EXCLUSIVE YOUTUBE CHANNEL ADMINISTRATION AGREEMENT
This agreement (the “Agreement”) is made as of DateSigned (the "Effective Date") by and between you (“Licensor”) and Verge Records International, Inc. dba "ONErpm" ("ONErpm"). Capitalized terms not otherwise defined in the basic terms and conditions set forth below (“Basic Terms”), shall have the meanings ascribed to them in the general terms and conditions attached hereto as Schedule A (“General Terms and Conditions”).
You understand that by electronically signing this Agreement via the Site, you agree to be bound by the terms set forth below. If you do not accept this Agreement in its entirety, do not electronically accept and/or sign this Agreement and do not use the YouTube related services of ONErpm.
Basic Terms
Grant of Rights: ONErpm shall have the following basic rights in accordance with the General Terms and Conditions in addition to the rights granted under the General Terms and Conditions:
Exclusive YouTube Channel Admin Services; and
Exclusive digital distribution rights for the Videos.
Income: In full consideration of the rights granted to ONErpm hereunder, and conditioned upon Licensor's full and faithful performance of all the terms and conditions hereof, Licensor shall be paid:
70% of Net Receipts from exploitation of the Videos via YouTube and the YouTube Channel Admin Services (excluding Integrations);
50% of Net Receipts from exploitations of the Videos via Third Party Platforms, excluding YouTube (e.g. Apple Music); and
50% of Net Receipts from Integrations.
Term: This Agreement shall commence as of the Effective Date and continue for three (3) years from the later of (i) the Effective Date or (ii) Licensor’s inclusion of the Channel in ONErpm’s YouTube network (the “Term”), after which the Term will automatically renew and continue for additional, successive one (1) year periods, until terminated in accordance with the General Terms and Conditions. Notwithstanding anything to the contrary contained herein, Licensor shall not be entitled to terminate this Agreement until after ONErpm has fully recouped all Recoupable Costs.
Territory: Universe
This Agreement shall consist of the Basic Terms, and the General Terms and Conditions and any schedules or exhibits attached thereto. In the event of any conflict between the Basic Terms and the General Terms and Conditions, the Basic Terms shall govern.
Each party understands that the General Terms and Conditions contain a binding arbitration provision in section 9(h), which includes New York law as the governing law, and waiver of jury trials and class actions, governing disputes arising from this Agreement. By signing below, each party expressly consents to such arbitration provision in section 9(h) of the General Terms and Conditions.
Schedule A
General Terms and Conditions
Certain Definitions.
The “Channel” means the YouTube channel(s) owned or controlled by Licensor during the Term and submitted to ONErpm for administration hereunder.
“Content” means all YouTube Content, Videos, Materials, and other materials submitted by Licensor to ONErpm.
“Net Receipts” means all monies actually received by or credited to ONErpm directly attributable to the sale, license, exploitation, or use of the Videos and/or the Channel hereunder less any money transfer transaction processing fees, applicable sales taxes and required tax withholding in applicable territories, and union scale fees (where applicable).
“Recoupable Costs” means any and all out-of-pocket costs and expenses incurred by ONErpm and directly attributable to the distribution, exploitation, marketing, promotion, production, or advertising of the Channel and/or Videos.
“Site(s)” means ONErpm’s website(s).
“Third Party Platforms” means third party digital, mobile, streaming, interactive, non-interactive, cloud, social media and/or Internet retailers and platforms that distribute, stream, exploit, or otherwise make available videos and other content, including, without limitation, platforms, technologies, and services which may come into existence or be developed after the Effective Date.
“Videos” means the audiovisual recordings owned or controlled by Licensor.
