PRODUCTION SERVICES AND CONTENT PROVISION TERMS AND CONDITIONS

Last Modified: September 21, 2017

These Production Services and Content Provision Terms and Conditions (this “Agreement”) explain the terms by which you may provide certain content to us, and by which we may provide certain production-related services to you in connection with your use of the Amaze Service (as defined below), and are made by and between Off2, Inc., a Delaware corporation with offices at 333 West El Camino Real, Ste. 210, Sunnyvale, CA 94087 (“Off2”) and you (“Artist” or ”you”). The Agreement is effective as of the date that you click a button or check a box marked “I Agree” (or something similar), sign up for an account on the Amaze Service, use the Amaze Service, or otherwise affirmatively manifest your assent to be bound by the Agreement (the “Effective Date”).

By manifesting such agreement, you signify that you have read, understood, and agree to be bound by this Agreement, our Acceptable Use Policy [link], to the collection and use of your information as set forth in our Privacy Policy [link], and to our Terms of Service [link], the terms of which are hereby incorporated by reference and which collectively with this Agreement form the entire agreement between you and us. In the event of a conflict between the terms of this Agreement and the Terms of Service, the Terms of Service shall control to the extent of the conflict. In the event of any modifications to this Agreement, we will follow the procedures set forth in Section 14.2 of our Terms of Service.

TERMS AND CONDITIONS

1. Relationship.

1.1.  Off2 Responsibilities. Off2 will use commercially reasonable efforts to: (a) provide mutually agreed-upon production-related services to assist Artist in Artist’s performance of its Services (such services provided by Off2, the “Off2 Services”). Such Services will include, without limitation, the provision of two (2) versions of the Artist Content, one (1) that has been encoded for display on the Amaze Service, and one (1) that has been encoded for display on YouTube and Facebook.; and (b) make the Content available to customers via the Amaze Service on a continuing basis; provided that Off2’s failure to make such Content available at any particular time or in any particular manner shall not be a violation of this Agreement. Off2 reserves the right to remove any Content posted on the Amaze Service at any time and for any reason, and the right to review any Content for any purpose. The “Amaze Service” means Off2’s proprietary mobile, web, and/or other application(s) through which end-user customers may access certain content, including but not limited to Content.

1.2. Artist Responsibilities. During the Term, Artist will perform the Services and deliver the Artist Content to Off2. Artist will be solely responsible for all licensing, clearance, reporting, and payment obligations of any kind to third-parties in connection with the Content, including but not limited to any applicable union and/or guild payments. Upon request, Artist shall provide Off2 with documentation sufficient to demonstrate Artist’s compliance with the terms of this Section 1.2. Artist and its Content will at all times abide by the content policies that Off2 makes available from time to time.

1.3. Equipment. From time to time, Off2 may, at its sole discretion, permit Artist to borrow (or Off2 may use in connection with its provision of the Off2 Services) certain mutually agreed-upon technical equipment for a limited time and for the sole purpose of creating Content to be posted on the Amaze Service (“Equipment”). All right, title, and interest in and to such Equipment shall remain in Off2, and Artist shall keep such Equipment free of any liens or other encumbrances of any kind. Artist will promptly return all Equipment to Off2 at Off2’s request using a carrier and method approved by Off2 (and at Off2’s expense unless otherwise agreed by the parties). Further, Artist will be fully liable and responsible for any damage of any kind to the Equipment (other than normal wear and tear) that occurs while the Equipment is in Artist’s possession or control, and will indemnify and hold Off2 harmless from and against any costs or expenses incurred as a result of Artist’s use, possession, or control of the Equipment and the cost of any repairs to the Equipment or any replacement Equipment Off2 purchases as a result of any damage to the Equipment that occurred due to any act or omission of Artist.

2. Consideration.

2.1. No Fees; Alternative Consideration. The parties acknowledge and agree that, unless otherwise separately agreed in writing, no fees shall be payable from Artist to Off2 in connection with this Agreement. In consideration of Off2’s provision of the Off2 Services and making available of the Content on the Amaze Service, Artist hereby agrees that it: (a) will not remove or take down, or attempt to remove or take down, the Content from the Amaze Service; and (b) will either (i) promptly after delivery of the YouTube- and/or Facebook-encoded Content from Off2, post such Content on YouTube and/or Facebook or (ii) if Artist does not have a YouTube or Facebook account or does not wish to post the Content to YouTube or Facebook, grant (and does hereby grant) to Off2 all rights necessary for Off2 to post the Content to Off2’s official YouTube and Facebook accounts. Further, Artist agrees that it will not post the YouTube- and/or Facebook-encoded Content to any third-party service other than YouTube and/or Facebook, as applicable, without Off2’s prior written consent.

2.2. No Expenses. Off2 shall not be responsible for any costs or expenses incurred by Artist in connection with its performance of the Services hereunder unless previously agreed in writing by a duly authorized representative of Off2.

