FTVOD Terms of Service
Last updated: July 2024
This FTVOD Terms of Service Agreement (as amended from time to time, this “Agreement”) contains the terms and conditions of (i) your use of the KINO digital service that enables self-submission and delivery of content and self-service support (the “Program”) for distribution of audio-visual programs and related content via the digital video services operated by KINO or its Affiliates and (ii) KINO's use of such content. This Agreement is a binding agreement between you and KINO. As used in this Agreement, “KINO,” “we” or “us” means, individually: KINO Tech, Inc., and any other KINO Tech, Inc. Affiliate that joins as a party to this Agreement as provided herein, in each case solely with respect to such entity's exercise of its rights and compliance with its obligations in connection with the countries, territories, and provinces designated by KINO. As used in this Agreement, “Content Provider” or “you” means the person or entity accepting this Agreement or any of your successors in interest or assigns. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with KINO or Content Provider, as appropriate.
Any version of this Agreement in a language other than English is provided for convenience and the English language version will control if there is any conflict between language versions. Given the importance of this Agreement, we encourage you to review it carefully. In addition to the terms set forth below, this Agreement expressly incorporates by reference other Program-specific terms and conditions governing the Program, the information posted on the Program Site, including the Content Policy Guidelines and the KINO Privacy Notice, located on www.kino.studio or the equivalent information in the applicable territory (or a respective successor site thereto).
In addition to the terms set forth below, this Agreement expressly incorporates by reference other Program-specific terms and conditions governing the Program, the information posted on the Program Site, including the Content Policy Guidelines as well as KINO LVOD Terms, and the KINO Privacy Notice, located on www.kino.studio or the equivalent information in the applicable territory (or a respective successor site thereto).
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Content Provider and KINO agree as follows:
1. Agreement Acceptance
You accept this Agreement by clicking “Agree” where you are given the option to do so. If you do not accept the terms of this Agreement, you may not use the Program. By accepting this Agreement, you confirm that you are at least 18 years old (or the age of majority where you reside, whichever is older) and that you are able to form a legally binding contract. If you are accepting this Agreement on behalf of a company or other legal entity, you represent that you have the legal authority to bind that company or legal entity by the terms of this Agreement.
2. Amendment; Notice of Changes
The Program will change over time and the terms of this Agreement will need to change over time as well. Subject to the provisions of this Agreement, we reserve the right to change the terms and conditions in this Agreement at any time in our sole discretion. Any changes to the Agreement, including Program-specific terms and conditions, or to the policies and guidelines referenced in this Agreement, other than with respect to the amount of the License Fees we agree to pay under the Agreement, will be effective upon KINO’s posting of a copy of the updated Agreement, Programs-specific terms and conditions, or policies and guidelines referenced in this Agreement, as applicable, to the website for the Program at www.kino.studio/terms (including any successor or replacement website, the “Program Site”) or other applicable KINO-owned sites, with or without prior notice to you. Changes to the royalty rates used to calculate License Fees under this Agreement will be effective and binding on you on the date that is 30 days after we post a notification of such change on the Program Site or notify you via email using the email address provided in your Account or via message to you through your Account, unless otherwise agreed in writing.
Your continued use of the Program Site or the Program following any changes to this Agreement will constitute your acceptance of such changes. If you do not agree to changes to this Agreement or the Program Site, you should discontinue use. You are responsible for regularly reviewing the Program Site for changes and notice of any changes. Except as otherwise required, changes to referenced policies and guidelines or any other information, including in the Content Policy Guidelines and the KINO Privacy Notice may be posted without any notice to you.
3. Account Setup & Maintenance
You represent that all information you provide in connection with establishing your Program user account (“Account”) is accurate at the time you provide it, and you agree that you will keep it up to date and ensure that it remains accurate as long as you use the Program. You may maintain only one Account at a time (unless you are using multiple Accounts solely for the purpose of delivering Licensed Content or Channels Access, in which case you agree that you will use only the minimum number of accounts that are strictly necessary for such purposes). You will not use false identities or impersonate any other person, or use a username or password you are not authorized to use. You authorize us, directly or through third parties, to make any inquiries as may be appropriate to verify the Account information you provide. You also consent to us sending you emails relating to the Program and other publishing opportunities from time to time.
You are solely responsible for safeguarding and maintaining the confidentiality of your Account username and password, and for all activities that occur under your Account, whether or not you have authorized the activities. You may not permit any third party to use the Program through your Account, and you agree that you will not use the Account of any third party. You agree to immediately notify KINO of any unauthorized use of your username, password, or Account.
