CONTENT PROVIDER TERMS OF SERVICE
This digital media content provider agreement (this “Agreement”) is effective as of the first date content is published (the “Effective Date”), by and between Stick & Ball TV LLC, a Tennessee limited liability company, (“Company”, “We,” “Us,” and “SBTV”), and Content Provider (“You,” “Your,” and “Content Provider”) who has been approved by Us to provide content for Our websites, stickandball.tv, stickandballtv.com and all video streaming applications (“Apps”) We deploy, specifically within dedicated content categories (“Channels”). SBTV operates the Apps, and We reserve the right to control any improvements, updates, revisions, or derivative works thereto, including but not limited to, any applicable intellectual property rights related to the development and publication of the Apps.
2. Independent Contractor
You recognize and agree that the parties to this Agreement are independent contractors. You acknowledge that this Agreement shall not be construed to create any association, partnership, joint venture, employee, or agency relationship between You and SBTV for any purpose. You have no authority (and shall not hold yourself out as having authority) to bind SBTV, and You shall not make any agreements or representations on the SBTV’s behalf without Our prior written consent. You may provide and upload certain digital content, including, but not limited to, images, audio, video, and text (“Your Content”) to the Apps hosted by Us on our Channels and platforms.
SBTV also engages in creating its own content directly or hires third parties to create content for SBTV (“SBTV Content”) and may invite You to participate in such content. SBTV Content is distinct from Your Content even if it is accessible through Your Channel or on your page within the App. You will not be compensated for your participation in the creation of SBTV Content unless specifically agreed to by You and SBTV in a separate writing.
The term of this Agreement shall commence on the Effective Date and shall continue until terminated in accordance the terms of this Section 2 (the “Term”). Either party may terminate this Agreement at any time upon not less than thirty (30) days prior written notice to the other party. In addition, this Agreement will terminate immediately and automatically without any notice, if You violate any of the terms and conditions of this Agreement. Upon termination: (i) all rights granted to You under this Agreement will also terminate; and (ii) You must cease all use of the Apps. TERMINATION WILL NOT LIMIT EITHER PARTY’S RIGHTS OR REMEDIES AT LAW OR IN EQUITY.
4. Intellectual Property
The Apps, including all text, images, designs, graphics, content, source code, object code, data, features, functionality (including but not limited to all information, software, displays, enablement of video and audio, and the design, selection, and arrangement thereof) are owned by Us, Our licensors, or other providers of such materials. For purposes of clarity, SBTV owns the rights to the compilation, arrangement, and assembly, along with any modifications, variations, updates, versions, and changes to all User information entered and stored within Our Apps database(s), as part of the Apps. This material, collectively, is protected by United States copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. We retain all of these intellectual property rights. You may not copy, download, republish, distribute, reproduce, transmit, transfer, prepare derivative versions or works, or otherwise use any of the information contained on this Apps in any form without the prior written consent of SBTV.
Furthermore, You acknowledge and recognize that other Content Providers might post information about themselves or their businesses to the Apps. You agree that You will not copy, download, publish, distribute, or reproduce any of the information contained on this Apps in any form without the prior written consent of the User who has posted the content in question. You agree not to violate the intellectual property rights of other parties, including but not limited to, using the Apps to infringe upon the copyright, trademark, trade secret, or patent rights of any other party.
CONTENT PROVIDER’S RESTRICTIONS RELATED TO OUR INTELLECTUAL PROPERTY AND THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS
Your Responsibility. When You post or otherwise submit information or content to the Apps, You represent and warrant that You have ownership, authority, or permission to post the information or share the content. YOU FURTHER REPRESENT AND WARRANT THAT YOU ARE THE SOLE OWNER OF SUCH INFORMATION OR CONTENT. You agree that You will not post any information or content to the App, channels, or anywhere else on the platform, in any format, including but not limited to text, image, video, or audio, that You do not own.
YOU HEREBY REPRESENT AND WARRANT THAT YOU WILL NOT UPLOAD, PLACE, POST, OR OTHERWISE PUT ANY INFORMATION, INCLUDING BUT NOT LIMITED TO, ANY TEXT, DOCUMENT, IMAGE, VIDEO, OR CONTENT ONTO THE APPS, THAT INFRINGES THE RIGHT(S) OF ANY OTHER PARTY. You further agree that You will indemnify, defend, and hold harmless SBTV from and against any and all third-party demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs, or expenses (including without limitation reasonable attorneys’ fees and the costs of any investigation) arising out of, in connection with, or resulting from any violation or alleged violation regarding SBTV’s authorized use of Your Content.
