiliate where: (a) the assignee has
agreed in writing to be bound by the terms of this Agreement and (b) the
assigning party remains liable for obligations under the Agreement if the
assignee defaults on them; and (c) the assignor has notified the other party of the
assignment, including information regarding the assignee legal entity name and
address within thirty (30) days of assignment. Any other attempt to assign is
void.
13.4
Change of Control. Upon a change of control (for example, through a stock
purchase or sale, merger, or other form of corporate transaction), (a) the party
experiencing the change of control will give written notice to the other party within
SPT CHSA – 3.5.14 SPT DRAFT
21
30 days after the change of control, and (b) the other party may immediately
terminate this Agreement any time between the change of control and 30 days
after it receives the written notice of this.
13.5
Force Majeure. Neither party will be liable for failure or delay in performance to
the extent caused by circumstances beyond its reasonable control.
13.6
No Waiver. Neither party will be treated as having waived any rights by not
exercising (or delaying the exercise of) any rights under this Agreement.
13.7
Severability. If any term (or part of a term) of this Agreement is invalid, illegal or
unenforceable, the rest of the Agreement will continue in force unaffected.
13.8
No Agency. This Agreement does not create any agency, partnership or joint
venture between the parties.
13.9
No Third-Party Beneficiaries. There are no third-party beneficiaries to this
Agreement.
13.10 Equitable Relief. Subject to Section 13.11 below, nothing in this Agreement will
limit either party’s ability to seek equitable relief.
13.11 Governing Law. This Agreement shall be interpreted and construed in
accordance with the substantive laws (excluding its conflicts of law and choice of
law provisions) of the State of New York and the United States of America with
the same force and effect as if fully executed and to be fully performed therein.
All actions or proceedings arising in connection with, touching upon or relating to
this Agreement, the breach thereof and/or the scope of the provisions of this
Section13.11 shall be submitted to JAMS for final and binding arbitration under
its Comprehensive Arbitration Rules and Procedures if the matter in dispute is
over $250,000 or under its Streamlined Arbitration Rules and Procedures if the
matter in dispute is $250,000 or less, to be held in New York, New York, before a
single arbitrator who shall be a retired judge, in accordance with New York Civil
Practice Law & Rules Section 7501 et seq. The arbitrator shall be selected by
mutual agreement of the parties or, if the parties cannot agree, then by striking
from a list of arbitrators supplied by JAMS. Notwithstanding the foregoing, if any
action or proceeding arising under or in connection with this Agreement alleges
the infringement of either party’s intellectual property rights, each party to such
action or proceeding will have the right to opt out of arbitration and have such
action heard in the applicable federal or state court in New York, New York. THE
PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT
TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH,
TOUCHING UPON OR RELATING TO THIS AGREEMENT, THE BREACH
THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS ARTICLE,
WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY
CLAIM FOR FRAUDULENT INDUCEMENT THEREOF.
13.12 COMPLIANCE WITH FCPA. It is the policy of Provider to comply and require
that its licensees comply with the U.S. Foreign Corrupt Practices Act, 15 U.S.C.
Section 78dd-1 and 78dd-2, and all other applicable anti-corruption laws
(collectively, "FCPA"). In connection with the performance of its obligations
under this Agreement, Google represents, warrants and covenants that: (i)
SPT CHSA – 3.5.14 SPT DRAFT
22
Google is aware of the FCPA; (ii) Google has not and will not, and to its
knowledge, no one acting on its behalf has taken or will take any action, directly
or indirectly, in violation of the FCPA; (iii) Google has not and will not cause any
party to be in violation of the FCPA; (iv) should Google learn of, or have reason
to know of, any request for payment that is inconsistent with the FCPA, Google
shall immediately notify Provider; and (v) Google is not a "foreign official" as
defined under the U.S. Foreign Corrupt Practices Act, does not represent a
foreign official, and will not share any fees or other benefits of this contract with a
foreign official. Provider shall be entitled partially or totally to suspend its
performance hereunder until such time it is proven to Provider's reasonable
satisfaction that Google has not violated the FCPA. In the event Provider
reasonably determines, in good faith, that Google has violated the FCPA, in
connection with this Agreement, Provider may terminate this Agreement
immediately upon written notice to Google. Such suspension or termination of
this Agreement shall not subject Provider to any liability, whether in contract or
tort or otherwise, to Google or any third party, and Provider's rights to
indemnification or audit with respect to the FCPA shall survive such suspension
or termination of this Agreement.
