360 Licensing, Inc.
Terms of Service, Hosting, and Non-Exclusive Syndication Agreement
PLEASE READ THIS DOCUMENT CAREFULLY AND COMPLETELY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING THE 360 LICENSING, INC. SERVICE, AS WELL AS YOUR LEGAL RIGHTS AND REMEDIES.
This Terms of Service Agreement, Hosting and Non-Exclusive Syndication Agreement (“Agreement”) is entered into by and between 360 Licensing, Inc., a Delaware Corporation, doing business at 12636 Muirfield Boulevard South, Jacksonville, FL 32225 (“360”), and you, and is effective as of the date of your use of this website (“Site”) and / or the date of your electronic acceptance hereof (“Electronic Acceptance”). This Agreement sets forth the general terms and conditions of your use of the Site, as well as your corresponding license to the Site and 360 of that video which you may choose to post thereupon for subsequent hosting on the Site or by 360, to the extent so applicable.
Your Electronic Acceptance of this Agreement expressly signifies that you have fully read, understand, acknowledge and agree to be bound by the terms of this Agreement. The terms “we,” “us,” or “our” shall refer to 360. The terms “you,” “your,” “user,” or “customer” shall refer to the individual or entity who accepts this Agreement, or who has access to your account or the services the subject hereof. In providing your Electronic Acceptance of this Agreement, you expressly represent and warrant that you are over the age of eighteen (18) and have the legal capacity to enter into a contract. If you are entering into this Agreement on behalf of a corporate entity, you expressly represent and warrant you have the legal authority to so bind the aforementioned entity.
By and through your Electronic Acceptance of this Agreement, as well as the remittance of any applicable consideration associated therewith, you shall become a member (“Member”) of the 360 Site, entitling you to certain benefits, including the opportunity to upload, post and/or re-transmit (collectively “Post(ing)”) their respective video(s), image, text, audio recording or other work (collectively “Content”) on the 360 Site for on-going hosting thereby (“Host(ing”). The aforementioned benefits and services are premised on the following material terms and conditions.
You shall be required enter into a Membership Agreement (“Membership” or “Membership Agreement”) with 360 regarding your Posting of Content to the Site and its subsequent Hosting thereof, including provisions for 360’s re-posting and re-transmittal thereof in all media now known or hereinafter discovered, as well the grant of rights to 360 providing for its limited representation of your rights in the future licensing and syndication of your Content to 360’s clients and third party prospective clients for purposes below-described (collectively “Syndication”).
You shall additionally be asked to read, review, and indicate your Electronic acceptance of this Agreement, including but not limited to the above-referenced rights you grant to 360 hereunder. In completing your Membership Agreement, you shall be required to register with the Site, providing your legal name, user name, a valid street address, valid e-mail address, and potential payment information (both for your payment of fees to 360, as well as your receipt of subsequent syndication and licensing revenue from 360). All such information must be completed fully and accurately. If you are a business, government, or non-profit entity, you must use the actual name of your organization in the Site registration. It shall be a violation of this Agreement to permit others to use or access the Site or Post thereto utilizing your registration or Membership Agreement information. 360 reserves the right to terminate the Membership Agreement and disable your access to the Site should we become aware of any violation of the aforementioned terms and conditions or other breach of this Agreement.
Membership Categories, Fees, Terms, and Conditions
360 offers tiered categories of Membership and Hosting on its Site, as below described:
|Membership Level||Monthly Fee (“Fee(s)”)||Upload Limitation||File Size Limitation||Description, Other Terms and Conditions|
|Free(“Free”)||None||10 videos per month||300MB||Subject to the grant of companion Non-Exclusive Syndication Rights to 360, as below described|
|Bronze(“Basic”)||$19.95 per month||20 videos per month||400MB||Subject to the grant of companion Non-Exclusive Syndication Rights to 360, as below described|
|Silver(“Semi-Pro”)||$39.95 per month||Unlimited||400MB||Subject to the grant of companion Non-Exclusive Syndication Rights to 360, as below described|
|Gold (“Professional”)||$69.95 per month||Unlimited||2GB||Subject to the grant of companion Non-Exclusive Syndication Rights to 360, as below described|
The storage above-referenced limits above referenced are calculated based upon source files. Larger upload sizes may be purchased on a case-specific basis by contacting sales at 360licensing dot biz.