Grant of Rights. Licensor hereby grants and licenses to ONErpm the following irrevocable, sub-licensable rights throughout the Territory and during the Term:
the exclusive right and license to convert, digitize, encode, integrate, make, cause or otherwise reproduce the Videos in any digital or electronic format now known or hereafter devised for the purposes of distributing, exploiting or using the Videos as granted herein;
the exclusive right and license to digitally distribute, reproduce, transmit, license, sell (including without limitation via downloading, streaming, and subscription services), advertise, publish, publicly perform, broadcast, and otherwise use and exploit the Videos in any electronic or digital format now known or hereafter devised during the Term to consumers throughout the Territory through any platforms or services of any Third Party Platforms. Such rights shall include the right to make, display, reproduce, and distribute separate images (e.g., thumbnails) of video stills from the Videos in connection with the promotion, advertising, and marketing of the Videos and the services;
the non-exclusive right and license to use in the Territory the approved name, likeness, logo, trademarks, and biography of Licensor and each person who contributed to the Videos and/or YouTube Content (collectively the “Materials”) in connection with the exploitation, sale, and distribution of the Videos and/or YouTube Content hereunder and the advertising, publicizing or promotion of the Videos and/or YouTube Content by any and all media, provided that (i) all materials provided by Licensor to ONErpm shall be deemed approved for purposes hereof and (ii) Licensor understands that credit may not be provided in connection with all uses of the Videos and YouTube Content hereunder;
the exclusive right to administer, collect all revenue, and exploit all rights to the Videos, underlying musical compositions and sound recordings (if applicable), and all other visual, audio, and audio-visual materials uploaded by Licensor to the Channel or otherwise made available by Licensor for publication, exploitation, and administration on the Channel (collectively referred to herein as “YouTube Content”), including but not limited to, the exclusive right to (i) identify potential claims against any unauthorized individuals who are using the YouTube Content on YouTube prior to or during the Term of this Agreement without Licensor’s specific authorization; (ii) claim and negotiate settlements with such unauthorized persons on Licensor’s behalf on terms and conditions that ONErpm will elect in its sole discretion; (iii) negotiate and grant on Licensor’s behalf all the licenses and sub-licenses necessary for YouTube or any affiliated Google service to carry out its services, which include but are not limited to host, cache, route, index, transmit, store, copy, embed, stream, perform, distribute, reproduce, display, reformat, synchronize (in timed relation or otherwise), edit, modify, catalog, add metadata, add content ID tags, sell advertising against, and otherwise exploit and make available theYouTube Content on YouTube; (iv) include the YouTube Content and the Channel within the network of YouTube channels owned or controlled by ONErpm; (v) monetize the YouTube Content and the Channel by licensing the exploitation of the YouTube Content and/or the Channel for distribution and exploitation on YouTube; (vi) monetize the YouTube Content and the Channel by selling advertising and sponsorships; (vii) procure, solicit, and arrange product, brand, or services integrations in or in association with the YouTube Content and/or the Channel (“Integrations”), subject to Licensor’s approval; (viii) collect any and all revenues generated by the Channel and/or YouTube Content from YouTube and related services and Integrations; and (ix) access, manage and administer the Channel for purposes of carrying out the services listed and exercising the rights granted above, including but not limited to the cross-promotion of YouTube Content, the adding of links, product placements, videos, images, annotations and other channels to YouTube Content and to the Channel at ONErpm’s sole discretion and to promote and advertise the YouTube Content and the Channel within YouTube and Google’s advertising platforms (all rights granted under this subsection except Integrations shall be referred to herein as the “YouTube Channel Admin Services”). For the avoidance of doubt, such rights shall include the right to make, display, reproduce, and distribute separate images (e.g., thumbnails) of video stills from the YouTube Content in connection with the promotion, advertising, and marketing of the Channel and YouTube Content and ONErpm’s services. The Channel shall be included exclusively in ONErpm’s network and all Channel views will consequently be incorporated into ONErpm’s total network view count for purposes of analytics and reporting systems. Licensor agrees not to disable any features on the Channel that would interfere with ONErpm’s ability to carry out these services and exercise the rights granted herein; and
the non-exclusive right and license to exploit the sound recordings and musical compositions embodied in the Content, if any, to the extent needed for ONErpm to exploit the rights granted to it hereunder. In the event that Licensor does not own or control such musical compositions or sound recordings, Licensor shall obtain licenses for such compositions and/or sound recordings pursuant to subsections 4(b) and 7(a)(iii) below.
