This Terms of Service document ("TOS") governs the relationship between Frequency and Publisher, as agreed in the relevant Order Agreement. In consideration of the mutual promises contained herein, Frequency and Publisher hereby agree as follows.

1. Definitions

TermDefinition

Advertising Inventory

The number of advertisements, or amount of ad space, associated with Distributed Content delivered through Frequency Services (defined below), including distribution by Frequency's Third Party Distribution Partners (defined below), that is available for sale to advertisers.

Advertising Revenue

All amounts earned and received by Frequency, Publisher or Third Party Distribution Partner resulting from the sale of advertising associated with Distributed Content distributed through Frequency Services, less (i) third party sales commissions (from advertising networks or exchanges) or other advertising costs (such as ad serving fees), not to exceed, in the aggregate, 15% of total advertising revenue, and (ii) sales, VAT, excise or similar taxes legally collected on the revenue as evidenced by invoice.

Content

Video, audio, text, images, data, metadata, other data, and meta- tags; definition or partition of video, film, TV clips or segments; applications, processes, search and search results, look and feel, clips, titles, captions, descriptions, feeds, and other content.

Distributed Content

Content made available by Publisher to Frequency through any means mutually agreed upon including, without limitation: data feeds, application programming interfaces, system-to-system connections, or other digital connections between Frequency's systems and Publisher controlled or administered systems or repositories.

Frequency Services

Frequency's platform software, application programming interfaces, video player software, web and application components for computing, mobile, consumer electronics, and other devices, including, but not limited to, smartphones, portable media players, tablet computers, personal computers, videogame consoles, portable and handheld game consoles and systems, televisions and smart televisions, television-attached devices (including DVD and Blu-ray players, cable set top boxes, satellite receivers, IP and other internet set-top boxes, HDMI-attached internet content receivers, other internet-attached set top devices, and other devices that connect to, or interface with, televisions), other media players, and other computing devices, initially including but not limited to the services listed in Exhibit A.

Initial Launch Date

The date on which the Distributed Content first becomes commercially available to end-users through the Frequency Services, including distribution by Frequency's Third Party Distribution Partners.

Third Party Distribution
Partners

Third party operators and providers, including but not limited to satellite television operators, cable television operators, IPTV operators, over-the-top ("OTT") operators, mobile operators, consumer electronics manufacturers and consumer electronics platform operators, that work with Frequency to integrate and deliver the Frequency Services to their subscribers or users.

2. Distribution Rights

Subject to the terms and conditions of this Agreement, Publisher grants Frequency the worldwide, non-exclusive, royalty-free right to reproduce, encode, perform, display, distribute, transmit, temporarily store while in transit, cache on devices for offline operation, deliver, market, promote and otherwise exploit the Distributed Content to the extent necessary to enable Frequency to deliver the Distributed Content through Frequency Services.

Frequency shall have the right to sublicense the rights granted hereunder to its Third Party Distribution Partners, to the extent necessary to enable the Third Party Distribution Partners to deliver the Distributed Content through Frequency Services, including platforms in which the Frequency Services are integrated and distributed by a Third Party Distribution Partner for delivery to its subscribers or users.

Subject to the terms and conditions of this Agreement, Publisher hereby further grants Frequency a worldwide, non-exclusive, royalty-free right and license to use, reproduce, distribute, perform and display Publisher's logos, trade names, trademarks, service marks and other similar identifying marks (the "Publisher Marks") in connection with Frequency's advertising, promotion and operation of the Frequency Services, including distribution by Frequency's Third Party Distribution Partners.

Frequency acknowledges and agrees that the Publisher Marks and the goodwill associated therewith are the sole and exclusive property of Publisher and that all use of the Publisher Marks by Frequency or its Third Party Distribution Partners shall inure to the benefit of and be on behalf of Publisher. Frequency further acknowledges and agrees that nothing in this Agreement shall give Frequency any rights, title or interest in and to the Publisher Marks other than the right to use the Publisher Marks in accordance with this Agreement.

Publisher further grants to end users of the Frequency Services, or other platform in which the Frequency Services are integrated and distributed by a Third Party Distribution Partner, a non- exclusive license to access and view the Distributed Content.