Monthly Member Fees shall be billed to your designated credit card or payment system on the first of every month in advance of service. Monthly Fees shall be self-renewing for subsequent monthly periods on a month-to-month basis (“Monthly Service Period”), until such time as you shall cancel or otherwise terminate your Membership. All purchases of Monthly Fees are considered final and non-refundable. You may cancel or terminate your Membership by e-mailing sales at 360licensing dot biz prior to the next applicable Monthly Service Period. Partial Monthly Fees are not pro-rated in the instance of your cancellation or our termination (see below).
For so long as your Content remains Hosted by 360 on the Site and your Member Fees are current, your account shall be considered active and subject to the rights and benefits of this Agreement.
Rights You Grant To 360 and the 360 Site
By posting your Content to the Site, you authorize 360 to use the Content and associated rights in the manner contemplated by this Site and this Agreement, including the right to use, reproduce, distribute, prepare derivative works of and combine with other Content or works in promoting, distributing, or redistributing all or part of this site in any media formats and through any media channels, without restriction of any kind, and without any further payment or other consideration, permission, or notification, except as expressly contemplated herein.
You further grant 360 and the Site the right to use, reproduce, distribute, prepare derivative works of, combine with other works, display and perform your Content, as permitted through the functionality of this Site and under this Agreement.
The above licenses granted by you as to your Content terminate within a commercially reasonable time after you remove or delete your Content from the Site. You understand and agree that 360 and / or the Site may retain (but not distribute, display, or perform) server copies of your Content that have been removed or deleted. The above-referenced licenses granted by you to your Content are perpetual and irrevocable.
Designation of 360 as your Non-Exclusive Agent for Paid Syndication and Stock Distribution
Your recognize 360 as a pioneer in the creation, distribution, and exploitation of Content produced in a 360 degree viewable format (“360 Format”). You further recognize an emerging market for the Syndication of 360 Format video, potentially including your Content, in complete or derivative format, partial or substantial re-broadcast or re-transmission, by third-parties, or use as stock or B-Roll footage (as so commonly defined in the industry).
As additional consideration for Hosting discounts afforded to Free, Semi-Pro and Pro Members, by and through your electronic acceptance of this Agreement in any of the aforementioned Membership categories, as well as your Posting of Content to the Site, you expressly herewith designate 360 as your non-exclusive Syndication agent (“Syndication Agent”), subject to the following material terms and conditions:
• 360 shall have the non-exclusive right to represent your Content and solicit Syndication opportunities therefor as your Syndication Agent, subject to your prior approval in writing (or e-mail) of every such license (“Syndication License”), which approval shall not be unreasonably withheld, as more fully described below;
• 360 shall administer each such Syndication License, including but not limited to preparation of the Content, final review and approval of its ultimate use (consistent with the subject Syndication License), trafficking and execution of the Syndication License, and billing and collection of Syndication License net royalties (“Royalties”), Royalties herein being defined as actual monies collected by 360 on your behalf, net of applicable taxes, duplication and transmittal fees or costs, and /or third-party commissions or fees.
In consideration of its efforts, you authorize 360 to retain for its own benefit the following sums realized from Royalties collected with respect to each Syndication License (collectively “360 Commission”):
• “Free” Members: Fifty Percent (50%) of Syndication License Royalties generated and collected by 360 on your behalf;
• “Basic” Members: Forty Percent (40%) of Syndication License Royalties generated and collected by 360 on your behalf; or,
• “Semi-Pro” Members: Thirty Percent (30%) of Syndication License Royalties generated and collected by 360 on your behalf;or,
• “Professional” Members: Twenty Percent (20%) of Syndication License Royalties generated and collected by 360 on your behalf.
