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
These Terms form a legally binding agreement between you (“PARTNER”, “you” or “your”) and Dailymotion SA (“DAILYMOTION”, “we”, “us”, or “our”) in relation to your use of the Dailymotion Service. Any reference to “DAILYMOTION” in these Terms refers to “Dailymotion SA” located at 140 boulevard Malesherbes, Paris, France 75017.
DAILYMOTION and 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.com which 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 audio-visual content and the use of features available on the DAILYMOTION Properties, 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.
« Advertising Revenues related to the Video Monetization Feature »: means the revenue (applicable taxes excluded) generated from the In-stream Advertising being served in connection with the Content distributed under the Video Monetization Feature on the DAILYMOTION Service, after deduction of Technical and Operating Costs. The revenue accounted for the calculation of the accrued revenue are based on a rate card being defined on a territory per territory basis at DAILYMOTION’s sole discretion in order to reflect the average advertising inventory sales price rates available in each country and/or to exclude any specific and favored advertising partnership that might have been concluded by Dailymotion for a global scope and not for the advertising inventory associated to the Content only, provided that any such rate card is applied to all DAILYMOTION's similarly-situated partners in the same territory.
« Advertising Revenues related to the Website Monetization Feature »: means the revenue (applicable taxes excluded) generated from the In-stream Advertising being 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 Technical and Operating Costs. The revenue accounted for the calculation of the accrued revenue are based on a rate card being defined on a territory per territory basis at DAILYMOTION’s sole discretion in order to reflect the average advertising inventory sales price rates available in each country and/or to exclude any specific and favored advertising partnership that might have been concluded by DAILYMOTION for a global scope and not for the advertising inventory associated to the PARTNER Properties only, provided that any such rate card is applied to DAILYMOTION's other similarly-situated partners in the same territory.
« 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.
« Claims »: means claims, suits, demands damages, losses, liabilities, obligations, legal actions, cost or debt and expenses (including but not limited to attorney’s fees).
« Content »: means all audiovisual content, such as videos and live broadcasts uploaded and hosted on one or all PARTNER’s Accounts by the PARTNER including any associated data (title, description, category, duration, images, graphics, etc.) in digital format as specified under Section 3.1.
« DAILYMOTIONProperties »: 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.
« DAILYMOTIONService »: means the DAILYMOTION products, technology, features, platforms, interfaces, and functionality provided by DAILYMOTION, including those associated with (i) the DAILYMOTION Properties; and (ii) the DAILYMOTION Video Player that is embeddable onto any website.
« DAILYMOTIONSite »: 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.
« Force Majeure »: means any act or event beyond a Party’s 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 contingency that would make timely performance by such Party commercially impracticable.
« 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/mid roll, player branding, and/or overlay ads, as available.
« Intellectual Property Rights »: means any and all rights, titles and interests, whether foreign or domestic, in and to any and all trade secrets, patents, copyrights, Marks, know-how, or similar intellectual property rights, as well as any and all moral rights, and similar rights of any type under the Laws of any governmental, regulatory or judicial authority, whether within or outside of the Territory.
« Invalid Traffic »: means any invalid activity intended to falsely or fraudulently increase the number of views, impressions, clicks and/or revenues associated with the Content and/or the Third-Party Video(s), directly or indirectly, automatically or manually, through such means as nonhuman traffic, bots, spiders, etc., while pretending to be genuine.
« Laws » means any applicable laws, statutes, regulations, court orders, and/or government standards.
« Marks »: means trademarks, names, logos, brands, symbols, designations, service marks, emblems, designs, trade dress and uniforms and all identifications, labels, thereof, whether or not registered with competent public authorities.
« PARTNER Account(s) »: means the PARTNER Master Account together with PARTNER Sub-Accounts.
« PARTNER HQ »: means the dashboard available from each of the PARTNER Accounts which allows PARTNER to manage the PARTNER Accounts and PARTNER’s Content and to access to various account management features which may include: management of PARTNER’s playlists, access to PARTNER statistics, statements and invoices, registration of PARTNER Properties, and adjustments and selection of additional settings related to the PARTNER Accounts. The PARTNER HQ of the PARTNER Master Account allows access to data and management tools applicable to all PARTNER Sub-Accounts, whereas the PARTNER HQ of an individual PARTNER Sub-Account allows access to data and management tools applicable only to such PARTNER Sub-Account.
« PARTNER Master Account »: means PARTNER’s main account from which PARTNER can manage all the PARTNER Sub-Accounts. The PARTNER Master Account shall notably have accessible information through the PARTNER HQ 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 PARTNER’s share of the Advertising Revenues related to the Video Monetization Feature calculated according to Section 4, together with PARTNER’s share of the Advertising Revenues related to the Website Monetization Feature calculated according to Section 6.
« 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 legal 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 HQ 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 the PARTNER HQ of 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 HQ’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.
