Unless otherwise expressly agreed between you and Dailymotion in writing, your subscription to the Partner Program is governed by the following terms and conditions
PARTNER PROGRAM TERMS AND CONDITIONS
You will be referred to herein as the "PARTNER". DAILYMOTIONand PARTNER may hereinafter be referred to, individually as a " Party" and collectively as the " Parties".
DAILYMOTION operates a free-of-charge video-hosting worldwide website available at www.dailymotion.comwhich enables users to access, stream, upload, store, and share videos on the Internet, and from any other technical, communication or transmission platforms now known or hereafter devised, discovered, or developed including, without limitation, mobile phones, tablets, IPTV platforms and other devices.
PARTNER has agreed to the following Terms of the program provided by DAILYMOTION to the PARTNER (the « PARTNER Program ») enabling an optimized exploitation of PARTNER's content and the use of features available on the DAILYMOTION Site, including but not limited to the Video Monetization Feature and Website Monetization Feature as defined hereunder, and any current or future tool which may be supplied by DAILYMOTION to PARTNER.
In consideration of the mutual agreements and covenants set forth below, the Parties agree as follows.
TITLE 1: PREAMBLE
Unless otherwise specifically provided, and in addition to the other capitalized terms defined in these Terms, the following terms shall have the meanings set forth below:
« Advertising »: means Display Advertising together with In-Stream Advertising.
« Affiliate(s) »: means with respect to either party, any corporation, firm, partnership, person or other entity, which directly or indirectly owns, is owned by or is under common ownership with such party to the extent of at least 50% of the equity having the power to vote on or direct the affairs of the entity, and any person, firm, partnership, corporation or other entity actually controlled by, controlling or under common control with such party.
« Content »: means all videos uploaded on one or all PARTNER's Accounts by the PARTNER including any associated data (title, description, category, duration, etc.) in digital format as specified under Section 3.1.
« DAILYMOTION** Properties** »: means (i) DAILYMOTION Site and (ii) all DAILYMOTION applications, both (i) and (ii) as accessible (online or offline) via any device including but not limited to: smartphones, tablets, game consoles, any IP/IPTV platform provided through a high-speed Internet connection on IP protocol, any internet-enabled television devices or through any current or future device.
« DAILYMOTION** Service** »: means the DAILYMOTION products, technology, platforms, interfaces, and services provided by DAILYMOTION, which includes (i) the DAILYMOTION Properties; and (ii) the DAILYMOTION Video Player that is embeddable onto any website.
« DAILYMOTION** Site** »: means the video-hosting worldwide Internet website (as accessible through an Internet browser from any device including but not limited to mobile and tablet) available at www.dailymotion.com or at any other URL specifically dedicated to a country (e.g.: www.dailymotion.fr, www.dailymotion.us, etc.).
« Display Advertising »: means advertisements inserted around the Video Player, including, but not limited to ad formats such as medium rectangle, leader board, roadblock, or hyperlink ads, as available.
« In-Stream Advertising »: means advertisements inserted within the Video Player before and/or during and/or after the Content and/or the Third Party Videos (as the case may be), including but not limited to ad formats such as pre/post roll, player branding, and/or overlay ads, as available.
« Net Advertising Revenues related to the Video Monetization Feature »: means the gross revenues received from the sale of In-Stream Advertising served in connection with the Content distributed under the Video Monetization Feature on the DAILYMOTION Service, after deduction of any applicable taxes.
« Net Advertising Revenues related to the Website Monetization Feature »: means the gross revenues received by DAILYMOTION from the sale of In-Stream Advertising served in connection with Third Party Video(s) distributed under the Website Monetization Feature through the Video Player on the PARTNER Properties, after deduction of applicable taxes.
« PARTNER Account(s) »: means the PARTNER Master Account together with PARTNER Sub-Accounts.
« PARTNER Master Account »: means the Content storage space which is dedicated to PARTNER from which PARTNER can manage all the PARTNER Sub-Accounts. The PARTNER Master Account shall notably have accessible information regarding the total number of items of Content available on all PARTNER Sub-Accounts, the revenues generated from the PARTNER Master Account and each of the PARTNER Sub-Accounts, and the number of views for all Content (in total and per item of Content), if any.
« PARTNER Program Revenues »: means the Net Advertising Revenues related to the Video Monetization Feature together with the Net Advertising Revenues related to the Website Monetization Feature.
« PARTNER Sub-Account(s) »: means any account dedicated to the storage of the Content on the DAILYMOTION Service that has been linked to the PARTNER Master Account upon request by PARTNER to DAILYMOTION. These accounts shall be directly managed by PARTNER, being agreed that the PARTNER Sub-Accounts will be subject to the same terms and conditions as those applicable to the PARTNER Master Account. PARTNER shall only request DAILYMOTION to link accounts to the PARTNER Master Account that PARTNER has the rights to operate and manage, and DAILYMOTION reserves the right not to link any such accounts to, or else to unlink any such accounts from, the PARTNER Master Account if it believes in good faith that PARTNER does not have such rights.
« PARTNER Property(ies) »: means the Internet websites or mobile applications that PARTNER owns and/or operates (or for which it has been duly appointed to operate by their legitimate owners). PARTNER shall restrictively indicate in the dedicated area of its PARTNER Accounts all such websites and/or mobile applications, however in some cases PARTNER may identify its PARTNER Properties by associating the Syndication Key in the embed code used to embed the Video Player onto such Internet websites and/or mobile applications. For sake of clarity, a specific URL domain or mobile application that is registered in a given PARTNER Account shall apply as a PARTNER Property for all the other of PARTNER's PARTNER Accounts as long as it is registered in at least one of the PARTNER's PARTNER Accounts, while a specific Internet website and/or mobile application that is identified as a PARTNER Property though the association of the Syndication Key in the embedding of the Video Player, shall apply only for this particular embedding.
« Public »: means any person having access to the DAILYMOTION Service.
« Syndication Key »: means a personal key that may be generated and communicated to PARTNER by DAILYMOTION at DAILYMOTION's sole discretion (unless otherwise stipulated herein) for insertion by PARTNER in the Video Player when PARTNER wishes to export Content and/or Third Party Video(s) onto an website or mobile application.
