entrei para a machinima:Channel Affiliate Agreement This Channel Affiliate Agreement (“Agreement”) is entered into by and between Machinima, Inc. (“Machinima”), located at 8441 Santa Monica Blvd, West Hollywood California 90069 and the party listed below (“Affiliate”) as of the Effective Date indicated below. This Agreement incorporates the standard terms and conditions attached hereto as Exhibit A (the “Terms and Conditions”) as well the contents of this cover sheet (“Cover Sheet”). Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Terms and Conditions. In the event of any conflict between this Cover Sheet and the Terms and Conditions, this Cover Sheet shall control. For good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged by the parties hereto), the parties hereto hereby agree as follows: Effective Date {{Dte_es_:signer:date}} Affiliate Name and Address Name: {{ !first_name}} {{ !last_name}} Address: {{ !address1}} {{ !address2}} {{ !city}},{{ !state}}, {{!zip_code}} {{ !country}} Email: {{ !email}} Phone: {{ !phone}} Overview Affiliate manages the Affiliate Content Channel(s) (defined below) and is the producer/creator/authorized licensee of content that appears therein. Affiliate desires, in exchange for the payment to Affiliate of the amounts payable hereunder, for the Affiliate Content Channel(s) to become part of the distribution network owned or controlled by Machinima or through which Machinima distributes content (the “Machinima Distribution Network”). Affiliate understands that Machinima has invested significant time, money and skills to help Affiliates in the Machinima Distribution Network increase their views, realize broader distribution, improve total monetization and operationalize best practices related to online content distribution, creation and monetization. Affiliate Content Channel(s) paraiba 123456789 hh 99991300 santa rita Caio Brazil gamercaio11@gmail Games Nov 1, 2014 “Affiliate Content Channel(s)” means the channels currently located at: youtube/{{ !channel_name}} The “Affiliate Content Channel(s)” will also automatically include channels or URLs that refer back to the Affiliate Content Channels and, at Machinima’s election, any substantially similar YouTube or such other applicable video distribution partner channels launched by Affiliate prior to or during the Term (e.g., featuring the same or similar subject matter or content, Affiliate’s name, channel name or trademark or logo). Exclusive Rights: Advertising During the Term, Affiliate hereby grants to Machinima the exclusive right to represent, sell, and manage any and all ad inventory and sponsorships on the Affiliate Content Channel(s) and the content contained thereon (other than through the independent, direct sales efforts, if any, of Machinima’s video distribution platforms or networks, including, without limitation, YouTube), including but not limited to any ad sales or sponsorship opportunities displayed in connection with any form of content contained therein, inclusion of advertising by ad networks, advertising that may be included as part of live-streaming content, new units that Machinima’s video distribution platforms or networks may make available or that Machinima or Affiliate may devise, usage of annotations and related features insofar as such usage may be part of an advertising or promotional campaign, and the serving and monitoring of all campaigns (including by use of tracking services or technologies, which may, for example, involve the placement of ‘pixels’, etc.). Machinima shall have the right to sublicense any of the foregoing rights to any third party or engage any third party to perform such rights on this behalf. Exclusive Rights: Branded Integrations and Distribution During the Term of this Agreement, Affiliate grants to Machinima the exclusive right to: (i) sell so-called ‘branded integrations’ or ‘product placements’ with respect to content on Affiliate Content Channel(s); provided that any such opportunity and terms associated therewith are approved by Affiliate and (ii) except as otherwise provided in the “Exclusivity” section below, distribute the Affiliate Content Channel(s) and the content thereon through any video distribution platform or network, via any means (whether through advertiser supported video on demand, subscription video on demand or otherwise) or method (whether through a link, an embedded video player or otherwise) of distribution, throughout the world, and on any device, platform or outlet. Method of Payment {{! payment_method}} Unless otherwise agreed to by Affiliate and Machinima or Machinima no longer offers a method of payment, all payments shall be paid via the following method of delivery: GamerCaio11 Paypal - International Only ☐ Direct Deposit (US Only) – attach a copy of a voided check The following payment methods may be subject to bank processing fees: ☐ Wire Transfer (International Only) - Information to be provided separately by Affiliate ☐ Paypal (International Only): {{ !paypal_email}} YouTube VOD Compensation For each month during the Term, Machinima shall pay to Affiliate {{!revshare_percent}}% of Net Revenue (as defined in Section 4.1 of the Terms and Conditions) (the “YouTube VOD Revenue Share”), with respect to all video-on-demand content (including Recorded Live Stream Content (as defined below)) (“VOD Content”) on Affiliate Content Channel(s) on