A Content Provider may not: (a) copy, download, publish, distribute, repost, or reproduce any images, graphics, designs, logos, videos, text, or any other content contained on this Apps in any form without prior written consent; or (b) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, warranties, disclaimers, or intellectual property rights, proprietary rights, or other symbols, notices, or marks herein; (c) copy, distribute, or reproduce any aspect of this Apps or the information contained therein; (d) modify, correct, adapt, translate, enhance, or otherwise prepare derivative works, or improvements of any products, product designs, or services featured on this Apps; or (e) reverse engineer, disassemble, decompile, decode, or adapt any products, product designs, or services featured on this Apps.
Your Content and Grant of Intellectual Property License to SBTV. As a Content Provider, You acknowledge that Our Apps offer an information, promotion and marketing channel for You to showcase Your subject matter expertise and related products and services to the general public. You further recognize that We have created a marketing venue that You could not create on Your own. As part of the basis of the bargain for accessing and using these Apps to reach potential customers, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, You hereby grant Us a worldwide, nonexclusive license to the following (“Licensed Intellectual Property”):
Your Content that You place on the Apps, including but not limited to any such text, documents, images, audio, and videos;
Any and all claims and causes of action, with respect to any of the foregoing, whether accruing before, on, or after the date hereof, including all rights to and claims for damages, restitution, and injunctive and other legal and equitable relief for past, present, and future infringement, dilution, misappropriation, violation, misuse, breach, or default, with the right but no obligation to sue for such legal and equitable relief and to collect, or otherwise recover, any such damages.
Limitation on Use of Your Content Outside SBTV. As a condition of Your access to the Apps, we require that while Your Content is available through the Apps, it shall not be available in its entirety through any other channels or published on any third-party platforms and, therefore, shall be exclusively available to SBTV subscribers. The only exception to the exclusivity requirement shall be the use of Your Content on your personal website or official company website (and not on a third-party service, including YouTube, Vimeo and Instagram) which requires a subscription or other kind of payment from users for accessing such content.
SBTV Content. Your participation in creation of SBTV Content does not grant you any rights in or to the SBTV Content. SBTV retains all of its ownership rights in SBTV Content, including the copyrights in and to SBTV Content and all renewals and extensions thereof, free from any claims by You, or any person or entity deriving rights or interests from You. To the extent, if any, that You may be deemed an author of SBTV Content, you hereby assign to SBTV all rights in and to SBTV Content, including the copyright therein, and further grant to SBTV a limited power of attorney, irrevocable and coupled with an interest, for SBTV, in your name, to apply for and obtain, and on obtaining same, to assign to SBTV all such copyrights, and all renewal and extension rights.
For clarity, You retain all of Your ownership rights in Your Content, including the copyright in and to Your Content and all renewals and extensions thereof.
However, by submitting content to SBTV, You hereby grant SBTV a worldwide, non-exclusive, royalty and fee-free sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform Your Content in connection with the Apps, Channels, and the platform, including without limitation for promoting the Apps in any media formats and through any media channels. The license to prepare derivative works incorporating reasonable portions of Your Content created during the term of the Agreement shall be perpetual and irrevocable and will not terminate upon termination or expiration of this Agreement.
These Licensed Intellectual Property terms shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns.
Terms Not Exhaustive. The items within this section are not meant to be exhaustive. We will take any action necessary to protect the SBTV Apps, Channels, and the platform from any acts contrary to the purposes of the Apps.
5. Consent and Release
You understand that during Your participation in creation of SBTV Content You may be photographed, videotaped, or audio recorded. You hereby irrevocably consent to and grant SBTV, its affiliates, subsidiaries, related companies, successors, licensees, or designees and others acting on its behalf the right to use Your name and likeness, including photo, video, audio recording, or film likeness, in SBTV content and derivative works incorporating reasonable portions of Your Content created during the Term of this Agreement as authorized pursuant to Section 3, in any territory, through any medium, and for any purpose, including advertising and promotion, without any remuneration to You. You waive the right to inspect or approve versions of Your image used for publication or the written copy that may be used in connection with the images. You hereby assign all right, title, and interest You may have in or to any and all media in which Your name, image and/or likeness might be used to SBTV. For the avoidance of doubt, any rights granted to SBTV under this Section 4, shall continue in full force and effect after termination or expiration of this Agreement.
You represent and warrant that (i) no other party has been granted an exclusive license with respect to Your name and likeness, and (ii) no other party's authorization or consent is required with respect to the permission granted to SBTV under this Consent and Release. You release SBTV (and all persons acting under its permission or authority) from all claims for libel, slander, invasion of privacy, infringement of copyright or right of publicity, or any other claim related to use of Your name and likeness (collectively, “Claims”). This release includes without limitation any Claims related to blurring, distortion, alteration, optical illusion, digital alteration, use in composite form, whether intentional or otherwise, or use of a fictitious name, that may occur or be produced in the processing or publication of Your name and likeness.