« Term »: means the duration of this Agreement as further defined in section 13.1.
« Territory »: means worldwide, unless PARTNER excluded, by using the DAILYMOTION API or any technical solution provided to it by DAILYMOTION, certain territories on which the Content shall be communicated to the Public through the PARTNER Account(s).
« ** Third Party Property(ies)**»: means any Internet websites or applications that are not the DAILYMOTION Properties and the PARTNER Properties.
« Third Party Video(s) »: means any video(s) uploaded by a third party onto the DAILYMOTION Properties, which such third party authorized to be exported via the Video Player for specific territories onto any website or applications other than the DAILYMOTION Properties.
« Video Monetization Feature »:means the ability for PARTNER to monetize the Content on the DAILYMOTION Service and to record and share the corresponding revenues generated by the Advertising.
« Video Player »: means a technology developed and owned by DAILYMOTION, enabling viewing by streaming of content (including Content and Third Party Videos) uploaded and hosted on the DAILYMOTION Service, on the DAILYMOTION Properties, the PARTNER Properties, and Third Party Properties.
« Website Monetization Feature »: means the tools supplied to PARTNER by DAILYMOTION enabling the export of the Video Player onto the PARTNER Properties in order to share with PARTNER the revenues generated by the In-Stream Advertising associated with Third Party Video(s) embedded on the PARTNER Properties.
Section 1: PURPOSE
The purpose of the Terms is to specify the terms and conditions applicable to the tools and features made available to the PARTNER by DAILYMOTION in the PARTNER Program, being agreed that PARTNER shall be free to use all or part of such tools and features at its sole discretion.
PARTNER may elect, on a case-by-case basis and at its sole discretion, (i) to communicate to the Public PARTNER's Content free-of-charge via the Video Monetization Feature and associating Advertising with such Content; and/or (ii) to communicate Third Party Videos onto the PARTNER Properties through the Video Player via the Website Monetization Feature. Through PARTNER's acceptance of the Terms, PARTNER is considered to have agreed and acknowledged all of the terms and conditions corresponding to each of the tools and features of the PARTNER Program contained herein.
Section 2: SUBSCRIPTION
2.1. By using the PARTNER Program, either as an individual or a corporate entity, PARTNER expressly agrees to be bound by the Terms. If the PARTNER does not agree to any of the terms herein, then PARTNER shall not use the PARTNER Program or the DAILYMOTION Service.
- --If the PARTNER is an individual, PARTNER warrants that: (i) PARTNER is at least 18 years old and legally capable of entering into binding contracts. PARTNER acknowledges that the PARTNER Program is intended solely for persons who are 18 years of age or older and that any access to or use of the Service by anyone under 18 years of age is expressly prohibited; and (ii) PARTNER shall comply with the Terms and all applicable laws and regulations. In that case, the Terms will apply to that individual PARTNER.
- --If the PARTNER is not an individual, PARTNER represents to DAILYMOTION that PARTNER has all necessary corporate or equivalent authority and power to agree to the Terms. PARTNER hereby agrees that the Terms shall be binding on the corporation, partnership, association or other entity in whose name the PARTNER is registering the PARTNER Accounts. In that case, the Terms will apply to that organization.
By agreeing to the Terms, PARTNER will have direct access to the tools and features available in the PARTNER Program, being agreed however that PARTNER shall not be entitled to any revenues generated by the use of the said tools and features until having duly completing the payment form available through the PARTNER Master Account or any other required information from DAILYMOTION.
2.2. PARTNER expressly guarantees to provide its complete and accurate contact information to DAILYMOTION and promptly update such information from time to time as necessary in the case of any changes.
Furthermore, the user id and password which are necessary to access the PARTNER Accounts and the tools provided by DAILYMOTION are confidential. PARTNER acknowledges that it shall be solely responsible for its user id and password associated herewith and for any possible disclosure, whether intentional or not. DAILYMOTION is not liable for any unauthorized or fraudulent use of the user id and password of PARTNER and is not liable for any unauthorized or fraudulent use of the tools provided to PARTNER.
TITLE 2: VIDEO MONETIZATION FEATURE
Upon use by PARTNER of the tools and features related to the Video Monetization Feature on one or more of the PARTNER Accounts, the following provisions shall apply:
Section 3: AUTHORIZATION AND LICENSE OF RIGHTS FOR THE USE OF THE TOOLS AND FEATURES AVAILABLE THROUGH THE VIDEO MONETIZATION FEATURE
3.1. PARTNER grants to DAILYMOTION, for the Term of the Terms and for the Territory, and transferable to its Affiliates, the non-exclusive rights to reproduce, represent, stream, replay (including offline display without permanent download), exploit, exhibit, show, market, distribute and to, technically modify and compress the Content as is strictly necessary for the purposes of the viewing and/or streaming of the Content in the Video Player wherever it is available.
3.2. DAILYMOTION (or any advertising sales representative chosen at its own discretion) is granted the exclusive right to sell Advertising in connection with the Content on the DAILYMOTION Properties and/or within the Video Player. PARTNER agrees and acknowledges that DAILYMOTION shall have the sole control, discretion and approval over the (i) terms and conditions negotiated with advertisers, (ii) advertising rates and (iii) the look and feel, placement, architecture of the Advertising, being agreed that PARTNER is prohibited in this regard to impede the display of the In-Stream Advertising through the Video Player when exported on the PARTNER Properties.
Furthermore, subject to the exclusivity granted to DAILYMOTION, PARTNER is prohibited to sell Advertising (directly or by any third party) associated with the Content within the DAILYMOTION Properties and/or the Video Player.
DAILYMOTION warrants that the Advertising associated with the Content on the DAILYMOTION Properties and/or within the Video Player will be compliant with applicable laws.
Section 4: FINANCIAL CONDITIONS APPLICABLE TO THE TOOLS AND FEATURES AVAILABLE THROUGH THE VIDEO MONETIZATION FEATURE
4.1. DAILYMOTION shall pay to PARTNER a revenue share equal to 30% (thirty percent) of the Net Advertising Revenues related to the Video Monetization Feature in relation to the sharing of the Content through the Video Player on the DAILYMOTION Properties and the Third Party Properties.