2.3. Taxes. Artist shall, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on Off2’s net income. Artist agrees to indemnify, defend, and hold Off2, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Artist’s failure to report or pay any such taxes, duties or assessments.

3. Right of Off2 to Use Artist’s Evaluation.

Artist agrees that Off2 shall have the right to use, in any manner and for any purpose, any information gained as a result of Artist’s use and evaluation of the Amaze Service. Such information shall include but not be limited to changes, modifications, corrections and improvements to the Amaze Service made by Off2 at Artist’s suggestion. If Artist provides Off2 with any suggestions, ideas, feedback, error identifications or other information related to the Amaze Service or Artist’s use and evaluation of the Amaze Service (“Feedback”), Artist hereby assigns to Off2 all right, title and interest in and to all Feedback, including all intellectual property rights therein, and agrees to assist Off2 in perfecting such rights and obtaining assignments of such rights from all individuals involved in generating the Feedback.

4. Proprietary Rights.

4.1. Definitions.

(a) “Content” means, collectively, the Artist Content and Artist Information.

(b) “Artist Content” means any individual item of content that meets the then-current Minimum Content Requirements made available by Off2 from time to time (collectively, the “Artist Content”). The Minimum Content Requirements will generally be made available at www.off2.com (or a successor page) or provided to Artist in writing in advance.

(c) “Artist Information” means the Artist name, trademarks, trade names, likeness, photographs, biographical materials, and other graphical materials provided by Artist for use by Off2 in connection with the Amaze Service.

4.2. License Grant. Artist hereby grants to Off2 a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to digitize, encode, reproduce, store, archive, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of the Content, in whole or in part, under all intellectual property rights and in any form, media or technology, whether now known or hereafter developed, for use on or in connection with the Amaze Service, including without limitation for the marketing, promotion, or commercialization of the Amaze Service.

4.3. Attribution. Where feasible, Off2 agrees to use commercially reasonable efforts to provide attribution to Artist as the creator of the Content, provided that Off2’s failure to include attribution shall not constitute a breach of this Agreement. The format, content, layout, location and other characteristics of the attribution shall be solely determined by Off2. Artist hereby agrees that Off2 may use the name of Artist in connection with the Content without compensation or further permission.

4.4. Ownership.

(a) By Artist. Off2 acknowledges and agrees that, as between Off2 and Artist, Artist owns all right, title, and interest in and to the Content and the intellectual property rights therein, and, except as expressly provided herein, nothing in this Agreement will confer on Off2 any right of ownership or interest in the Content.

(b) By Off2. Artist acknowledges and agrees that, as between Off2 and Artist, Off2 shall own all right, title, and interest in and to (i) the Amaze Service, and (ii) any derivative works made by Off2 to the Content, and (with respect to both (i) and (ii)) all intellectual property rights therein, and nothing in this Agreement will confer on Artist any right of ownership or interest in any of the foregoing.

4.5. Reservation of Rights. Except as otherwise expressly provided herein, nothing in this Agreement shall be deemed to grant, directly or by implication, estoppel or otherwise, any right or license with respect to any intellectual property, and each party retains all right, title and interest in and to its respective intellectual property.

5. Confidentiality.

5.1. Nondisclosure. Each party shall retain in confidence the non-public information and know-how disclosed or made available by the other party pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the “Confidential Information”). Notwithstanding any failure to so designate them, the terms and conditions of this Agreement shall be Off2's Confidential Information. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees and subcontractors as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). Each party agrees to immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested. Notwithstanding the foregoing, either party may disclose Confidential Information of the other party which is: (i) already publicly known without breach of this Agreement; (ii) discovered or created by the receiving party without use of, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order; provided that the receiving party shall provide prompt notice thereof and reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties.

5.2. Remedies. Each party agrees and acknowledges that any breach or threatened breach of this Section 5 may cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other legal rights or remedies.

6. Representations and Warranties.

Artist represents and warrants that: (a) it has the full right, power, and authority to enter into this Agreement, and to grant any and all necessary rights and licenses provided herein; (b) the Content does not and will not infringe any intellectual property rights or any other proprietary rights of a third party (including third party publicity or privacy rights), and Artist has obtained valid releases for all persons appearing in the Content; (c) it has the right, power and authority to grant any and all necessary rights and licenses provided under this Agreement, including without limitation, all necessary copyright, performance, sound recording and reproduction rights and other related rights to the Content (including with respect to the underlying musical compositions of any sound recordings), free and clear of all claims and encumbrances without violating the rights of any person or entity, including any third party intellectual property rights; (d) Off2’s use of the Content as permitted hereunder will not infringe any common law, statute or other rights whatsoever, including without limitation any copyright, trademark or other personal or proprietary right of any person, or confer on any person, firm or company a right of action or claim for damages against Off2 or expose Off2 to civil or criminal proceedings; and (e) Artist has not granted, and will not grant, any rights which conflict with those rights granted to Off2 under this Agreement.