Unless otherwise specified herein, the foregoing grant of rights are exclusive throughout the Territory during the Term such that Licensor shall not grant the rights granted to ONErpm hereunder to any third party for any purpose or independently exploit the rights granted to ONErpm hereunder for any purpose throughout the Territory during the Term. Licensor acknowledges and agrees that ONErpm may utilize third parties to exercise the rights granted to it hereunder.
Reservation of Rights. ONErpm shall not edit, remix, resequence or otherwise alter any Video delivered by Licensor to ONErpm in any manner, except as otherwise set forth herein. All rights not specifically granted to ONErpm herein are expressly reserved for Licensor.
Licensor Obligations.
Upon the Effective Date and throughout the Term, Licensor shall:
deliver to ONErpm the Videos in a digital or electronic format approved by ONErpm or by any other format approved by ONErpm; and
transfer to ONErpm control over the management and administrative functions of the Channel; provided that Licensor shall retain all rights in, including ownership of and absolute liability for, the YouTube Content and the Channel. ONErpm may remove or may require Licensor to remove any YouTube Content immediately upon a notice of copyright violation, or violation of any party’s rights, or concern thereof, or if such YouTube Content is in violation of the terms of this Agreement or violates any laws, rules, or regulations, including ONErpm’s or YouTube’s (or its parent company’s or affiliates’) terms, rules, policies, guidelines, or other business interests, in such party’s sole and reasonable determination.
Licensor shall obtain and pay for any necessary clearances and licenses in the Territory for all of Licensor’s Content (including, but not limited to, the sound recordings and musical compositions embodied in the Videos, unless otherwise handled and paid directly by the Third Party Platforms, which shall be Licensor’s responsibility to verify in writing). Accordingly, Licensor shall be responsible for and pay any and all royalties and other income due to artists, side artists, producers, writers, publishers and other revenue participants from exploitations or other uses of the Content, including but not limited to, all mechanical royalties, public performance royalties, any and all payments that may be required under collective bargaining agreements applicable to the Content, and any other royalties, fees, and or monies payable by the Licensor with respect to the Content, unless Licensor has verified in writing that the Third Party Platforms have paid such royalties.
Licensor shall register for an account with ONErpm through its Site (as directed by ONErpm) in order to receive accounting statements and income payable to Licensor pursuant to the Basic Terms.
Some of the services provided by ONErpm may be subject to payment of a one-time, up-front fee by Licensor to ONErpm. Licensor will be made aware of any required fees prior to opting in to the applicable service. All fees are due upon time of opt in and payments shall be made via the Site.
Accounting.
Licensor's share of Net Receipts shall be inclusive of all publishing, mechanical royalties, and other payments due to all royalty participants associated with the Content and the musical compositions and sound recordings embodied therein unless otherwise paid directly by the Third Party Platforms. In the event that ONErpm pays any publishing income, royalties, or other payments directly to any third party, as directed by Licensor or required by law, including, without limitation, to performance rights organizations, such amounts shall be deducted from Licensor’s share of Net Receipts. Licensor shall be responsible for the payment of all taxes assessed to Licensor with respect to all income received by Licensor pursuant to this Agreement. ONErpm shall have the right to rely on accounting, usage, and other statements received from ONErpm’s sublicensees (including, but not limited to, YouTube Analytics) for all purposes hereunder.