YouTube; provided however, that, until such time as YouTube has provided Machinima the ability to calculate the Net Revenue generated by a recorded, unaltered version of an item of Live Stream Content (“Recorded Live Stream Content”) as a separate item of content from such item of Live Stream Content, then the Recorded Live Stream Content shall be deemed “Live Stream Content” for purposes of this Agreement and excluded from the definition of “VOD Content”. YouTube Live Stream Compensation “Live Stream Content” means, collectively, real-time or near real-time, streaming of “live” content of any kind, including commentary, discussion, game play, e-sports, etc. During the Term, Affiliate shall live stream all of its Live Stream Content {{!livestream_exclusivity}} on the Affiliate Content Channel(s) (or on such other Machinima controlled channel or platform as mutually agreed upon by Machinima and Affiliate) during the Term. For each month during the Term, Machinima shall pay to Affiliate {{!livestream_percent}}% of Net Revenue (“YouTube Live Stream Revenue Share”) generated in connection with distribution of the Affiliate’s Live Stream Content on YouTube. All Other Platforms Compensation For each month during the Term, Machinima shall pay to Affiliate 50% of Net Revenue (the “Other Platform Revenue Share”) with respect to all VOD Content and Live Stream Content that is displayed on Affiliate Content Channel(s) and that is exploited on a distribution platform or network other than YouTube (e.g., Machinima’s Xbox application or iOS applications). Advertising Units exclusive 60 gamercaio11@gmail 60 Affiliate must activate and turn on all advertising units that YouTube or such other applicable video distribution platform or network makes available on each item of video content on the Affiliate Content Channel(s). In the event that Affiliate fails to activate and turn on all advertising units made available on an item of video content, Affiliate authorizes Machinima to activate and turn on such advertising units on behalf of Affiliate and Machinima shall have no obligation to pay any amounts owed with respect to such item of video content while such advertising units were not activated. Payment Terms As more fully set forth in Section 4.2 of the Terms and Conditions: At the end of each calendar month, Machinima shall calculate the aggregate (i) YouTube VOD Revenue Share, (ii) YouTube Live Stream Revenue Share payable to Affiliate with respect to such month. Machinima shall pay Affiliate the aggregate amount owed hereunder within forty-five (45) business days following the end of such month. At the end of each calendar month (or such longer period as may be required or necessitated by the applicable distribution platform or network’s reporting and payment procedures), Machinima shall calculate the aggregate Other Platform Revenue Share payable to Affiliate with respect to period. Machinima shall pay Affiliate the aggregate amount owed hereunder within forty five (45) business days following the end of such period. In the event that any payment for a period due to Affiliate is less than $100, Machinima shall have the right to defer payment of such amount until such time as the amount owed to Affiliate is greater than $100. Term With respect to each Extension Term, the notice period for non-renewal is 60 days. The “Initial Term” means {{!term_length}} {{!term_type}} Each Extension Term following the Initial Term will be 12 months. Exclusivity In exchange for Machinima’s agreement to pay the payments described above, Affiliate acknowledges and agrees that during the Term, with respect to any video content that is exhibited, distributed or exploited on the Affiliate Content Channel(s), it shall not exhibit, distribute or exploit any such video content through any third party or application, whether through advertiser supported video on demand, subscription video on demand or otherwise, other than (i) on the Affiliate Content Channel(s) or (ii) through a link to the Affiliate Content Channel(s), or embedded YouTube player distributing the Affiliate Content Channel(s), on the Affiliate’s personal Facebook account, Google + page, Twitter account or website (if and as agreed to by Machinima). In addition, Affiliate agrees that during the Term, it shall not license to, or enter any agreement to produce a work made for hire for or otherwise assign or transfer to, any direct competitor of Machinima (for example, IGN, Maker Studios, Break, Fullscreen, Curse, Twitch) any video content or, 3 Years except as otherwise permitted by clause (ii) of the foregoing sentence, permit any third party other than YouTube or Machinima to distribute the Affiliate Content Channel(s). Affiliate understands and agrees that neither Affiliate nor any third party (other than Machinima, its sublicensees, agents or the independent, direct sales efforts, if any, of Machinima’s video distribution platforms or networks, including, without limitation, YouTube) shall have the right to sell advertising of any kind (included sponsorships or branded integrations) or monetize the Affiliate Content Channel(s) or the content therein in any way other than through Machinima under the terms of this Agreement or with Machinima’s express written approval. Promotion At the request of Machinima, Affiliate shall include the Machinima logo on the Affiliate Content Channel(s) to denote that