4. Term
This Agreement commences upon your acceptance of it and continues in perpetuity until terminated as set forth in Section 18 of this Agreement (the “Term”).
5. Territory
With respect to each Title, the “Territory” means that part of the world where you authorize the Licensed Content pertaining to that Title to be distributed pursuant to the terms of this Agreement, as indicated by you in your Account or on the Program Site.
6. Rights Granted
You hereby grant KINO a non-exclusive right to use, reproduce, and distribute through the Service in the Territory each Title, all Promotional Materials associated with that Title, and any associated Marks (collectively, “Licensed Content”). The license includes such ancillary or incidental uses of the Licensed Content as may be necessary to carry out the purposes of this Agreement, as well as a right to use the Licensed Content in connection with the advertising, promotion, distribution, exhibition and exploitation of the Title, the Program and/or KINO. Each audio-visual program or Channel (as defined below) that you submit for distribution on the Service is a “Title.” For each Title, “Promotional Materials” means, collectively, the Delivery Materials and any images, trailers, logos, artwork, publicity materials, and metadata provided by you or created by KINO (including any reasonable alterations to such materials deemed necessary by KINO) as well as any video clips from the Title. “Marks” means, collectively, any trademarks, service marks, URLs, domain names, trade names, logos, insignia, or other source or business identifiers that may be embedded or incorporated into any Title or Promotional Materials. KINO shall have the right to make alterations to the Licensed Content as KINO may deem necessary or advisable to make.
“Service” means one or more digital video services branded with a brand or trademark of KINO or its Affiliates through which authorized users may access Titles. For the avoidance of doubt, KINO will only distribute the Licensed Content via the Service according to the Distribution Mode you have enabled for each such Title, or as otherwise agreed.
For new releases and select titles only, KINO will have the right, but not the obligation, to offer customers of the Service the opportunity to purchase or access the Titles pursuant to the Distribution Modes in the Territory that you indicate through the Program Site. You may have an opportunity to provide a suggested retail price for Titles you make available for Digital Purchase, Digital Rental, and Channels Access, but KINO will have sole discretion to determine the retail prices charged for offerings on the Service.
KINO may (or may have its authorized agent or partner) use the Promotional Materials to advertise, market, and promote, in any and all media (whether now known or hereafter devised), the Service, the Titles, and the availability of Titles on the Service, as KINO deems appropriate. KINO may insert or display advertisements, graphics, videos, and logos before, during, and after playback of Titles on the Service, including in pre-roll, mid-roll, and post-roll placements, via all Distribution Modes.
KINO may make such modifications as may be necessary to conform Titles to applicable law(s), standards or regulations in the Territory, provided KINO will use commercially reasonable efforts to ensure such modifications do not to impair the creative integrity, quality or meaning of any Titles.
After any expiration or termination of this Agreement for any reason, KINO may continue (including after the conclusion of the Term) to exercise the rights granted hereunder in order to provide customers who purchased Titles via Digital Purchase or Digital Rental during the Term the ability to continue to access (including via re-download and streaming from the Service) and view the applicable Titles after the Term; provided, however, KINO may not offer customers the opportunity to initiate new purchases or rentals of the Titles for Digital Purchase or Digital Rental after the Term.