It shall be your responsibility to obtain appropriate releases and consents to use the name and likeness, including photo, video, audio recording, or film likeness from of any third parties appearing in Your Content.
6. Disclaimer of Warranties
THE APPS, ALL INFORMATION CONTAINED HEREIN, AND ALL PRODUCTS PURCHASED HEREIN, ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND.
SBTV DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY AND NONINFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. WE DISCLAIM ALL WARRANTIES WHETHER ARISING OUT OF LAW, STATUTE, COURSE OF DEALING, TRADE USAGE, OR ANY OTHER RELATIONSHIP. WE MAKE NO WARRANTIES OF ANY KIND REGARDING THE APPS, STICKANDBALL.TV, INFORMATION FOUND ON THESE APPS, SERVICES OR PRODUCTS PURCHASED THROUGH THESE APPS, OR SERVICES OR PRODUCTS OFFERED BY THIRD PARTIES THROUGH THESE APPS. WE MAKE NO WARRANTIES WITH REGARD TO THE ACCURACY, RELIABILITY, COMPLETENESS, QUALITY, FUNCTIONALITY, TIMELINESS, SPEED, OR ACCESSIBILITY OF ANY INFORMATION SUPPLIED OR IN CONNECTION WITH THE SERVICES OR PRODUCTS OFFERED IN CONNECTION WITH THE APPS. SBTV DOES NOT WARRANT THAT THE APPS WILL BE OPERATIONAL, SECURE, ERROR-FREE, OR VIRUS FREE.
You are responsible for implementing sufficient procedures and checkpoints to satisfy Your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to Our Apps to reconstruct any lost data.
WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE APPS OR ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE APPS OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON THE APPS, OR ON ANY THIRD-PARTY WEBAPPS LINKED TO THE APPS.
7. Limitation of Liability
TO THE EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE SBTV FROM ALL LIABILITY ASSOCIATED WITH YOUR USE OF THE APPS.
You, alone, acknowledge that You are responsible for any actions You take while on this Apps. You recognize that Your use of the Apps, and any subsequent actions arising from Your use of the Apps are taken solely at Your own risk.
IN NO EVENT WILL SBTV, OUR DIRECTORS, OUR OFFICERS, OUR EMPLOYEES, OR OUR AGENTS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, OR UNDER ANY EQUITABLE THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE APPS, ANY WEBAPPSS LINKED TO IT, ANY CONTENT ON THE APPS, OR ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE APPS, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF BUSINESS OPPORTUNITIES, OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. ADDITIONALLY, YOU AGREE THAT SBTV IS NOT RESPONSIBLE FOR AND WILL NOT BE LIABLE FOR YOUR EXPOSURE TO ANY DEFAMATORY, LIBELOUS, THREATENING, OBSCENE, HARASSING, OR OTHERWISE UNLAWFUL CONTENT OR INFORMATION RESULTING FROM YOUR USE OF THESE APPS. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
YOU HEREBY AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS SBTV and its affiliates, officers, directors, employees, agents, contractors, licensors, and any information providers, from and against any and all third-party demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs or expenses (including without limitation reasonable attorneys’ fees and the costs of any investigation) arising out of, in connection with, or resulting from any violation or alleged violation of this Agreement, or any negligence, gross negligence, or willful misconduct by or on behalf of You or Your employees or agents, or any of Your Content that You provide to these Apps. For purposes of clarity, these indemnification obligations apply to Your use of the Apps, Your Content uploaded to the Apps, Your use of the App’s content and services, and Your use of services or products purchased through the Apps, other than as expressly authorized under this Agreement, Your use of any information, services, or products obtained from the Apps, and any information or content You provide to these Apps.
YOU FURTHER AGREE THAT SBTV SHALL RESERVE THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, and in such case, You agree to cooperate with SBTV in the defense of such matter.
9. Governing Law, Jurisdiction
This Agreement shall be construed, governed, and enforced under the laws of the United States and the State of Tennessee (without regard to rules governing conflict of laws). You agree that venue for all actions relating in any manner to this Agreement, shall be in a federal or state court of competent jurisdiction located in Davidson County, Nashville, Tennessee. Each party waives any objection based on forum non conveniens and waives any objection to venue of any action instituted hereunder to the extent that an action is brought in the courts identified above.
If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions will continue in full force and effect.
No waiver by SBTV of any term or condition set forth herein shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of SBTV to assert a right or provision shall not constitute a waiver of such right or provision.
12. Entire Agreement
This Agreement represents the entire understanding and complete agreement by and between Content Provider and SBTV.
Last Revised 14 October 2019