the Affiliate Content Channel(s) are part of the Machinima Distribution Network. The size, placement and location of such logo on the Affiliate Content Channel(s) shall be determined by Machinima. In addition, at the request of Machinima, Affiliate shall include the Machinima Distribution Network identification pre-roll provided to Affiliate by Machinima in each item of video content on the Affiliate Content Channel(s). Affiliate shall also be required, from time to time upon written notice from Machinima to engage in the following promotional efforts relating to Machinima and the Affiliate Content Channel(s): (a) Subscribe to youtube/[machinima] or any other Machinima channel designated by Machinima (collectively, the “Machinima Channels”) and designate the Machinima Channels as a “featured channels” on the main page of the YouTube channels operated by Affiliate; (b) include “annotations” in items of video content as part of advertising or sales campaigns that Machinima secures, or to promote and market Machinima, Affiliate, or other third party video content in the Machinima Distribution Network; (c) use Affiliate’s accounts on Twitter, Facebook, Google+, YouTube or any other social media to promote designated items of video content or other content distributed through the Machinima Distribution Network as designated by Machinima in writing (including “liking” such video, designating it as a “favorite” video, etc.); and such other promotional services as reasonably requested by Machinima. Key Person Clause Affiliate represents and warrants that during the Term, [{{ !a_name}}] (“Key Person”) shall be the principal person to write, develop, create, direct and produce all of the content on the Affiliate Content Channels. Notwithstanding any other term of this Agreement, in the event that the Key Person is unable or unwilling to write, develop, create, direct and produce all of the content on the Caio Games Affiliate Channels or is no longer employed or providing the services that such Key Person is currently providing to Affiliate as of the date hereof (each, a “Departure”), then (i) Affiliate shall immediately notify Machinima in writing of such Key Person’s Departure and (ii) such departure shall be deemed a material breach of this Agreement unless otherwise approved in writing by Machinima. Additional Opportunities From time to time, Machinima may make additional promotional or other commercial opportunities available to Affiliate. In the event that Machinima makes such opportunities available to Affiliate and Affiliate agrees to participate in such opportunities, the terms and conditions of Affiliate’s participation will be mutually agreed to by the parties. Confidentiality AFFILIATE UNDERSTANDS AND ACKNOWLEDGES THAT THE EXISTENCE OF AND TERMS OF THIS AGREEMENT SHALL BE STRICTLY CONFIDENTIAL, AS MORE FULLY DESCRIBED IN SECTION 12 OF THE TERMS AND CONDITIONS. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above. Affiliate Signature: {{Sig_es_:signer1:signature}} Print Affiliate Name: {{ !a_name}} Affiliate Title (if applicable): Date of Birth: {{ !dob}} Date: {{!Dte_es_:signer:date}} Parent Signature: {{Sig_es_:signer2:signature}} MACHINIMA, INC. Machinima Signature: Print Name: Title: Date: Caio Games 2001-10-01 caio vinicios monteiro dos anjos (Nov 1, 2014) caio vinicios monteiro dos anjos Nov 1, 2014 IF AFFILIATE IS UNDER THE AGE OF EIGHTEEN (18) OR IS OTHERWISE DEEMED A MINOR OR INCAPABLE OF ENTERING INTO A BINDING CONTRACT UNDER APPLICABLE LAWS, SIGNATURE BY A PARENT OR AUTHORIZED GUARDIAN WITH THE LEGAL AUTHORITY TO BIND AFFILIATE IS REQUIRED, BELOW, IN ADDITION TO AFFILIATE’S SIGNATURE: Guardian Name: {{ !guardian_name}} Guardian Email: {{ !guardian_email}} Guardian Phone Number: {{ !guardian_phone}} I represent and warrant that I am a legal guardian of Affiliate and acknowledge that I have read the foregoing Agreement and am familiar with each and all of the terms, covenants and conditions contained therein; I am satisfied that said Agreement is fair and equitable, and I hereby give my express consent to the execution thereof and will not revoke my consent thereto at any time hereafter. Name of Parent/Guardian: {{ !guardian_name}} Date: {{Dte_es_:signer:date}} Exhibit A Machinima Standard Terms and Conditions for Channel Affiliate Agreement Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Cover Sheet. caio caio 88977807 gamercaio11@gmail Nov 1, 2014 1. Additional Affiliate Content Channel(s). Additional channels that Affiliate may launch or desire to include as part of this Agreement as Affiliate Content Channel(s), that are not otherwise automatically included hereunder by the terms of this Agreement, may be added by mutual consent of the parties in writing (for this purpose, email shall suffice, provided the email is from an authorized Machinima representative, clearly sets forth the name of the channel(s) to be added, and Affiliate responds confirming Affiliate’s consent to add such channel(s)). 2. Channel Views/Rollup. 2.1 As of the Effective Date and throughout the Term of this Agreement, all information and metrics relating to the Affiliate Content Channel(s), including impressions, visitors and video views of content distributed or delivered through the Affiliate Content Channel(s) via any method of distribution and via any device including, without limitation, (i) Live Stream Content and (ii) VOD Content, shall be included or ‘rolled up’ exclusively into Machinima’s total numbers on YouTube or such other applicable video distribution platform or network. 