DISTRIBUTOR SERVICE AGREEMENT
THIS AGREEMENT, made effective as of May 26, 2011 (the "Effective Date"), by and between GYROSKOPE, LLC with an address 1300 West Main Street, Louisville KY 40203 (the "Distributor") and (the “Producer”).
WHEREAS, Distributor provides distribution services for audiovisual files (the “Services”) through its website at http://www.gyroskope.com (the “Site”); and
WHEREAS, Producer desires to use Distributor’s Services and Distributor agrees to provide the Services to Producer, but only under the terms of this Agreement.
The Producer is the owner of all right, title and interest, free and clear of all judgments, claims and encumbrances in certain audiovisual recordings as set forth on Schedule A (the "Videos").
The Producer hereby grants the Distributor a worldwide non-exclusive license to distribute the Videos on the internet to end users, subject to the terms of an End User License Agreement between Producer and such end users, in a form substantially similar to the End User License Agreement attached hereto as Exhibit A. Producer agrees to provide the Video fully produced and in a format designated by Distributor.
Services. Subject to the terms of the license granted above, Distributor agrees to provide the Services to Producer as follows:
Distributor offers various levels of storage and bandwidth for the Service. Producer may choose Producer’s desired level of Service at the Site.
It is Producer’s responsibility to establish an account at the Site and to pay the monthly fees set forth on the Site which correspond to Producer’s desired level of Service.
Distributor agrees to provide Producer a page at the Site (the “Page”), controlled by Producer through an administrative username and password to be provided by Distributor, to administer Producer’s Videos and any content Producer wishes to include regarding the Videos on such page. The administrative username and password will also give Producer access to a private “dashboard”(the “Dashboard”) wherein Producer may view certain information, which may include the number of purchases of Producer’s Videos, the number of views of Producer’s Page, and any fees collected on behalf of Producer. Producer is solely responsible for the use of its administrative username and password or access to its dashboard.
(d) Distributor reserves the right to remove, delete, or refuse to post to the Site any Video, the posting of which would exceed the level of Service ordered by Producer, or which violates any law, infringes on any third party’s intellectual property or other proprietary rights, or in Distributor’s sole discretion, contains obscene, defamatory, libelous, or otherwise offensive content.
This Agreement shall be effective as of the Effective Date, and shall remain in effect for as long as Producer continues to pay the fees set forth on the Site for the level of Service chosen by Producer. Upon termination of the Agreement, Distributor shall have the right to retain Producer’s Videos for up to sixty (60) days’, for the sole purpose of fulfilling end users’ orders for such Videos placed prior to termination of the Agreement.
To Distributor. Upon Producer’s establishment of an account at the Site, Producer shall be required to provide a valid credit card, debit card, or PayPal account (“Payment Method”), and by establishing an account at the Site, Producer expressly authorizes Distributor to charge to Producer’s Payment Method the monthly amount set forth on the Site corresponding to Producer’s level of Service, plus any applicable taxes and any other charges incurred by Producer in connection with its use of the Service. Producer shall be entitled to change its Payment Method to another valid Payment Method at its Page dashboard at any time. Prices and charges are subject to change upon notice to Producer. Distributor shall charge Producer’s Payment Method on the first of the month for that month’s Services, unless Distributor otherwise notifies Producer. Producer acknowledges that the amount charged each month is subject to variation due to changes in the charges for Services as set forth at the Site, changes in applicable taxes, or other charges incurred by Producer. PAYMENTS TO DISTRIBUTOR ARE NONREFUNDABLE, EXCEPT AS DISTRIBTUOR MAY AGREE IN ITS SOLE DISCRETION. Producer may cancel the Services at any time and for any reason by cancelling Producer’s account through Producer’s Dashboard.
(b) To Producer. Payments will be made to Producer on the first of each month via the same payment method Producer uses to pay their monthly fees. Gyroskope shall not receive any commission or other royalties from the sale of Videos to end-users; however, Gyroskope shall deduct any transaction fees or additional bandwidth fees from any amount due Producer.
Videos and Reports.
Amounts due Producer shall be reflected in real-time and visible 24/7 on Producer’s Dashboard inside Gyroskope.com. During the term of this Agreement and for a period of one (1) year thereafter, the Producer will have access to the books of the Distributor relating to sales of the Video (the "Books"), and may examine the Books upon reasonable prior notice to the Distributor. Distributor will pay promptly to Producer any money shown by such review to be due to Producer, and shall pay the costs of such review if the discrepancy is greater than ten percent (10%).