3. Advertising

  • 3.1. General

    Frequency, Publisher, and, where applicable, Third Party Distribution Partner, will be responsible for selling its respective percentage of all available in-video advertising to appear in the Distributed Content. In connection with the foregoing, Publisher will provide Frequency with a conflict list of advertisers, as set forth in Section 6 of the Order Agreement, with which Frequency will comply and which Publisher may update from time to time upon reasonable notice to Frequency. Frequency will not intentionally block or interrupt Publisher's in-video advertising.

  • 3.2. Advertising Inventory and Revenue Share

    Publisher, Frequency and, if applicable, Third Party Distribution Partner shall have the right to sell the allocated percentage of any and all Advertising Inventory in connection with the Distributed Content as specified and in the manner set forth in Section 4.1 of the Order Agreement

  • 3.3. Advertising Revenue Share

    Publisher, Frequency and, if applicable, Third Party Distribution Partner agree to pay each other the agreed to percentage of Advertising Revenue set forth in Section 6 of the Order Agreement

4. Term and Termination

The initial term of this Agreement shall commence upon the Effective Date of this Agreement and continue for a period of twenty-four (24) months from the Initial Launch Date (the "Initial Term"). Unless earlier terminated as set forth herein, the Initial Term shall automatically renew for additional periods of two (2) years ("Extended Terms"). Either party may terminate this Agreement up to thirty (30) days prior to the automatic renewal of this Agreement via written notice to the other Party. The Initial Term and the Extended Terms, if any, are collectively referred to as the "Term."

Either party may terminate this Agreement by written notice to the other party identifying a material breach of this Agreement; provided, however, the alleged breaching party shall have the right to cure the alleged material breach within thirty (30) days of receipt of said breach notice before termination will be effective. If the alleged breaching party fails to cure the alleged material breach within thirty (30) days, this Agreement shall immediately terminate.

Either party may terminate this Agreement upon written notice to the other party of the other party to this Agreement: (i) becomes subject to dissolution, liquidation, bankruptcy or receivership proceedings; or (ii) files an assignment for the benefit of creditors or a receiver is appointed for the party or its business.

In the event of termination of this Agreement, by its own terms or otherwise, all confidential information obligations, indemnities, warranties and any other terms that typically survive an agreement of this type shall survive the termination of this Agreement.

5. Restrictions, Representations, Warranties and Covenants

Each party warrants and represents that (i) it has the full right, power and authority to enter into and fully perform its obligations under this Agreement in accordance with its terms; and (ii) its execution and performance of this Agreement will not violate any third-party rights, the provisions of any agreement to which it is a party, or any applicable law or regulation.

  • 5.1. Frequency represents, warrants and covenants as follows:

    Except with respect to metadata enhancements or as otherwise expressly permitted pursuant to the terms of this Agreement, at no time shall Frequency modify, alter, copy or create derivative works of any Distributed Content.

    At no time shall Frequency Services provide functions directly enabling a user to modify, alter, copy, download or create derivative works of any Distributed Content.

    At no time shall Frequency assert in any manner or to any party, or in any forum, that it owns any interest in copyright or owns any other rights in Distributed Content.

    Frequency and its Third Party Distribution Partners shall only place or allow placement of advertising and content in connection with the Distributed Content: (i) in compliance with applicable foreign, state and federal laws, rules and regulations in effect in each country where the Distributed Content is delivered through Frequency Services or Frequency's Third Party Distribution Partners; and (ii) in accordance with the restrictions set forth with respect to Conflicted Advertisers.

    Frequency (i) represents and warrants that it is not subject to any judgment, order, injunction, award or decree of any court or government agency that would or might interfere with its obligations hereunder, and, (ii) that the Frequency Services do not and will not violate or infringe upon the intellectual property or any other rights of any third party.

    Other than these warranties, FREQUENCY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

  • 5.2. Publisher acknowledges and agrees as follows:

    Frequency does not and cannot control the flow of data within the Internet, access networks, or other private or public networks over and via which it operates, and therefore does not and cannot control the flow of data to and from Frequency Services, Frequency's systems, and or Frequency's third party service providers' systems. Actions or omissions of third party Internet and network operators can impair, disrupt, or interrupt connections among Frequency Services, Frequency's systems, Frequency's third party services providers' systems, Publisher's systems, and or Publisher's third party services providers' systems. Although Frequency will use best efforts to take actions it deems appropriate to avoid disruptions and interruptions, and to remedy them should they occur, Frequency cannot guarantee, and does not warrant, that disruptions and or interruptions will not occur, intermittently or on a sustained basis.