2.2 Affiliate acknowledges and agrees that Machinima shall use information provided to it by Machinima’s video distribution platforms or networks, including, without limitation, YouTube, to determine amount of revenue generated by the Affiliate Content Channels and content thereon, as well as the relevant number of video views generated and monetizable hereunder. The parties acknowledge and agree that such video distribution platforms or networks may, from time to time, change or modify (i) their advertising policies, terms and conditions, (ii) their methods of calculating revenue or video views generated or (iii) their monetization policies, including the criteria for determining which video views are “monetizable”. In the event of any such change or modification, the parties agree that Machinima shall have the right to change or modify its advertising policies, terms and conditions, or its methods or criteria for calculating video views generated or for determining which such views are “monetizable” to conform to such change or modification. Machinima shall notify Affiliate of any material change or modification if YouTube or such other video distribution platform or network has not publicly announced such change. Any such change or modification by Machinima shall not be deemed a breach of this agreement. 3. Live Stream Content. All Live Stream Content shall be recorded through, edited for, and distributed on the Affiliate Content Channel(s) (or on such other Machinima controlled channel on YouTube as mutually agreed upon by Machinima and Affiliate) for VOD viewing following the conclusion of the applicable live stream. Except as otherwise set forth on the Cover Sheet, any such recorded Live Stream Content shall be deemed VOD Content for purposes of this Agreement. 4. Payments 4.1 Net Revenue. (a) “Net Revenue” means (A) Indirect Revenue plus Direct Revenue less (B) (i) any payments, costs, fees, taxes, commissions and expenses relating to distribution, marketing, sales, promotion and advertising, including but not limited to, sales commissions, content delivery network costs, make-goods and allowances for doubtful accounts (ii) a distribution fee of 30% of Direct Channel Sales (as defined below) and (iii) revenue share and other payments, fees, or expenses payable to or deducted by Machinima’s video distribution platforms or networks, including, without limitation, YouTube. (b) “Indirect Revenue” means revenue (other than sponsorships and brand integrations, for which a separate fee may be payable to Affiliate on a case by case basis) actually earned by Machinima from indirect monetization of the Affiliate Content Channel(s) or content thereon by third parties other than Machinima, including but not limited to Google AdSense for Video and other advertising networks, or by an applicable video distribution platform or network. (c) “Direct Revenue” means revenue (other than sponsorships and brand integrations, for which a separate fee may be payable to Affiliate on a case by case basis) actually earned by Machinima from (i) direct sales of advertising by Machinima displayed on the Affiliate Content Channel(s) where the advertiser specifically requests advertising to appear to viewers of such Affiliate Content Channel(s) pursuant to a written insertion order accepted by Machinima (“Direct Channel Sales”) and (ii) monetization of the Affiliate Content Channel(s) or content thereon by Machinima via advertising that is run against multiple affiliate channels (e.g., “run of network” and category ad buys)(“Non-Specific Ad Buys”) as if such Non-Specific Ad Buys were indirectly monetized via Google AdSense for Video and other advertising networks. 4.2 Payment Terms. Payments may, at Machinima’s election, be combined with any other payments that may be owed to Affiliate. All references to currency herein shall be to United States dollars unless otherwise set forth on the Cover Sheet. Notwithstanding the foregoing, Machinima will have no obligation to pay any amounts, and is permitted to deduct or withhold any amounts owed, determined or reasonably suspected by Machinima in its sole discretion to have resulted from: (i) Action Fraud (as defined below), or (ii) fraudulent, misleading or false activities or activities that Machinima and/or Machinima’s video distribution platforms or networks, including, without limitation, YouTube, believe to be fraudulent, misleading or in violation of their respective terms of service, guidelines, rules, or privacy policies. 4.3 “Action Fraud” means so-called click fraud or impression fraud,” or fraud of any other kind, whether in any automated or human way, including, without limitation, by the use of a person, an automated script or a computer program (for example, online robots or bots) to click or otherwise activate any form of view, response mechanism, annotation or advertising unit, or any other fraudulent means, to increase views, impressions, skew results or imitate a legitimate user of a web or mobile browser or other software application for viewing on any device, for example, by clicking on an ad unit for the purpose of generating an improper click value and generating revenue. 