4.2. DAILYMOTION shall pay to PARTNER a revenue share equal to 50% (fifty percent) of the Net Advertising Revenues related to the Video Monetization Feature in relation to the sharing of the Content through the Video Player embedded on the PARTNER Properties.
TITLE 3: WEBSITE MONETIZATION FEATURE
Upon use by PARTNER of the tools and features related to the Website Monetization Feature the following provisions shall apply:
Section 5: AUTHORIZATION AND LICENSE OF RIGHTS FOR THE USE OF THE TOOLS AND FEATURES AVAILABLE THROUGH THE WEBSITE MONETIZATION FEATURE
DAILYMOTION authorizes PARTNER to make available the Third Party Videos, in the Territory, exclusively through the Video Player, on the PARTNER Properties.
PARTNER may immediately and at PARTNER's sole discretion remove any such specific Third Party Video from PARTNER Properties on which PARTNER had previously exported it if PARTNER reasonably believes that the distribution of such Third Party Video violates any applicable law or for any other reason.
The Parties agree that the Third Party Video(s) available in the Video Player embedded on the PARTNER Properties will include In-Stream Advertising. DAILYMOTION (or any advertising sales representative chosen at its own discretion) will be allowed, on an exclusive basis, to sell the advertising spaces dedicated to In-Stream Advertising in the Video Player integrated into PARTNER Properties.
PARTNER agrees and acknowledges that DAILYMOTION shall have the sole control, discretion and approval over the (i) terms and conditions negotiated with advertisers, (ii) advertising rates and (iii) the look and feel, placement, architecture of the Advertising, being agreed that PARTNER is prohibited in this regard to impede the display of the In-Stream Advertising through the Video Player when exported on the PARTNER Properties.
Furthermore, subject to the exclusivity granted to DAILYMOTION, PARTNER is prohibited from selling advertising (directly or by any third party) associated with the Third Party Video(s) through the Video Player.
DAILYMOTION acknowledges and agrees that it is not authorized to sell advertising spaces dedicated to Display Advertising on PARTNER Properties), and that on the PARTNER Properties DAILYMOTION may only sell In-Stream Advertising within the Dailymotion Video Player.
DAILYMOTION warrants that the In-Stream Advertising associated with the Third Party Videos on the PARTNER Properties through the Video Player will be compliant with applicable laws.
Section 6: FINANCIAL CONDITIONS APPLICABLE TO THE USE OF THE TOOLS AND FEATURES AVAILABLE THROUGH THE WEBSITE MONETIZATION FEATURE
DAILYMOTION shall pay to the PARTNER a revenue share equal to 20% (twenty percent) of the Net Advertising Revenues related to the Website Monetization Feature.
Section 7: SPECIFIC WARRANTIES FOR THE USE OF THE WEBSITE MONETIZATION FEATURE
PARTNER acknowledges and agrees that DAILYMOTION, in accordance with its hosting provider status, shall not perform any prior monitoring of the user-generated content uploaded on the DAILYMOTION Properties and available on the DAILYMOTION Service. Therefore, the display of any user-generated content selected by PARTNER and embedded into PARTNER Properties will be at PARTNER's sole liability, being agreed that PARTNER shall indemnify DAILYMOTION and keep DAILYMOTION indemnified from and against all costs, expenses (including reasonable legal expenses) losses, damages and other liabilities (of whatever nature, whether contractual, tortuous or otherwise) suffered or incurred by DAILYMOTION and arising out of or in connection with any claim by any third party due to the selection and display by PARTNER of any user generated content embedded on PARTNER Properties through the Video Player.
PARTNER acknowledges and agrees that DAILYMOTION may remove at any time and at its sole discretion any Third Party Video from the DAILYMOTION Properties, being agreed that in such case the removed Third Party Video will no longer be available for streaming through the Video Player on the PARTNER Properties.
PARTNER warrants, as an essential condition, that PARTNER shall only export any Third Party Video through the Video Player on websites or mobile applications that PARTNER owns and operates, or for which it has been duly appointed to operate by their legitimate owners. Moreover, PARTNER warrants that all websites or mobile applications on which PARTNER exports Content and/or Third Party Video(s) through the Video Player do not include any element that: (i) breaches any intellectual property rights of any third parties,(ii) constitutes an injury to any person (including but not limited to defamation, slander, abuse, hate speech, discrimination, deception, etc.) or to any third party's privacy rights,(iii) encourages violence or hatred against any individual or group, or cruelty to animals, (iv) is obscene, contains pornographic or sexually explicit or indecent content,(v) encourages or promotes weapons, drug use or any illegal activity, (vii) constitutes a threat to public order or standards of decency and good morals (viii) creates either "Forced visit" traffic or spyware/adware loading pages (including, in either case, popups or popunders) which load ads, (ix) creates invisible or nested invisible IFRAMEs loading pages which load ads , (x) uses spyware/adware loading ads invisibly (or cause fake clicks thereon, including but not limited to click spam, robots, macro programs, and internet agents), (xi) reloads/refreshes any code causing multiple impressions to be registered in short succession, (xii) contains downloadable software; executable or malicious code, any virus, malicious or social engineering (phishing) code or features, and/or (xiii) violates any applicable laws.
In the event of the good faith suspicion by DAILYMOTION of PARTNER's violation of any of the above warranties, DAILYMOTION may (i) retain and/or request reimbursement by PARTNER of any Net Advertising Revenues related to the Website Monetization Feature that are unduly generated , and/or to (ii) immediately terminate the relevant PARTNER Account(s) without any indemnification or further payment of Net Advertising Revenues related to the Website Monetization Feature generated by the relevant PARTNER Account(s), without any prejudice of any other remedies of DAILYMOTION.
PARTNER acknowledges and agrees that DAILYMOTION is not responsible for any data related to Third Party Video(s) provided by their relevant owners such as the video title, description, category, etc., even if such data creates discrepancy between the Third Party Video(s) embedded via the Video Player and the category selected by PARTNER.
TITLE 4: GENERAL PROVISIONS
Section 8: PROMOTION
DAILYMOTION shall have the sole control, discretion and approval over the promotional materials of the Content on the DAILYMOTION Service and of DAILYMOTION's newsletters. PARTNER authorizes DAILYMOTION to use and/or refer to PARTNER's trademarks and/or logos, and/or thumbnails of the Content, forinformation, communication and/or promotional purposes of the Content,provided that any use outside the DAILYMOTION Service and/or newsletters shall be subject to prior authorization from PARTNER.
