Elektricity Broadcaster Agreement
last updated on 03/31/2020
This Elektricity Broadcaster Agreement (“Agreement”) contains the terms and conditions that govern your participation in the Elektricity Broadcaster Program (“Program”), which is operated by Elektricity, LLC and its affiliates (collectively, “we”, “us”, “our” or “Elektricity”). Any person or entity that participates or attempts to participate in the Program (such person or entity, “you”, or an “Affiliate”) must accept this Agreement without change.
By registering for the Program, you have agreed to the terms and conditions of this Agreement, without change and have entered into a legal contract between you and Elektricity; provided, however, that this Agreement shall not be effective until we determine that you are eligible to participate in the Program as further described in Section 2. The Elektricity Terms of Service (the “Terms of Service ”) separately govern your use of the Elektricity Service. To the extent there is any conflict between this Agreement and the Terms of Service, this Agreement will take precedence. All capitalized terms not defined in this Agreement have the respective meanings set forth in the Terms of Service.
1. Description of the Program. The Program permits you to monetize the broadcasting, streaming, distribution, and exhibition of you User Content through the products, services or programs described herein.
2. Eligibility and Compliance.
2.1. General Eligibility. As part of the enrollment process into the Program, you must submit a complete and accurate Program application (including all forms, documents, or certifications as may be required to satisfy any tax obligations with respect to payments under this Agreement). If you are an individual, you must be at least 13 years of age. If you are between the ages of 13 and 18 (or between 13 and the age of legal majority in your country of residence), you may only participate in the Program under the supervision of a parent or legal guardian who agrees to be bound by this Agreement. We will evaluate your application and notify you of its acceptance or rejection. We will determine your eligibility at our sole discretion.
If we (a) reject your application or (b) terminate your account in connection with any violation or abuse, including, but not limited to any violations of the Terms of Service and the Community Guidelines, you cannot attempt to re-join the Program without our advance written authorization.
2.2. Live Content Exclusivity. Solely for any live audio-visual work you choose to provide to us as User Content (your “Live Elektricity Content”), starting from beginning of the Initial Broadcast of any such Live Elektricity Content, and continuing for a period of twenty-four (24) hours following the end of the Initial Broadcast of such Live Elektricity Content (the “Exclusivity Period”), such Live Elektricity Content is exclusive to Elektricity (even as to you). During the Exclusivity Period of any Live Elektricity Content, you will not, nor permit or authorize any third party to, broadcast, stream, distribute, exhibit and otherwise make available such Live Elektricity Content in any manner. Notwithstanding the foregoing, you have the right to make any Live Elektricity Content available, during the Exclusivity Period, solely via the Elektricity Services. After the Exclusivity Period of any Live Elektricity Content, the license to such Live Elektricity Content will become non-exclusive and you will have the right to broadcast, stream, distribute, exhibit and otherwise make available such Live Elektricity Content in any manner and format desired by you. The “Initial Broadcast” means the initial broadcasting, streaming, distribution, or other exhibition of Live Elektricity Content via the internet, whether such Live Elektricity Content is broadcast on a real-time, live basis as the subject event is occurring or such Live Elektricity Content has been prerecorded and is being initially broadcast for the first time via any manner or method of streaming.
2.3. Compliance Requirements. You will ensure that the information in your Program application and otherwise associated with your account, including your email address and other contact information and identification of your Elektricity channel, is at all times complete, accurate, and up-to-date. You must comply with this Agreement, the Terms of Service , the Community Guidelines and the Credits Acceptable Use Policy, including its restrictions on solicitation of Credits (as defined below), each as updated from time to time, in order to participate in the Program and to receive Program Fees (as defined below). Please read them carefully. You must promptly provide us with information that we request to verify your compliance with this Agreement.
2.4. Violations. If you violate this Agreement, the Terms of Service or the Credits Acceptable Use Policy, in addition to any other rights or remedies available to us, we reserve the right to withhold (and you agree you will not be eligible to receive) Program Fees otherwise payable to you under this Agreement, whether or not directly related to such violation.