    Frequency does not warrant uninterrupted or error-free operation of Frequency Services, or Frequency systems, including the systems of third party services providers under contract to Frequency.

    Frequency exclusively holds all right, title and interest in and to Frequency and the Frequency Services, including, without limitation, any and all intellectual property and proprietary rights therein (the "Frequency IP"). Publisher receives no ownership rights in Frequency, the Frequency IP, or Frequency Services or products by virtue of this Agreement, except as expressly provided herein.

  • 5.3. Publisher represents, warrants and covenants as follows:

    The Distributed Content is not an infringement of any third party intellectual property rights and Publisher is the lawful licensee of, or possesses all necessary rights to, Distributed Content, including all relevant duly licensed copyright rights therein to provide and distribute the Distributed Content through the Frequency Services, including if, and to the extent, necessary to grant Frequency the rights related to the distribution of the Distributed Content described herein. There are no other rights, agreements, contracts, licenses or obligations with or involving any other party in conflict with distribution through the Frequency Services or with any license, if any, granted to Frequency or its Third Party Distribution Partners hereunder.

    Publisher shall only place or allow placement of any advertisement or content in connection with the Distributed Content: (i) in compliance with applicable foreign, state and federal laws, rules and regulations in effect in each country where the Distributed Content is delivered through Frequency Services or Frequency's Third Party Distribution Partners; and (ii) in accordance with the restrictions set forth with respect to Conflicted Advertisers.

    With respect to ‘branded integrations' or ‘product placements' ("Integration") within the Distributed Content, such Integration shall not be deceptive, shall not constitute a false testimonial or undisclosed endorsements and shall be compliant with all applicable foreign, state and federal laws, rules and regulations.

  • 5.4. Publisher shall have the right at any time during the Term to request in writing that Frequency take down or cease display of certain specific Distributed Content or advertisements. Frequency will accommodate all such requests within 24 hours when commercially feasible to do so, and in any event within 72 hours.

  • 5.5. Frequency does not endorse any Distributed Content delivered through the Frequency Services, or any opinion, recommendation, or advice expressed therein, and Frequency expressly disclaims any and all liability in connection with the Distributed Content. Frequency reserves the right to remove any Distributed Content from the Frequency Services at any time, without cause, and without notice.

6. Music and Rights Payments

If an additional license or clearance is required to publicly perform the musical compositions, if any, in any audio or video Distributed Content via the Frequency Services, the Parties will work cooperatively in good faith to secure and allocate the costs and expenses associated with such license or clearance.

7. Reporting Requirements

The Parties shall both keep and maintain complete and accurate records in sufficient detail to enable the determination of all payments due under this Agreement and shall provide, upon the other Party's reasonable request, relevant records necessary to substantiate any amounts due (the "Records"). Each party agrees to use commercially reasonable efforts to provide reports that attribute revenue to specific Distributed Content distributed through Frequency Services and to provide such reports to the other party within ten (10) days after the end of every calendar quarter.

Any amount due to Publisher or Frequency hereunder shall be paid within thirty (30) days of a quarterly report. Upon the reasonable advance written request of either party, the other shall grant access to the Records during normal business hours as may be reasonably necessary to verify the accuracy of the reports provided; provided however that such examinations shall not occur more than one (1) time per calendar quarter. Each Parties shall have the right, at its own expense, on at least ten (10) days prior written notice to the other Party, to have a certified public accountant examine the Records and the calculations of the Advertising Revenue Share, or the calculation of and generation of advertising inventory per the Advertising Inventory Share, if applicable, hereunder.

If any such audit reveals an underpayment or under delivery of inventory by the remitting Party to the receiving Party of more than five percent (5%), then the remitting Party shall reimburse compensate the receiving Party its out-of-pocket third party costs in connection with such audit, and provide receiving Party with the amount of such underpayment, in the case of Advertising Revenue Share, or, make good with additional advertising inventory in the case of Advertising Inventory Share.

Frequency shall provide timely reporting to Publisher detailing the views of each unique video within the Distributed Content including: the number of unique users who initiated a view of each video during the reporting period, the number of unique users who completed a view of each video during the reporting period, the geographical region where each video was viewed including DMA information, where known.

