YouTube Content ID Service Agreement

 

This YouTube Content ID service agreement (the “Agreement”) is made and entered into as of the date you (“You”, “Your”, and “Creator”) agree as described below (the “Effective Date”) by and between Creator and AIRBIT DISTRIBUTION, INC., a Delaware corporation (“Company”), located at 1501 Lincoln Blvd. #1053, Venice CA 90291.

 

YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT BY: (a) CREATING AN ACCOUNT ON THE SITES (AS DEFINED BELOW) AND USING THE YOUTUBE CONTENT ID SERVICE (AS DEFINED BELOW); AND (b) EACH TIME AFTER YOU CLICK “I AGREE” WHEN YOU SUBMIT MATERIALS (AS DEFINED BELOW) TO COMPANY VIA THE SITES.  FOR CLARITY, THIS AGREEMENT CREATES BINDING AND LEGALLY ENFORCEABLE CONTRACTS BETWEEN YOU AND COMPANY WHEN THE FOREGOING OCCUR, IN EACH INSTANCE AND WHETHER YOU ARE ACTING IN YOUR INDIVIDUAL CAPACITY OR AS THE AUTHORIZED REPRESENTATIVE FOR AN INDIVIDUAL, BAND, GROUP, LLC, CORPORATION, OR ANY SIMILAR BUSINESS ENTITY, IN WHICH CASE “YOU” OR “CREATOR” SHALL REFER TO THE INDIVIDUAL, BAND, GROUP, LLC, CORPORATION, OR SIMILAR BUSINESS ENTITY ON WHOSE BEHALF YOU ARE ACTING AND AUTHORIZED TO ACT.  THEREFORE, PLEASE READ THIS AGREEMENT CAREFULLY AND CONSULT WITH YOUR OWN BUSINESS AND LEGAL ADVISORS BEFORE CREATING AN ACCOUNT ON THE SITES AND USING THE YOUTUBE CONTENT ID SERVICE AND/OR CLICKING “I AGREE”.  IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT OR IF YOU WISH FOR THIS AGREEMENT NOT TO APPLY TO CERTAIN MATERIALS, THEN (AS APPLICABLE), DO NOT CREATE ANY ACCOUNTS ON THE SITES, DO NOT USE THE YOUTUBE CONTENT ID SERVICE, DO NOT CLICK “I AGREE”, DO NOT SUBMIT MATERIALS THAT YOU WISH TO EXCLUDE FROM THIS AGREEMENT, AND PLEASE NAVIGATE AWAY FROM THIS PAGE OF THE SITES.

 

Creator and Company (individually, a “Party”, and collectively, the “Parties”) agree as follows:

 

  1. PURPOSE AND BACKGROUND. 

    1. Company owns and operates the website currently located at the following URL, “www.airbit.com”.  In addition to such URL, Company may provide its services on other websites and/or apps, including but not limited to, other URLs, smart phone and tablet apps, smart TVs, living room media boxes, connected cars, and other digital and electronic formats, whether now known or hereinafter devised (individually, and collectively, the “Sites”). 

    2. In addition to other services described on the Sites, Company provides the following service: Identification and monetization of uses and/or exploitations of musical compositions and sound recordings on YouTube (the “YouTube Content ID Service”).  For clarity, Company does not provide the YouTube Content ID Service for any so-called “art tracks” or any visual element of YouTube content in any way.

    3. Creator owns and/or controls one hundred percent (100%) of the musical composition(s) (individually and collectively, the “Composition(s)”) and the sound recording(s) (individually and collectively, the “Master(s)”) that embody the Composition(s), that Creator submits to Company via the Sites for the YouTube Content ID Service when clicking “I Agree” and entering into this Agreement.  The Composition(s) and Master(s) are hereinafter referred to individually and collectively as, the “Materials”.  For clarity, the Parties desire for this Agreement to cover only Materials that Creator submits through the Sites for the YouTube Content ID Service.