3. Program Fees. You may be eligible to receive the following fees under this Agreement as part of the Program (collectively, the “Program Fees”):
|Credits and Tipping||Elektricity, in its sole discretion, may make Credits available to Elektricity users to display, present or otherwise use in your channel in chat, or by other means. “Credits” means digital content (i.e., digital money) that allow Elektricity Service users to celebrate moments and express appreciation for broadcasters using the “tipping” feature on the Elektricity Service. You will receive one U.S. cent ($.50) per Credit that is used by a viewer tips you through chat, or other means (“Credit Revenue Share”), in connection therewith. You must comply with the Credits Acceptable Use Policy, including its restrictions on solicitation of Credits, as updated from time to time, in order to receive the Credits Revenue Share. The Credits Revenue Share may be adjusted by Elektricity from time to time, in its sole discretion, including, for Credits received by users on a promotional basis, purchased in different local jurisdictions or as otherwise required to prevent harm to Elektricity’s business interests. In addition, Elektricity, in its sole discretion, may determine not to provide you with Credits Revenue Share for any use of Credits that is not consistent with the Credits Acceptable Use Policy, available at http://18.104.22.168.xip.io/credits-acceptable-use incorporated by reference in the Terms of Service, and as may be updated by Elektricity from time to time. Elektricity reserves the right to stop offering or supporting Credits at any time.|
|Channel Subscription Services||Elektricity has the exclusive right to offer, promote and make available your User Content, in which such User Content has not been bundled with any third-party content, to end users and viewers of the Elektricity Services on a subscription, pay-per-view, pay-by-minute or similar fee (“Channel Subscription Services”). We may offer your User Content through such Channel Subscription Services at such rates, and subject to terms that are appropriate for the local market; as determined by us in our sole discretion. Elektricity has the exclusive right to collect the revenues from viewers and end users who have purchased Channel Subscription Services.
The Net Subscription Revenues for the Channel Subscription Services will be split 50% to you and 50% to us.
“Net Subscription Revenues” means the total revenues actually received by us from viewers and end users who have purchased Channel Subscription Services, less any: (a) billing and payments costs and all costs associated with transactions, which may include monthly and per-transaction processing charges, and merchant bank fees; (b) actual tax amounts related to the generation of such gross revenues to be paid to local, state, federal, and foreign entities, including VAT and sales taxes; and (c) returns, refunds, chargebacks, discounts, and credits.
|Special Programs||From time to time, we may run general special programs that may provide you with the opportunity to earn additional or alternative fees (“Special Program Fees”). For the avoidance of doubt (and notwithstanding any time period described in this section), we reserve the right to discontinue or modify all or part of any special program at any time. Your participation in any special program will be subject to your agreement to any terms, rules or policies that we may require you to agree to in order to participate in such special program. If there is a conflict between this Agreement and the terms, rules, or policies for any special program, the latter terms, rules or policies will take precedence with respect to your participation in such special program. Payouts related to any prizes from Elektricity operated, or owned tournaments, are governed by the rules associated with that particular tournament; those are not considered Special Programs.|
|Advertisements||Elektricity has the exclusive right to sell and/or display advertisements of any nature (“Advertisements”) in connection with your User Content on the Elektricity Services.
“Net Advertisement Revenues” means any and all revenues actually received by Elektricity for the display or broadcast of any Advertisements in connection with your User Content via the Player, less any chargebacks, refunds, ad serving costs, and sales commissions.
Elektricity will pay you at certain rates for the display and broadcast of such Advertisements through the Elektricity media player, depending upon the territory in which the end user views such Advertisement. These rates will be either at a fixed CPM basis on delivered impressions or a percentage of applicable Net Advertisement Revenues, and are available in your broadcaster dashboard. These rates are made part of this Agreement, and may change from time to time in Elektricity’s sole discretion with any rate changes applying to Advertisements run after such change.
From time to time, Elektricity may also offer incentives (such as multipliers) that increase your CPM or percentage rates. Additional legal terms may apply to those incentive programs. Regardless of any incentive or (if permitted) combination of incentives, Elektricity’s payments to you for Advertisements will not exceed 75% of applicable Net Advertisement Revenues.
Elektricity may also offer tools that you may use to estimate or project your Advertisement-based revenue. While we try to make these tools as accurate as possible, they are for informational purposes only and do not affect your actual revenue calculation.
4. Payment and Reporting.
4.1. Payment Terms. Program Fees payable by Elektricity to you will be paid to you on a monthly basis, within forty-five (45) days after the end of each calendar month, in United States Dollars, less (a) billing and payment costs (which may include monthly and pre-transaction processing charges and merchant bank fees); and (b) returns, refunds, chargebacks, discounts and credits; provided that you have timely delivered to Elektricity all documentation necessary and appropriate to effectuate payment (e.g., W9, and the like). If we are obligated to pay you any Program Fees in a currency that is not United States Dollars, we will convert such Program Fees at an exchange rate that we or our bank determine, which may include fees and charges for the conversion. We will pay you any Program Fees in a payment method that you choose from the payment options that we will make available for the Program. To ensure proper payment, you are responsible for providing and maintaining accurate contact and payment information through the Elektricity Service. Any changes to your contact and payment information will not be effective until at least seven days after submission to us. Elektricity will not be obligated to make a payment if the total amount to be paid to you under this Agreement is less than $100 (the “Payment Threshold”), and may instead accrue such payment obligation until such time as its overall obligation to you is at least the Payment Threshold. If any excess payment has been made to you for any reason whatsoever, we reserve the right to adjust or offset the same against any subsequent fees payable to you under this Agreement.