PARTNER authorizes DAILYMOTION to include the Content on any relevant topic pages, playlists, staff picks, and other promotional materials as DAILYMOTION may determine in its sole discretion, provided however that PARTNER may request an item of Content be removed from such topic page, playlist, or staff pick at any time.
Any use by PARTNER of DAILYMOTION's trademark or logo must be approved in advance by DAILYMOTION in writing (email sufficient).
The Parties agree and acknowledge that each Party may issue a press release announcing their partnership, provided that the Parties have mutually agreed to the wording of any such press release.
Section 9: TRACKING AND REPORTING REVENUE, INVOICING, AND PAYMENT
9.1. Tracking and Reporting Revenue
PARTNER will be provided with an online interface in the PARTNER Accounts enabling PARTNER to track its monthly PARTNER Program Revenues. The online interface available for each PARTNER Sub-Account will only include the data and figures related to the use of the features related to such account and Content hosted on it, but the online interface available from the PARTNER Master Account will compute the data and figures related to all the PARTNER Accounts owned by PARTNER.
However, only the conclusive account statements available within 60 (sixty) days at the end of each month within the PARTNER Master Account for the previous months shall determine the billing and payment of PARTNER Program Revenues, being agreed that PARTNER agrees and acknowledges that the account statement and payment shall be deemed final and conclusive unless disputed in writing by PARTNER within 15 (fifteen) days after the posting of the account statement in the online interface for a given month.
If PARTNER has duly filled in all mandatory information necessary for payment through the online interface of the PARTNER Master Account and accepted the corresponding self-billing authorization, DAILYMOTION shall issue an invoice within 30 (thirty) days following the end of the month in the name of and on behalf of PARTNER under the condition that the total amount due with regards to the PARTNER Program Revenues is more than an amount equal to $100 (one hundred US dollars) whatever the currency of payment required by PARTNER for payment purpose, being agreed that any amounts not paid for one or more reasons mentioned in this paragraph shall be carried forward to the next month as long as the minimum threshold is not met and the mandatory information required and the self-billing authorization are not properly filled in and accepted.
For the avoidance of doubt, self-billing of the PARTNER Program Revenues shall only be managed from the PARTNER Master Account.
9.3.1. Whatever invoicing method chosen by PARTNER according to Section 9.2, payments shall be made within 60 (sixty) days after the generation of the invoice (in the case of online invoicing) or receipt of the invoice (in the case of offline invoicing) either by (i) direct wire transfer or (ii) by using the services provided by one of the third-party vendor payment systems made available by DAILYMOTION, as chosen by PARTNER in PARTNER's sole discretion. Payments shall be made either in US Dollars unless another currency is chosen by PARTNER amongst the currencies proposed through the third-party vendor payment systems.
9.3.2. DAILYMOTION selects at its own discretion the third-party vendor payment systems made available in the scope of the PARTNER Program, such systems may be PayPal, Payoneer, or another similar payment system. For sake of clarity, however, it is at PARTNER's discretion, through PARTNER's Master Account, to select whether the PARTNER seeks to be paid via third party vendor, or through another one of the available payment methods. In order to receive payment from one of such third-party vendor payment systems, PARTNER will have to accept the terms and conditions of the payment system it decided to use, being agreed that DAILYMOTION will not have any liability regarding the breach of those terms and conditions either by PARTNER or by the third-party payment system vendor. PARTNER agrees that DAILYMOTION grants the same guarantees as the ones respectively received from the PayPal, Payoneer or the applicable payment system. PARTNER understands that DAILYMOTION does not conserve the bank account information provided by PARTNER through the payment system it chose. Provided that PARTNER does not offer proof to the contrary, the records of the applicable payment system, be they of PayPal company, Payoneer company, or another similar payment system company, shall be considered proof of payments made between PARTNER and DAILYMOTION. The archiving of these items is performed in a reliable and sustainable manner to reflect a true and lasting copy in accordance with Article 1379 of the French Civil Code. PARTNER shall bear the fees of its use of third party vendor payment systems, if any.
9.3.3. PARTNER agrees that DAILYMOTION may from time to time, but only upon request by the third-party payment system vendor, provide the third-party payment system vendor that PARTNER selected with any and/or all information DAILYMOTION holds on PARTNER, including any personal data. It is also agreed that third party vendor payment systems may directly contact PARTNER and/or suspend a payment in process for any of the reasons stipulated in their terms and conditions, including notably for any good faith suspicion of illicit activity or any information missing to perform the payment properly It is agreed that DAILYMOTION shall not be held responsible for any such activity by the third-party payment system vendors.
9.3.4 IN A GENERAL MANNER, PARTNER ACKNOWLEDGES AND AGREES THAT DAILYMOTION SHALL NOT BE HELD LIABLE FOR ANY ACTION, ERROR OR OMISSION PERFORMED BY PARTNER WHEN USING THE THIRD-PARTY PAYMENT SYSTEMS, NOR FOR ANY ACTION, ERROR OR OMISSION PERFORMED BY THE THIRD PARTY PAYMENT SYSTEMS VENDORS.
9.3.5. For the avoidance of doubt, payments shall not be made to the benefit of any other person or entity other than PARTNER. Furthermore, PARTNER agrees that the payments shall only be made to a bank account or third party vendor service's account (as the case may be) bearing the same name as that of PARTNER.
9.3.6. It is agreed that DAILYMOTION may deduct any amount from the PARTNER Program Revenues due (i) to the local authorities of any country as relevant, and/or (ii) actual out-of-pocket third party charges necessary to enable the transfer (i.e. any bank fees that result from the direct error, negligence, or omission of PARTNER in the communication of its bank account information to DAILYMOTION.). Moreover, PARTNER acknowledges and agrees that any cost related to PARTNER's use of the third-party payment systems like the ones provided by PayPal, Payoneer or any relevant third party vendor shall be borne by PARTNER, as the case may be.