5. Ownership/Control. As between the Parties, Affiliate shall retain full control and ownership of, and absolute liability for, the Affiliate Content Channel(s) and all content contained therein. This shall include creation, procurement, and uploading of any and all content therein, and the ongoing management and look and feel of the Affiliate Content Channel(s). Machinima will not have the ability to upload content, alter the design or layout, etc. of the Affiliate Content Channel(s); provided, however, that Machinima may require Affiliate to remove content immediately upon any notice of copyright violation, or violation of any party’s rights, or concern thereof. Affiliate agrees it shall not remove, designate as “private,” alter or modify content from the Affiliate Content Channel(s) (after it has been uploaded) throughout the Term of this Agreement without the prior written approval of Machinima, or unless requested by Machinima or YouTube. Any video content or other content (text, annotations, or otherwise) that is in violation of the terms of this Agreement or violates any laws, rules or regulations, including Machinima’s or any of Machinima’s video distribution platforms’ or networks’, terms, rules, policies, guidelines or other business interests, shall also be removed immediately upon request. Affiliate shall not use annotations or other similar tools and features in a manner that would conflict or interfere with Machinima’s promotional or sales efforts and ongoing advertising campaigns. 6. [RESERVED]. 7. Revenue Collection; Right of Withholding and Offset. 7.1 Machinima will collect all payments with respect to and revenues generated by the Affiliate Content Channel(s)and the content thereon, including payments and revenue from AdSense for Video, YouTube direct sales, Machinima’s direct sales, or sales by any other party or ad network on the Affiliate Content Channel(s)), and then make payments to Affiliate in accordance with this Agreement. 7.2 Machinima has right to withhold or deduct payment owed hereunder pending or following the resolution or adjudication of any breach, claim or loss related to this Agreement, any other agreement or otherwise. Machinima shall notify Affiliate in the event that it is withholding or deducting payments pursuant to this Section. In addition, Machinima has the right to offset any amounts owed by Machinima to Affiliate under this Agreement against any amounts owed to Machinima by Affiliate under this Agreement, any other agreement or otherwise. 8. Access to Affiliate’s YouTube Accounts/Reporting to Affiliate. Affiliate shall provide Machinima with all necessary access and controls to its applicable distribution platform and/or network account(s) (e.g., YouTube) in connection with the various Affiliate Content Channel(s) and the content thereon to enable Affiliate Content Channel(s) to become part of the Machinima Distribution Network, including for example in Machinima’s YouTube “CMS” or content management system or any other content management system that Machinima may use. This access shall only be used for purposes necessary to further the subject matter of this Agreement (e.g., to monitor traffic, views, prepare reports, check Ad Sense numbers, etc.). Upon Affiliate’s written request, Machinima shall provide Affiliate with a true and correct version of the then-current monthly report with respect to Affiliate Content Channel(s); provided that Affiliate shall not have the right to request such monthly reporting more than once a month, or once per the applicable reporting period from the applicable video distribution platform or network, if longer; provided further that any inadvertent failure by Machinima to do so will not be deemed a breach of this Agreement. In addition, Affiliate shall have the right to confirm the accuracy of the Machinima report directly with the applicable video distribution platform or network; provided that such informational requests are conducted through and in coordination with Machinima and limited to no more than one time per year. 9. Term/Termination/Survival/Right of First Opportunity and Last Refusal. 9.1 The term of this Agreement shall commence on the Effective Date and continue for the Initial Term. The Initial Term shall automatically renew for each Extension Term unless Affiliate provides Machinima not less than the number of days written notice prior to the end of the Initial Term or the current Extension Term, as applicable, as described in the Cover Sheet. The “Extension Term”, together with each other Extension Term and the Initial Term, is referred to herein as the “Term.” 9.2 If Affiliate contemplates entering into a similar relationship with a third party following the expiration of this Agreement, Affiliate agrees to provide Machinima with a first opportunity to negotiate and a last right of refusal (to match the third party’s terms) prior to actually entering into any contract or agreement with the third party. The parties agree to promptly negotiate any potential renewal or right of first opportunity in good faith. 