Advertising and Promotion.
Producer grants to Distributor a limited non-exclusive license during the Term of this Agreement to stream on the Site not more than thirty (30) seconds of any portion of a Video, and to use Producer’s name, and any trademarks and logos Producer provides to Distributor or uses on Producer’s Page, solely for the purpose of promoting the Video and the Site. Producer may revoke this license at any time upon written notice to Distributor.
(b) Distributor grants to Producer a limited non-exclusive license during the Term of this Agreement to use Distributor’s name, and Distributor’s trademarks and logos as they appear on the Site, solely for the purpose of promoting the Video and the Site. Distributor may revoke this license at any time upon written notice to Producer.
Representations, Warranties and Covenants.
The Parties each have full legal right, license, power and authority, free of all judgments, claims and restrictions, to enter into and fully perform its obligations under this Agreement.
Producer has no knowledge of any claim which would interfere with the rights or obligations licensed, transferred or granted in this Agreement to the Distributor.
Neither the Video nor any of the footage, performances, materials or information embodied or referred to therein, violates or will violate or infringe upon any copyrights or trademarks, of any third party or entity.
The Producer hereby warrants and confirms that no money shall be payable by the Distributor to any third party whatsoever as a result of the exercise by the Distributor of its rights hereunder.
Producer has not done, nor will it do or authorize, any person or entity to do anything inconsistent with or which might diminish, impair or interfere with any of the rights or obligations licensed, transferred or granted to Distributor in this Agreement.
(f) Producer shall comply with all applicable laws and regulations with respect to the production, distribution, and advertising of Producer’s Videos, including, as applicable the regulations of the Motion Picture Association of America or other regulatory bodies.
The Producer agrees to defend, indemnify and hold Distributor, its shareholders, officers, directors, employees, sub-distributors, customers, agents and all of their successors and assigns harmless from any claims, actions damages or expenses (including attorneys' fees) (“Claims”) arising out of or relating to (i) Producer's breach, default or non-fulfillment of the provisions of this Agreement; (ii) libel, slander, piracy, plagiarism, invasion of privacy or infringement of copyright based upon materials, information or embodiments contained in or referred to in the Video; and (iii) any inaccuracy in any representation or warranty of Producer contained in this Paragraph 7, provided that (a) Distributor promptly notify Producer of any Claim; and (b) Distributor agrees to cooperate with Producer in such defense, upon reasonable request of Producer and at Producer’s expense.
All notices required or desired to be given hereunder shall be addressed to the other party's address as set forth in the opening paragraph of this Agreement, unless another address for either party is substituted by written notice to the other party. All notices required or desired to be given under this Agreement, shall be sent by United States Postal Service, certified mail, return receipt requested. All notices shall be deemed to be effective seven (7) days after mailing.
This Agreement shall be considered as having been entered into in the Commonwealth of Kentucky, and shall be construed and interpreted in accordance with the laws of the Commonwealth of Kentucky. The parties shall submit to the exclusive jurisdiction of the state and federal courts of Jefferson County Kentucky and the Eastern District of Kentucky for the resolution of any filed claims between the parties.
If any portion of this Agreement is determined to be invalid or unenforceable, in whole or in part, by a Court of competent jurisdiction, the remainder of this Agreement shall not be affected by such determination and shall remain valid and enforceable to the fullest extent permitted by law.
Entire Agreement; Amendments.
The terms set forth in this Agreement constitute the entire understanding and agreement between the parties hereto, all negotiations and understandings prior to the Effective Date being merged into this Agreement. This Agreement may only be altered by an instrument executed by all parties to this Agreement.
No Joint Venture or Partnership.
This Agreement shall not be construed as creating a joint venture or partnership between the parties. Neither party shall be deemed as an agent, partner, employee or representative of the other, and neither party shall have the authority to bind the other party. The provisions of this paragraph are not intended to destroy or diminish, in any way, the right, licenses and privileges granted to the Distributor under this Agreement.
This Agreement shall not be assigned by either party without the prior written permission of the other; provided, however, the Distributor may assign its rights and obligations hereunder without the prior written permission of the Producer to any entity acquiring all, or substantially all, of the assets or shares of Distributor, Notwithstanding the above, this Agreement shall be binding upon any permitted successors and assigns of either party.
IN WITNESS WHEREOF, intending to be legally bound, the parties have executed this Agreement as of the Effective Date.