8. Confidential Information and Aggregated Information

The Parties acknowledge and agree that neither party shall disclose to any third party any confidential information of the other party without the express, written consent of the other party. "Confidential Information" shall mean any information, oral or written, treated as confidential, that relates to Parties' past, present or future proprietary information or data, including, without limitation, research, development or business activities, including any unannounced product. Confidential Information shall not be deemed to include information that: (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the party receiving such information; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respects thereto; or (d) is already in the recipient's possession free of any confidentiality obligations with respect thereto at the time of disclosure.

Measurements of user activity and usage, generated or computed by Frequency, of the Frequency Services, that is specific to the Publisher and the Distributed Content, shall not be publicly disclosed by Frequency without the prior written consent of Publisher. Publisher acknowledges and agrees that each device manufacturer and platform operator who use the Frequency Services may be able to obtain, through its devices and device interfaces, or from Frequency, information about the usage of the Frequency Services for that device, in aggregate or specific to a particular device, including information specific to the Publisher and or to the Distributed Content.

Confidential Information shall not include: (i) rankings or similar ordinal information about the Publisher or the Distributed Content within groups or series, for example a list of the top ten publishers in a content category; (ii) information, including information specific to the Publisher or to the Distributed Content, published in content guides and summaries, provided as part of, or in connection with, content or other recommendations, or provided in response to search or other queries; or (iii) measurements of, metrics concerning, or other information about user activity and usage of the Frequency Services, generated or calculated, in whole or in part, by Frequency, where such measurements of, metrics concerning, or other information about user activity and usage of the Frequency Services aggregate information specific to the Publisher or the Distributed Content with other information ("Aggregated Information"). For example, information about overall user usage of the Frequency Services, or information about average user session lengths in various content categories or under various circumstances, where such information aggregates information specific to the Publisher with information specific to other publishers, constitutes Aggregated Information.

All Aggregated Information shall remain at all times the sole property of Frequency, and shall be available for public disclosure at Frequency's sole option.

9. Dispute Resolution and Choice of Law

The Parties shall first attempt to resolve amicably any controversy or dispute of claim between them relating to this Agreement, with the exception of any intellectual property dispute. If this fails to settle the matter, the Parties then agree that this Agreement shall be governed in all respects by the laws of the United States and the state of California, without regard to conflict of law rules. The parties shall: (a) bring any disputes arising out of or related to this agreement exclusively in a state or federal court located in Los Angeles County, California; and (b) submit to the personal jurisdiction of such courts. The prevailing party will be entitled to recover its reasonable attorneys' fees and costs incurred in any dispute arising out of or related to this agreement.

10. Indemnification

Each party (for these purposes, "Indemnitor") shall indemnify, defend and hold the other party ("Indemnitee"), its successors, assigns, agents and licensees, free and harmless from and against any and all third party claims, demands, damages, expenses, losses or costs (including reasonable outside attorneys' fees and costs), or any sums paid in settlement, arising out of or incurred as a direct result of any breach of the representations, warranties, agreements and undertakings of or by the party concerned. Indemnitee shall notify Indemnitor of any claim presented to Indemnitee by a third party. Indemnitor shall defend against any third party claim, at its sole expense, with counsel approved by Indemnitee, except that, at Indemnitee's option, Indemnitee may defend the claim (at Indemnitor's sole expense) and shall consult with Indemnitor about choice of counsel and the conduct of the proceeding. No such claim asserted by a third party may be settled by Indemnitee without Indemnitor's prior written consent (such consent not to be unreasonably withheld, conditioned, or delayed).

11. Use of Company Marks

The Parties shall each allow the other to use its name and logo, its domain name and application names, and its affiliated and subsidiary brand names and logos, in any marketing or promotional material, subject to the other party's review and approval, and each shall allow the other to list it as a reference partner.

12. Limitation of Liability

To the maximum extent permitted by law, in no event shall either party (including its directors, officers and affiliates) be liable for any special, indirect, incidental, punitive, exemplary or consequential damages whatsoever, including, but not limited to, loss of revenues, profits, data, business or business interruption, arising out of or in connection with this agreement.

This exclusion will apply regardless of the legal theory upon which any claim for such damages is based, whether the parties had been advised of the possibility of such damages and whether such damages were reasonably foreseeable. in no event shall the aggregate liability of frequency arising out of or related to this agreement exceed the total amounts actually received by frequency pursuant to this agreement up to the date of filing or presenting the claim, whichever is earlier.