7. General Description of the Service; Distribution Modes
Content Provider, in its sole discretion, may authorize KINO to allow customers to access Titles in the following ways (each, a “Distribution Mode”):
(a) access audio-visual content on a transactional on-demand basis where a fee must be paid in exchange for which the end user receives the right to view a Title repeatedly over an indefinite period of time (“Digital Purchase”);
(b) access audio-visual content on a transactional on-demand basis where a fee must be paid, in exchange for which the end user receives the right to view a Title repeatedly over a defined and limited period of time established by KINO in its sole discretion (“Digital Rental”);
(c) access audio-visual content on a frictionless, transactional on-demand (“FTVOD”) basis, wherein a monthly recurring fee is charged to the user (“Member”) in exchange for a set amount of credits added to the user’s account monthly (“Total Monthly Credits”) which may be redeemed for watching titles (“Title Views”), including the membership offering known today as KINO+ or any successor thereto (and any ad-free and/or ad-supported tiers or versions thereof), where a monthly fee is required to be paid for such access (other than in the case of a free trial), in order for the end user to receive access to a Title, limited to that set number of Total Monthly Credits wherein each Member View deducts one such Credit from each Member’s Total Monthly Credits, and such access is permitted only during the period in which the end user qualifies as a Member (“FTVOD Access”);
(d) access audio-visual content on an on-demand basis via a subscription offering of your content as compiled by you or us (commonly referred to as a “Channel”) which may or may not include content from other content providers, where a subscription fee is required to be paid for such access (other than in the case of a free trial), in order for the end user to receive access to a Title, and such access is permitted only during the period in which the end user qualifies as a subscriber (“Channels Access”); and
(e) access audio-visual content on an on-demand basis and/or via linear transmission on an ad-supported basis at no charge to the customer, for repeated and/or live private viewing during the Term (“Ad-supported Access”);
(f) access audio-visual content on an on-demand basis via livestream special viewing, include (in KINO’s sole discretion) “Catch Up” functionality, whereby a user may access such audio-visual content after its initial exhibition and/or restart such audio-visual content if the livestream for such audio-visual content has already commenced (“LVOD”), which may require an additional fee, credit, or other access restriction to Members and/or all free users (“LVOD Access”), any and all terms related to LVOD Access can be found in the LVOD Terms;
KINO is entitled in its sole discretion to determine which Titles it chooses to license and distribute on the Service, and the Distribution Modes (unless some Distribution Modes are unavailable, as selected by the user during the submission process for an individual Title or otherwise notified to KINO at legal@kino.studio), Territories, and license periods in which it distributes the Titles (provided KINO will not exceed the license period, Distribution Modes, or Territories you indicate on the Program Site for any Title). KINO is entitled to suspend or place a hold on your Account or remove any Title, or any other Licensed Content, from the Service or from any Distribution Mode or from any Territory, for any reason, at any time. The Service may be offered on a stand-alone basis and/or bundled with other products, services, or offerings. As between the parties, KINO will have sole control over the Service, all features, terms, and other aspects thereof (including the rights and entitlements granted to authorized users with respect to each Distribution Mode, the terms under which the Service is offered and the sale of advertisements in connection with the Service); provided, however, that KINO's distribution of Titles on the Service shall be in accordance with the terms of this Agreement.
Without limiting the foregoing, you acknowledge that KINO may (i) make the Service available through any websites, applications, device interfaces, third-party platforms and any other online platforms or points of presence now known or hereafter devised, (ii) grant authorized users who receive access to audio-visual content via any Distribution Mode the right to access such content via streaming, download, and any other means of digital distribution now known or hereafter devised, for online or offline viewing on any device supported by the Service, and (iii) deliver audio-visual content on the Service via any means now known or hereafter devised (including, without limitation, cable, wire, fiber, satellite, wireless and/or cellular).
8. License Fee Payment
Subject to the limitations set forth in this Section, KINO will pay you license fees based on the Distribution Mode(s) by which KINO distributes the Titles under this Agreement, as set forth below (“License Fees”). Such License Fees are the only compensation payable to you under this Agreement and constitute full and complete compensation to you for all rights granted under and actions taken in connection with this Agreement.
KINO will calculate, report, and pay the License Fees in arrears within 90 days after the completion of the applicable calendar month. You will receive payment from KINO via electronic funds transfer unless electronic funds transfer is not available for the address provided for your bank account, in which case you will receive payment by wire transfer or such other method as KINO deems necessary. If you receive payment via wire transfer, KINO may withhold payment until you have reached the minimum threshold in accrued License Fees for the applicable local marketplace as set forth on the Program Site. You will also be responsible for any fees imposed by your bank or any intermediary bank. For the purposes of calculating License Fee payments, (i) the “Purchase Price” for a customer’s right to access Titles via Digital Purchase, Digital Rental or Channels Access will equal the amount actually paid by the authorized user for that access, exclusive of any taxes or other platform fees, and (ii) KINO will be entitled to an adjustment for customer refunds and credits and for amounts not collected due to bad debt. If we pay you License Fees on a sale and later issue a refund, return, or credit for that sale, we may offset the amount of the License Fees that we previously paid to you for the sale against future License Fees, or require you to remit that amount to us. If a third party asserts that you did not have all rights required to make one of your Titles available through the Service or if we determine that you may be in breach of this Agreement, we may, without affecting any of KINO’s rights in law or at equity, including in connection with your indemnities contained herein, immediately remove such Title from the Program and all Distribution Modes and withhold all License Fees due to you with respect to such Title pending resolution of the issue. If we determine that you did not have all of the required rights or that you have otherwise breached this Agreement with regard to a Title, we will not owe you License Fees for that Title and we may offset any of the License Fees that were previously paid against future License Fees, or require you to remit a refund to us. We may also withhold and offset any sums you owe to us against amounts that are payable to you. When this Agreement terminates or if your Account is placed on hold or suspended for any reason, we may withhold all License Fees due for a period of three months from the date they would otherwise be payable, in order to ensure our ability to offset any customer refunds or other offsets to which we are entitled. If we terminate your Account because of your breach of this Agreement, you will forfeit any License Fees accrued but unpaid. If after we have terminated your Account, you open a new Account without our express permission, we will not owe you any License Fees through the new Account. Our exercise of these rights does not limit other rights we may have to withhold or offset License Fees or exercise other remedies under applicable law.
