Odeum Publisher Terms of Service

1 OVERVIEW

This Terms of Service Agreement (the “Agreement”) is between Odeum LLC (“Odeum,” “we” or “us”) and you (“Publisher” or “you”). Odeum provides an online video distribution service (the “Odeum Service”) that allows you to offer, sell, and distribute video programs (“Programs”) to subscribers through custom-branded websites (“Program Sites”) and online applications (“Program Apps”) that we host.

2 ACCOUNT REGISTRATION

To offer Programs to subscribers, you must create a Publisher account with Odeum. You must provide a valid email address and other information that we may require. You represent and warrant that all information provided by you is accurate. You are solely responsible for maintaining the security of your account and for all activity that occurs under your account. You must notify us immediately if you suspect any unauthorized access to or use of your account.

If Publisher is a business entity, the account must be in the name of the business entity, and the person(s) creating and maintaining the account on behalf of the Publisher must have the authority to bind the Publisher to this Agreement.

If Publisher is an individual, Publisher must be at least 18 years old or the age of majority in the individual’s jurisdiction of residence, whichever is greater. By creating an account, you represent that you are at least 18 years old or the age of majority in the jurisdiction where you reside.

3 PRIVACY

Odeum’s policies concerning the information we collect about you, how we use it, and with whom we share it is set forth in our Privacy Policy.

In allowing subscribers to register an account with you, you may receive information concerning those subscribers. Your collection, use, and disclosure of such subscriber information is governed by our Acceptable Consumer Privacy Practices Policy.

4 ODEUM SERVICE

4.1 SALES OPTIONS

You may offer Programs to subscribers through the Odeum Service using the transaction options set forth below:

Subscription video on demand (SVOD): For a recurring fee, the subscriber may stream Programs offered within the Publisher’s subscription channel an unlimited number of times during the subscriber’s subscription period.

Subscriber Purchase: After paying the stated fee, the subscriber may stream the Program an unlimited number of times during the subscriber’s subscription period; if offered by the Publisher, the subscriber may download the Program.  The Odeum Service does not provide any Digital Rights Management, so the subscriber will have no restrictions on their usage of the downloaded Program.  Subscriber Purchases are only made available to subscribers with an active SVOD subscription.

For each offering, you must select: (i) the Programs to be offered; and (ii) transaction options, retail prices, and subscription period, as applicable. You may set a free trial period for subscriptions not to exceed one month.

4.2 TAXES AND REFUNDS

Odeum may collect taxes, including VAT (value-added tax), on any subscriber transaction (including subscription renewal charges) where it reasonably believes tax collection is required.

Odeum may, but will not be required to, provide refunds to subscribers where: (i) Odeum reasonably believes that the subscriber was unable to stream the Program in a manner consistent with the purchase terms; (ii) Odeum suspects fraud; (iii) the Program is subject to a notice of alleged intellectual property infringement; or (iv) you have breached the terms of this Agreement.

4.3 FREE TRANSACTIONS AND OFF-ODEUM SALES

You may use the Odeum Service to distribute Programs to customers on a free basis in a limited capacity, as defined by the Odeum Service, and only when a valid subscription plan has been made available for purchase by the Publisher.  

Publishers may allow subscribers to purchase coupons for the Programs outside of the Odeum Service.

4.4 PROGRAM SITES AND PROGRAM APPS

You may offer, sell, and distribute Programs through Program Sites and Program Apps that Odeum will host and maintain. You must provide all content that will be displayed on the Program Site and/or Program Apps. Program Site URLs are provided on an as-available basis.

5 ECONOMICS

5.1 FEES

You agree to pay the fees set forth in our fee schedule according to the payment terms set forth therein. Odeum may change its fees or add new fees at any time on a prospective basis.

You will be required to select a service plan before launching the Odeum Service, and any service plan that requires an Annual License Fee will require that the fee is received by Odeum in advance of the launch of the Program Site or Apps.

Annual License Fees are non-refundable.

5.2 PUBLISHER REVENUE

You are entitled to receive the amounts actually collected by Odeum from the sale of your Programs through the Odeum Service less applicable taxes, Odeum’s fees, and any chargebacks or refunds (such net amount, the “Publisher Revenue”). Odeum will pay you Publisher Revenue on a monthly basis within 30 days after the end of each month. Odeum reserves the right to make adjustments to subsequent payouts. Payouts of Publisher Revenue in non-U.S. dollar amounts are subject to a 2% foreign exchange fee.

Odeum may delay or withhold all or any portion of a Publisher Revenue payment: (i) if Odeum reasonably believes that a portion must be withheld pursuant to U.S. tax law; (ii) if Odeum is investigating suspicious purchases or a breach of the terms hereof; or (iii) to provide a reserve for anticipated refund requests and chargebacks where a Program has been withdrawn by the Publisher or removed by Odeum.

In order to receive Publisher Revenue payments, you must provide all tax and identity information required by Odeum or its payment vendor.