9.4. Withholding Tax
PARTNER acknowledges and agrees that a withholding tax may be applied on the amounts paid by DAILYMOTION to PARTNER in the scope of the Terms. In this regard, it is PARTNER's responsibility to provide DAILYMOTION with a relevant certificate certified by PARTNER's home-country authorities, as soon as possible after its registration to the PARTNER Program to benefit from any exemption or reduction.
SECTION 10: INTELLECTUAL PROPERTY, WARRANTIES AND INDEMNIFICATION
10.1. Intellectual Property
Any intellectual property rights arising from and/or in relation with the DAILYMOTION Service including the DAILYMOTION Properties and the Video Player (including without restriction any data collected through them), DAILYMOTION's logos and brands shall remain DAILYMOTION's exclusive property or the relevant entitled person's exclusive property in respect to the Third Party Video(s). Unless otherwise provided herein, no provision contained herein shall grant PARTNER any intellectual property right or right to use the DAILYMOTION Service including the DAILYMOTION Properties and the Video Player, the Third Party Video(s) or DAILYMOTION's logos and brands.
Any intellectual property rights arising from and/or in relation with the Content, PARTNER's Website(s) and PARTNER's logos and brands shall remain PARTNER's exclusive property. Except as otherwise provided herein, no provision herein shall grant DAILYMOTION any intellectual property right or right to use PARTNER's Website(s) or PARTNER's logos and brands.
10.2.1. Warranties related to the Content
PARTNER agrees to associate the Content with complete and accurate metadata necessary for the exploitation of the Content on the DAILYMOTION Service including but without limitation, the title, tags video category, duration, language, video description, and any other information requested by DAILYMOTION from time to time.
PARTNER represents and warrants to DAILYMOTION that it has the right and authority to grant all exploitation rights in connection with the Content for the Territory under these Terms and that there are no claims, liens, encumbrances, limitations, reversions, restrictions or rights of any nature in or to the Content, which will limit, impair, or interfere with the rights of DAILYMOTION. PARTNER warrants that it owns or has obtained all necessary rights and clearances necessary with regards to any third party rights holders including, without limitation, authors, directors, producers, actors, technicians and, in general, from anyone who has participated directly or indirectly to the creation of the Content and/or from any third party that may be entitled to claim any right on the Content and as such, releases DAILYMOTION from any claim or action arising from any third party during the exploitation of such licensed rights.
PARTNER represents and warrants that, as an essential condition, the Content, metadata, any data provided by PARTNER, PARTNER's username, and any images provided by PARTNER, if any, do not: (i) breach any intellectual property rights of any third parties, (ii) constitute an injury to any person (including but not limited to defamation, slander, abuse, hate speech, discrimination, deception, etc.) or to any third party's privacy rights, (iii) encourage violence or hatred against any individual or group, or cruelty to animals, (iv) contain pornographic, sexually explicit, indecent or obscene content, (v) encourage or promote weapons, drug use or any illegal activity, (vii) constitute a threat to public order or standards of decency and good morals (viii) create either "Forced visit" traffic or spyware/adware loading pages (including, in either case, popups or popunders) which load ads, (ix) create invisible or nested invisible IFRAMEs loading pages which load ads , (x) use spyware/adware loading ads invisibly (or cause fake clicks thereon, including but not limited to click spam, robots, macro programs, and internet agents), (xi) reload/refresh any code causing multiple impressions to be registered in short succession, (xii) contain downloadable software; executable or malicious code, any virus, malicious or social engineering (phishing) code or features, and/or (xiii) violate any applicable laws.
If PARTNER breaches any of its obligations under the Terms which results in limitations, restrictions or encumbrances of the rights granted to DAILYMOTION including, without limitation, the impossibility for DAILYMOTION to exploit an item of Content on the DAILYMOTION Service, DAILYMOTION shall be free to (i) stop all payments to PARTNER with regards to the Video Monetization Feature unduly generated to the benefit of the PARTNER for such Content, (ii) to terminate the PARTNER's subscription to the Video Monetization Feature and/or the Website Monetization Feature and/or (iii) to terminate immediately the Terms without further compensation or payment of PARTNER Program Revenues generated by that particular PARTNER Account or PARTNER Sub-Account and without waiver to any other rights or remedies of DAILYMOTION within the scope of the Terms.
PARTNER also indemnifies DAILYMOTION for any action, claim or complaint that may be brought by any third party, that has not contributed directly to the creation of the Content, but that may be entitled to exercise its rights on all or part of the Content and/or their exploitation by DAILYMOTION and in particular that may be entitled to limit the exploitation of the Content on the DAILYMOTION Service.
PARTNER agrees to notify and forward to DAILYMOTION as soon as possible any action, claim or complaint relating to the Content hosted on the PARTNER Accounts.
In accordance with applicable laws, DAILYMOTION may take down any illegal Content hosted on the PARTNER Accounts after obtaining knowledge of it. PARTNER shall remain fully liable for such Content.
PARTNER acknowledges that DAILYMOTION is authorized to provide the personal data of PARTNER upon a valid request from the relevant authorities.
10.2.2. Common warranties related to the use of the PARTNER Program
PARTNER undertakes (i) not to falsely increase the number of views, impression of or clicks associated with the Content and/or the Third Party Video(s) directly or indirectly, automatically or manually, and (ii) not to authorize or encourage any third party including offering any financial incentive to do the same.
In the event of the good faith suspicion of a false or fraudulent increase as defined in this Section 10.2.2., DAILYMOTION may, without any justification, (i) withhold payment of the falsely generated PARTNER Program Revenue, (ii) terminate the PARTNER's subscription to the Video Monetization Feature and/or the Website Monetization Feature and/or (iii) immediately terminate the subscription of PARTNER to the PARTNER Program without compensation to PARTNER or payment of the falsely generated PARTNER Program Revenue and without waiver or prejudice of any other of DAILYMOTION's rights or remedies.
10.2.3 Clearance of exploitation rights
PARTNER represents and warrants that it will procure and maintain during the term all third-party rights and licenses which inure or may inure to the benefit of any third-party rights holders including, without limitation, authors, artists, artistic directors, composers and producers and more generally to any rightful beneficiary of such rights.
DAILYMOTION shall be responsible for paying royalties to collecting societies dedicated to authors for the viewing of the Content and of Third Party Video(s) on the DAILYMOTION Properties which will be paid by DAILYMOTION when such collective management agreements are provided for this purpose.