For clarity, KINO will not be obligated to pay License Fees for FTVOD Access or Channels Access or LVOD Access in connection with the viewing of any Title by a customer if that customer was granted access to that Title via Digital Rental, Digital Purchase or Ad-supported Access, and similarly, KINO will not be obligated to pay License Fees for Ad-supported Access in connection with the viewing of any Title by a customer if that customer was granted access to that Title via Digital Rental, Digital Purchase, FTVOD Access or Channels Access or LVOD Access.
KINO may sell your Titles using multiple currencies. You may elect on the Program Site to receive any License Fees owed to you (i) where applicable, in the local currency for the territory in which the distribution occurs (the “Sale Currency”) or (ii) the currency of a single territory in which the Titles were distributed. If we pay you in a currency other than the Sale Currency, we will convert the License Fees owed from the Sale Currency to the payment currency at a market exchange rate that we or our bank determine, which will be inclusive of all fees and charges for the conversion.
9. Distribution Mode Payments
a. Digital Purchase and/or Digital Rental and/or
i. KINO will pay to you (i) 70% of the applicable Purchase Price, less only: (a) a host fee to be reasonably determined by KINO but capped at 2.5% of the Purchase Price; and (b) any and all actual transaction and collection costs, charges and taxes (e.g., VAT or sales taxes, Stipe fees, etc.) deducted from the Purchase Price prior to being remitted to KINO for Titles accessed via Digital Purchase or Digital Rental.
b. FTVOD Access and/or Channels Access and/or Ad-Supported Access
i. KINO will pay you according to the rate card available below (or such other royalty rates notified to you in accordance with Section 2) on a per Title basis (for standalone Titles and seasons), based on Hours Viewed by customers in the applicable Territory:
ii. Please click here to view your rate card.
c. LVOD Access
i. All payment terms for LVOD Access can be found in the LVOD Terms, if a fee is charged directly to Members or free users, or a Credit is required for LVOD Access;
ii. As determined by Company and Partner, if no fee is charged directly to Members or free users, KINO will pay you according to the rate card available above (or such other royalty rates notified to you in writing prior) on a per Title basis (for standalone Titles and seasons), based on Hours Viewed.
10. Taxes
As between the Parties, KINO will be solely responsible for collecting and paying to the appropriate taxing authorities any national, state or local sales or use taxes, value added taxes (“VAT”) or similar taxes (collectively “Transaction Taxes”) applicable to purchases by customers. KINO will not be required to pay any taxes imposed on or measured by your net income, net profits, income, profits, revenues, gross receipts, franchise, doing business, capital, intangible, value added (other than value added tax in the nature of sales or use or similar taxes), net worth, all real property and ad valorem taxes imposed by any governmental authority on the fees payable to you under this Agreement, or similar taxes or taxes in lieu thereof, whether collected by withholding or otherwise.
All payments payable by KINO to you under this Agreement are inclusive of all Transaction Taxes that apply to the license of the Titles by you to KINO, unless KINO advises you otherwise. If and to the extent any payments hereunder are subject to and include any applicable Transaction Taxes, you will supply KINO with an original, valid tax invoice, to the extent available under the applicable law, separately stating these Transaction Taxes, to enable KINO to claim credit for these taxes as applicable. KINO may provide you with an exemption certificate or equivalent information acceptable to the relevant taxing authority, in which case, you will not charge or collect the Taxes covered by such certificate. If taxes are required to be deducted or withheld on any payments to be made to you under applicable law, then KINO will (i) deduct such taxes from the amount owed to you and pay them to the appropriate taxing authority as required by applicable law and (ii) secure and deliver to you a receipt or other legally required documentation for any taxes withheld as required under applicable laws.
Payment to you as reduced by such deductions or withholdings will constitute full payment and settlement to you of amounts payable under this Agreement. Except as specified in this Section, each Party will be responsible for its own taxes as levied by the applicable taxing authorities; provided, any charges toward the stamp duty payable under the applicable laws shall be borne by you. Throughout the term of this Agreement, you will provide KINO with any forms, documents or other certifications as may be required by KINO to satisfy any information reporting or withholding tax obligations with respect to any payments under this Agreement.
