Last Updated: November 25, 2019
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
DESCRIPTION OF VIDEOS; RESTRICTIONS
The Platform enables Talent to transmit Livestream Videos through the Platform, which can be watched by Viewers who register with the Platform. The Platform also allows Viewers to send Talent DM Communications (defined below), which Talent may choose to respond to by sending a DM Video to the Viewer. Viewer will determine the fee the Viewer is willing to pay to receive a DM Video, which Viewer will designate in the DM Communication. Talent is not obligated to respond to any DM Communications. Key has the right to remove any DM Communications submitted through the Platform in its sole and absolute discretion.
The Services are available only for individuals aged 16 years or older. If you are 16 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it. If you are under the age of 16, you may use the Services only with the consent of your parent or guardian.
We reserve the right, in our sole and absolute discretion, to deny you access to the Services, or any portion of the Services, without notice and without reason.
If you wish to access and use the Platform to view Livestream Videos or send DM Communications to Talent, you must register with us. If you elect to register with us, you may log in to the Platform using a third-party login provider (e.g., Facebook, Instagram, or Twitter). If you do not wish to log in using these third-party access credentials, you will be prompted to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist us in authenticating your identity when you log in in the future (“Unique Identifiers”). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one user. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Services using one or more of them. You will promptly inform us of any need to deactivate a Password or Sign-In Name or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason and shall have no liability to you for any loss or damage caused by such action. Key is under no obligation to accept any individual or entity as an account holder, and may accept or reject any registrations in our sole and complete discretion. We will not be liable for any loss or damage caused by any unauthorized use of your account.
Key’s community, like any community, functions best when its users follow a few simple rules. By accessing the Services, you agree to comply with these community guidelines (the “Community Guidelines”) and that:
- You will not upload, post, e-mail, transmit, or otherwise make available any DM Communications that:
- Infringe any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
- are defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity); or
- disclose any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information.
- You will not use the Services to stalk or harass Talent or any other person;
- You will comply with all applicable laws in your use of the Services and will not use the Services for any unlawful purpose;
- You will not access or use the Services to collect any market research for a competing business;
- You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
- You will not interfere with or attempt to interrupt the proper operation of the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any Content (as defined below), data, files, or passwords related to the Services through hacking, password or data mining, or any other means;
- You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Services;
- You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Services;
- You will not circumvent, remove, alter, deactivate, degrade, or thwart any of the Content protections in the Services;
- You will not use any robot, spider, scraper, or other automated means to access the Services for any purpose without our express, written permission; provided, however, we grant the operators of public search engines permission to use spiders to copy materials from the public portions of the Services for the sole purpose of, and solely to the extent necessary for, creating publicly-available searchable indices of the materials, but not caches or archives of such materials;
- You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; and
- If you find something that violates our Community Guidelines, please let us know, and we’ll review it.
The Services contains material, such as videos, photographs, software, text, graphics, images, sound recordings, and other material provided by or on behalf of Key (collectively referred to as the “Content”). The Content may be owned by us or third parties, including Talent. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws.
Subject to the next paragraph, you may view all Content for your own personal, non-commercial use, and no other use is permitted without the prior written consent of Key. Key and its licensors retain all right, title, and interest, including all intellectual property rights, in and to the Content. You must retain all copyright and other proprietary notices contained in the original Content. Subject to the next paragraph, you may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. We reserve the right to remove Content from our Services at any time for any reason without any notice to you.
If you violate any part of this Agreement, your permission to access the Content and the Services automatically terminates and you must immediately destroy any copies you have made of the Content.
The trademarks, service marks, and logos of Key (the “Key Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of Key. Other company, product, and service names located on the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Key Trademarks, the “Trademarks”). Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Key Trademarks inures to our benefit.
Elements of the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
DM COMMUNICATIONS; LICENSES
The Platform provides Viewer the ability to send messages (video, text, or otherwise) directly to Talent (“DM Communications”) during a Livestream Video, which Talent may choose to respond to through a DM Video. Each time a Viewer sends a DM Communication to Talent, Viewer expressly authorizes Key to make such DM Communication available to the respective Talent.
VIEWER, AND NOT KEY, IS ENTIRELY RESPONSIBLE FOR ALL DM COMMUNICATIONS THAT VIEWER UPLOADS, POSTS, E-MAILS, OR OTHERWISE TRANSMITS VIA THE PLATFORM.