    4. During the Term (as defined below), Creator desires for (i) Company to perform the YouTube Content ID Service for the Materials in exchange for Creator’s compliance with all terms contained in this Agreement, and (ii) Company to have the exclusive right to perform the YouTube Content ID Service for the Materials, as provided in this Agreement.     

  2. TERM.  The “Term” of this Agreement shall consist of an Initial Period and Renewal Periods (if any) as set forth below. 

    1. Initial Period.  The “Initial Period” shall begin as of the Effective Date and remain in effect for a duration of one (1) year.

    2. Renewal Periods.  Upon expiration of the Initial Period, the Term shall automatically renew for successive one (1) year periods (individually, a “Renewal Period” and collectively, the “Renewal Periods”), unless either Party provides the other Party with at least thirty (30) days written notice prior to the end of the Initial Period or the Renewal Period then in effect.

  3. TERRITORY.  The “Territory” of this Agreement shall be the Universe.
     
  4. SERVICES; GRANT OF RIGHTS.

    1. Subject to Creator’s compliance with all terms contained in this Agreement, during the Term, Company shall perform the YouTube Content ID Service for the Materials.  For clarity, the YouTube Content ID Service does not include management of Creator’s YouTube channel(s) and Company will not be responsible for such management in any way whatsoever.  Additionally, Company is not able to return any Materials submitted to Company.  Company has the right, in its sole discretion, to remove submitted Materials from Company’s system(s) and/or to refuse to accept or perform the YouTube Content ID Service in connection with any Materials for any reason whatsoever, including but not limited to, if Company receives a third-party claim in connection with such Materials. 

    2. Creator hereby grants to Company, the following irrevocable and exclusive rights, during the Term and throughout the Territory: All rights needed for Company to perform the YouTube Content ID Service hereunder.  Such rights include, but are not limited to, the rights to: (i) Identify instances where the Materials are being used or exploited on YouTube; (ii) Claim and monetize such uses and/or exploitations on Creator’s behalf, including but not limited to, negotiating and entering into settlements and/or agreements to license the Materials on YouTube; (iii) Initiate litigation or administrative proceedings on Creator’s behalf with regard to any unauthorized uses and/or exploitations of the Materials on YouTube, in Company’s sole discretion; (iv) Distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display the Materials in connection with the YouTube Content ID Service; and (v) Grant sublicenses to perform the YouTube Content ID Service hereunder including without limitation to grant YouTube and its users the right to host, cache, route, index, transmit, store, copy, embed, stream, perform, communicate to the public, display (including any lyrics), reformat, excerpt, analyze, synchronize (in timed relation or otherwise), create derivative works (in the form of synchronized video), create metadata, algorithms and ID files, search, catalog, edit or modify (for technical or operational purposes), sell advertising against, deliver to any YouTube-related music service, and/or otherwise exploit, use and make the Materials available on the Internet, and from any other technical, communication or transmission protocols or platforms now known or hereafter devised, discovered, or developed including, without limitation, mobile phones, tablets, IPTV platforms and other devices.  The terms of any resulting agreements shall be within Company’s sole discretion.  Without limiting anything contained herein and for clarity, Creator understands and acknowledges that sublicenses that Company grants to third parties during the Term may survive the Term. 

    3. Notwithstanding anything to the contrary contained herein,in the event that Creator does not fully own and/or control the Materials, Company may, in its sole discretion, provide a means for Creator to designate that some or all of the Materials are jointly owned and/or controlled.  If Company decides to do so, Creator will be able to specify that Creator owns and/or controls a percentage less than one hundred percent (100%) of such Materials and then Creator may then submit such Materials to Company.  In such instances, if there is a co-writer, co-author, joint owner and/or controller of the Materials, then Creator must specify what percentage of the copyright Creator owns and/or controls in those specific Materials, and only Creator’s specific interest for such Materials will be included as part of the YouTube Content ID Service hereunder.  Notwithstanding anything contained in this paragraph, if Company does not provide a means for Creator to designate that Creator owns and/or controls less than a one hundred percent (100%) of the copyright interest in the Materials, then Creator may not submit such Materials to Company.
       