PARTNER agrees, at its own expense, to indemnify, hold harmless and, at DAILYMOTION's option, defend DAILYMOTION and its Affiliates from and against any and all third party claims relating to losses, claims, damages, liabilities, judgments, settlements or costs and expenses (including lawyers' fees and expenses from litigation), associated with or arising out of: (i) DAILYMOTION's and/or its Affiliates' exploitation of the Content as specified herein; (ii) PARTNER's use of the PARTNER Program contrary to the provisions contained herein; (iii) the infringement of any third party intellectual property rights arising from the use of PARTNER's brand by DAILYMOTION and/or its Affiliates; and/or (iv) any breach by PARTNER of PARTNER's representations and warranties contained herein.
Section 11: LEGAL DISCLAIMERS & LIMITATION OF LIABILITY
PARTNER agrees that the PARTNER's use of the DAILYMOTION Service and the PARTNER's Account shall be at the PARTNER's sole risk and liability. In this regard, PARTNER is solely responsible for (i) its use of the DAILYMOTION Service and more specifically for the Content it stores and makes available to the Public through the DAILYMOTION Service (ii) and the protection of its computer hardware against any virus or interruption.
DAILYMOTION shall not be held responsible in any case for (i) any malfunctions, inherent of the nature of the Internet, in the access and/or the use of the DAILYMOTION Service, (ii) or any default of its obligations caused by force majeure or an unintentional cause. Unless otherwise stated in the Terms, DAILYMOTION does not grant any guarantee of any kind to PARTNER, whether expressly or implicitly, in any area, including and in particular any guarantee of fitness for a particular purpose.
PARTNER acknowledges and agrees that (i) DAILYMOTION is not a pay-per-view audiovisual media but a web hosting service provider and that, (ii) DAILYMOTION is not required to perform any prior monitoring of the Content hosted through the DAILYMOTION Service, or to search for facts or circumstances revealing illegal activities according to applicable law.
PARTNER acknowledges and agrees that the DAILYMOTION Service, in whole or in part (including, without limitation, the look and feel, the thematic channels, the functionality, and/or the Video Player), on and through which the Content will be distributed is provided "AS IS" without warranty, provided that DAILYMOTION may enhance, modify and update the DAILYMOTION Service at its sole discretion. For the sake of clarity, PARTNER shall not be entitled to request any modification to the DAILYMOTION Service. DAILYMOTION shall be entitled to at any time discontinue and/or deactivate any of the features or tools provided within the scope of the DAILYMOTION Service, and PARTNER's only recourse shall be to stop using the DAILYMOTION Service.
PARTNER further acknowledges and agrees that DAILYMOTION makes no representations concerning the volume of advertising sales or orders of Content and Third Party Videos, and DAILYMOTION makes no warranties concerning a minimum amount of PARTNER Program Revenues to be paid to PARTNER.
DAILYMOTION, its affiliated companies, officers, directors, employees, agents, vendors and suppliers (the " DM Parties") disclaim all warranties of any kind, either expressed or implied, including but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement to the fullest extent permissible under applicable law. The DM Parties make no warranty or representation that the service, in whole or in part, will be uninterrupted, error-free or secure, provided that the DAILYMOTION Site will generally be available 24 hours a day 7 days a week, except during any scheduled or unscheduled interruptions, for maintenance needs or cases of force majeure. PARTNER acknowledges and agrees that DAILYMOTION is not liable for any interruptions, and PARTNER waives any claim and/or lawsuit against DAILYMOTION for this reason.
Nothing in the Terms shall exclude or limit DAILYMOTION's liability for losses which may not be lawfully excluded or limited by applicable law. Subject to this overall provision above, DAILYMOTION shall not be liable for: (a) any indirect or consequential losses which may be incurred by PARTNER. This shall include; (i) any loss of profit (whether incurred directly or indirectly); (ii) any loss of goodwill or business reputation; (iii) any loss of opportunity; or (iv) any loss of data suffered; (b) any loss or damage which may be incurred as a result of: (i) any reliance placed by PARTNER on the completeness, accuracy or existence of any Advertising, or as a result of any relationship or transaction between you and any advertiser or sponsor whose advertising appears on the DAILYMOTION Service; (ii) any changes which DAILYMOTION may make to the DAILYMOTION Service, or for any permanent or temporary cessation in the provision of the DAILYMOTION Service (or any features within the DAILYMOTION Service); (iii) the deletion of, corruption of, or failure to store, any Content and other communications data maintained or transmitted by or through your use of the DAILYMOTION Service; (iv) PARTNER's failure to provide DAILYMOTION with accurate account information (v) PARTNER's failure to keep its password or PARTNER Accounts details secure and confidential.
The limitations on DAILYMOTION's liability to PARTNER in this Section shall apply whether or not DAILYMOTION has been advised of or should have been aware of the possibility of any such losses arising.
Section 12: CONFIDENTIALITY
The Parties shall each keep all the information exchanged for the performance and acceptance of the Terms (including any terms contained in the Terms) and their subject matter confidential and agree not to disclose such information, including, without limitation, documents and information related to products, clients, strategy, development, financial, business practices, to any third parties except as necessary to any business and legal representatives or as necessary to perform the obligations under the Terms or as required by any law, stock exchange rule, regulation, court order or governmental agency, in which event the relevant party shall so notify the other as promptly as reasonably practicable (and if possible prior to making any disclosure) and shall use its reasonable endeavors to seek confidential treatment of such information.
Section 13: DURATION AND TERMINATION
13.1. The Terms shall enter into effect on the date of their acceptance by PARTNER and shall continue until terminated as defined herein. The time from the date of the acceptance of the Terms by PARTNER until the termination date of these Terms shall be referred to as the " Term."
13.2. It is agreed between the Parties that either Party may terminate PARTNER's subscription to the PARTNER Program at any time by sending an email to:
- --the email address given by PARTNER in its PARTNER Master Account information, if termination is by DAILYMOTION.
- --the email address firstname.lastname@example.org, if termination is by PARTNER, or any other email address which DAILYMOTION may designate from time to time.
The effective date of termination will be the last business day of the following month in which the termination notice was given.