You retain all copyrights and other intellectual property rights in and to your own DM Communications. You do, however, hereby grant us and our sublicensees an irrevocable license to copy, transmit, format, distribute, and otherwise use your DM Communications and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised, for the purpose of providing the Services.
If you submit DM Communications to us, each such submission constitutes a representation and warranty to Key that such DM Communications is your original creation (or that you otherwise have the right to provide the DM Communications), that you have the rights necessary to grant the license to the DM Communications under the prior paragraph, and that it and its use by Key and its content partners as permitted by this Agreement do not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates our Community Guidelines.
Viewers must pay a fee for each Livestream Video they wish to watch (“Livestream Purchase”). Fees for each Livestream Purchase will be specified on the Talent’s event page on the Platform at the time you make your request. Additionally, to send DM Communications to Talent, Viewer must propose a fee in the DM Communication, which Talent may accept or decline. If Talent accepts the proposed fee, Viewer will pay such amount as set forth in Section 6.2 (a “DM Purchase,” and together with a Livestream Purchase, a “Purchase”). Viewer agrees to pay all amounts due in accordance with the payment terms in effect when Viewer makes a Purchase. Key reserves the right to refuse service to any Viewer or cancel a Purchase for any reason. Verification of information may be required prior to the acceptance of a Purchase. Prices for Livestream Purchases are subject to change without notice. Viewer agrees that by making a Purchase, Viewer is entering into a binding contract and agrees to pay all charges that may be incurred by Viewer or on Viewer’s behalf through the Platform, at the price(s) in effect when such charges are incurred.
VIEWERS MUST PROVIDE CURRENT, COMPLETE, AND ACCURATE INFORMATION FOR THEIR ACCOUNTS, AND PROMPTLY UPDATE ALL INFORMATION TO KEEP SUCH ACCOUNT INFORMATION CURRENT, COMPLETE, AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE). FURTHER, VIEWER MUST PROMPTLY NOTIFY US IF A PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF VIEWER BECOMES AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF VIEWER’S USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT VIEWER’S ACCOUNT PAGE.
COMMUNICATIONS WITH US
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
NO WARRANTIES; LIMITATION OF LIABILITY
THE SERVICES AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE SERVICES OR CONTENT WILL OPERATE ERROR-FREE OR THAT THE SERVICES, ITS SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE AND OUR LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SERVICES OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SERVICES OR THE CONTENT SHALL BE LIMITED TO THE GREATER OF (I) MONIES YOU HAVE PAID US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM, OR (II) FIFTY US DOLLARS ($50).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.
YOU ACKNOWLEDGE AND AGREE THAT VIEWING AND/OR DOWNLOADING CONTENT AND/OR VIDEOS THROUGH THE SERVICES IS DONE AT YOUR OWN RISK. WE DO NOT ENDORSE THE MESSAGES IN ANY VIDEOS PROVIDED THROUGH THE PLATFORM UNLESS EXPRESSLY STATED OTHERWISE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR SERVICES, INCLUDING THROUGH A VIDEO, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE BY US.
THE AVAILABILITY OF CONTENT TO WATCH WILL CHANGE FROM TIME TO TIME. THE QUALITY OF THE DISPLAY OF THE STREAMING CONTENT MAY VARY FROM DEVICE TO DEVICE AND MAY BE AFFECTED BY A VARIETY OF FACTORS, SUCH AS YOUR LOCATION AND THE BANDWIDTH AVAILABLE THROUGH AND/OR SPEED OF YOUR INTERNET CONNECTION. PLEASE CHECK WITH YOUR INTERNET PROVIDER AND/OR WIRELESS CARRIER FOR INFORMATION ON POSSIBLE DATA USAGE CHARGES. YOU ARE SOLELY RESPONSIBLE FOR PROCURING AN INTERNET AND/OR WIRELESS CONNECTION AND FOR ALL CHARGES YOU INCUR IN CONNECTION THEREWITH. KEY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE QUALITY OF YOUR WATCHING EXPERIENCE ON YOUR DISPLAY.