11. Delivery of Content
For each Title, you will deliver to KINO the Delivery Materials in accordance with the Content Delivery Specifications (including, without limitation, the requirement that the Title not contain any advertisements, bugs, visible on-screen logos, or tracking tags) at your sole cost. The “Content Delivery Specifications” are those technical delivery specifications available at the following URL - (INSERT), as updated from time to time during the Term or such other technical delivery specifications that KINO may provide from time to time.
You authorize KINO to re-purpose and otherwise use in accordance with this Agreement (i) any Licensed Content previously delivered to KINO or its Affiliates by Content Provider or a third party, for purposes of exercising express and incidental rights granted hereunder with respect to the Titles and (ii) any Licensed Content delivered by Content Provider under this Agreement, for purposes of KINO exercising any rights granted to KINO in respect of any Title under a subsequent agreement, solely to the extent authorized under any such subsequent agreement. Where any Licensed Content has previously been delivered to KINO by a third party, you will obtain any necessary clearances from such third party (if any) on behalf of KINO and/or use its best efforts to assist KINO in obtaining any such necessary clearances, to enable KINO to use such previously delivered Licensed Content. You will have no obligation to re-deliver Delivery Materials, except as necessary to comply with other obligations set forth pursuant to the terms of this Agreement.
With respect to each Title, the “Delivery Materials” means (i) a copy of the Title at the highest resolution available to you, (ii) all Promotional Materials (including, but not limited to, all images, trailers, logos and artwork associated with the Title), (iii) captions and audio language files for the Title in accordance with the Content Delivery Specifications, but in any event, in accordance with applicable law for the Territory and Section 12 of this Agreement, (iv) all metadata associated with the Title and (v) all required content ratings information, including rating and consumer advice, in accordance with applicable law for the Territory and Section 14 of this Agreement.
12. Representations & Warranties
You hereby represent and warrant that (i) you have the sole, full and unencumbered right to grant to KINO and its Affiliates, and have obtained all necessary clearances and releases to grant to KINO and its Affiliates, all of the rights set forth herein (excluding public performance rights for the communication to the public of the musical compositions contained within the Titles, provided that such public performance rights are either (a) controlled by the relevant dominant local collection society or music copyright society for rights in musical compositions and lyrics for each jurisdiction in the Territory, (b) controlled by you (in which case, such rights are hereby granted to KINO), or (c) in the public domain), (ii) any information and documentation you provide to us will be current, complete, and accurate, (iii) the Licensed Content and Promotional Materials will not contain any subject matter or materials that are defamatory, libelous, obscene, or otherwise illegal under the applicable laws of the Territory, and (iv) Licensed Content and Promotional Materials will not violate any law; require us to obtain any license, authorization, or other permission from any governmental agency or other third party; contain any defamatory material; or violate or infringe any intellectual property, proprietary, or other rights of any person or entity (including contractual rights, copyrights, trademarks, patents, trade dress, trade secret, common law rights, rights of publicity, or privacy, or moral rights): (a) the exercise of any rights granted under this Agreement; (b) any materials embodied in your Titles; (c) the sale, distribution, or promotion of the Titles as authorized in this Agreement; or (d) any notices, instructions or advertising by you for or in connection with any Titles.
You further represent and warrant that you are not subject to sanctions or designated on any list of prohibited or restricted parties (and that you are not owned or controlled by such a party), including the lists maintained by the United Nations Security Council, the US Government, the European Union or its member states, or other applicable government authority.
You agree to comply with all applicable laws and regulations including, but not limited to, the Foreign Corrupt Practices Act of the United States of America and the Bribery Act of 2010 (UK). You agree that neither you nor any person or entity working on its behalf in connection with the subject matter of this Agreement shall make any payment or transfer anything of value, directly or indirectly, to: any government official or employee (including employees of government-owned and government-controlled corporations and public international organizations); any political party, official of a political party, or candidate for public office; any intermediary, including, but not limited to, agents or family members of government officials, for payment to any government officials; any other person or entity in a corrupt or improper effort to obtain or retain business or any advantage, in connection with either party’s affairs; any business entity selling a competing product in order to eliminate or restrict competition, including, but not limited to, agreements to divide the market; or any other person or entity, if such payment or transfer would violate the laws of the country in which the transaction is made.
13. Close Captions; Subtitles
You will deliver closed captions for all Titles in accordance with the Content Delivery Specifications and with applicable law for the Territory. You may not be able to publish a Title via one or more Distribution Modes in certain Territories until KINO has received closed captions from you.
