LVOD+ Terms of Service

LAST UPDATED: JULY 2024

Welcome to KINO! KINO Tech, Inc. (“Company,” “we,” “us,” “our"), provides its Services to you through its Platform located at www.kino.studio (the “Website”), its mobile and television applications (the “App”), and related LVOD+ Services (the “Service(s)” as further defined in the SOW), subject to these Terms of Service (“Terms”). These Terms constitute a legally binding agreement between Company and each LVOD+ Partner (each, a “Partner,” “you” or “your”).

Please carefully review these Terms, as they govern your access to, use of, and the provision of the proprietary KINO LVOD+ (Live Premiere & Video On Demand Plus) distribution, promotional and revenue- generating App and Services by Company in connection with the audio or audiovisual projects (each, a “Project”). By accepting, accessing, and using the Services, you are deemed to have read, accepted, executed and agreed to be bound by these Terms, unless so otherwise clarified, amended, or added to, in whole or in part, as agreed to and signed in writing by Company. We may change or amend the Terms at any time at our sole and absolute discretion, with proper notice given for any and all material changes. Any changes to the Terms will be in effect as of the “LAST UPDATED” date referred to at the top of this page. You acknowledge and agree that the form and nature of the Services, and any part of it, may change from time to time without prior notice in the case of immaterial changes, and that we may add new or remove existing features and change any part of the Services or Platform. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Services. If you do not understand or agree to these Terms, please do not use the Services.

Company may also in its sole discretion require active acceptance of these Terms via tick-box, digital e- signature, or other forms of recorded acceptance.

 

1. Services.

a. Company will provide the services to Partner described in the SOW attached as Exhibit A, and any supplemental SOWs as the parties may mutually agree (“Services”), in exchange for the interest in Gross Revenue set forth therein.

b. Condition Precedent. Notwithstanding anything to the contrary contained herein, the parties agree that Company’s obligation to render the Services and pay Partner any share of Gross Revenue is fully contingent upon Partner procuring (or ensuring that Company can procure) all necessary union waivers and permissions to capture all content necessary (in Company’s discretion, and only where applicable) to render the Services containing:

      1. the right to capture, record, interview, photograph, film, produce and otherwise use the name, voice, likeness and any biographical material concerning the major talent of and related to the applicable Project (“Leads”) in connection with: (i) creating marketing materials for the Project and/or Company; (ii) Company’s website and social media platforms (collectively, “Social Accounts”) and Platform (as defined in the SOW); (iii) the descriptions of any Products offered for sale on the Platform and/or any partner platforms; (iv) any merchandising and/or commercial tie-ups associated with the Project, Company, and/or Platform; (v) creating, producing, promoting, advertising, exhibiting and otherwise exploiting the VOD Offering (as defined in the SOW); and (vi) any other Services that the parties may mutually agree; and
      2. an obligation on the Leads to render certain publicity and promotion services in connection with the Services and Work Product, the exact terms of which shall be determined by Company in its sole discretion, but will generally include participation at the Live Premiere (as defined in SOW) and in the filming of, behind the scenes content, participation in an interview and/or Q&A session and an obligation to post content on the Leads’ largest social media account tagging Company (“Condition Precedent”). Notwithstanding the foregoing, Company may elect to waive the Condition Precedent, in its sole discretion, upon notice to Partner.

2. Performance.

a. Project Timeline. Company and Partner agree that all Services will be performed (and the Products exploited) in accordance with a timeline mutually agreed to by the parties hereto in writing (email sufficient), taking into account production exigencies and the timing of Company’s engagement on each (the “Project Timeline”), which will be considered incorporated into this Agreement even if not specifically set forth in a SOW.  Company will provide the Services and exploit the Work Product (including any Products) without the need for any pre-structured approvals by Partner (except with respect to any actual and necessary, pre-existing, contractual, or third-party approvals relating to the name, image and likeness of the talent appearing in any Work Product, which Partner shall use best efforts to help Company obtain). 