THE SERVICES MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. UNLESS REQUIRED BY APPLICABLE LAWS, WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL OR TECHNICAL ERRORS LISTED ON THE SERVICES. THE SERVICES MAY CONTAIN INFORMATION ON CERTAIN CONTENT NOT ALL OF WHICH ARE AVAILABLE IN EVERY LOCATION. A REFERENCE TO A TITLE OR PARTICULAR PIECE OF CONTENT ON THE SERVICES DOES NOT IMPLY THAT SUCH TITLE OR CONTENT IS OR WILL BE AVAILABLE IN YOUR LOCATION. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE SERVICES AND/OR ADD OR REMOVE CONTENT AT ANY TIME WITHOUT NOTICE.
EXTERNAL SITES; ADVERTISEMENTS; CHARITIES
The Services may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
We are not responsible for, and make no representations regarding: (i) the advertisements or any other third-party material posted on the Services or any of our social media pages; or (ii) the products or services provided by advertisers. Any dealings or interactions you have with advertisers, advertisements, other third parties, or other third-party materials while using the Services are between you and the advertiser or other third party, and you agree that Key is not liable for any loss or claim that you may have against such parties.
From time to time, Talent may identify a charitable entity (“Charity”) on their event page, or a Charity may be associated with Talent elsewhere on our Services. For example, Talent may indicate on their event page that all or a portion of Talent’s revenue from Videos will be given to the Charity. All such arrangements are made strictly between the Talent and the Charity. Key is not a sponsor of, and does not endorse, the Charity and is not a commercial co-venturer with respect to such arrangements (unless otherwise expressly stated in writing by Key). Key does not control payments to Charity and makes no warranties about the Charity or any donation to the Charity.
REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
Representations and Warranties. You hereby represent, warrant, and covenant that:
You own or have the necessary licenses, rights, consents, and permissions to all trademark, trade secret, copyright, or other proprietary, privacy, and publicity rights in and to your DM Communications and any other works that you incorporate into your DM Communications, and all the rights necessary to grant the licenses and permissions you grant hereunder;
Use of your DM Communications in the manners contemplated in this Agreement shall not violate or misappropriate the intellectual property, privacy, publicity, contractual, or other rights of any third party; and
You shall not submit to the Services any DM Communications that violate our Community Guidelines set forth above or any other term of this Agreement.
You agree to defend, indemnify, and hold us and our officers, directors, employees, agents, successors, licensees, licensors, and assigns harmless from and against any damages, liabilities, losses, expenses, claims, actions, and/or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (i) your breach of this Agreement; (ii) your misuse of the Content or the Services; and/or (iii) your violation of any third-party rights, including without limitation any copyright, trademark, property, publicity, or privacy right. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control (at your expense) of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
COMPLIANCE WITH APPLICABLE LAWS
The Services are based in the United States. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Services or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
CHANGES TO THE AGREEMENT.
TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Services, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Services at any time without prior notice or liability. Sections 4-19 shall survive the termination of this Agreement.
DIGITAL MILLENNIUM COPYRIGHT ACT
Key respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
Key Holdings, Inc.
57 W. Grand Ave, Suite 500
Chicago, IL 60654
Attn: DMCA Agent
If you believe that your work has been copied on the Services in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Services where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
This Agreement and any action related thereto will be governed by the laws of the State of Illinois without regard to its conflict of laws provisions.
In the event of a dispute arising under or relating to this Agreement, the Content, or the Services (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 16 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. All claims or disputes arising out of or in connection with this Agreement shall be heard exclusively by any of the federal or state courts of competent jurisdiction located in the State of Illinois.
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
Last Updated: December 12, 2019
1. DESCRIPTION OF VIDEOS; RESTRICTIONS
Videos. The Platform enables Talent to transmit Livestream Videos through the Platform to Viewers who register with the Platform. The Platform also allows Viewers to send DM Communications to Talent during a Livestream Video, which Talent may choose to respond to by sending a DM Video response to the Viewer. Viewer will propose the fee the Viewer will pay to receive a DM Video, which Viewer will designate in the DM Communication. Talent is not obligated to respond to any DM Communications, and may accept or reject the proposed fee in Talent’s sole discretion. Key has the right to remove any Videos from the Platform in our sole and absolute discretion.
Restrictions. Talent must be at least 16 years old to register on the Platform. If Talent is 16 years or older, but under the age of majority in Talent’s jurisdiction, Talent should review this Agreement with Talent’s parent or guardian to make sure that Talent and Talent’s parent or guardian understand it. If Talent is under the age of 16, Talent may use the Platform only with the consent of Talent’s parent or guardian.