9.3 Notwithstanding anything to the contrary contained herein: (A) Affiliate may terminate this Agreement at in the event that (i) Machinima is in material breach of the Agreement and such breach remains uncured for a period of more than thirty (30) days following notice to Machinima of such breach, or (ii) Affiliate ceases business operations provided, however, that Affiliate’s existing content on the Affiliate Content Channel(s) shall remain available to end users, including, without limitation, on YouTube, and under the terms of this Agreement continue to be represented exclusively by Machinima, and that Affiliate not create a similar or competitive channel for a period of one year after such termination; and (B) Machinima may terminate this Agreement (i) in its sole discretion, at any time without cause upon the provision to Affiliate of thirty(30) days’ notice at the address or email first set forth above (or as updated by Affiliate by providing Machinima with written notice); (ii) in the event that Affiliate is in material breach of the Agreement and such breach remains uncured for a period of more than thirty (30) days following notice to Affiliate of such breach or (iii) immediately following notice, in the event of Action Fraud or a material breach by Affiliate of any terms of Machinima’s or YouTube’s or other applicable platform’s or network’s rules or policies. 9.4 Upon any such termination by Machinima, neither party shall have any further obligation, rights or duties to the other party, except: (a) that any undisputed payments owed by Machinima to Affiliate prior to the date of termination shall be deemed payable (excluding payments withheld, deducted or offset pursuant to Section 7.2), and (b) the following provisions of this Agreement shall survive: Sections 7.2, 9, 11, 12, 13, 14, and 15-27. 10. Rights & Grants. In addition to the other rights and licenses granted to Machinima by Affiliate in this Agreement, Affiliate hereby grants to Machinima any and all necessary rights and licenses it may need to effect the terms of this Agreement (including, for example, Machinima’s sales, marketing and promotional efforts), including for example the right to use her/his/its name, likeness, biography, and logo, registered marks if any, names of properties, etc., and to represent Machinima as the exclusive representative of any ad inventory/ad units/sales/sponsorship opportunities (other than YouTube as and if applicable) for the Affiliate Content Channel(s). 11. Independent Responsibilities. Each party agrees that it will be fully responsible and liable for its own content and any and all third party claims that may arise from its properties, sites, and content. This Agreement confers no ownership or control and does not constitute a ‘partnership’ or ‘joint venture’ within the legal/corporate meanings of those terms. The parties remain independent of each other and maintain their liabilities as their own. Each party remains responsible for any and all permissions, rights or clearances it may need in connection with its own business, site, or channel operations, and responsible for any risks, liabilities, fees or payments it may be required to make in connection therewith or in connection with their respective content. 12. Confidentiality. 12.1 Affiliate understands and acknowledges that the existence of and terms of this Agreement shall be strictly confidential. Affiliate shall not, without the express written consent of Machinima, disclose the terms of this Agreement or any other information disclosed by Machinima to Affiliate to any third party, nor to any employees, contractors, vendors, consultants or affiliates other than those employees who have an actual need to know such information in order to perform their duties or if required to do so pursuant to a subpoena or other similar legal process, provided that Affiliate provides Machinima prompt notice of the disclosure requirement such that the latter may contest such disclosure or seek a protective order. 12.2 Affiliate shall refer any questions that Affiliate may receive in connection herewith to Affiliate’s contact at Machinima for guidance on how to appropriately respond. Any questions Affiliate may have with respect to the Affiliate Content Channel(s), their distribution platforms, other distribution opportunities, sponsorship opportunities, etc., shall also be addressed directly to Affiliate’s contact at Machinima. 13. Representations and Warranties; Covenants. Affiliate represents, warrants and agrees that: (a) it has the full right and power to make and perform this Agreement without the consent of any third party; (b) it has any and all necessary rights or clearances it may need in connection with the Affiliate Content Channel(s) and the content thereon (to the extent it would be necessary for the specific use, e.g., display on YouTube or any applicable platform or network) in order to grant Machinima the rights granted hereunder; (c) Machinima’s distribution and use of, and sale of advertising on, the Affiliate Content Channel(s) and the content thereon as set forth herein will not infringe on the rights of any person or entity, defame any person or entity, or violate any right of publicity or privacy of any person or entity; (d) Affiliate will not include in any Affiliate Content Channel(s) any content or materials that would violate any laws, rules or regulations, including Machinima’s or any Machinima video distribution platform’s or network’s general rules, terms, guidelines and/or policies; and (e) Affiliate will not undertake any activities or enter into any agreements that are either in conflict with this Agreement or that are directly competitive to Machinima. Affiliate further represents that Affiliate is at least of 18 years of age or otherwise legally capable of entering into binding agreements. If Affiliate is under the age of 18 or otherwise incapable of entering into this Agreement, Affiliate shall obtain his or her parent’s or legal guardian’s permission to do so as evidenced by their signature below provided, however, that in any case Affiliate must be at least 13 years of age. Each party shall be solely responsible for the payment of all of its own taxes, assessments and all other similar withholdings from or assessments on any monies paid hereunder. 