    4. Creator also hereby grants to Company the irrevocable and non-exclusive right, throughout the Territory in perpetuity, to (i) use Creator’s name (legal and/or professional, voice, likeness, and/or biographical materials, and (ii) display any names, logos, brands, trade names, trademarks, service marks and/or any other proprietary designations owned and/or controlled by Creator.  The foregoing rights are for use only in connection with (A) Company’s performance of the YouTube Content ID Service hereunder, (B) Creator’s YouTube channel(s), (C) the advertising, marketing, and promotion of Company’s business generally (including but not limited to, Company’s pitch deck and website), and/or (D) any Company owned and/or controlled YouTube channel(s) related to third-parties who have engaged Company’s YouTube Content ID Service. 

  5. PAYMENT; ACCOUNTING; RECORDS AND AUDITS

    1. Company shall pay Creator eighty percent (80%) of Net Income (the “Royalty”).  “Net Income” shall mean gross monies that Company actually receives in connection with the YouTube Content ID Service provided to Creator hereunder, less any amounts to be paid to any third party, including, but not limited to, fees and commissions charged to Company in connection with the YouTube Content ID Service provided hereunder, any costs and expenses incurred by Company in the provision of the YouTube Content ID Service hereunder, mechanical royalties, wire transfer fees, payment processing fees, and any taxes, fees or other charges related to the YouTube Content ID Service hereunder.  Without limiting the foregoing and for clarity, Company shall retain the remaining twenty percent (20%). 

    2. Company shall pay to Creator or credit to Creator’s account, the Royalty, along with an accounting statement within thirty (30) days after the end of each calendar month.  Notwithstanding the foregoing, the Parties agree that Creator shall not be entitled to any payments or accounting statements until total accumulated payments due exceeds one hundred United States dollars ($100 USD).  Accordingly, if such payments do not exceed such amount, Creator’s earnings will be carried over and added to any earnings for the subsequent month.  Furthermore, Company shall be entitled to rely on payments and accountings received from YouTube and/or its parent companies, subsidiaries, and/or affiliates. 

    3. Company shall have sole discretion to determine which payment method(s) to use to pay Creator hereunder.  Without limiting the foregoing, such payment method(s) include, but are not limited to, PayPal, other electronic payment methods, mailing Creator a physical check to an address that Creator provides to Company via the Sites, and/or a proprietary payment system owned, controlled and/or engaged by Company. 

    4. Without limiting the foregoing, Company, in its sole discretion, may (but is not obligated to) create an electronic account for Creator to which any payments due to Creator hereunder in connection with the YouTube Content ID Service provided hereunder.  If Company creates such electronic account for Creator, then such account shall be credited within the time period set forth above in paragraph 5.2.  Creator will be able to withdraw all or any portion of the amounts in such account at Creator’s discretion, unless such account balance is less than one hundred United States dollars ($100 USD) at the time Creator desires to withdraw any amount.  Creator will be responsible for any bank fees and other charges related to any withdrawals from such account.  Company may at any time and in its sole discretion, disable the ability to withdraw funds from Creator’s account, and pay Creator as otherwise provided herein.  Any amounts posted to Creator’s account will be pooled in an interest-bearing bank account with the revenues of other third parties until Creator withdraws such funds pursuant to this Agreement.  Creator agrees that Creator will not receive interest or other earnings on any revenues that Company collects as Creator’s agent and/or places in such pooled account.  In consideration of Company’s performance of the YouTube Content ID Service hereunder, Creator irrevocably transfers and assigns to Company all right, title, and/or interest right that Creator may have in any interest that may accrue on any revenues held in such pooled account.  Without limiting the foregoing, in addition to or instead of earning interest on revenues in such pooled account, Company may, in Company’s sole discretion, decide to receive a reduction in banking fees or expenses from the banks who charge such fees and hold such revenues.  

