LVOD+ Terms of Service
LAST UPDATED: SEPTEMBER 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:
- 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
- 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).
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.
- 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.
- 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.
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.
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.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.
c/o Greenberg Glusker LLP
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2049 Century Park East, Suite 2600
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Los Angeles, CA 90067
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Attn: Brandon Milostan
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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”):
- 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.
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 Three Dollars and Ninety-Nine Cents ($3.99) 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.