b. Mutual Project Timeline Delays. Should Partner fail to deliver any items, approvals, or consents to Company or otherwise delay Company’s ability to perform the Services, Partner will be the sole bearer of any and all additional out of pocket costs associated with extending the Project Timeline to complete the Services, unless there is mutual agreement by Partner and Company to delay. Company shall have the right to deduct any and all such costs off the top from Gross Revenues prior to any calculation of Partner’s share thereof.

c. Subcontractors. In performing the Services and/or developing, creating, producing, advertising, promoting, distributing, exhibiting and/or exploiting any Work Product (including any Products), Company may employ affiliates, subcontractors, or consultants (“Contractors”); provided, however, that Company will be solely responsible for the performance and compliance of Contractors with the obligations, representations, and warranties contained herein, including those relating to the protection of Confidential Information. Any breach by a Contractor of the terms of this Agreement will be deemed a breach by Company hereof.


3. Partner Obligations and Materials.

Company’s ability to perform its obligations under this Agreement is dependent on Partner fulfilling its obligations (including without limitation, the Condition Precedent). Company will not be liable for any costs, charges or losses sustained by Partner arising directly from any failure or delay of Partner to fulfill its obligations under this Agreement or any SOW.

a. Access. If and only if applicable upon mutual agreement, Partner shall permit Company to access all locations and facilities utilized in connection with the Project and to capture, record, interview, photograph, film, produce and otherwise use audiovisual content therein and/or otherwise related to the Project in connection with the Services.

b. Insurance. If applicable, Partner shall ensure that Company is added as an additional insured under Partner’s E&O and any general liability policies for the Project, subject to any exclusions and limitations contained therein, which may be reasonably withheld by Partner for good cause shown (e.g. not applicable due to lack of Company participation in content creation during Project Production).
c. Partner Materials. With respect to any copyright rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence relating to the Project or Partner reasonably required by Company for use in connection with the Services (including all rights necessary for Company to provide the VOD Offering), including without limitation all elements the applicable Project, key art from the applicable Project, the EPK for the Project (and all elements therein), teasers of the applicable Project, the title of the applicable Project, and the names, voices, likenesses and biographies of all persons appearing in and/or connected with the Project (collectively, “Partner Materials”), Partner hereby licenses to Company the sublicensable right to use, reproduce, distribute, publicly perform, and publicly display such Partner Materials in connection with Company’s performance of the Services and/or in connection with developing, creating, producing, advertising, promoting, distributing, exhibiting and/or exploiting the VOD Offering and any Products or Platform, subject only to any contractual limitations and approvals of which Company is notified in writing (provided that Partner shall use best efforts to help Company obtain any such approvals). Partner represents and warrants that Company’s use of Partner Materials, in accordance with the terms of this Agreement, do not infringe any third-party intellectual property, publicity or privacy rights and that no clearances, licenses, permits, consents and approvals are required to exploit the Partner Materials (including without limitation, with respect to the distributor of the Project), except as otherwise provided herein. Partner further represents and warrants that Company’s existing agreements with all talent and personnel engaged in connection with the Project contain industry standard name, image and likeness rights, which permits Partner and Partner’s assignee to utilize such person’s name, image and likeness in connection with the advertising and promotion of the Project.
4. Company Obligations; Warranty.
a. Company represents and warrants that, subject to the satisfaction of any aspect(s) of the Condition Precedent relevant to the particular Service(s) or Work Product:
    1. the Services will be performed in a thorough and professional manner, consistent with industry standards and by individuals with the requisite training, background and experience to perform the Services.
    2. the Work Product and Background Materials (excluding any Partner Materials incorporated therein), in accordance with this Agreement, will not infringe any third-party intellectual property, publicity or privacy rights.
b. Company is not responsible for errors, outages or damages attributable to any third-party services (such as media platforms or trade desks) involved in the fulfillment of Services. Company disclaims any and all responsibility for Partner Materials, third-party content and software, and any other content not provided by Company. Though Company will do everything in its power to achieve success, Company does not guarantee the Services will achieve any specific results or outcomes.
c. Except to the extent expressly provided for in this Agreement, Company does not make, and hereby disclaims, any and all warranties, whether implied or express, such as warranties of merchantability, fitness for a particular purpose or any arising from a course of dealing, usage or trade practice.