13. Miscellaneous Terms

TermDefinition

Binding Agreement

This Agreement shall be binding on and shall inure to the benefit of the Parties hereto and their heirs, administrators, successors, trustees and assigns

Relationship

The Parties to this Agreement are independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, franchise or any other form of relationship as participants in a joint undertaking. Each party shall be solely responsible for any claims, damages or lawsuits arising out of the acts of its employees and agents. Neither party shall incur any obligations for or in the name of the other party, or have the authority to bind or obligate the other party

Assignment

Frequency may not assign this Agreement without the express written consent of Publisher, except that assignment by Frequency to any entity that shall acquire all, or a majority of, Frequency's assets is expressly permitted

Force Majeure

Neither party shall be liable for any loss or delay resulting from any force majeure event, including acts of God, fire, natural disaster, labor stoppage, war or military hostilities, or inability of carriers to make scheduled deliveries, and any payment or delivery date shall be extended to the extent of any delay resulting from any force majeure event

Waiver

No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement

Attorneys' Fees

In the event of any action, mediation, litigation, arbitration, suit or proceeding arising from or under the terms, provisions or conditions of the Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs of suit or other proceeding

Severability

If any provision hereof is held invalid or unenforceable by arbitration or court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from the Agreement

Entire Agreement

This Agreement constitutes the entire understanding of the Parties and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement

Amendment

This Agreement shall not be modified, changed or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents that may be in conflict with it

Headings

The headings in this Agreement are for convenience only and are not deemed to be part of this Agreement or to be relied upon in the construction or interpretation hereof

Construction

No provision of this Agreement shall be construed against any party by reason of that party having drafted the same

Counterparts and Electronic
Signatures

This Agreement may be executed in multiple counterparts and any party hereto may execute any such counterpart, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. The counterparts of this Agreement and all other agreements and documents executed in connection herewith may be executed and delivered by electronic signature by any of the Parties to any other Party and the receiving Party may rely on the receipt of such document so executed and delivered by facsimile or other electronic means as if the original had been received

14. Programming and Specifications

Publisher will deliver to Frequency videos published to their own services, sites, applications and through other distribution platforms, as detailed below. Publisher will provide full catalog; some programming may have exclusive windows and Frequency would therefore receive outside the window. When Publisher creates exclusive content for another platform then the content would be excluded from Frequency platform.

Publisher shall use its best efforts to provide Frequency with its most popular channels for distribution through the Frequency Services, including distribution by Frequency's Third Party Distribution Partners. Publisher shall provide Frequency with an initial Content list of channels as set forth in Section 4.1 of the Order Agreement to be maintained throughout the duration of the Term, however, should Publisher no longer have the right to distribute a channel on the Frequency network (e.g. Creator leaves Publisher network), the channel will be removed from the Content list, Frequency will promptly remove the Content from its Network, and Publisher will replace said Content with an equal-value alternative as mutually agreed upon by the Parties. In addition, should new channels become available by Publisher during the Term of this Agreement, Publisher will provide prompt notice to Frequency of such additions.

In the event of a material change in the quantity, quality or nature of the videos made available to Frequency, a written notice must be provided no more than 14 days in advance of such event.

In the event any of the Distributed Content includes a Call to Action ("CTA"), Publisher shall either: (i) promptly remove the CTA(s) at the request of Frequency and redeliver or otherwise make available the edited version of the applicable Distributed Content to Frequency; or (ii) give permission, for Frequency to edit the Distributed Content for the sole purpose of removing the applicable CTA(s) for distribution pursuant to the terms of the Agreement. In the event that Frequency is the Party responsible for editing and removing the CTA(s), Frequency shall: (i) recoup all reasonable costs associated with the editing and removal of the CTA(s) from the Advertising Revenue prior to the payment of additional Advertising Revenue in excess such costs; and (ii) provide Publisher with a copy of the edited version of the Distributed Content. Further, the Parties acknowledge and agree that the edited content will remain the property of Publisher.

14.1. Interface Control Document

If Publisher is delivering video and related content via MRSS, Publishers must ensure that the content they publish to Frequency conforms to the Frequency Interface Control Document ("Frequency ICD"). This document is available electronically and may be modified from time to time. Conformance to the Frequency ICD is critical to ensure Publisher's content is discoverable via the Frequency Services.

This document details how the specification for all content types and business models supported by Frequency.

To access the Frequency ICD electronically, visit pdf link.