    5. All statements and other accountings Company that renders under this Agreement shall be binding on Creator and shall not be subject to any objections for any reason whatsoever, unless Creator makes a specific objection in writing, stating the basis thereof and such writing is delivered to Company within one (1) year from the date such statement is rendered.  Creator hereby waives any longer statute of limitations that may be permitted by law.  Failure to make specific objection within this time period shall be deemed approval of such statement. Upon termination of the Term, Company will pay Creator any remaining funds owed to Creator in accordance with the payment procedures described herein, unless such funds are less than one United States dollar ($1 USD), or are, in Company’s sole discretion, attributable to Creator’s fraudulent behavior, breach of any term of this Agreement, and/or as otherwise provided herein. 

  6. YOUTUBE’S TERMS OF SERVICE; UNAUTHORIZED CONDUCT.        

    1. Creator agrees and acknowledges that Company needs to use YouTube’s (and/or its affiliates) tools and/or services in order to carry out the YouTube Content ID Service hereunder.  Accordingly, Creator hereby agrees to be bound by YouTube’s terms of service and other rules, policies, and terms established by YouTube and/or its affiliates (such terms of service, rules, policies, and terms are hereinafter referred to individually and collectively as, the “YT TOS”).  The YT TOS include, but are not limited to, the terms of service currently located at the following URL, “www.youtube.com/t/terms”.  Creator shall not, under any circumstance whatsoever, directly or indirectly, attempt, nor support others’ attempts, to decrypt, reverse-engineer, circumvent, or otherwise alter or interfere with the Sites and/or the YouTube Content ID Service.    

    2. If Company, Google, YouTube, or any of Company’s other sublicensees receive a claim or otherwise suspect that any of the Materials or any of Creator’s YouTube channel(s) (or any content therein) infringes the rights of any person or entity, violates any applicable law or terms of service, or that video views in connection with the Materials, other activity related to Creator’s YouTube channel(s), and/or Creator’s account with Company is attributable to circumvention, misrepresentation, manipulation, misconduct, similar deceptive or fraudulent practices, or other inappropriate and/or unauthorized conduct (automated or otherwise and directly or indirectly), then in addition to any other rights and remedies available to Company, Company may suspend or terminate the YouTube Content ID Service with respect to the Materials, suspend or terminate the Term, and/or Company may withhold Net Income otherwise payable to Creator in an amount attributable to such conduct unless and until any and all claims or other conduct are favorably resolved to Company’s satisfaction.  Furthermore, Company has the right to attempt to address and resolve matters resulting from such claims or conduct, which may include, without limitation, the disclosure of information to third parties and the payment to or other settlement of disputed amounts with third parties on Creator’s behalf, in Company’s sole business judgment.  Creator will forfeit all amounts that Google, YouTube, Company’s other sublicensees, and/or Company in its sole discretion, determine are the result of any of the foregoing activity, or if so determined by a court or administrative body.  Additionally, if Company, in Company’s sole discretion,  engages outside attorneys in connection with the evaluation, investigation, enforcement, or defense of such matter, then Company shall be entitled to offset Company’s resulting expenses by, in Company’s sole discretion, (i) deducting from Creator’s account (whether currently or in the future available) a minimum of $500 and a maximum of Company’s actual costs incurred plus a service fee of twenty percent (20%) on top of said fees, or (ii) charging $500 (or any greater or lesser balance not deducted from Creator’s account) to any payment method then on file with Company (e.g., PayPal, credit, or debit card).  In addition to any other rights or remedies available to Company, Company may, in its sole discretion, deduct or set-off any amounts that Creator owes to Company from any monies otherwise payable to Creator. 