5. Rights, Ownership and Usage.

a. Work Product. All copyrightable works, deliverables, products, or other materials created or developed in whole or in part by Company in connection with the Services, including without limitation all footage captured by Company in connection with the Project and any Products (collectively, the “Work Product”) and all Background Materials will be the exclusive property of Company. “Background Materials” means all materials, work product or intellectual property owned or used by Company prior to the Effective Date. Partner shall retain all rights in all Partner Materials, provided, that if use of the Partner Materials is necessary for Company to utilize the Work Product and/or Background Materials, Partner hereby grants to Company a non-exclusive, royalty-free, worldwide license to use such Partner Materials solely as necessary to utilize the Work Product and/or Background Materials hereunder. Company may use, exploit, exhibit and reproduce Work Product in connection with the advertising of the Project, as well as the Company or the Platform and/or as part of its portfolio of representative work.

b. Data. General Platform data, including any related to the Services (collectively, “Platform Data”), belongs solely to Company. Project-specific Data is available to Partner as outlined in the Statement of Work below, however Partner is not entitled to receive other Platform data by virtue of this Agreement. Company shall not have the right to share or disclose such Project-specific Data to any third parties and such Project-specific Data, together with all Platform Data, shall be deemed Confidential Information for the purposes hereof, but solely with respect to Company.


6. Revenue Collection and Payments.

Company shall have the right to collect all Gross Revenue. Company shall render statements and pay sums due Partner (if any) under this Agreement as follows: no later than ninety (90) days following the Live Premiere (see definition below) and, in the event that the Project continues to be hosted on Platform, no later than 30 days after the first day of every standard business quarter. Partner will have the right to engage a reputable entertainment-industry auditor to examine Company’s books and records concerning a particular statement only once, and only during the one (1) year period after the date of the statement. Company shall have the right to retain, as a reserve against charges, credits, or returns, a reasonable portion of sums due Partner hereunder. Such reserves shall be liquidated by the end of one (1) year after the end of the period in which such reserve was initially established.

Company shall have the right to offer a subscription-based access model to its users whereby such subscription members (“Members”) pay a monthly a fee (provided that Company shall have the right to offer free trial periods and other similar or dissimilar promotions and giveaways in Company’s sole discretion) and receive credits to a Live Premiere (see definition below) and/or Video on Demand (see definition below) (in addition to access to other features on the Platform) (“Member Credits”) and a referral code whereby referred parties may receive a complimentary credit to a Live Premiere (“Referral Credits”).

7. Confidentiality.
a. ‘Confidential Information’ defined. In performing this Agreement, each party (as “Discloser”) may disclose or provide access to “Confidential Information” to the other party (as “Recipient”). Confidential Information includes, without limitation: (i) any “trade secret” as defined under the Uniform Trade Secrets Act (Cal. Civ. Code 3426 et seq.); and (ii) any information that has actual or potential economic value to Discloser from not being generally known to the public, its competitors, or others who can obtain economic value from its disclosure or use, or information that could cause injury to any of them if disclosed, including without limitation any Data (but only with respect to Company); (iii) any information disclosed or learned by Recipient that is not generally known to competitors or the general public about Discloser’s business, finances, operations, marketing, sales, creative or inventive efforts or personnel; and (iv) any Confidential Information entrusted to Discloser by third parties. Notwithstanding the foregoing, Recipient’s obligations under this Agreement do not extend to: (a) information that was freely available to the public after it was communicated to Recipient; (b) information that became freely available to the public, through no fault of Recipient, after it was communicated to Recipient; and (c) information Recipient is compelled to disclose pursuant to a valid and effective subpoena, the order of a court of competent jurisdiction or government authority, provided that Recipient must notify Discloser immediately of such demand for disclosure and cooperate with Discloser in using all reasonable and lawful efforts to resist such disclosure.
b. No Disclosure or Use. Recipient will at all times maintain all Confidential Information in strict confidence using the same care it exercises to protect its own Confidential Information, but never less than reasonable care. Except with prior written consent from Discloser, Recipient will not use, disclose or otherwise communicate any Discloser Confidential Information except to the limited extent necessary to perform its obligations or exercise its rights under this Agreement. Recipient must inform Discloser if Recipient becomes aware that anyone is engaged in such unauthorized activity.