We reserve the right, in our sole and absolute discretion, to deny Talent access to the Platform, or any portion of the Platform, without notice and without reason.
2. PLATFORM ACCOUNT
To transmit Talent Content (defined below) through the Platform, Talent must register on the Platform. Talent may register by logging in to the Platform using a third-party login provider (e.g., Facebook, Instagram or Twitter). Key reserves the right to review the public pages of the social media accounts provided by Talent for the purposes of verifying the identity of Talent. Key is under no obligation to accept any individual or entity as an account holder, and may accept or reject any registrations in our sole and complete discretion. Talent is solely responsible for any use, misuse, or communications entered through the Platform using Talent’s account. Talent will promptly inform us of any need to deactivate Talent’s account. Key will not be liable for any loss or damage caused by any unauthorized use of Talent’s account.
3. INTELLECTUAL PROPERTY
Platform and Content.
Key and our licensors retain all right, title, and interest, including all intellectual property rights, in and to the Platform and any material provided by Key or our licensors to or through the Platform, including videos, photographs, software, text, graphics, images, sounds recordings, and other material (the “Content”). Talent may view all Content for Talent’s own personal, non-commercial use. No other use is permitted without the prior written consent of Key.
The Platform allows Talent to upload, submit, store, send, transmit, or approve content and data, including Videos (“Talent Content”). Subject to the licenses granted below, Talent retains all copyrights and intellectual property rights in and to Talent Content. Talent expressly acknowledges and agrees that once Talent submits Talent Content for inclusion on the Platform, there is no confidentiality or privacy with respect to such Talent Content, including, without limitation, any personally identifying information Talent makes available. Talent, and not Key, is entirely responsible for all Talent Content transmitted on or through the Platform.
License to Key. When Talent submits, stores, sends, transmits, or approves Talent Content to or through the Platform, Talent grants to Key a non-exclusive, royalty- free, fully paid, worldwide, sublicensable, and irrevocable license in any and all manner and media, whether now known or hereinafter invented, to use, copy, record, store, reproduce, distribute, transmit, broadcast, display, perform, exhibit, project, and to otherwise exploit the Talent Content and the Talent Persona, alone, or in composite and/or conjunction with other materials, including, without limitation, animation, text, video, sounds, and graphics, solely in and in connection with the creation, development, production, advertising, promotion, marketing, distribution, sales, performance of the Platform and the Videos and their availability on the Platform. Talent retain all rights in and to the Talent Content and Talent Persona not granted hereunder. “Talent Persona” means Talent’s name, nicknames, social media handles, or alias identities or any shortening, abbreviations, or alternative renderings of such names; Talent’s image, likeness, photographs, voice, personal traits, and characteristics; Talent’s biography; and other approved indicia of Talent’s identity.
Exclusive Use of Livestream Videos.
Key shall have an exclusive license to the Livestream Videos for forty-five (45) days from the time the Livestream Video is aired on the Platform (“Exclusive Period”). After the Exclusive Period, Talent may request to receive a recording of the Livestream Video from Key, which Talent may then use at Talent’s discretion. After a Livestream Video is aired on the Platform and during the Exclusive Period, Key will not post, recreate, record, or otherwise make available the Livestream Video to any third party.
No Obligation. Although Key shall have the right to utilize the Talent Persona and Talent Contents as set forth herein, Key shall have no obligation to nor does it make any warranty or representation that it shall do so, or that it will produce, release, or distribute the Talent Content. Key’s obligations to Talent shall be fully discharged by making the payments required herein.
Talent hereby waives all so-called moral rights (“droit moral”) under the laws of the United States and all other countries throughout the world.
License to Key Trademarks.
Key hereby grants Talent during the Term a non-exclusive, royalty free license to use Key’s trademarks (both word and design marks) solely to perform Talent’s obligations hereunder in accordance with any trademark guidelines provided by Key from time to time. In the event that Key determines that Talent has failed to abide by such guidelines, it shall notify Talent of such failure or deficiency, and Talent shall promptly correct same. All goodwill generated from the use of Key’s trademarks shall inure to Key.
Right to Remove Videos.