5.3 REPORTING AND AUDIT RIGHTS

Reports regarding Publisher Revenue will be provided through the Odeum website. Upon 10 business days’ prior written notice to Odeum, you may appoint a nationally-recognized auditor to audit Odeum’s records with respect to your Publisher Revenue. Any such audit must occur during Odeum’s normal business hours and may not occur more than once in any 12-month period. If the auditor determines an underpayment and Odeum does not dispute the underpayment, (i) Odeum will promptly pay the underpaid amount; and (ii) if the aggregate underpayment exceeds the greater of $100 or 5% of the amounts paid to date, Odeum will reimburse you for your reasonable out-of-pocket audit costs, provided, however, that this clause will not apply to amounts that have been disputed by Odeum or properly withheld under the terms of this Agreement.

6 LICENSES AND INTELLECTUAL PROPERTY

6.1 LICENSES MADE BY PUBLISHER

Programs: By uploading or otherwise submitting any Program to Odeum, you grant to Odeum all necessary rights to offer, sell, and distribute the Program to subscribers. You further grant each subscriber who makes a purchase (or receives a valid access from you) a limited license to stream and/or download the Program (if offered) for the subscriber’s personal entertainment in accordance with the terms stated at the time of purchase.

Other Content: By uploading or otherwise submitting any Content to Odeum, you grant to Odeum all necessary rights to make such Content available to Consumers through the Odeum Service (including through emails sent by Odeum) for the purpose of offering, selling, and distributing your Programs. “Content” means any creative assets (such as text, images, photographs, artwork, and audiovisual works), branding elements (such as trademarks and logos), and links to third party websites and applications, but does not include Programs.

Duration: The licenses made by you will continue during the Term. You may withdraw a Program from the Odeum Service at any time. If you do so, Odeum will cease offering your Programs for sale to new subscribers, but subscribers who purchased a Program prior to its withdrawal may continue to view the Program according to the terms stated at the time of purchase. You may delete a Program Site or Program App at any time. If you do so, Odeum will, within a commercially reasonable period of time, make the Program Site or Program App unavailable to new users, provided that Odeum may continue to support the Program Site or Program App for subscribers who previously purchased Programs.

6.2 REPRESENTATIONS AND WARRANTIES

You represent and warrant that: (i) you have the right and authority to grant the above licenses; (ii) you have cleared the use of any third party works or trademarks that are incorporated into your Programs and Content for distribution as contemplated herein; (iii) all persons appearing recognizably in your Programs and Content have provided valid releases to appear; (iv) neither Odeum nor any purchaser of a Program will need to obtain any licenses or permissions from a third party or pay any amounts to any third party in order to use or exploit the Programs or Content as contemplated herein; (v) you are not breaching any agreement with a third party by entering into this Agreement and granting the licenses set forth herein; (vi) your Programs and Content (and their use and exploitation as contemplated herein) will not infringe any third party right, including any intellectual property or privacy right; and (vii) your Programs and the Content will comply with Section 7 of this Agreement.

6.3 ODEUM LICENSES

Subject to the terms hereof, Odeum grants you a limited, revocable license to use the Odeum Service (which includes the Odeum website, your custom Program Sites, your custom Program Apps, and our API) for the purpose of offering, selling, streaming, and distributing Programs to subscribers.

6.4 NO EXCLUSIVITY; ALL RIGHTS RESERVED

All licenses granted herein are non-exclusive. As between the parties, you own all right, title, and interest in and to your Programs and Content, and Odeum owns all right, title, and interest in and to the Odeum Service, including the Odeum video player, Odeum’s application programming interface (API), your Program Sites and Program Apps (but not the Content therein), and all source code for the Odeum Service. Except as expressly set forth in this Agreement, neither party assigns any ownership interest in its intellectual property to the other party.

6.5 COPYRIGHT POLICY

We take claims of copyright infringement seriously. Please refer to our Copyright Policy for an explanation of the steps you should take if you believe any materials made available through Odeum, or any element thereof, infringes your copyright.

7 ACCEPTABLE USE POLICY

You may not upload or otherwise submit any Programs or Content that:

In using the Odeum Service, you will not:

Odeum reserves the right to remove or block any Program or Content that violates this section.

8 TERM AND TERMINATION

This Agreement begins when you create a Publisher account and continues until terminated by you or us in accordance with the terms hereof (the “Term”). You may terminate this Agreement at any time by deleting your account as instructed on the Odeum website. Odeum may terminate this Agreement at any time by providing you with 30 days’ notice. Either party may terminate this Agreement if the other party breaches any term hereof and fails to cure that breach within 15 days of the non-breaching party’s notice. In addition, Odeum reserves the right to suspend, restrict, and terminate accounts without notice for any violation of our Acceptable Use Policy (Section 7).  Odeum is not required to refund any portion of fees received, including Annual License Fees.