c. Return of Confidential Information. All Confidential Information remains the sole property of its Discloser. Recipient agrees that, immediately upon Discloser’s request or upon expiration or termination of this Agreement for any reason, Recipient will destroy or return all Discloser Confidential Information.

8. Term & Termination.

This Agreement shall be effective as of the Effective Date and shall continue until completion of each party's respective obligations hereunder, unless earlier terminated as permitted by this Agreement (the "Term"). 

9. Force Majeure.

Company is not responsible or liable for delays or nonperformance caused by (i) forces beyond its reasonable control, such as force majeure events, denial of service attacks, other acts or omissions by third parties such as Internet service providers or (ii) failure by Partner to timely satisfy the Condition Precedent or furnish information or consents required by Company (in its sole discretion) to perform the Services and/or to otherwise develop, create, produce, advertise, promote, distribute, exhibit and/or exploit any Work Product. 

10. EXCEPT AS PROVIDED IN THE FOLLOWING SENTENCE, NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR ANY LOSS OF REVENUE, BUSINESS, SAVINGS OR GOODWILL, REGARDLESS OF THE FORM OF ACTION OR THE THEORY OF RECOVERY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The limitations and exclusions set forth in the preceding sentence will not apply with respect to: (i) a party’s fraud or intentional misconduct; (ii) Indemnifiable Claims; or (iii) breaches of Section 7.

11. Indemnification.

Partner will indemnify and defend Company, its officers, directors, affiliates, shareholders, customers, and employees from and against any and all costs, liabilities, losses, damages and expenses (including reasonable outside legal expenses) arising from third party claims threatened or asserted and legal proceedings (collectively, “Indemnifiable Claims”) instituted in respect of (a) any breach of its representations, warranties or covenants herein or (b) the development, production, advertising, promotion, production, distribution, exhibition or exploitation of the Project, except to the extent indemnifiable by Company under this Section 11. Company will indemnify and defend Partner, its officers, directors, affiliates, shareholders, customers, and employees from and against any and all Indemnifiable Claims instituted in respect of Company’s breach of its representations, warranties or covenants herein. 

12. Mutual Non-Disparagement.

Partner agrees that Company’s performance of services is nonexclusive. Partner agrees that Company may perform work similar to the Services provided under any SOW to any other businesses, including those that may be competitive with Partner. Neither party will make any public statements that disparage the other party or otherwise would be reasonably expected to bring the other party into public disrepute or scandal.

13. Governing Law; Jurisdiction; Attorney’s Fees.

This Agreement is governed by the laws of the State of California, without regard to any conflict of laws principles. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts in Los Angeles County, California for the purpose of hearing and deciding any and all disputes, claims and controversies arising out of and relating to this Agreement. The prevailing party in any action shall be entitled to request and be awarded its attorney's fees and costs incurred as a result of any such legal action.

a. Notice. Any notice or communication required or permitted to be given under this Agreement shall be given either (1) by personal delivery or traceable mail at the addresses or (2) by email. Such notice will be deemed “delivered” hereunder, upon receipt, if sent either by traceable mail or electronic mail (email).
Legal Inquiries can be made to Company Counsel at:
c/o Greenberg Glusker LLP
2049 Century Park East, Suite 2600
Los Angeles, CA 90067
Attn: Brandon Milostan