13.13 Amendments. Any amendment must be in writing and expressly state that it is
amending this Agreement.
13.14 Counterparts. The parties may execute this Agreement in counterparts,
including facsimile, PDF, and other electronic copies, which taken together will
constitute one instrument.
13.15 Entire Agreement. This Agreement sets out all terms agreed between the
parties’ and supersedes all previous or contemporaneous agreements between
the parties relating to its subject matter.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties as of
the dates indicated below.
Sony Pictures Television Inc.
Google Inc.
By:
By:
_
Name:
Name:
_
Title:
Title:
_
SPT CHSA – 3.5.14 SPT DRAFT
23
Google Inc.
1600 Amphitheatre Parkway
Mountain View, CA 94043
Tel: (650) 253-4000
Fax: (650) 249-0178
Legal Fax: (650) 623-1806
Content Hosting Services Agreement
ORDER FORM
Google SPD Mgr:
Google SPD Director:
Google Sales Engineer:
Google Legal Contact:
Sony: Note this will need to be filled in again.
PROVIDER TO COMPLETE THIS SECTION
PROVIDER (FULL LEGAL NAME):
Corporate Contact:
Provider Operations Contact
Attention:
Title:
Address:
City, State:
Postal
Code:
Country:
Phone:
Fax:
Email:
Effective Date:
Initial Term:
This Order Form will be governed by and is incorporated by reference into the Amended & Restated Content Hosting Services Agreement between Google
and Provider (“CHSA”). All capitalized terms used herein will have the meanings stated in the CHSA, unless stated otherwise.
EXHIBIT A
PROVIDER CONTENT, REFERENCE FILES, ID FILES AND
METADATA FEED DELIVERY SPECIFICATIONS
PROVIDER CONTENT AND REFERENCE FILES AND ID FILE DELIVERY
Provider will deliver Provider Content, ID Files and Reference Files in a format, resolution, and
bitrate designated by Google to Google’s SFTP servers, by web upload, or by an alternative
delivery method specified or agreed by Google. The Parties will exchange SSH keys for access
to SFTP servers. Provider will designate the Provider account with which Provider Content, ID
Files and Reference Files will be associated. Google may modify the required delivery formats
and/or destination address at any time upon notice to Provider. Provider agrees to comply with
such modified specifications for any subsequent delivery of Provider Content, ID Files or
Reference Files.
METADATA FEED
Provider will deliver metadata via an XML Metadata Feed pursuant to specifications provided by
Google, or by such other method as Google may specify during the Term. Provider
acknowledges that the Content Management Tools require the provision of certain metadata to
effectively identify and manage Provider’s Works, if any, on the YouTube Website. The
provision of incomplete, inaccurate, or improperly formatted metadata may result in the failure of
the Content Management Tools to function as intended.
The most current version of the metadata specification will be available from Google during the
Term.
The metadata will be relevant to the video and will include, at a minimum, the following
information for all Reference Files or ID Files and Provider Content:

Tags, titles, and descriptions

Territories for applying Monetize, Block and Track Usage Policies
The metadata will not include any third party promotions or other advertisements.
EXHIBIT B
CONFIDENTIAL
Anti-Piracy Cooperation
Introduction:
Google respects copyright and agrees to work in cooperation with Provider and copyright
owners generally to help them protect their copyrights on YouTube. Specifically, during the
Term of the Agreement, Google agrees to the following:
1. Hash Files to Block Future Uploads of Previously Removed Infringing Videos
a. Google agrees to implement and operate technology that creates a unique
cryptographic "hash" file of every video removed pursuant to a DMCA
takedown request, and to compare all user-uploads against a database of
such hash files and prevent the upload of an identical copy of such video.