ONErpm shall account to and pay Licensor's share of Net Receipts on a monthly basis via the Site. Such accounting shall include the Net Receipts received by ONErpm from exploitation of the Videos, YouTube Content, and the Channel from all sources specified herein and the amount due to the Licensor. Payments will be made to Licensor via Paypal via the Site or any other method used by ONErpm. Payments shall be subject to the terms and conditions of the third party service or financial institution used to render payment to Licensor hereunder, and Licensor shall be responsible for any fees charged by any such third parties. Licensor retains sole responsibility for any withdrawals from Licensor’s account, regardless of whether such withdrawals are completed by Licensor or third parties designated by Licensor. Licensor acknowledges and agrees that Licensor bears the responsibility of protecting the username and password associated with Licensor’s account, and ONErpm shall not be held liable in any instances of improper access to Licensor’s account when such access is not due to ONErpm’s actions. Any objection relating to any accounting statement, or any lawsuit arising therefrom, must be made (and any lawsuit commenced), no later than one (1) year after the date the statement is to be rendered, and Licensor hereby waives any longer statute of limitations that may be permitted by law.
Licensor agrees that ONErpm may freeze and withhold any and all revenues in Licensor’s account that are received in connection with the Content or fraudulent activity by or on behalf of Licensor that ONErpm believes, in its sole and reasonable discretion, violates this Agreement or the Site Agreements (defined below), provided that ONErpm shall give Licensor written notice that such sums are withheld and will review in good faith any explanation or other response provided by Licensor. If ONErpm has a good faith belief (and ONErpm’s legal counsel agrees) that such revenues are the result of fraud or infringement by Licensor, then such revenues shall be forfeited by Licensor. To the extent any fraudulent and/or infringing activities are determined to be caused by Licensor or Licensor’s affiliates’ actions or omissions, any costs incurred by ONErpm (including legal fees and expenses) in connection therewith may, in addition to other remedies, be deducted by ONErpm from any monies otherwise payable to Licensor hereunder. Licensor agrees and authorizes that ONErpm may disclose Licensor’s personal information and accounting data in connection with copyright claims and disputes. Certain Third Party Platforms may also have policies related to fraud and infringement, and Licensor agrees that it is Licensor’s responsibility to investigate such policies, if any, and that such policies shall be binding upon Licensor.
Confidentiality. The terms and conditions of this Agreement are confidential and shall not be disclosed by Licensor to any third party (except for professional advisors) without ONErpm’s prior written consent, except as may be required to be disclosed by applicable law or legal process, provided that Licensor shall notify ONErpm at least five (5) days prior to any disclosure as required by law or legal process so as to allow ONErpm an opportunity to protect such terms through protective order or otherwise.
Representations and Warranties; Indemnification.
Licensor represents and warrants that: (i) Licensor has the right to enter into this Agreement and to perform all of its obligations hereunder and grant the rights set forth herein; (ii) Licensor is 18 years of age or older or Licensor’s legal guardian is entering into this Agreement on Licensor's behalf; (iii) Licensor is, and can demonstrate to ONErpm’s full satisfaction that Licensor is the owner or licensor of or otherwise controls or has obtained the rights and licenses to the Content and Licensor has all appropriate and necessary licenses, authorizations, and rights related to the Content in order for ONErpm to exploit the rights granted to it hereunder; (iv) Licensor shall not grant and has not granted to any third party any rights that are inconsistent with the rights granted to ONErpm hereunder; (v) Licensor shall be solely responsible for the payment of any royalties or other payments to any third parties that may become due as a result of ONErpm’s exercise of its rights hereunder, including, without limitation, to any performing rights organizations, writers, co-writers, producers, performers, and third party royalty participants; (vi) the Content (including, without limitation, the Videos, YouTube Content, and any underlying musical compositions embodied therein) and all other materials furnished by Licensor to ONErpm and ONErpm’s exercise of the rights granted hereunder, shall not infringe upon any other material or violate or infringe upon any common law or statutory rights, including but not limited to copyright, trademark rights, and rights of privacy and publicity, of any third party; and (vii) Licensor knows of no material claims, nor basis for such claims, which may affect the ownership or validity of the Content.