 

b. Relationship of Parties; Remedies. The parties are independent contractors. Nothing in this Agreement will be construed to create any partnership, joint venture, employment relationship or Company between the parties. In the event of any breach of the provisions of this Agreement, Company shall be limited to Company’s remedies at law for damages (if any), and in no event shall Company have the right to enjoin or restrain the production, distribution, advertising, promotion, exhibition or exploitation of the Project.

c. Entire Agreement; Amendment. This Agreement and any SOWs executed hereunder represent the entire agreement between the parties and supersede all other prior agreements and understandings, whether written or verbal, with respect to its subject matter. This Agreement and any SOWs may not be amended or modified except in writing signed by both parties. Upon execution, any such amendment or SOW is incorporated herein by reference.

d. Severability; Assignment. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law. Neither party may assign or transfer this Agreement without the prior written consent of the non-assigning party, for which approval shall not be unreasonably withheld; provided, however, either party may assign all of its rights, titles, and interests under this Agreement to any (i) person or entity with which the party is merged or consolidated or (ii) person or entity that acquires all or substantially all of that party’s assets or equity.

e. Interpretation. Any obligation in this Agreement on a party not to do something includes an obligation not to agree or allow that thing to be done. Any words following the terms “including,” “include,” “in particular,” “for example”, “such as” or any similar expression are illustrative, non-exhaustive and do not limit the sense of the words, description, definition, phrase or term preceding those terms. A reference to writing or written includes e- mail, unless the reference specifies otherwise.

 

f. Counterparts; Execution. This Agreement may be executed in counterparts, each of which will be an original and when taken together such counterparts will constitute one original Agreement. The exchange of copies of this Agreement and any SOW and of signature pages by electronic means, constitute effective execution and delivery of this Agreement and any SOW.



Statement of Work

1. Overview: Company will provide the Services via Company's web, mobile, and television-based application that engages with users via various forms of paid and unpaid media, graphics, other visual information, and merchandising of various forms, which may include static and live-streamed video content, trailers and teasers, static and live-posted descriptions and calls-to-action, polls and quizzes, badging, mini-games, information graphics, static photographs and media, authentic props, tickets for digital experiences such as paywalled Q&As and meet-the-cast/crew, memorabilia, etc. ("Platform").

2. LVOD+: Company will provide the following video-on-demand offerings via the Platform (collectively “VOD Offering”):

a. Live Premiere: The exclusive exploitation of the Project by way of Live Premiere on the at time(s) mutually approved by Company and Partner. For the purposes hereof, “Live Premiere” shall mean the exploitation of the Project via one or several livestreamed, digital events wherein the Project is streamed synchronously (at a time chosen by Company and Partner, not the consumer) for a fixed fee (which exploitation may include pre- and post-shows involving the cast and crew of the Project produced by Company). Company and Partner shall set the pricing for access to the Project by way of the Live Premiere by mutual agreement, subject to any and all Platform requirements or other restrictions.
b. Video On Demand: The exclusive exploitation of the Project by way of VOD on the Platform for the duration of the applicable VOD Offering Window. For the purposes hereof, “VOD” shall mean the exploitation of the Project whereby the Project is delivered to a viewer subject to the payment of a separate transaction fee per specific title which permits the viewer to stream such Project at a time and place individually chosen by that consumer for repeated personal and non-commercial use, but solely during the VOD Offering Window (plus a grace period of one (1) day). Company shall have the right, to be exercised in Company’s sole discretion, to set the pricing for access to the Project by way of VOD.
c. Plus Fan Optimized Engagement & Data Analytics: In connection with the Live Premiere and VOD services, Company shall use best efforts to provide, optimized paying fan conversion from social media channels to the Platform, including universal direct links, tracking and data analytics, short-form discovery in-app, social interactive elements, e-commerce, project dashboard, and other a la carte digital tooling.
3. Services: In addition to the VOD Offering, Company may provide the specific services in connection with the Project specified in this Section 3 (the “Services”) as mutually agreed upon by Partner and Company prior to Start Date. All Services, deliverables, deadlines, timelines, representations and agreements are conditioned upon the satisfaction of all aspects of the Condition Precedent relevant to the performance of such Service(s).
  • Platform administration and maintenance;
  • Marketing of the Project and Products (as defined below) via Platform, Social Accounts and other channels;
  • Content creation during principal (if applicable) and post-production, including digital video and photographic media capture and production on and off set, behind-the-scenes video capture and production, talent, cast, and crew interviews;
  • Live Premiere organization, administration, hosting, marketing, and other facilitation efforts;
  • Organization of fan-activation events (both digital and in-person) and other similar experiential events;
  • Listing and sales of physical merchandising including but not limited to props, autographed memorabilia, scripts, collectibles, and clothing (“Physical Merchandise”);
  • Listing and sales of digital merchandising including limited digital collectibles and media, events planning and facilitation including special/exclusive fan activations such as private screenings and film festival events (excluding any VOD Offering), mass consumer social media and other marketing, set visits, etc. (“Digital Merchandise and Experiences” and together with Physical Merchandise, the “Products”) (for clarity, “Products” does not include memberships or any similar promotional tools or any other generally available aspect of the Platform);
  • Assistance with the general marketing and media strategy; and
  • Revenue generation, collection, and distribution from the sales of the Products.
4. Minimum P&A Spend: To be determined by Company in writing via electronic mail or other written communication, to be paid in full no later than 15 days prior to Start Date, unless otherwise agreed in writing by Company, according to a set payment installment plan or other specific arrangement. Payment to be made directly to Company via Company payment processing systems, as instructed by Company in related and follow-up communications via e-mail or other communication channels. For clarity, the minimum P&A spend can be used for any costs relating to the promotion and advertising of the Project, Services, Products and VOD Offering, including without limitation, in connection with paid ad campaigns/influencers, studio and premiere space, fees payable to advertising and admin personnel, etc.