  7. REPRESENTATIONS AND WARRANTIES

    1. Creator represents and warrants that:

      1. All information, data, metadata, and content (including but not limited to, the Materials) that Creator provides to Company (hereinafter individually and collectively, the “Submitted Content”) are accurate and complete, including without limitation Creator’s stated percentage ownership and/or control interest in the Materials and Creator’s ownership and/or control of Creator’s YouTube channel(s), and Creator will update the same during the Term so as to remain accurate and complete;

      2. Creator will submit the Submitted Content in whatever format(s) and via the delivery method(s) Company requests and/or uses, in Company’s sole discretion;

      3. The Submitted Content and Creator’s YouTube channel(s) do not (A) violate and/or infringe in any way whatsoever on any person or entity’s copyright, personal rights, proprietary rights, rights of publicity, rights of privacy, or rights in confidential information, and/or (B) violate any applicable laws or terms of service, including but not limited to, the YT TOS;

      4. Any sale, assignment, transfer, mortgage or licensing or other grant of rights in or to Creator’s interest in any of the Submitted Content shall be subject to Company’s rights under this Agreement;

      5. This Agreement does not and will not interfere with any contract to which Creator is a party and Creator will not enter into any agreement and/or perform any act or authorize any person or entity to perform any act, that interferes, diminishes, impairs, or is inconsistent with any of Company’s rights under this Agreement;
      6. The Submitted Content and Creator’s YouTube channel(s) are and shall be entirely free and clear from liens, charges, pledges, security interests, demands, encumbrances, or any other claim whatsoever from any person or entity;

      7. There are no threatened or existing actions, litigation, or proceedings that would adversely affect or prejudice the Company’s rights under this Agreement;

      8. There are no other restrictions against Creator from granting to Company all the rights described in this Agreement;

      9. The Submitted Content and Creator’s YouTube channel(s) do not contain any unauthorized samples and/or content, including but not limited to, any portion(s) or interpolation(s) of third-party master recording(s) and/or composition(s), video(s) and/or other material(s), or portions thereof whether musical, lyrical, or otherwise, not owned and/or controlled by Creator; 

      10. The files containing the Submitted Content do not and will not contain any bugs, viruses, trojan horses, other defects, harmful elements, or digital rights management restrictions;  

      11. Creator is at least the applicable age of majority in the jurisdiction where Creator resides and Creator possesses the legal authority and capacity to enter into this Agreement;

      12. Use of the Submitted Content as set forth in this Agreement will not give rise to any claims for payment to any third-parties (any and all third-party payments shall be solely Creator’s responsibility).  Specifically, Creator shall be responsible for and timely pay sums which include, but are not limited to, (A) any and all royalties and other income due to labels, authors, co-authors, copyright owners, co-copyright owners, artists (featured and non-featured), producers, and any other record royalty participants from sales or other uses of the Submitted Content, (B) any and all mechanical royalties payable to third parties, including but not limited to, publishers, writers, co-writers, and/or authors or co-authors of Composition(s), (C) all payments that may be required under collective bargaining agreements applicable to labels and/or third parties other than Company, (D) all taxes assessed to Creator, and (E) any other royalties, taxes, fees and/or sums payable with respect to the Submitted Content, including without limitation, label content, artwork, metadata, and other materials Creator provides to Company; and

      13. Creator agrees to deliver to Company copies of any documents Company requests supporting Creator’s right to license the rights granted to Company hereunder including, but not limited to, employment agreements, copyright assignments, work made for hire agreements, and privacy and publicity rights releases.

    2. The representations and warranties set forth above are true now and will be true in the future. 

  1. INDEMNITY.  Creator agrees to at all times indemnify and hold Company, its affiliates, subsidiaries, directors, officers, employees, agents, partners, and licensors harmless from any and all losses and damages (including, but not limited to, attorneys’ fees, expert fees, expenses, and costs) whether or not an action is actually commenced, arising out of or connected with (a) any breach or alleged breach by Creator of any warranty, representation, or term of this Agreement, (b) Creator’s use of the YouTube Content ID Service, (c) Creator’s violation of any third party right, including, but not limited to, copyright, trademark, or privacy right, and (d) any Submitted Content that Creator submits, posts, transmits, or otherwise makes available through the Sites and/or YouTube Content ID Service.  In addition to Company’s other rights and remedies, and without limiting anything contained in this Agreement, pending the determination of any claim involving any breach, alleged breach, or failure, Company has the right to withhold any and all sums due to Creator in an amount reasonably related to any such claim. 
     