The following paragraph only applies to you if you reside in the USA or in a country that is not currently a member of the European Union:
If at any time there has been no substantial activity on your Program account for at least twelve consecutive months, and you have not earned at least $100 in Program Fees during that twelve month period, we may close your inactive account and terminate this Agreement. If you have accrued Program Fees in your account, a maintenance fee will be deducted from your remaining balance. The maintenance fee will be the lesser of the accrued Program Fees in your account or $25. Any remaining balance will be paid to you.
The following paragraph only applies to you if you reside in a country that is currently a member of the European Union:
If at any time there has been no substantial activity on your Program account for at least twelve consecutive months, and you have not earned at least $100 in Program Fees during that twelve month period, we will have the right, upon seven (7) days’ written notice, to (i) close your inactive account and terminate this Agreement and (ii) deduct a maintenance fee from your remaining balance. The maintenance fee will be the lesser of the accrued Program Fees in your account or $25. Any remaining balance will be paid to you.
4.2. Reporting. We will provide you with access to our dashboard which will provide data relating to Program Fees (“Reporting Data”). You acknowledge and agree that all Reporting Data is and will at all times be exclusively owned by us and will remain our confidential information.
4.3. Taxes. You may charge and we will pay applicable national, state or local sales or use taxes or value added taxes that you are legally obligated to charge (“Taxes”), provided that such Taxes are stated on the original invoice that you provide to us and your invoices state such Taxes separately and meet the requirements for a valid tax invoice. We may deduct or withhold any taxes that we may be legally obligated to deduct or withhold from any payment made to you under this Agreement, and payment to you as reduced by such deductions or withholdings will constitute full payment and settlement to you of such payment under this Agreement. Throughout your participation in the Program, you will provide us with any forms, documents, or certifications as may be required for us to satisfy any information reporting or withholding tax obligations with respect to any payments under this Agreement.
5. License. Other than as set out expressly herein or in the Terms of Service, neither party will acquire any right, title or interest in any intellectual property rights belonging to the other party or to the other party’s licensors.
7. Representations and Warranties. You represent, warrant, and covenant that (a) you are at least 13 years of age and have not been previously removed from or prohibited from receiving the Elektricity Services, (b) you will participate in the Program in accordance with this Agreement, (c) your participation in the Program will not violate any applicable laws, ordinances, rules, regulations, orders, licenses, permits, industry standards, judgments, decisions, or other requirements of any applicable governmental authority (including all such rules governing communications and marketing), (d) you have the full corporate right, power and authority to enter into this Agreement and to perform the acts required hereunder; (e) your execution of this Agreement, and your performance of your obligations and duties hereunder, do not and will not violate any agreement to which you are a party or by which you are otherwise bound; and (f) the information you provide in connection with the Program is accurate and complete at all times. You can update your information by contacting us through the Elektricity Service.
We do not make any representation, warranty, or covenant regarding the amount of Program Fees you can expect at any time in connection with the Program, and we will not be liable for any actions you undertake based on your expectations.
8. Elektricity Service Customers. Our customers are not, by virtue of your participation in the Program, your customers. As between you and us, all pricing, terms of sale, rules, policies and operating procedures concerning customer orders, customer service and product sales set forth on the Elektricity Service will apply to those customers, and we may change them at any time. You will not handle or address any contacts with any of our customers, and, if contacted by any of our customers for a matter relating to interaction with the Elektricity Service, you will state that those customers must follow contact directions on the Elektricity Service to address customer service issues.
9. Term and Termination. The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either you or us. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. We may withhold accrued unpaid Program Fees for a reasonable period of time following termination to ensure that the correct amount is paid (e.g., to account for any cancelations or returns). Upon any termination of this Agreement, all rights and obligations of the parties will be extinguished, except that the rights and obligations of the parties under Sections 8 and 11-17 will survive the termination of this Agreement. If you terminate the Agreement and your earned balance equals or exceeds the Payment Threshold, we will pay you your earned balance within approximately 45 days after the end of the calendar month in which the Agreement is terminated, pursuant to Section 4.1. Any earned balance below the Payment Threshold will remain unpaid. No termination of this Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Agreement prior to termination.