In some circumstances, we may need Talent’s authorization to remove a Video from social media channels or third-party websites or platforms, and we will notify Talent of our intent to remove it. Talent hereby grants to us the right to act as Talent’s authorized agent in order to submit any Digital Millennium Copyright Act notices or other demands with respect to Talent’s Videos, although we are not required to do so.
4. COMPENSATION; CHARITABLE CONTRIBUTIONS.
Compensation. In full and complete consideration for the licenses granted herein, Key shall pay Talent seventy-five percent (75%) of gross revenues actually collected by Key from our distribution of Talent’s Videos through the Platform (“Gross Revenue”). Gross Revenue does NOT include any taxes that Key is required to remit to any taxing authority or any chargebacks or refunds that Key is required to make. Talent shall be solely responsible for the payment of any and all of Talent’s third-party fees, including, without limitation, broker, agent, manager, union, and/or guild fees, contributions, payments, expenses, and/or commissions in connection with this Agreement.
Date and Form of Payment. The Payment Processor collects payments from Viewers and passes the amounts through to Key and Talent. Once the payment is fully processed, the payment amount, less Key’s commission of twenty-five percent (25%) will be credited to Talent’s Payment Account. All such payments shall be remitted in United States Dollars. Payment will be processed by the Payment Processor in approximately two (2) business days.
Charitable Contributions by Talent. Talent may elect to contribute all or a portion of the payments owed to Talent to a charitable entity (“Charity”). Talent is entirely responsible for making payments to the Charity, and no payments will be made directly from Key or the Payment Processor to any Charity. If Talent identifies any Charity on the Platform, Talent represents and warrants that (i) Talent will comply with all applicable laws and regulations concerning the solicitation of charitable contributions, and make all filings and obtain all registrations that are required to be made or obtained in connection with Talent’s obligations and performance under this Agreement, and Talent will deliver to Key evidence of any such registrations or filings at Key’s request; (ii) the Charity is in good standing; within 48 hours of Talent’s receipt of our request, Talent will provide us with written evidence of the Charity’s good standing and charitable status in all applicable jurisdictions; and Talent will promptly remove any reference to the Charity from the Platform if the Charity ceases to be in good standing; and (iii) Talent has all rights necessary to grant to us a license to use the name and logo of the Charity in connection with our Platform and in any social and other media. Talent further acknowledges and agrees that Key (a) has the right in our sole discretion to reject Talent’s appointment of such Charity; and (ii) may add, in our sole discretion, to Talent’s profile page language similar to the following (subject to change in our sole discretion): “Key has no affiliation with, and does not endorse, [Charity]. Key is not responsible or liable for any payments made to [Charity]. Any payment or donation to [Charity] is the sole responsibility of [Talent]. Only [Talent]’s portion of the fee paid to Key for a Video will be donated to [Charity].”
Independent Contractor; Tax Considerations.
Nothing in this Agreement is intended to create any relationship with us other than that of an “independent contractor.” Talent will not be deemed to be our agent, employee, or representative for any purpose. Talent will not be entitled to any benefits, coverages or privileges made available to our employees.
As part of our intake process, Talent will need to provide us with a tax identification form (i.e., IRS Form W-9 or applicable IRS Form W-8). We will comply with all reporting and withholding requirements under U.S. tax law, including the filing of IRS Form 1099, when making payments to Talent. Talent will be solely responsible for any taxes imposed on such payments. We will not be coordinating or providing tax advice with respect to charitable donations. We recommend Talent consults with Talent’s own tax professional on these topics.
5. REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
Talent hereby represents, warrants, and covenants that: (i) Talent has the full right and power to enter into this Agreement, to perform fully all of Talent’s obligations, and to grant the rights granted hereunder; (ii) the execution and delivery of this Agreement by Talent and the performance of Talent’s obligations hereunder are not in violation or breach of, and will not conflict with or constitute a default under, any contract, agreement, or commitment binding upon Talent, including, without limitation, any confidentiality, non-competition, or other similar agreement; (iii) with respect to any and all material Talent creates or provides hereunder, whether in written or oral form, including, without limitation, the Talent Content, Talent either owns or has the necessary licenses, rights, consents, and permissions to all trademark, trade secret, copyright, or other proprietary, privacy, and publicity rights necessary to grant the licenses and permissions Talent grants hereunder; (iv) the Talent Content shall not contain any language or material which is obscene, libelous, slanderous, defamatory, sexually explicit, pornographic, promotes violence or illegal activity, or contains hate speech; (v) Talent will not make publically available DM Communications Talent receives; (vi) the use and exploitation of the Talent Content as contemplated herein does not infringe upon or give rise to any adverse claim with respect to any common law, statutory, or other rights whatsoever (including, without limitation, any copyright, trademark, service mark, literary right, right to privacy or publicity, or contract right) of any person, firm, or corporation, or violate any applicable law, regulation, rule, or ordinance (collectively, “Laws”); and (vii) Talent shall comply with all applicable Laws, including, but not limited to, those noted in Section 7, in Talent’s use of the Platform and Viewer personal information, including, without limitation, recording and providing the Videos hereunder.