  2. RELATIONSHIP OF THE PARTIES.  Nothing contained herein shall be deemed to create any association, partnership, or joint venture between the Parties.  It is specifically understood that each Party will perform its obligations hereunder as an independent contractor without any right to bind the other in any way, except as may be specifically permitted hereunder or expressly agreed upon in writing by the Parties.  Creator agrees and acknowledges that Creator shall be solely responsible for all expenses Creator may incur in connection with performing under this Agreement and Creator will not be reimbursed by Company for any expenses in connection therewith.   

  3. “AS IS” NOTICE.  Creator understands and acknowledges that the Sites and YouTube Content ID Service are being provided and are made available on an “AS IS” basis.  The Sites and/or YouTube Content ID Service may contain errors or inaccuracies that could cause failures, corruption, or loss of your information.  Company strongly encourages Creator to back‐up all data and information on Creator’s devices prior to using the Sites and/or YouTube Content ID Service in any way.  YOU ASSUME ALL RISKS AND COSTS WHATSOEVER ASSOCIATED WITH YOUR USE OF THE SITES AND/OR YOUTUBE CONTENT ID SERVICE.  Additionally, Company is not obligated to provide any maintenance, technical, or other support for the Sites and/or YouTube Content ID Service.  

  4. DISCLAIMERS.

    1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE AND YOUTUBE CONTENT ID SERVICE IS AT YOUR SOLE RISK AND THE SITE AND YOUTUBE CONTENT ID SERVICE ARE PROVIDED ON AN “AS IS” BASIS.  COMPANY AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON‐INFRINGEMENT.  WITHOUT LIMITING THE FOREGOING, COMPANY AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS MAKE NO WARRANTY THAT (i) THE SITE AND/OR YOUTUBE CONTENT ID SERVICE WILL MEET YOUR REQUIREMENTS, (ii) YOUR USE OF THE SITE AND/OR YOUTUBE CONTENT ID SERVICE WILL BE TIMELY, UNINTERRUPTED, SECURE, VIRUS FREE, ERROR FREE, OR FREE FROM ANY OTHER HARMFUL COMPONENTS (iii) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SITES AND/OR YOUTUBE CONTENT ID SERVICE WILL BE ACCURATE OR RELIABLE, AND (iv) ANY DEFECTS OR ERRORS PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.

    2. ANY MATERIAL TRANSMITTED, STORED, ACCESSED, OR OTHERWISE MAINTAINED THROUGH THE USE OF THE SERVICES IS DONE SO AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES OR LOSS OR CORRUPTION OF DATA THAT RESULTS FROM ANY SUCH USE OF THE SERVICES.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH THE SITE AND/OR YOUTUBE CONTENT ID SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

    3. WHERE THE LAW OF ANY JURISDICTION LIMITS OR PROHIBITS THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES AS SET OUT ABOVE, THE ABOVE DISCLAIMERS SHALL NOT APPLY TO THE EXTENT THAT THE LAW OF SUCH JURISDICTION APPLIES TO THIS AGREEMENT.
                 
  5. LIMITATION OF COMPANY’S LIABILITY.  YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAWS, COMPANY AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM (a) THE USE OR INABILITY TO USE THE SITES AND/OR YOUTUBE CONTENT ID SERVICE, (b) ANY CHANGES MADE TO THE SITES AND/OR YOUTUBE CONTENT ID SERVICE OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SITES AND/OR ANY ASPECT OF THE YOUTUBE CONTENT ID SERVICE, IN WHOLE OR IN PART, (c) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR USER CONTENT OR DATA, (d) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE YOUR USER CONTENT OR DATA ON OR THROUGH THE SITE AND/OR YOUTUBE CONTENT ID SERVICE, (e) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR VIA SITES AND/OR THE YOUTUBE CONTENT ID SERVICE, AND (f) ANY OTHER MATTERS WHATSOEVER RELATING TO THE SITES AND/OR YOUTUBE CONTENT ID SERVICE.  YOU EXPRESSLY AGREE THAT AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE YOUTUBE CONTENT ID SERVICE SHALL NOT BE MORE THAN THE COMPENSATION DUE TO YOU HEREUNDER.  THE LIMITATIONS OF THIS PARAGRAPH ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT,  THE AGREEMENTS MADE IN THIS PARAGRAPH REFLECT A REASONABLE ALLOCATION OF RISK, AND EACH PARTY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.