2. Content Identification System
a. Googlehas implemented, and will continue to operate, and improve over time
a commercially reasonable content identification technology that will:
i. Compare user-uploaded videos against a database of reference files
provided by copyright owners along with the required associated
metadata in order to detect matches;
ii. Provide copyright owners with choices about the usage policy Google
should apply in the event of a match (e.g. block such videos from
YouTube, monetize such videos on YouTube and share the revenue
with the copyright owner, or simply report to the copyright owner
aggregate usage data about the matched videos);
iii. Implement reasonable procedures to address potential over-blocking
by the technology to avoid blocking content that is not infringing (e.g.
fair uses, licensed uses, or false positives);
iv. At reasonably timed intervals throughout each year, Google shall use
the Content Identification System to remove infringing content that
was uploaded before reference files pertaining to such content was
provided; and
v. Make itself available on a biannual basis to engage in good faith
discussions with Provider to engage in technical discussions
regarding the Content Identification System.
3. Creation of Reference Files from Infringing Videos
a. Google agrees to use during the Term a mechanism for copyright holders to
convert user-uploaded videos they request removed for copyright
infringement into reference files for use in Google's content identification
system, in cases where the copyright owner affirms that it owns or controls all
rights to the removed video and has all necessary authority to set the usage
policy it sets for such reference file (e.g. block, monetize, report-only).
4. Automated DMCA Takedown Process
a. Google agrees to provide an electronic tool to copyright owners to simplify
the process of delivering DMCA notices by enabling copyright owners to
search for their content on YouTube, review thumbnail images of the search
results, place a checkmark next to the search results which contain their
content, and submit a DMCA takedown request with the click of a mouse.
5. Strict Policy Against Infringement
a. Google agrees to maintain a strict policy against the upload of infringing
materials and agrees to articulate such policy clearly in its Terms of Use.
6. User Education and Awareness of Policy Against Infringement
a. Google agrees to include prominent messaging in the user video upload path
warning users not to upload infringing content.
b. Google agrees to provide educational resources for users to obtain a better
understanding of copyright laws, and how they apply to user-uploaded videos
on YouTube.
7. Prompt Removal Upon Receipt of DMCA Notice
a. Google agrees to expeditiously remove infringing videos upon receipt of a
valid DMCA notice.
8. Counter-notices
a. Upon the receipt of a valid counter-notice, if any, Google agrees follow its
requirements under the DMCA.
9. Terminate Accounts of Repeat Infringers
a. Google agrees to implement and enforce a reasonable policy for the
termination of user accounts of repeat infringers.
10. Removal of Videos Containing Links to Infringing Content
a. Google agrees to remove from YouTube videos containing URL links to
allegedly infringing content upon receipt from the copyright owner of a valid
DMCA takedown notice identifying the URL of video, the link at issue, and the
allegedly infringing content.
11. Advertising Restrictions
a. Google agrees to maintain a policy against the promotion of products or
services for the purpose of copying or distributing copyrighted content for
which one does not have consent from the copyright holder or other legal
rights to use the content.
12.
Maintenance of Records of User Information with Respect to Uploaded Content
a. Google agrees that it will, subject to applicable laws and YouTube’s
privacy policy, retain certain user information with respect to users who
have uploaded content to YouTube for a reasonable period of time from the
time of such upload.
13.
Review of Exhibit B Terms
a.
Google agrees to engage in good faith discussion from time to time to
review and revise with Provider the requirements contained in this exhibit to
discuss issues pertinent to the parties related to anti-piracy, including industry
best practices for advertising, and potential industry initiatives, informational
campaigns or organizations in which the parties may wish to participate
13.
Cooperation
a. Google will provide reasonable cooperation with all lawfully issued legal
process.