You will deliver English language versions of the Titles, unless the original version of a Title is not in English, in which case you will deliver (i) audio descriptions, subtitles or dubbed language tracks and (ii) the title and synopsis information for the Title, in each case, in at least one core language identified by KINO for the Territory.
Further to the rights granted hereunder, KINO may create, insert and distribute closed captions, audio descriptions, dubbed language tracks and subtitles for Titles in any language in the Territory and may use or distribute any such closed caption, dubbed language track, subtitle file or audio description it creates in any such Territory, provided that KINO shall have the right to deduct the actual, out of pocket costs incurred in connection with the creation and insertion of the foregoing on any such Title off the top from all revenue streams across all Distribution Modes in connection with such Title. In connection with such creation, KINO will use reasonable commercial efforts to ensure that such closed caption and subtitled versions reflect the original version of the Licensed Title.
14. Geo-Filtering; Access Controls
KINO will utilize industry standard geo-filtering techniques and digital rights management technology in a non-discriminatory manner in relation to similarly situated content providers. Content Provider agrees that KINO shall be deemed to be exercising the rights granted herein solely within the Territory as long as KINO complies with the foregoing. Content Provider acknowledges that KINO makes no representation as to the efficacy of any geo-filtering technique or digital rights management technology it employs and agrees that KINO shall not be responsible for the failure of such.
Content Provider acknowledges and agrees that: (i) Content Provider's ability to withdraw its Titles from distribution on the Service shall be Content Provider’s sole and exclusive right and remedy for any circumvention or failure of any geo-filtering technique or digital rights management technology used by KINO on the Service for Titles and (ii) Content Provider shall not be entitled to any other remedies, including without limitation monetary damages, in connection therewith.
15. Content Requirements
You must ensure that all of your Titles comply with our policies for content at the time you submit them to us. If you discover that content you have submitted does not comply, you must immediately withdraw the content and otherwise bring such Title into compliance if it is to be distributed via the Service. If you discover that any information you have provided to us for a Title is inaccurate or incomplete, you must promptly submit corrected information to us. We will determine what content we accept and distribute on the Service in our sole discretion.
If we request that you provide additional information relating to your Titles, such as information confirming that you have all rights required to permit our distribution of the Titles, you will promptly provide the information requested, recognizing that your content may not be made available for distribution until proof of rights is received. You authorize us, directly or through third parties, to make any inquiries we consider appropriate to verify your rights to permit our distribution of the Titles and the accuracy of the information or documentation you provide to us with respect to those rights.
We may remove or modify the Titles, the metadata, cover art and title description you provide for your Titles for any reason, including if we determine that it does not comply with KINO's Content Policy Guidelines. You may not include within the Licensed Content any advertisements or other content that is primarily intended to advertise or promote products or services.
You agree to provide local content ratings in each country or region in which you distribute your Titles from the applicable local ratings authorities where requested by us. Nothing herein shall restrict KINO from obtaining ratings information for the Titles in any country within the Territory or generating its own ratings for the Titles, provided that KINO shall have the right to deduct the actual, out of pocket costs incurred in connection with the creation of such ratings information on any such Title off the top from all revenue streams across all Distribution Modes in connection with such Title.
16. Title Withdrawal
You may withdraw your Titles from distribution on the Service at any time upon 90 business days’ advance notice, subject to any previously agreed-to minimum hosting windows (“Minimum Hosting Window”), by following the then current Program procedures for Title withdrawal or un-publishing via the Program Site or emailing legal@kino.studio;
We may fulfill any customer orders completed through the date the Titles are available on the Service. All withdrawals of Titles will apply prospectively only and not with respect to any customers who purchased the Titles prior to the date of removal, meaning that we will allow any customer who has previously purchased a Title for Digital Purchase or Digital Rental for Channels Access to view the Title, as applicable, after it has been withdrawn from the Service to the extent that such customer purchased those rights prior to the withdrawal.