5. Revenues: Gross revenue collected from VOD Offering, all Products, and use of Member Credits to access to a Live Premiere of the Project (“Gross Revenue”) shall be shared as follows:

a. VOD Offering Tickets: each dollar of Gross Revenue received and retained (i.e., not returned or refunded) by Company from the sale of tickets for the VOD Offering (but for clarity, not in connection with any Member Credits or Referral Credits) will be divided up as follows: Seventy Percent (70%) to Partner and Thirty Percent (30%) to Company.

b. Products: each dollar of Gross Revenue received and retained (i.e., not returned or refunded) by Company from the sale of Products will be divided up as follows: Seventy Percent (70%) to Partner and Thirty Percent (30%) to Company.

c. Member Credits: each Member Credit used for access to a Live Premiere of the Project shall be allocated an amount equal to Four Dollars and Ninety-Nine Cents ($4.99) in Gross Revenue (“Member Credit Allocation”) and that each Referral Credit used for access to a Live Premiere of the Project shall be allocated an amount equal to Two Dollars and Ninety-Nine Cents ($2.99) in Gross Revenue (“Referral Credit Allocation”), provided that Company shall have the right (in its sole discretion) to alter the Member Credit Allocation and/or Referral Credit Allocation upon written notice to Partner. Each dollar of Gross Revenue received and retained (i.e., not returned or refunded) by Company via the Member Credit Allocation and Referral Credit Allocation will be paid One Hundred Percent (100%) to Partner.

To the extent Company is required to incur any actual, third party, direct, out of pocket costs in connection with the VOD Offering and/or Services and all such expenses are approved by Partner in writing (“Expenses”), Company shall have the right to recoup such Expenses from Gross Revenue, off the top, prior to the calculation of Partner’s share of Gross Revenue as provided above. Note that Company reserves right to charge any and all Platform administration and operations fees directly to Platform users and Members (“Ops Fees”). For the avoidance of any doubt, any and all Ops Fees are not calculated as part of Gross Revenue, and are not subject to the terms above.

6. Press Release: Company shall have the right to issue a press release, incorporating the names of Partner and the Leads, announcing Company’s involvement with the Project and the upcoming availability of Work Product on the Platform. Such press release shall be subject to Partner and the distributor of the Project’s reasonable approval.