13.3. Either Party may terminate these Terms, without liability to the other Party, by notice to the other Party with immediate effect if:
- (i)the other Party is in material breach of any of its obligations under these Terms and, if the breach is capable of cure, fails to remedy the breach within fifteen (15) days of receiving notice to do so (unless a shorter cure period is specifically provided elsewhere in this agreement); or
- (ii)any material step is taken with a view to the other Party ceasing to carry on business, or going or being put into receivership, administrative receivership, administration, bankruptcy, liquidation or any equivalent process in any relevant jurisdiction.
13.4. Within 30 (thirty) days of the effective termination date, PARTNER shall be provided with a report documenting all outstanding PARTNER Program Revenues. Upon receipt of an invoice from PARTNER (either offline or via the online interface if available), PARTNER shall be paid all unpaid accrued PARTNER Program Revenues within 30 days of receipt of the invoice from PARTNER provided such amount invoiced is at least $100 and the invoice is received within 90 (ninety) days of the effective termination date.
13.5. Notwithstanding the foregoing, DAILYMOTION may terminate, immediately and at any time, PARTNER's access to some of the different features provided in the scope of the PARTNER Program (for all or part of the PARTNER Accounts) for any reason. For the sake of clarity, if PARTNER does not agree to part or all of the terms and conditions applicable to a specific feature as articulated herein, PARTNER's only recourse is not use the corresponding feature.
13.6. Immediately upon the termination of these Terms, or upon the termination of a particular PARTNER Sub-Account, the PARTNER Accounts or specific PARTNER Sub-Account (as the case may be) shall cease to be registered to the PARTNER Program and shall not benefit from any provisions of the Terms including but not limited to the revenue payment terms, promotion of the Content, etc. For sake of clarity, PARTNER's Content shall remain on the DAILYMOTION Service until such time as PARTNER removes such Content from the DAILYMOTION Service, and therefore PARTNER shall continue to respect the DAILYMOTION Policies until PARTNER removes the Content hosted on the Service.
13.7. Any termination of PARTNER's subscription to the PARTNER Program shall be without prejudice to any other rights or remedies a Party may be entitled to under those contracts or at law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision of those contracts which is expressly intended to come into or continue in force on or after such termination.
Section 14: MISCELLANEOUS
14.1. The Terms shall be binding upon and shall inure to the benefit of the Parties and their assigns for the duration of the rights of the Terms. Neither Party may assign, transfer or otherwise delegate its rights and/or obligations hereunder to any person without the consent of the other Party; provided, however, that no consent shall be necessary from PARTNER for an assignment to any DAILYMOTION Affiliate.
14.3. The Parties agree that DAILYMOTION shall be deemed to be a passive website that is based solely in Paris, France and over which personal jurisdiction cannot be obtained, either specific or general, in any jurisdiction other than Paris, France. The Parties agree that any dispute arising out of or relating in any way to these Terms shall be interpreted in accordance with the laws of France, without reference to its conflicts of laws, and shall in all respects be governed, construed, applied, and enforced in accordance with the laws of France. The Parties also agree that any claim or dispute arising out of or relating in any way to these Terms shall be decided exclusively by a civil court of competent jurisdiction located in Paris, France and both Parties irrevocably consent to the personal and exclusive jurisdiction of any such court.
14.3. In the event that either Party shall defaults in its obligations under these Terms and such default is a result of a Force Majeure event, meaning any act or event beyond its reasonable control including, but not limited to, acts of God, accident, terrorism, fire, flood, storm, riot, war, sabotage, explosion, strike, lockout, labor disturbance, national defense requirement, government action, state, ordinance, rule or regulation, inability to obtain or curtailment of electricity or other types of energy, raw material, labor, component products or transportation, failure of normal sources of supply, or any similar or dissimilar contingency that would make timely performance by such Party commercially impracticable, no PARTNER Program Revenue shall be due to PARTNER as long as the Parties shall not be capable of performing their obligations.
14.4. Both Parties have entered into the Terms as independent contractors, both legally and financially. The Terms shall accordingly in no way constitute joint entity, agency relationship, joint venture or partnership or any relationship of an employer and employee as between the Parties nor shall either party hold themselves out as being part of such an entity or relationship. Except as provided under these Terms, neither Party shall have the right or authority, express or implied, to assume or create any obligation on behalf of the other Party and neither Party shall misrepresent its authority to any third party. Except as provided under these Terms, neither Party shall have the authority to enter into any contract or commitment in the name of, or on behalf of the other Party, or to bind the other Party in any respect whatsoever.
14.5. If one or more provision of the Terms is considered to be invalid as such or as a result of the application of a law, regulation, or the decision of a competent body having jurisdiction, it will be treated as not forming part of the Terms and all other conditions will remain in force. However, if the invalidity or unenforceability of any provision of the Terms should affect the legal and/or economical balance of the Terms, the Parties agree to negotiate in good faith the substitution of such provision with a valid provision as legally and economically similar as possible.
14.6. The Terms shall constitute the entire agreement and understanding between the applicable parties with respect to all matters which are referred to in the Terms and the subject matter of the Terms and shall supersede any previous agreements, letter of intents, prior drafts, undertakings, representations, warranties and arrangements of any nature whatsoever (whether or not in writing) between those parties in connection with the subject matter of the Terms.
14.7. In the event of translations of the Terms, it is agreed by the Parties that the English version of the Terms will prevail in any event, even if such translation is provided by DAILYMOTION.
Section 15: AMENDMENT OF THE TERMS
DAILYMOTION may revise the Terms from time to time and the most current version will always be posted on a dedicated area of the DAILYMOTION Properties. PARTNER should review the Terms on a regular basis. Amendments to the Terms will not apply retroactively and will become effective 7 (seven) days after posting. However, specific amendments to new functionality or legal amendments will be effective immediately upon notice. DAILYMOTION may also in its sole discretion notify PARTNER of material changes to the Terms by emailing the PARTNER with the new Terms to the email address associated with the PARTNER Master Account. By not terminating its subscription to the PARTNER Program after amendments become effective, PARTNER implicitly agrees to be bound by the amended terms. If PARTNER does not agree to the new terms, the PARTNER's only recourse is to terminate its subscription to the PARTNER Program. THE PARTNER'S FAILURE TO TERMINATE its subscription to the PARTNER Program FOLLOWING THE EFFECTIVE DATE OF THE AMENDMENTS TO THE TERMS WILL CONSTITUTE BINDING ACCEPTANCE OF ALL AMENDMENTS.