  6. BREACH; CURE.  Company shall not in breach of this Agreement unless Creator gives Company specific written notice of the alleged breach and the breach (if any) is not corrected within thirty (30) days from and after Company’s receipt of such notice, or, if such breach is not reasonably capable of being cured by Company within such thirty (30) day period, the Company does not commence to cure such breach within such thirty (30) day period and proceed with reasonable diligence to complete the curing of such breach thereafter.

  7. NOTICE.  Except as specifically provided in this Agreement, any notices or communications required or permitted to be given under this Agreement must be mailed by certified mail to the address of the other Party indicated in this Agreement and/or the Sites (or such other address as a Party subsequently provides to the other Party) or via e-mail at an email address a Party provides to the other Party.  Except as specifically provided herein, all such notices shall be deemed to have been given and received on the date of delivery. 

  8. MODIFICATIONS.  Company may unilaterally make changes to this Agreement upon thirty (30) days written notice (a) delivered to Creator via email, or (b) displayed on the Sites (it is Creator’s responsibility to check the Sites periodically for such notice).  Company shall decide which of the foregoing notice methods it wishes to use, in Company’s sole discretion.  Such notice shall advise of the change(s) and the effective date thereof.  Additionally, such notice shall be deemed given on the date Company emails Creator or publishes such notice on the Sites, whichever is earlier.  If Creator does not notify Company in writing that Creator objects to such changes with thirty (30) days of such written notice, then Creator shall be deemed to have accepted such changes and accordingly, such changes will be binding upon Creator.  If Creator timely provides notice to Company of objection(s) to the change(s), then Company may either continue exploiting the Materials under the terms of this Agreement without the change(s) to which Creator objects, elect to discontinue exploiting the Materials, or agree to negotiate the proposed change(s) in good faith with Creator.  Company agrees and acknowledges that any unilateral change to any term of this Agreement will be exercised with good faith and fair dealing.  Creator agrees and acknowledges that Creator may not change this Agreement in any way without first obtaining Company’s written signature and consent, in each instance.  Furthermore, notwithstanding anything to the contrary contained in this Agreement, Company has the right, in its sole discretion, to suspend, modify, and/or terminate any or all of Company’s YouTube Content ID Service at any time and/or terminate or suspend Creator’s access to the YouTube Content ID Service at any time, without prior notice, for any or no reason, including but not limited to, Creator’s breach of this Agreement.   

  9. REMEDIES.

    1. In the event of a breach by Company, Creator’s sole remedy shall be an action at law for only monetary damages not to exceed the monetary compensation payable hereunder, and in no event shall Creator (i) be entitled to equitable or injunctive relief, or (ii) have the right to terminate this Agreement. 

    2. The Parties agree and acknowledge that Creator’s services are of special, unique, unusual, extraordinary, and intellectual character involving skill of the highest order which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated for by damages in an action at law.  In the event of a breach or a threatened breach by Creator of this Agreement in any way, Company shall be entitled to injunctive and other equitable relief, in addition to whatever legal remedies are available to Company, to prevent or cure any such breach or threatened breach.  The rights and remedies of Company as specified herein are not to the exclusion of each other or of any other rights or remedies of Company.  Company may exercise or decline to exercise any of its rights and remedies as Company may deem fit, without jeopardizing any other rights and remedies of Company. 