Talent shall (and if this Agreement is executed by an Authorized Representative on behalf of Talent, such Authorized Representative and Talent shall jointly and severally) defend, indemnify, and hold us and our officers, directors, employees, agents, successors, licensees, licensors, and assigns harmless from and against any damages, liabilities, losses, costs, and expenses, including, without limitation, reasonable legal and accounting fees, incurred by such parties in connection with any third-party claim, action, or proceeding (each, a “Claim”) arising or resulting from: (i) Talent’s breach of this Agreement; (ii) Talent’s misuse of the Platform; and/or (iii) Talent’s violation of any third-party rights, including without limitation any copyright, trademark, property, publicity, or privacy right. We shall provide notice to Talent of any such Claim and shall assist Talent, at Talent’s expense, in defending any such Claim. We reserve the right to assume the exclusive defense and control (at Talent’s expense) of any matter that is subject to indemnification under this section. In such case, Talent agrees to cooperate with any reasonable requests assisting our defense of such matter.
6. NO WARRANTIES; LIMITATION OF LIABILITY.
EXCEPT AS OTHERWISE SET FORTH HEREIN, THE PLATFORM AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE PLATFORM OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT TALENT MAY SUFFER AS A RESULT OF TALENT’S USE OF THE PLATFORM OR THE CONTENT SHALL BE LIMITED TO MONIES WE HAVE PAID TALENT IN CONNECTION WITH THE PLATFORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
7. USE OF VIEWER INFORMATION
Viewers will be required to register and provide Viewer’s email address to view Talent’s Livestream Videos. Talent is permitted to collect and use such Viewer’s email address for the limited purpose of adding the Viewer to Talent’s marketing list and sending the Viewer marketing emails, provided that Talent complies with all applicable Laws with respect to collecting and using such email addresses, including, but not limited to, the California Consumer Privacy Act of 2018, and the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003.
Term. This Agreement shall commence when Talent (or Talent’s Authorized Representative) accepts it and shall continue until terminated in accordance with the provisions hereof (the “Term”).
Termination By Talent. Talent may terminate this Agreement at any time by terminating Talent’s account on the Platform or by ceasing to transmit any Videos through the Platform.
Termination Rights for Key. Key may terminate this Agreement upon: (i) Talent’s breach of this Agreement; (ii) the arrest, indictment, or conviction of Talent for the commission of a crime; (iii) any other conduct of Talent, public or private, involving moral turpitude or which has or may reasonably be expected to have an adverse effect on Key, our business, reputation, or interests; or (iv) thirty (30) days’ notice to Talent.
This Agreement and the recording and provision of the Talent Content by Talent contemplated hereunder are personal to the Talent, and Talent shall not have the right or ability to assign, transfer, or subcontract any obligations under this Agreement without the prior, written consent of Key. Key may assign any of our rights and obligations hereunder without the prior written consent of Talent to any parent, subsidiary, affiliate, or related company or in connection with a merger, change of control, divestiture, or sale of all or substantially all of Key’s assets.
10. CHANGES TO THE AGREEMENT.
We may change this Agreement from time to time on notice to Talent (including via e-mail or via the Platform). By accessing the Platform after we provide such notice, Talent is deemed to have accepted such changes.
11. CONTROLLING LAW; JURISDICTION.
This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois without regard to the conflict of law provisions thereof. All claims or disputes arising out of or in connection with this Agreement shall be heard exclusively by any of the federal or state courts of competent jurisdiction located in the State of Illinois.
12. GENERAL PROVISIONS.
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and Talent in writing, this Agreement constitutes the entire Agreement between Talent and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import.