9 DISCLAIMERS

YOUR USE OF THE ODEUM SERVICE IS AT YOUR OWN RISK. ODEUM PROVIDES THE ODEUM SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. ODEUM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

Without limiting the above, Odeum makes no representations or warranties concerning:

10 LIMITATION OF LIABILITY

To the maximum extent permitted by law, Odeum, its parent, directors, officers, employees, representatives, consultants, agents, suppliers, and partners shall not be liable for: (i) any direct, indirect, incidental, special, consequential, or exemplary damages, including damages for loss of profits, goodwill, use, data, or other intangible losses; (ii) damages relating to any disputes between a subscriber and you; or (iii) damages exceeding the aggregate amounts paid by or to you by Odeum over the 12 months preceding the filing of your claim. The foregoing limitations apply to all claims, whether based on warranty, contract, tort, or any other legal theory, whether or not Odeum has been informed of the possibility of such damage, and whether a remedy set forth herein is found to have failed its essential purpose.

11 INDEMNIFICATION

You shall indemnify and defend Odeum and its parent, directors, officers, employees, representatives, consultants, agents, suppliers, and partners from any liability, claim, demand, damages, losses, or costs (including reasonable attorneys’ fees) arising from or related to any third party claim: (i) asserting a breach of any term of this Agreement by you; (ii) asserting a violation of any law by you; (iii) concerning your Programs or Content; or (iv) concerning your use of subscriber information.

12 BINDING ARBITRATION AND GOVERNING LAW

Binding Arbitration with Odeum: You and Odeum agree that any dispute arising out of or relating to this Agreement or your use of the Odeum Service shall be resolved by BINDING ARBITRATION administered by JAMS.

Binding Arbitration with Publishers: To the extent that a subscriber has agreed to resolve disputes with Publishers through arbitration in his or her agreements with Odeum, you agree that any dispute with a subscriber arising out of or relating to a subscriber’s purchase or viewing of one of your Programs or subscription channels shall be resolved by BINDING ARBITRATION administered by JAMS. Please be advised that subscribers maintain the right to file small claims actions.

Waiver of Class Action Claims: By agreeing to arbitrate your claims against Odeum and subscribers, (i) YOU GIVE UP YOUR RIGHT TO GO TO COURT AND HAVE YOUR CLAIMS (OR CLAIMS AGAINST YOU) TRIED BY A JUDGE OR JURY (except for subscriber suits that may be filed in small-claims court); and (ii) YOU GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING.

Arbitration Rules: The arbitration proceeding shall be governed by the then-effective JAMS’ Comprehensive Arbitration Rules or Streamlined Arbitration Rules, depending on the amount in dispute. If the arbitration involves a subscriber, it shall be subject to JAMS’ Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses. The arbitrator shall have the right to award all remedies that court may award.

Court Proceedings: Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation (except for small-claims court actions) shall be commenced only in the federal or state courts located in New York County, New York. You hereby irrevocably consent to the jurisdiction of those courts for such an action and, to the extent permitted by law, both Odeum and you WAIVE ANY RIGHT TO A TRIAL BY JURY in such an action.

Governing Law: This Agreement shall be governed by the laws of the state of New York without regard to principles of conflicts of law, provided that this arbitration clause shall be governed by the Federal Arbitration Act. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.

13 GENERAL TERMS

No Waiver: The failure of Odeum to exercise or enforce any term of this Agreement will not constitute a waiver of such term.

Provisions Severable: If any term of this Agreement is held invalid or unenforceable, that portion will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining terms will remain in full force and effect.

Interpretation: Headings are provided for convenience and shall not be used to construe the terms hereof.

Assignment: This Agreement is binding on the parties and their successors, heirs, and permitted assigns. This Agreement is not assignable or transferable by you without our prior written consent.

Relationship: The parties are independent contractors as to one another. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

No Third Parties: No third parties will have any rights under this Agreement, except that indemnified parties may enforce indemnification rights and subscribers may enforce the arbitration clause.

Force Majeure: Odeum will not be liable for any failure or delay in performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; natural disasters; wars; civil or military disturbances; sabotage; strikes; epidemics; riots; power failures; computer failure; loss or malfunction of utility, transportation, computer (hardware or software) or telephone communication service; accidents; labor disputes, acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation.

U.S. Export Compliance: You may not use the Odeum Service if (i) you are personally subject to U.S. government sanctions or (ii) you are located in a country that is subject to U.S. Government sanctions such that your use of the Odeum Service would violate U.S. law. You represent and warrant that you are not subject to such sanctions.

Notices: You agree to receive notices via the email address that you used to create an account or via the Odeum website.

Entire Agreement: This Agreement incorporates the following agreements and policies:

Except as set forth above, links to pages on the Odeum website and third party materials are for convenience only and do not form part of this Agreement.

This Agreement sets forth the entire understanding between the parties and supersedes all prior agreements regarding the same. This Agreement may only be modified by us. Any changes will be posted to the Odeum website and will apply prospectively.

Contact Us: If you have any support questions, please contact us at support@odeum.io. For all other questions regarding this Agreement, please contact us at:

Odeum LLC

425 E. 4th Street, Unit C

Long Beach, CA 90802

Attn: Legal Dept.

legal@odeum.io