In the scope of the use of the Website Monetization Feature by PARTNER ruled by the Terms provided hereabove, PARTNER wishes to be provided with an additional tool entitled "Widget" enabling PARTNER to monetize and engage its audience by automatically pushing video content on the PARTNER Properties) as further defined. The Widget will recommend automatically organic and promoted video and allow PARTNER to get a share of advertising revenues from In-Stream Advertising and promoted content as respectively further defined herein.
The ADDITIONAL TERMS shall be construed without prejudice to the DAILYMOTION Policies and/or of the Terms that they supplement and amend specifically as regards to the Widget. The provisions of the DAILYMOTION Policies and/or of the Terms which are not amended by the ADDITIONAL TERMS will remain in full force and effect. In the event of any contradiction between, or ambiguity in the interpretation of the (i) DAILYMOTION Policies and/or of the Terms and (ii) the ADDITIONAL TERMS, the ADDITIONAL TERMS shall prevail.
You will be referred as "YOU" or "PARTNER" as provided under the Terms above.
SECTION A: DEFINITIONS
"Widget" shall mean the widget to be integrated by PARTNER on the PARTNER Properties to enable the feature of Third Party Video(s) and/or Content (both as defined in the Terms) and/or Promoted Content as defined below.
"Promoted Content" shall mean any Third Party Videos or Content (both as defined in the Terms) which is featured within the Widget at the request of a third party who seeks to promote such content and thereby agrees to be charged for the views associated with such content. The third party agrees to be charged for each click on the Promoted Content thumbnail or title by an end-user notably from the Widget as implemented on the PARTNER Properties.
" Widget Content" shall mean collectively the Third Party Video(s), the Content and the Promoted Content made available via the Widget.
SECTION B: WIDGET INTEGRATION ON PARTNER PROPERTIES
DAILYMOTION authorizes PARTNER to make available the Widget, in the Territory, on pages and/or on part of services of the PARTNER Properties as selected at PARTNER's discretion.
PARTNER may customize the Widget and the categories of content that will be available through the Widget as follows:
--PARTNER may customize several elements related to the look and feel of the Widget (such as for example the layout, the titles, and the typeface's color and size), subject to the general Widget-wide framework that DAILYMOTION will provide to PARTNER;
--PARTNER may select the categories of Widget Content (e.g.: news, sports, etc.) to be featured on the PARTNER Properties through the Widget, subject to the categories selection framework that DAILYMOTION will provide to PARTNER;
- --PARTNER may select the language used in the Widget Content to be featured on the PARTNER Properties through the Widget.
The Third Party Videos and/or Content and Promoted Content to be featured on the PARTNER Properties through the Widget will be automatically selected and updated through an algorithm each time an end user refreshes the page onto which the Widget is embedded, and PARTNER acknowledges and agrees that DAILYMOTION shall not assume any responsibility regarding the selection of the Widget Content featured on the PARTNER Properties.
PARTNER acknowledges and agrees that 5% (five percent) of the traffic generated by the Widget may be randomly selected and used for A/B testing purpose and will benefit for a user experience different than the rest of the traffic, being agreed DAILYMOTION will select the test to be run at its own discretion.
SECTION C: FINANCIAL CONDITIONS
C.1 DAILYMOTION shall pay to PARTNER a revenue share of 20% (twenty percent) of the Net Ad Revenues. "Net Ad Revenues" means the gross revenues received by DAILYMOTION from the sale of In-Stream advertising served in connection of the Third Party Videos and/or Content featured through the Widget on the PARTNER Properties, less any potential applicable taxes.
C.2 DAILYMOTION shall pay to PARTNER a revenue share of 50% (fifty percent) of the Net Promoted Revenues. "Net Promoted Revenues" means the gross revenues received by DAILYMOTION from third party wanted to promote the Promoted Content and based on the views generated by a click on a Promoted Content thumbnail or title (excluding auto-play).
C.3 Terms and conditions applicable in connection to the tracking, reporting, invoicing and payment of the revenues generated from the Widget are the same as the ones provided in the Terms.
C.4 PARTNER further acknowledges and agrees that DAILYMOTION makes no representations concerning (i) the volume of advertising associated with the Widget and/or (ii) the volume of Promoted Content pushed in the Widget and/or (iii) a minimum amount of Net Ad Revenues or Net Promoted Revenues to be paid to PARTNER.
SECTION D: REPRESENTATIONS AND WARRANTIES
PARTNER represents and warrants to DAILYMOTION that it has the full corporate right, power and authority to enter into the ADDITIONAL TERMS.
The DM Parties make no warranty or representation that the service, in whole or in part, will be uninterrupted, error-free or secure, provided that PARTNER acknowledges that the Widget, in whole or in part (including without restriction its look and feel, its functionalities, etc.) are provided "as is," provided that solely DAILYMOTION may enhance, modify, update such tools at its sole discretion. For sake of clarity, PARTNER shall not be entitled to modify nor reverse engineer, decompile, modify, translate, disassemble or make derivative works based on the Widget without DAILYMOTION's prior approval
PARTNER acknowledges and agrees that, in accordance with its hosting provider status, DAILYMOTION does not prior monitor the Widget Content hosted on the DAILYMOTION Properties that can be featured on the PARTNER Properties. Therefore, the display of such content on the PARTNER Properties will be at PARTNER's sole liability.
PARTNER acknowledges and agrees that DAILYMOTION and/or the relevant end-user having uploaded it may remove at any time and at its sole discretion any Third Party Videos and/or Content as well as Promoted Content from the DAILYMOTION Properties, being agreed that in such case the removed content will be not available for streaming anymore onto the PARTNER Properties.
SECTION E: GENERAL TERMS
DAILYMOTION may modify all or part of the ADDITIONAL TERMS, at any time and at its sole discretion in accordance with the provisions of Section 15 of the Terms.
All provisions of the Terms not affected by the provisions of the ADDITIONAL TERMS shall remain valid and unchanged as long as they do not contravene the provisions of the Terms.
Last updatedon June 23, 2017