Net Royalties, after deduction of the aforementioned applicable 360 Commission(s), shall be payable to the member by wire transfer, PayPal or check (less any bank wiring fees) no later than the Fifteenth (15th) day of the month following the close of the quarter in which such Royalties are realized by 360, to wit: the 15th day of April, July, October, and January).
Your Reservation of Rights as to Non-Exclusive Syndication and Approval Rights
The rights herein granted by you to 360 to act as your Syndication Agent are non-exclusive and terminate within a commercially reasonable time after you cancel your Membership or remove or delete your Content from the Site, unless otherwise mutually agreed in writing.
Nothing herein shall preclude you from engaging other syndication agents or consummating additional syndication opportunities directly, which rights are expressly reserved herein by you.
Prior to its execution of any Syndication License on your behalf, 360 shall provide you in writing the right to approve same (“Approval”), which Approval shall not be unreasonably withheld and shall be granted or affirmed in writing or by e-mail. You acknowledge any unreasonable withholding of your aforementioned Approval pursuant to this provision may be construed by 360 as a breach of this Agreement and result in a termination or modification thereof, as more fully described below. For purposes of clarity, however, any refusal to grant your Approval to a prospective License which may entail use of your Content by a third-party in a manner which would fall within the prohibitions described in the “Content Requirements, Representations, and Warranties” below-described, shall be considered reasonable.
You expressly acknowledge that notwithstanding your reservation of rights to engage in or grant other non-exclusive syndication distribution agreements, any grant of such rights to a prospective licensee of your Content who has effectuated a prior Syndication License for your Content by and through 360 shall remain Royalty-bearing to 360 as to any and all of your Content licensed thereto, whether by you or another party, for a term of thirteen (13) months subsequent to the last date of Syndication License effected by and through 360 pursuant to the terms of this Agreement.
Content Requirements, Representations and Warranties
As a material term of this Agreement, you agree not to Post any Content that: (a) infringes in any manner on any third party’s rights, including but not limited to such person’s copyright, trademark, personality or publicity right, and privacy rights; (b) contains any sexually explicit images or pornography (as more fully defined in 18 U.S.C. 2256), provided, however, non-sexual nudity is permitted; (c) contains hateful, defamatory, or discriminatory speech, or incites hatred against any individual or group; (d) exploits minors; (e) depicts unlawful acts or extreme violence; (f) promotes fraudulent schemes, multi-level marketing, “get rich quick” schemes, online gaming or gambling, cash gifting, or any other dubious money-making ventures; or, (g) violates any law.
You further represent and warrant that by and through the Posting of your Content you shall not: (a) act in a deceptive manner or impersonate any person; (b) harass or stalk any other person; (c) harm or exploit minors; (d) distribute “spam” or otherwise deliver messaging for which a receiver has not explicitly “opted-in;” (e) collect information about others, including 360 Site users; or, (f) advertise or solicit others to purchase any product or service.
You additionally represent and warrant that for each work of Content you Post: (a) you have the full right to any and all third party rights or licenses with respect to the production and/or Posting of said Content; (b) 360 shall accordingly be relieved of any corresponding obligation to obtain licenses from any third parties, or pay any royalties to third parties (except as may be otherwise expressly set forth herein), and that your Content does not infringe on any party’s intellectual property rights, privacy rights, or copyright.
As to any and all Content which you Post for Hosting on the 360 Site, you shall indemnify, defend, and hold harmless 360 and its affiliates, directors, officers, employees, agents and authorized licenses from and against all third party claims that (a) arise from your Posting of Content on the 360 Site; (b) or from any transmittal or syndication of your Content by 360 in accord with the terms of this Agreement; (c) or from your violation of any third party’s rights, including but not limited to intellectual property rights and copyright; (d) or otherwise arises from your violation of any term of this Agreement.
360’s Reservation of Rights, Disclosures, and Limitation of Liability
360 reserves the right to change the terms and conditions of the Agreement at any time, subject to its provision to you of 30 days written notice with respect thereto, inclusive of the option to cancel or modify your Membership. 360 further reserves the right to suspend, deny or terminate your Membership and associated service to you in the instance of your breach of this Agreement. In such instance, you will be notified by e-mail of your breach and have five (5) business days in which to cure same, absent which your Content may be removed from the Site and your Membership terminated in the sole discretion of 360.