7. Indemnity and Release.

7.1. Indemnity. Artist hereby indemnifies, and agrees to indemnify, defend and hold harmless Off2 and its officers, directors, consultants, employees, successors and assigns (“Indemnified Parties”) from and against any and all damages, losses, liabilities and expenses (including reasonable attorneys’ fees) awarded against or incurred by any Indemnified Party as a result of any third party claim, demand or action arising from any breach of any of the foregoing representations, warranties, or other undertakings or obligations in this Agreement or implied by law. Either party will promptly notify the other upon learning of any claim, action or proceeding arising out of or relating to a breach subject to this indemnity (although Off2’s delay or failure to do so will not relieve Artist of any of its obligations under this paragraph), and Off2 will reasonably cooperate in the defense at Artist’s expense. For any claim defended by Artist, Off2 may choose to be separately represented at its own expense. No settlement intended to admit liability or bind any Indemnified Party is valid or final without the Indemnified Party’s written consent.

7.2. Release.

(a) General Release. Artist hereby releases, and agrees to release, Off2 and its officers, directors, consultants, employees, successors and assigns, from any claim of any kind or nature whatsoever arising from the use of the Content permitted hereunder, including, but not limited to, those based upon defamation, invasion of privacy, right of publicity, copyright, moral rights, or any other personal and/or property rights, and Artist agrees not to assert or maintain any such claims against Off2 and its officers, directors, consultants, employees, successors and assigns.

(b) Release of Unknown Claims. Artist acknowledges the language of Section 1542 of the California Civil Code (“Section 1542”), which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS/HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM/HER MUST HAVE MATERIALLY AFFECTED HIS/HER SETTLEMENT WITH THE DEBTOR.

Artist expressly waives the protection of Section 1542. Artist understands and agrees that claims or facts in addition to or different from those which are now known or believed by Artist to exist may hereafter be discovered.

8. Limitation of Liability.

IN NO EVENT SHALL OFF2 BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), INCLUDING BUT NOT LIMITED TO DIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL AND INDIRECT DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, THE RESULTS OF USE, OR THE INABILITY TO USE THE AMAZE SERVICE, EVEN IF OFF2 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OFF2 WILL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY CLAIM OR DEMAND AGAINST PROVIDER BY ANY OTHER PARTY. PROVIDER AGREES THAT IT SHALL HAVE THE SOLE RESPONSIBILITY FOR PROTECTING ITS CONTENT, BY PERIODIC BACKUP OR OTHERWISE, USED IN CONNECTION WITH THE AMAZE SERVICE.

9. Term and Termination.

9.1. Term. This Agreement shall be effective as of the Effective Date and shall continue until terminated as set forth below (the “Term”).

9.2. Termination for Convenience. Either party may terminate this Agreement at any time and for any reason by providing the other party at least thirty (30) days’ prior written notice of such termination.

9.3. Termination for Cause. Either party shall have the right to terminate this Agreement upon written notice in the event the other party fails to perform or observe any material term or condition of this Agreement and such default has not been cured within thirty (30) days after written notice of such default to the other party. Off2 may also terminate this Agreement immediately if the Artist: (a) terminates or suspends its business; (b) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute; (c) becomes insolvent or subject to direct control by a trustee, receiver or similar authority; or (d) has wound up or liquidated, voluntarily or otherwise.

9.4. Effect of Termination. The rights and obligations of Off2 and Artist in Sections 2, 3, 4.1, 4.4, 4.5, and 5 through 10 (inclusive) shall survive termination of this Agreement. Sections 4.2 and 4.3 shall survive in perpetuity for so long as Section 2.1(a) remains applicable. For purposes of clarity, Off2 may (but is not obligated to) continue to make available the Content to customers via the Amaze Service after any termination or expiration of this Agreement with respect to such customers provided that it otherwise complies with its obligations hereunder. Within thirty (30) days after termination of this Agreement, or at any other time at the disclosing party’s written request, each party (as the receiving party) shall return to the other party (as the disclosing party) or, upon the disclosing party’s request, destroy, at the receiving party’s sole expense, all Confidential Information of the disclosing party and materials containing any Confidential Information of the disclosing party, including all copies thereof, and deliver to the disclosing party a certification, in writing signed by an officer of the receiving party, that such Confidential Information, and all copies thereof have been returned or destroyed, and their use discontinued. Nothing contained herein shall limit any other remedies that a party may have for the default of the other party under this Agreement nor relieve such party of any of its obligations incurred prior to such termination.

10. No Assignment.

Artist shall not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, without Off2’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Off2 shall have the right to assign this Agreement without restriction.