17. Ownership; Feedback
Subject to the rights you grant us under this Agreement, as between us and you, you retain all ownership rights in and to the copyrights and all other rights and interest in and to your Titles and Licensed Content. We retain all ownership rights in and to the copyrights and other intellectual property rights, and all other rights and interests in and to the Program, the Program Site and all KINO properties, and any materials we use or provide to you for use relating to the Program, including your Titles (such as a generic cover image used for your Titles if you do not provide one). We are solely responsible for, and will have full discretion with respect to, the terms, features, functionality, and operation of the Program, the Program Site, any other KINO features or offerings, and related marketing, but our use of the Titles, Promotional Materials, Licensed Content, and will be subject to the terms of this Agreement. You agree KINO may use the Licensed Content to develop and improve KINO technologies and services, including the Program. You may provide suggestions, ideas, or other feedback to KINO or any of its Affiliates in connection with the Program or the Service, the Program, the Program Site or anything on the Program Site (“Feedback”). You acknowledge that KINO and its Affiliates will be free to use and exploit any Feedback in any manner without restriction and without any need to compensate you. This Agreement does not grant you any license or other rights to any intellectual property, proprietary information, or technology owned or operated by us or any of our Affiliates, including any trademarks, trade secrets, or trade names. You agree not to use any trade name, trademark, service mark, logo or commercial symbol, or any other proprietary rights of KINO or any of its affiliates in any manner without prior written authorization from us. Nothing in this Agreement restricts any rights we may have under applicable law or a separate agreement.
18. Termination of Agreement
We may suspend or place your Account on hold for any period of time, or terminate your Account and this Agreement by providing notice to you at any time for any reason. You may terminate this Agreement, effective 90 days following your delivery of written notice of termination to us, in the event that we commit a material breach of this Agreement and fail to remedy such breach (if capable of remedy) within 90 days after receiving written notice to do so; provided that if you distribute Titles via Channels Access, you may only terminate this Agreement by provision of notice of termination to us given not later than 90 days prior to the conclusion of the then-current term. Following any termination or expiration of this Agreement, any provision which, by its nature or express terms should survive will survive such termination or expiration, including, but not limited to, Sections 17 through 21.
19. Indemnification
You will indemnify, defend and hold harmless KINO, its officers, directors, employees, shareholders, affiliates, subcontractors, successors and assignees, from and against any and all third-party claims, actions, causes of action, demands, judgments, liabilities, damages, losses, injuries, costs and expenses (including, without limitation, reasonable attorneys’ fees and court costs) (individually, a “Claim”, and collectively, the “Claims”) brought against KINO that arise from or relate to: (a) any breach or alleged breach by you of any of your representations, warranties or obligations set forth herein, including any failure to deliver closed captions, audio descriptions or ratings information for any Titles in compliance with applicable law; (b) KINO's exercise of the rights granted by you under this Agreement, including, without limitation, that such exercise violates any law or regulation or the right(s) of any third party; or (c) the Licensed Content, where used in accordance with the terms of this Agreement. You will not consent to the entry of a judgment or settle a Claim without our prior written consent, which may not be unreasonably withheld. You will use counsel reasonably satisfactory to us to defend each Claim. If we reasonably determine that a Claim might adversely affect us, we may take control of the defense at our expense (and without limiting your indemnification obligations).
20. Limitation of Liability
KINO WILL NOT BE LIABLE TO THE CONTENT PROVIDER FOR ANY LOST PROFITS OR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, EVEN IF KINO HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. KINO WILL NOT BE LIABLE TO CONTENT PROVIDER FOR DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR OTHER THEORY) OR OTHERWISE, FOR AN AGGREGATE AMOUNT IN EXCESS OF THE AMOUNT OF FEES DUE AND PAYABLE BY KINO UNDER THIS AGREEMENT FOR THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM. NOTWITHSTANDING THE FOREGOING, THIS SECTION WILL NOT BE DEEMED TO WAIVE ANY OF CONTENT PROVIDER'S RIGHTS AT LAW OR IN EQUITY TO ENFORCE THIS AGREEMENT WITH RESPECT TO UNDISPUTED LICENSE FEE PAYMENTS DUE TO CONTENT PROVIDER BY KINO HEREUNDER. THE SERVICE IS MADE AVAILABLE ON AN AS IS BASIS AND KINO MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SERVICE, INCLUDING WITHOUT LIMITATION, (I) THAT THE SERVICE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, OR OPERATE WITHOUT ERROR OR (II) AS TO THE VOLUME OF SALES OR LICENSE FEES THAT WILL BE GENERATED BY LICENSED CONTENT ON THE SERVICE. TO THE EXTENT REQUIRED BY LAW IN THE RELEVANT JURISDICTION OF THE PARTIES, THE PARTIES DO NOT EXCLUDE OR LIMIT LIABILITY FOR DEATH OR PERSONAL INJURY, FRAUDULENT MISREPRESENTATION OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY SUCH APPLICABLE LAW.