« Private Mode »: means a setting accessible within the PARTNER HQ which, if selected by PARTNER, renders an item of Content unavailable to the Public on the DAILYMOTION Service, unless PARTNER has given access to such Content to somebody from the PARTNER Account where it is stored, or exported such Content on PARTNER Properties or Third-Party Properties. « Prohibited Content »: means any content that, as determined by DAILYMOTION in its sole discretion:(i) infringes any Intellectual Property Rights, right of publicity or other right of any person or entity, or (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive, tortious, obscene, offensive, vulgar, explicit, indecent, pornographic, profane or is otherwise inappropriate, or (iii) encourages violence, injury or hatred to or against any individual or group, or cruelty to animals, or (iv) creates either “Forced visit” traffic or spyware/adware loading pages (including, in either case, popups or popunders) which load ads, or (v) creates invisible or nested invisible IFRAMEs loading pages which load ads, or (vi) uses spyware/adware loading ads invisibly (or cause fake clicks thereon, including but not limited to click spam, robots, macro programs, and internet agents), or (vii) reloads/refreshes any code causing multiple impressions to be registered in short succession, or (viii) contains downloadable software; executable or malicious code, any virus, malicious or social engineering (phishing) code or features, worm, Trojan horse, time bomb, spyware, malware or other computer code, file or program designed, intended or likely to disrupt, damage, limit or interfere with the proper function of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of any person or entity, or (ix) encourages or promotes weapons, drug use or any illegal activity, or (x) is spam, or (xi) falsely suggests or implies sponsorship or endorsement by DAILYMOTION.
« Public »: means the general public having access to the DAILYMOTION Service.
« Stream (including, with correlative meanings, “Streaming” or “Streams”) »: means to exhibit, reproduce, display and/or distribute content in a manner in which such content can be viewed by viewers of such content and cannot be permanently downloaded, recorded, or otherwise stored or copied for subsequent viewing by the viewer of such content, other than temporary storage for caching or buffering necessary to facilitate the viewing of such content or for offline viewing for a limited period of time within DAILYMOTION applications.
« 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 a website or mobile application.
« Technical and Operating Costs »: means any media buying, operational or technical fees associated with: (i) the sale of the In-stream Advertising inventory available on the Dailymotion Service and/or (ii) the hosting, Streaming and distribution of the Content or the Third-Party Video(s) on the Dailymotion Service and/or (ii) the use of the Partner Program by PARTNER.
« Term »: means the duration of these Terms as further defined in section 13.1.
« Territory »: means by default worldwide, unless PARTNER has blocked certain territories where the Content shall not be communicated to the Public, through the settings in the PARTNER HQ or by using the DAILYMOTION API.
« Third-Party Property(ies) »: means any Internet websites or applications that are not the DAILYMOTION Properties or 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 tools supplied to PARTNER by DAILYMOTION enabling PARTNER to upload PARTNER’s own audio-visual Content onto the PARTNER Accounts and allowing 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) Streamed via the Video Player that is 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 as a member of 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 to associate 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’s only recourse is to not use the PARTNER Program.
- If the PARTNER is an individual, PARTNER warrants that: (i) PARTNER is of legal age and legally capable of entering into a binding contract pursuant to the Laws applicable to PARTNER (note that in most countries the age of majority is 18 years old, however PARTNER should confirm the age of majority in PARTNER’s own country); and (ii) PARTNER shall comply with the Terms and all applicable Laws. In this case, the Terms will apply to that individual.
- If the PARTNER is not an individual, PARTNER represents to DAILYMOTION that (i) the PARTNER’s legal entity is duly organized and validly existing and in good standing under the Laws of the place of its incorporation and (ii) the person accepting the Terms has all necessary corporate or equivalent authority and power to agree to the Terms on behalf of the legal entity she or he represents. 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 this case, the Terms will apply to that legal entity.
By agreeing to the Terms, PARTNER will have 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 said tools and features until having duly completed the payment form available through the PARTNER HQ or any other required information by DAILYMOTION and until having also accepted the self-billing authorization. PARTNER’s membership in the PARTNER Program or PARTNER’s access to any of the features of the PARTNER Program may be revoked at any time if DAILYMOTION deems that PARTNER is in violation of these Terms or of the DAILYMOTION Policies.
Furthermore, DAILYMOTION reserves the right to refuse access to the PARTNER Program to PARTNER if DAILYMOTION believes, in its sole discretion, that PARTNER will not respect these Terms or that PARTNER does not meet the PARTNER Program eligibility requirements.
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. PARTNER acknowledges that the email address provided by PARTNER constitutes part of the PARTNER Account credentials and that this email address is used by DAILYMOTION to communicate with PARTNER, including, without limitation, on matters relating to PARTNER ACCOUNT security. PARTNER remains solely responsible for any acts or omissions resulting from DAILYMOTION’s use of PARTNER’s inaccurate or outdated email address that PARTNER has failed to update. PARTNER is strictly prohibited from providing false or misleading sign-up information, including using a name, address or email address owned or controlled by another person without appropriate authorization. DAILYMOTION reserves the right to terminate any account that it reasonably believes is in violation of the foregoing.