Notwithstanding any provision to the contrary herein, 360 has no obligation to screen or monitor any Content on the Site, nor does it guarantee that all such Content Posted thereto complies with this Agreement or is suitable for all users.
360 provides the Hosting and Site benefits the subject of this Agreement on an “as is” and “as available” basis. While 360 devotes is commercially reasonable efforts to assure maximum uptime access to its servers and Hosting facilities, there are no warranties of any kind, whether expressed or implied, with respect thereto or the other matters subject of this Agreement. You accept the terms and conditions of this Agreement “as is” and at your own risk.
Moreover, excepts as otherwise expressly set forth herein, 360 makes no representations or warranties as to the following:
• That the services the subject hereof, including Hosting on and by the 360 Site, is permitted in your jurisdiction;
• That the 360 Site and its servers will offer uninterrupted or error-free service;
• The Content Posted by any Member;
• Any third party’s use of Content you submit, other than as set forth in a Syndication License, as below-defined;
• That the services subject of this Agreement will adequately meet your business or professional needs; and,
• That 360 will continue to support any particular product or service subject of this Agreement.
To the extent any disclaimer or limitation of liability does not comport with applicable law or statute, or should be found to be invalid by a court of competent jurisdiction, all applicable express, implied, or statutory warranties shall be limited in duration to the last applicable Monthly Service Period, and any damages as to prior Monthly Service Periods shall be and are herewith deemed to have been waived (“Waiver”), which Waiver is a knowing, intelligent, and voluntary waiver of a fully known right.
To the fullest extent permitted by law 360 shall not be liable for any direct, indirect, incidental, special, consequential, or exemplary damages arising from the matters subject of this Agreement, including but not limited to damages related to lass of profits, goodwill, data, Content or other intangible losses. In any instance, you agree that 360’s liability to you shall not exceed the aggregate of Monthly Fees paid by you to 360 over the prior twelve (12) months preceding your claim.
Dispute Resolution. This Agreement shall be governed by the laws of the State of Florida, United States of America without regard to conflict of law provisions. The Uniform Commercial Code and the United Nations Convention of Controls for International Sale of Goods shall not apply. Further, any dispute arising from this Agreement shall be adjudicated by any court of competent jurisdiction in Jacksonville, Florida, United States of America. Any such action shall be a bench trial in which you forever and irrevocably waive any right to a trial by jury.
Severability and Waiver. Should any term of this Agreement be found to be invalid or unenforceable by any court of competent jurisdiction, the remaining provisions shall remain in force and the Agreement interpreted in accord therewith. No failure or delay by 360 in exercising its rights hereunder shall be construed as a waiver thereof. All rights and remedies hereunder are cumulative and non-exclusive.
Successors and Assignment. This Agreement is binding upon and shall inure to the benefit of the parties hereto, as well as their respective successors, heirs, executors, administrators, personal representatives, and assigns. You may not assign this Agreement, however, without the prior written consent of 360.
Interpretation and Construction. Headings in this Agreement are for convenience only and no substantive meaning shall be accorded thereto. You acknowledge you have had opportunity to consult with counsel of your own choosing prior to your Electronic Acceptance hereof, as well as the opportunity to negotiate and contribute to the terms and conditions of this Agreement, and accordingly no constructive interpretation should be accorded to any party hereto regarding the drafting of this Agreement, nor is this Agreement one of adhesion or duress.
Notices. You consent to receive all communications regarding this Agreement, including notices, amendments, and disclosures from 360 electronically at the e-mail address provided in your Membership Agreement. To the extent you wish to provide 360 any legal notice, such notice should be provided by e-mail to charlie at 360Heros dot com AND by Registered or Certified U.S. Mail to 360 Licensing, Inc., Attn: Charles F. Schmitt, Esq., 12636 Muirfield Boulevard South, Jacksonville, FL 32225.
Complete Agreement. This Agreement embodies the full and complete understanding of the parties as to the subject matter hereof and may not be amended or modified absent the prior written consent of you and 360.