14. Indemnity; Limitation on Liability. 14.1 Indemnity. Affiliate hereby agrees to indemnify and hold harmless Machinima, its parent, affiliates, officers, directors, employees, agents, successors, licensees and assigns, from and against any and all causes of action, claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys fees) (collectively, “Claims”) arising out of any breach by Affiliate of any of the obligations, agreements, representations and/or warranties made hereunder. 14.2 The parties agree and acknowledge that Affiliate is not an employee of Machinima, and Affiliate shall indemnify Machinima and hold it harmless against all Claims related to compensation and benefits to which employees may be entitled, including taxes, penalties and accounting fees. Affiliate and Machinima shall notify the other if either becomes aware of such a claim by any state or federal entity; and Affiliate will not represent to any third party that Machinima and Affiliate are partners or joint venturers, nor that Affiliate can bind Machinima to any agreement with anyone else. 14.3 Except with respect to breaches of Section 12 (Confidentiality), indemnification payments and obligations, fraud, gross negligence or willful misconduct, no party shall be liable to the other for special, consequential or incidental damages or for lost profits. 15. Assignment. Affiliate understands and agrees that Machinima may freely assign this Agreement; however, because the subject matter hereof is personal to Affiliate and Affiliate’s content, Affiliate may not assign this Agreement to any person or entity without Machinima’s prior written consent. 16. Affiliate Responsibility for Personnel. Affiliate and all personnel supplied directly by Affiliate shall be deemed employees or subcontractors of Affiliate and will not be considered employees, agents or subcontractors of Machinima for any purpose whatsoever. Affiliate assumes full responsibility for the actions of all such personnel and for the payment of their compensation (including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes), workers’ compensation, disability benefits and the like to the extent applicable to the personnel involved. Notwithstanding and without in any way limiting any terms and conditions set forth in this Agreement, all subcontractors of Affiliate shall be deemed to have made all of the representations and warranties of Affiliate set forth herein and shall be subject to any obligations of Affiliate hereunder, and, if requested by Machinima, Affiliate shall obtain from each subcontractor its written consent to and acknowledgment of the terms of this Agreement. Affiliate shall be responsible for any breach by any subcontractor of any representations, warranties or obligations set forth in this Agreement. For the sake of clarity, this is not an agreement for the performance of any services. 17. Arbitration/ Class Action Waiver/Jurisdiction. 17.1 Any and all claims controversies, disputes, demands, counts, or causes of action between Affiliate and Machinima regarding, arising out of or relating to this Agreement (including, without limitation, its formation, performance or alleged breach), the Machinima Distribution Network, Affiliate Content Channel, or Live Stream Content, shall be resolved exclusively by confidential binding arbitration in Los Angeles County, California by a single arbitrator. Affiliate, however, shall have the right to participate by phone or similar means and need not attend the arbitration live in Los Angeles County, California in order to participate. To the extent that any filing fee to initiate arbitration exceeds the cost of filing suit in state or federal court in Los Angeles County, California, Machinima will reimburse Affiliate for the difference. 17.2 17.2 Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) or JAMS. As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or JAMS’s rules for commercial arbitration. For more information on AAA, its rules and procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at adr.org. For more information on JAMS, its rules and procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at jamsadr. 17.3 The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve any dispute arising under or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to any claim that all or any part of this Agreement is void or voidable. Without limiting the generality of the foregoing, the arbitrator shall have the exclusive authority to interpret the scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action. 