Licensor agrees to indemnify, defend, and hold ONErpm, its affiliates, assigns, sub-distributors and licensees and their directors, officers, shareholders, agents, employees harmless from and against all third party claims and resulting damages, liabilities, losses, costs and expenses, including, without limitation, reasonable attorneys’ fees and court costs, arising out of or connected with any breach or alleged breach by Licensor of any warranty, representation or agreement made herein or pertaining to any act, error, or omission committed by Licensor or any person or entity acting on Licensor’s behalf or under Licensor’s direction or control. In the event that a claim is made or an action is commenced, ONErpm shall have the right to withhold payment of any and all monies due to Licensor hereunder in reasonable amounts related to such claim or action pending the disposition thereof.
Nothing in this Agreement shall obligate ONErpm to distribute, reproduce, exploit, or otherwise use any of the Videos or other Content or provide the YouTube Channel Admin Services, all of which shall be in ONErpm’s sole discretion. ONErpm may choose to not provide, or cease to provide, any services, in its sole discretion, including, without limitation, due to poor recording quality or hateful, obscene or inappropriate content. Without limiting the foregoing, ONErpm shall have the unilateral right to remove any Content or other materials from the Site and services that it deems, in its sole discretion, to violate the Site Agreements, the Third Party Platform Agreements, or the terms and conditions of this Agreement.
ONERPM'S AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF MONEY PAID BY ONERPM TO LICENSOR IN THE ONE (1) YEAR PERIOD PRIOR TO THE DATE OF THE BREACH OR ALLEGED BREACH BY ONERPM OF THIS AGREEMENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL ONERPM BE LIABLE TO LICENSOR OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITARY DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS OR LOST DATA ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 7(D) 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 LIMITATIONS OF THIS SECTION ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT, THAT THE AGREEMENTS MADE IN THIS SECTION REFLECT A REASONABLE ALLOCATION OF RISK, AND THAT EACH PARTY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.
Termination.
The Term of this Agreement may be terminated in writing by either party ninety (90) days prior to the end of the then current period. Notwithstanding the foregoing, Licensor shall not be entitled to terminate this Agreement until after ONErpm has fully recouped all Recoupable Costs. Following expiration of the Term, ONErpm shall have a collection period that shall extend until such time as ONErpm has received payment for all exploitations of the Videos and Channel during the Term as authorized herein, including, without limitation, payments from Third Party Platforms.
ONErpm shall have the right, at any time, to terminate this Agreement, remove any of Licensor’s Content from the Site(s), remove the Channel (in whole or in part) from ONErpm’s YouTube network, cease providing services to Licensor, and/or cease the exploitation and distribution of any Content, which ONErpm may elect to do as a result of ONErpm’s determination that (i) Licensor’s Content infringes or may infringe upon any third party rights, (ii) Licensor has violated the Site Agreements, the Third Party Platform Agreements (as defined below), or the terms and conditions of this Agreement, (iii) Licensor’s Content may be offensive or obscene, (iv) Licensor’s actions or Content may harm ONErpm or bring ONErpm into disrepute by association, or (v) for any other reason, or no reason, that ONErpm may determine in its sole discretion. In the event of ONErpm’s termination of this Agreement pursuant to (i), (ii), (iii), or (iv) above, in addition to other rights and remedies available to ONErpm, Licensor agrees to immediately pay to ONErpm the then current unrecouped balance of Recoupable Costs.
In the event of any termination of this Agreement, Sections 5(d), 6, 7, 8(a) and 9 of this Agreement shall survive.
Miscellaneous.
The parties agree and acknowledge that the relationship between the parties is that of independent contractors. This Agreement shall not be deemed to create a partnership or joint venture, and neither party is the other's agent, partner, or employee.