10. Modifications. Elektricity reserves the right, at our discretion, to change, modify, add, or remove portions of this Agreement at any time (for example to reflect updates to the Elektricity Service or to reflect changes in the law). If Elektricity changes this Agreement, we will provide you notice of these changes, such as by sending an email, posting a notice on the Elektricity Service or updating the “Last Updated” date above. Please check this Agreement periodically for those changes. Modifications may include, for example, changes to the Program Fees, Program eligibility, payment procedures, and other Program requirements. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE EFFECTIVE DATE OF ANY MODIFICATION (E.G., THE DATE OF OUR POSTING OF A CHANGE NOTICE OR REVISED AGREEMENT OR THE DATE SPECIFIED IN ANY EMAIL TO YOU REGARDING SUCH MODIFICATION) WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
11. Disclaimers. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) THE PROGRAM AND THE CONTENT AND MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY ELEKTRICITY; (B) ELEKTRICITY, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE PROGRAM, INCLUDING ANY INFORMATION, CONTENT OR MATERIALS CONTAINED THEREIN; (C) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, ELEKTRICITY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ELEKTRICITY FOR THE PROGRAM WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 11, THE TERM “ELEKTRICITY” INCLUDES ELEKTRICITY’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.
12. Indemnification. You hereby release and agree to defend, hold harmless, and indemnify us, and/or our subsidiaries, affiliates, directors, officers, employees, agents, successors and assigns from and against any allegation or claim based on, or any loss, damage, settlement, cost, expense and any other liability (including but not limited to reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification), arising from or related to: (a) any act or omission by you, including, without limitation any breach of this Agreement (including your representations and warranties in Section 7 above) or allegation or claim of negligence, strict liability, willful misconduct or fraud of you; or (b) your access to or use of the Program.
13. Limitation of Liability. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE LIABLE TO YOU FOR LOST REVENUE, LOST PROFITS, LOST BUSINESS, OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS AGREEMENT OR THE PROGRAM. FURTHER, OUR AGGREGATE LIABILITY TO YOU, UNDER ANY THEORY OF LIABILITY, IN CONNECTION WITH THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
14. Relationship of Parties. You and we are, and will remain at all times, independent contractors, and nothing in this Agreement will be construed to create an agency, employment, fiduciary, representative or any other relationship between you and us. You will not represent yourself to be an employee, representative, or agent of us. You understand and agree that you do not have authority to bind us in any manner, or enter into any agreement or incur any liability on behalf of us.
15. Governing Law, Jurisdiction, and Venue. This Agreement is governed in accordance with the laws of the State of New Mexico, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the laws of the State of New Mexico to the rights and duties of the parties. Any legal suit, action or proceeding arising out of or relating to this Agreement by a party will be resolved by litigation in the courts located within the City of Albuquerque and County of Bernalillo in the State of New Mexico. The parties hereby consent to the exclusive jurisdiction and venue of such courts, will accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to them.
16. Arbitration. Any dispute or claim relating in any way to this Agreement, the terms thereof, or your participation in the Program that arises between the parties (including the parties’ respective parent, affiliate and/or subsidiary entities) will be resolved by binding arbitration as described in this paragraph, rather than in court, except that (a) you may assert claims in a small claims court if your claims qualify, and (b) either party may bring suit by submitting to the courts in the aforementioned jurisdiction and waiving such party’s respective rights to any other jurisdiction to enjoin infringement or other misuse of intellectual property rights. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. For you to begin an arbitration proceeding, you must send a letter requesting arbitration and describing the claim to Elektricity, LLC, 318 Isleta Blvd SW, Albuquerque, NM 87105. Arbitration shall be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules. We will reimburse those fees for claims totally less than $10,000 unless the arbiter determines the claims are frivolous. Likewise, we will not seek attorneys’ fees and costs from you in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on submissions, or in person in the county in which you are located, or the agreed upon jurisdiction described above. The parties agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, the parties each waive any right to a jury trial.
17.1. Assignment. You may not assign this Agreement, by operation of law or otherwise, without our express prior written approval. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Any attempt to assign in violation of this section is void in each instance. We may assign this Agreement: (a) to any of our affiliates; or (b) in connection with any merger, consolidation, reorganization, sale of all or substantially all of our assets or any similar transaction.
17.2. Further Assurances. You will take or cause to be taken such further actions, and will execute, deliver and file or cause to be executed, delivered and filed such further documents and instruments, and will obtain such consents, as may be reasonably required or requested by us in order to effectuate fully the purposes, terms and conditions of this Agreement.
17.3. Waiver. The waiver by us of a breach of or a default under any provision of this Agreement will be in writing and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay or omission on our part to exercise or avail itself of any right or remedy that we have or may have hereunder operate as a waiver of any right or remedy.
17.4. Severability. Any determination that any provision of this Agreement, or any application thereof is invalid, illegal or unenforceable in any respect in any instance will not affect the validity, legality and enforceability of such provision in any other instance, or the validity, legality, or enforceability of any other provision of this Agreement, and such provision shall be deemed to be reinstated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law.
17.5. Captions and Section Headings. The captions and section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.
17.6. Entire Agreement. This Agreement contains the complete understanding between the parties with respect to their respective subject matter hereof and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and will not be modified except in writing, signed or otherwise agreed to by both parties, or by a change to this Agreement made by Elektricity as set forth in Section 10 above.