  10. CONFIDENTIALITY AND NON-DISCLOSURE. The Parties agree that all correspondences, information, and disclosures between the Parties in connection with this Agreement shall be strictly confidential, and shall not be disclosed voluntarily to any third party other than the respective officers, directors, shareholders, members, managers, employees, attorneys, and accountants of a party who are bound to keep any such disclosures strictly confidential.  Notwithstanding the foregoing, such correspondences, information, and disclosures may be disclosed: (a) To a court or governmental body having jurisdiction to require and actually requiring such disclosure; (b) As may be required by law; (c) As a defense to another similar action; or (d) In any action or proceeding to enforce this Agreement.

  11. GENERAL

    1. Entire Agreement.  This Agreement, together with the Sites’ terms of service and privacy policy, contains the entire understanding of the Parties and supersedes all prior agreements, representations, and understandings between the Parties relating to the subject matter hereof.  In the event that any terms contained in this Agreement conflict with the terms contained in such terms of use and/or privacy policy, the terms of this Agreement shall prevail.  Without limiting the foregoing and for clarity, when Creator submits Materials for the YouTube Content ID Service, Creator will be entering into this Agreement in each instance.  Each Agreement entered into shall be valid and binding for the Materials corresponding to the Agreement entered into at the time such Materials are submitted.  Accordingly, no Agreement shall supersede the others. 

    2. Severability.  If any provision of this Agreement is held in whole or in part to be unenforceable for any reason, the remainder of that provision and of the entire Agreement will be severable and remain in effect. 

    3. Waiver.  Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.

    4. Assignment.  This Agreement is personal in nature, and thus Creator may not directly or indirectly assign or transfer it by operation of law or otherwise without the prior written consent of Company.  However, Company shall have the right to assign, transfer, or delegate any of Company’s rights and/or obligations of this Agreement, in whole or in part, in Company’s sole discretion.  All obligations contained in this Agreement shall extend to and be binding upon the Parties’ respective successors, assigns, and designees. 

    5. Statute of Limitations.  Except as otherwise specifically described in this Agreement, Creator agrees that any claim or cause of action arising out of or related to this Agreement or Creator’s use of the YouTube Content ID Service must be filed within one (1) year after the cause of action arose or is forever barred.

    6. Choice of Law.  The validity, construction, and performance of this Agreement shall be governed and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws provisions. 

    7. Dispute Resolution.  If a dispute arises out of or relating to any aspect of this Agreement, the Parties agree to try and settle the dispute quickly and fairly through discussion.  If the dispute cannot be settled through discussion, the Parties agree to first try in good faith to settle the dispute by private mediation before resorting to arbitration.  If a dispute cannot be resolved with either discussion or mediation, then the dispute shall be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) in Los Angeles County under its Consumer Arbitration Rules, as modified by this Agreement, Company’s terms of use, and/or elsewhere on the Sites.  In the event that AAA no longer exists, Company shall select another arbitration service in Los Angeles County or elsewhere in California to conduct the binding arbitration under such services’ rules.  In any arbitration or litigation under this Agreement, the prevailing Party shall be entitled to recover from the other Party all costs the prevailing Party reasonably incurs in such arbitration or litigation, including without limitation, reasonable attorneys’ fees, expert fees, expenses, and litigation costs.  BY ENTERING INTO THIS AGREEMENT, YOU AND COMPANY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO DISPUTES AGAINST EACH OTHER IN CONNECTION WITH THIS AGREEMENT.  FURTHERMORE, YOU AND COMPANY AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN CREATOR’S OR COMPANY’S INDIVIDUAL CAPACITY, AND NOT AS A CLASS MEMBER OR IN ANY REPRESENTATIVE CAPACITY OR PROCEEDING. 

    8. Clause Headings.  Headings within this Agreement are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer. 

    9. INDEPENDENT COUNSEL.  Creator agrees and acknowledges that Creator has been represented by independent legal counsel or has had the opportunity to be represented by independent legal counsel of Creator’s own choice for purposes of advising Creator in connection with the negotiation, preparation, and execution of this Agreement.