Licensor agrees to be bound by the Site(s)’ Terms of Use (at https://onerpm.com/legal/terms), Privacy Policy (at https://onerpm.com/legal/privacy), and other agreements located on the Site(s) and applicable to Licensor (the “Site Agreements”), as the same are amended or updated from time to time on the Site(s). Licensor further agrees to be bound by the Third Party Platforms’ (including but not limited to YouTube and Google) terms of use and privacy policies (the “Third Party Platform Agreements”) as they pertain to Licensor, the use of the Third Party Platforms’ platforms, the exploitation of the Content and the rights granted hereunder. To the extent the terms of this Agreement conflict with the terms of the Site Agreements, or the Third Party Platform Agreements, the terms of this Agreement shall control. This Agreement, together with the Site Agreements, contains the entire understanding of the parties relating to the subject matter hereof and supersedes all previous agreements or arrangements between Licensor and ONErpm pertaining to the services, if any. This Agreement may only be modified by a writing accepted and/or signed by the parties.
This Agreement will be binding on the assigns, heirs, executors, affiliates, agents, administrators, and successors of each of the parties. ONErpm will have the right to freely assign this Agreement at any time to any party in its sole discretion without notice to Licensor. Licensor acknowledges and agrees that neither this Agreement nor any right or interest hereunder may be assigned or transferred by Licensor without the express, prior, written consent of ONErpm.
All notices hereunder shall be sent in writing via electronic mail. If ONErpm provides notice to Licensor, ONErpm will use the contact information provided by Licensor upon registration with ONErpm or as updated by Licensor, or, in the absence of a valid electronic mail address, via any other method ONErpm may elect in its sole discretion, including, but not limited to, via posting to Licensor’s account on the Site. All notices to ONErpm shall be sent to legal@ONErpm.com. All notices will be deemed received: (i) 24 hours after the electronic mail message was sent, if no “system error” or other notice of non-delivery is generated or (ii) upon posting if by other electronic means, if permitted. If applicable law requires that a given communication be “in writing,” you agree that email communication will satisfy this requirement.
If any provision of this Agreement or the application thereof shall for any reason be declared by a court of competent jurisdiction or arbitration proceeding under this Agreement to be invalid or unenforceable, such decision shall not have the effect of invalidating or voiding the remainder of this Agreement, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying such provision to the extent necessary to render it valid, legal, and enforceable while preserving its intent or, if such modification is not possible, by substituting therefore another provision that is valid, legal, and enforceable so as to materially effectuate the parties’ intent.
As a condition precedent to any assertion by Licensor that ONErpm is in default in performing any obligation contained herein or otherwise in breach of this Agreement, Licensor shall give ONErpm detailed written notice of such default or breach, and ONErpm shall be allowed a period of thirty (30) days after receipt of such written notice within which to cure such alleged default or breach. No default or breach by ONErpm will be deemed to be incurable. The failure of either party to act in the event of a breach of this Agreement by the other will not be deemed a waiver of such breach or a waiver of future breaches.
This Agreement shall be deemed to have been made in the State of New York, without regard to its conflict of laws provisions, and its validity, construction, performance and breach shall be governed by the laws of the State of New York.
Any controversy originating from this Agreement or which is thereto related will be resolved, on a definitive basis, by arbitration. The arbitration will be administered and conducted by the American Arbitration Association and will follow the procedures established by its Rules. The arbitration tribunal will be formed by one or more arbitrators in accordance with the referred Rules. The arbitration will take place in New York, New York, United States of America; however, the parties may participate by phone or video conference. The arbitration will be conducted in English and New York law will be the applicable law. Any such action or proceeding shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim, controversy, action or proceeding of any other party. In the event of a claim or dispute, Licensor’s sole remedy shall be limited to an action at law for money damages, if any, and Licensor shall not have the right to in any way enjoin or restrain ONErpm’s Site(s), services or other activities. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
This Agreement may be executed in counterparts, including by digital or electronic signature and/or exchanged via e-mail or other digital means, each of which shall be deemed an original and all of which together shall be deemed one and the same instrument.
Licensor acknowledges that Licensor has been advised to seek independent legal and business counsel with respect to this Agreement and that Licensor has either sought and obtained such counsel or deliberately refrained from doing so. This Agreement shall be deemed to be jointly drafted by the parties and may not be construed against any party by reason of its preparation or word processing.