21. Confidentiality
You will not, without our express, prior written permission: (a) issue any press release, media pitch or make any other public disclosures regarding this Agreement or its terms; (b) disclose KINO Confidential Information (as defined below) to any third party or to any employee other than an employee who needs to know the information; or (c) use KINO Confidential Information for any purpose other than the performance of this Agreement. You may however disclose KINO Confidential Information as required to comply with applicable law, provided you: (i) give us prior written notice sufficient to allow us to seek a protective order or other appropriate remedy; (ii) disclose only that KINO Confidential Information as is required by applicable law; and (iii) use reasonable efforts to obtain confidential treatment for any KINO Confidential Information so disclosed. “KINO Confidential Information” means (1) any information regarding KINO, its affiliates, and their businesses, including, without limitation, information relating to our technology, customers, business plans, promotional and marketing activities, finances and other business affairs, (2) the nature, content and existence of any communications between you and us, and (3) any sales data relating to the sale of digital videos or other information we provide or make available to you in connection with the Program. KINO Confidential Information does not include information that (A) is or becomes publicly available without breach of this Agreement, (B) you can show by documentation to have been known to you at the time you receive it from us, (C) you receive from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (D) you can show by documentation that you have independently developed without reference to any KINO Confidential Information. Without limiting the survivability of any other provision of this Agreement, this Section will survive three years following the termination of this Agreement.
22. Miscellaneous
All rights granted to KINO under this Agreement may be exercised by KINO, its Affiliates, and subcontractors providing services in connection with the Service. Any KINO Affiliate may join as a party to this Agreement and will notify you if it does so. The joining KINO Affiliate will be entitled to exercise the rights that you grant under this Agreement. Each KINO party is severally liable for its own obligations under this Agreement and is not jointly liable for the obligations of other KINO parties. In addition, each KINO party is solely responsible with respect to its exercise of its rights and compliance with its obligations in connection with the territory or territories for which it is responsible, as determined by KINO in its sole discretion. You may not assign, novate, or otherwise transfer any of your rights or obligations under this Agreement without the prior written consent of KINO, except that you may assign, novate or otherwise transfer any of your rights or obligations under this Agreement without such consent to (a) any of your Affiliates (provided that any such assignment will not relieve you of your obligations hereunder), or (b) in connection with any merger, consolidation, reorganization, sale of all or substantially all of your related assets or a similar transaction (provided that any such assignment will not relieve you of your obligations hereunder). This Agreement will be binding upon, inure to the benefit of and be enforceable by and against KINO, you, and our respective successors and assigns. A waiver by either party of any breach or default by the other party under this Agreement will not constitute a waiver of any other or subsequent breach or default by such other party. The failure of either party to enforce any term of this Agreement will not constitute a waiver of such party's rights to subsequently enforce the term. The remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity. For the purposes of this Agreement, KINO and you are independent contracting parties, and nothing herein will be construed as creating an agency relationship, a fiduciary relationship, an employer-employee relationship, a partnership, a joint venture, or an obligation to form any such relationship or entity between KINO and you. You will not represent yourself to be an employee, representative, or agent of KINO or misrepresent the nature of your affiliation with KINO or the Program Site. You will have no authority to enter into any agreement on KINO's behalf or in KINO's name or otherwise bind KINO to any agreement or obligation.
This Agreement is governed by the U.S. Federal Arbitration Act and California State law, without regard to conflict of laws. Any dispute relating to this Agreement or the Program or our dealings will be subject to confidential, binding arbitration administered by JAMS pursuant to its U.S. rules (including the Optional Appeal Procedure), to be conducted in English in Los Angeles County, California with each party responsible for its own attorney's fees and costs. The parties agree that any state or federal court in Los Angeles County, California may confirm and enter judgment on the arbitrator’s final award and consent to personal jurisdiction and venue in such court for that purpose.
To be effective, except where specified otherwise in this Agreement, any notice hereunder by either party must be in writing and delivered (i) if by KINO, via email using the email address provided in your Account, posting on the Program Site or message through your Account or (ii) if by you, via email to videodirect-support@KINO.com. Notices will be effective and deemed received on the date transmitted or posted. This Agreement constitutes the complete and final agreement of the parties pertaining to the subject matter of this Agreement and supersede the parties’ prior agreements, understandings, and discussions related to the subject matter of this Agreement. If any term of this Agreement is held to be invalid, void or unenforceable, then the remaining terms of this Agreement will be unaffected and will be valid and enforceable to the fullest extent permitted by law. Nothing in this Agreement will restrict KINO from exercising any right it has pursuant to another applicable permission or would have at law in the absence of this Agreement.