17.4 The parties further agree that they may bring claims only in their individual capacity and not as a plaintiff or class representative in any purported class or representative proceeding. The arbitrator may not consolidate more than one person’s claims, may not otherwise preside over any form of a representative or class proceeding and may not award class-wide relief. This provision is material and is a condition of the agreement to arbitrate. In the event that a determination is made that this class action waiver is void or unenforceable for any reason, the parties agree that the agreement to arbitrate disputes will be null and void. 17.5 Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. 17.6 If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Los Angeles County, California. 18. Severability. Except as otherwise provided in Section 17, if any provision of this Agreement is, for any reason, invalid and/or unenforceable, the remaining provisions shall continue to be valid and enforceable to the fullest extent permitted by law. The parties agree to replace an invalid and/or unenforceable provision with a valid and/or enforceable provision which most closely approximates the intent and economic effect of the invalid and/or unenforceable provision. 19. Non-Waiver; Remedies Cumulative. A waiver by either party of any of the terms or conditions of this Agreement shall not, in any instance, be deemed or construed to be a waiver of such terms or conditions for the future or of any subsequent breach thereof. All remedies, rights, undertakings, obligations and agreements contained in this Agreement shall be cumulative and none of them shall be in limitation of any other remedy, right, undertaking, obligation, or agreement of either party. 20. Mutual Covenants. Affiliate and Machinima each agree that they will undertake the activities contemplated by this Agreement in compliance with all applicable laws and regulations. 21. Governing Law. The construction and interpretation of this Agreement shall at all time and in all respects be governed by and construed according to the laws of the United States and the State of California (without regard to California conflict of laws provisions) except that the arbitration provision shall be governed by the Federal Arbitration Act. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. 22. Injunctive Relief. Affiliate hereby acknowledges that it will be impossible to measure in money the damages that would be suffered if Affiliate breaches the exclusive rights granted to Machinima hereunder and that in the event of any such breach, Machinima will be irreparably damaged and will not have an adequate remedy at law. Machinima shall, therefore, be entitled to injunctive relief, including specific performance, to enforce such rights and may seek the foregoing in any court of competent jurisdiction, notwithstanding the provisions of Section 17 to the contrary. Affiliate’s sole and exclusive remedy for Machinima’s breach, termination or cancellation of this Agreement or any term hereof shall be an action for damages brought pursuant to Section 17 and Affiliate irrevocably waives any right to equitable or injunctive relief or to enjoin or restrain Machinima and its successors, video distribution partners, assigns, and licensees from exploiting the Affiliate Content Channels hereunder. 23. Captions. Section or other headings contained in this Agreement are for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. 24. No Presumption. Affiliate represents and warrants that Affiliate has had the opportunity to review this Agreement before signing it and that Affiliate has obtained legal counsel or other professional advice or deliberately refrained from obtaining legal counsel or other professional advice in connection herewith. This Agreement shall be construed as though jointly drafted by Affiliate and Machinima with no presumption drawn against either as drafter. 25. Counterparts and Email. For the convenience of the parties, the parties may execute any number of counterparts of this Agreement hereto. Each such counterpart shall be deemed to be an original instrument but all such counterparts taken together shall constitute one and the same Agreement. This Agreement may be delivered following execution by Email or fax with executed originals from Affiliate to be delivered to Machinima thereafter by mail, to the address above. 26. Notices. All notices to be given to the other party hereunder will be addressed to such party at the address set forth on page 1 of the Cover Sheet, or at such other address as such party may designate in writing from time to time. All notices must be in writing and must be served by personal delivery, or certified mail, return receipt requested. Except as otherwise provided herein, such notices will be deemed given on the date personally delivered, or the date two (2) business days after the date mailed if mailed in the United States, and five (5) business days after the date mailed if mailed outside the United States. 27. Entire Agreement. These Terms and Conditions, along with the Cover Sheet, shall constitute a binding agreement between the parties as of the Effective Date and supersedes any and all prior written or oral agreements between the parties in connection with the subject matter hereof, including any letter agreement regarding the inclusion of the Affiliate Content Channel(s) in the Machinima Distribution Network. This Agreement may not be modified or amended except in writing signed by the parties h
Posted on: Sat, 01 Nov 2014 23:42:19 +0000
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