2.3. 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 responsible for the secrecy of its user id and password associated herewith and for any possible disclosure, whether intentional or not, and is liable for all activities that occur through its PARTNER Accounts. 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, except to the extent that any such unauthorized or fraudulent use resulted from the willful misconduct or gross negligence of DAILYMOTION. PARTNER agrees to immediately notify DAILYMOTION of any unauthorized use of PARTNER’s username, password or other breach of account security.
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 and the Territory, and transferable to its Affiliates, the non-exclusive rights to reproduce, represent, Stream, replay, 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 via the Video Player wherever it is available (subject to such Territory restrictions as may be specified by PARTNER in accordance with these Terms). For sake of clarity, DAILYMOTION shall not edit or alter the Content in any way (with the exclusion of potential Advertising insertions under the Video Monetization Feature), it shall only technically modify the Content as provided by the PARTNER as is strictly necessary in order to store it on the DAILYMOTION Service and make it viewable via the Video Player.
PARTNER shall deliver the Content to DAILYMOTION with a level of quality in accordance with the typical industry standards; and shall provide the Content in one of the following digital formats: MPEG – 4, MPEG – 2, AVI, WMV, H.264 video format and AAC audio format or any other format set out in the “Frequently Asked Questions” section of the DAILYMOTION Site (as currently available at http://www.dailymotion.com/upload/faq).
Upon upload onto the PARTNER Accounts, PARTNER’s Content shall automatically be set to Public Mode, however PARTNER may change this setting for any item of Content at any time to Private Mode.
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.
Additionally, in furtherance of the exclusivity granted to DAILYMOTION, PARTNER is prohibited from selling Advertising (directly or indirectly through any third-party) associated with the Content within the DAILYMOTION Properties and/or the Video Player. Notwithstanding the foregoing, nothing herein grants to DAILYMOTION any right to sell Display Advertising on the PARTNER Properties.
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 5% (five percent) of the 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 10% (ten percent) of the 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, through the Video Player, on the PARTNER Properties.
PARTNER may immediately and at PARTNER’s sole discretion remove at any time any such specific Third-Party Video from PARTNER Properties on which PARTNER had previously exported it for any reason including, without limitation, if PARTNER reasonably believes that the distribution of such Third-Party Video violates any applicable Law.
The Parties agree that the Third-Party Video(s) available via the Video Player embedded on the PARTNER Properties may 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. For clarification, the foregoing restrictions shall not limit PARTNER’s right to remove any Third-Party Video from the PARTNER Properties as described above.
Additionally, in furtherance of the exclusivity granted to DAILYMOTION, PARTNER is prohibited from selling Advertising (directly or indirectly through 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 Video Player.
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 5% (five percent) of the 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 content uploaded on the DAILYMOTION Properties. Therefore, the Third-Party Videos are provided “AS IS” with no warranties whatsoever and the embedding of any Third-Party Videos by PARTNER into the PARTNER Properties will be at PARTNER’s sole risk and liability.
PARTNER acknowledges and agrees that DAILYMOTION or the third-party video uploader, 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 also acknowledges and agrees that the third-party video uploader may also restrict the exposure of any Third-Party Video at any time and at its sole discretion notably by geo-restricting the Third-Party Video or setting it to Private Mode which may impact the availability for Streaming of the given Third-Party Video through the Video Player on the PARTNER Properties.
PARTNER acknowledges and agrees that DAILYMOTION is not responsible for any data related to Third-Party Video(s) provided by the relevant video uploader, 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
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 and DAILYMOTION shall promptly comply with such request.
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 Marks, and/or thumbnails of the Content, for information, communication and/or promotional purposes of the Content on and off the DAILYMOTION Service and/or in the DAILYMOTION newsletters in order to publicize the availability of the Content on and off the DAILYMOTION Service. However, any such use of the PARTNER Marks and/or thumbnails of the Content outside this limited use shall be subject to prior authorization from PARTNER.
DAILYMOTION shall be permitted to publicly identify PARTNER as a user of the DAILYMOTION Service, including on DAILYMOTION Properties and marketing materials. PARTNER hereby grants DAILYMOTION a non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide license during the Term to use PARTNER’s Marks for this purpose. All goodwill arising out of any use of any of PARTNER’s Marks by DAILYMOTION will inure solely to the benefit of PARTNER.
Any use by PARTNER of DAILYMOTION’s Marks must be in conformity with then-current graphic guidelines provided by DAILYMOTION and be approved in advance by DAILYMOTION in writing (email sufficient).
The Parties agree and acknowledge that each Party may issue a press release announcing PARTNER’s membership in the Partner Program, 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 via the PARTNER HQ enabling PARTNER to track its monthly PARTNER Program Revenues. The PARTNER HQ accessible from each PARTNER Sub-Account will only include the data and figures related to the use of the features related to such Sub-Account and Content hosted on it, but the PARTNER HQ accessible from the PARTNER Master Account will compute the data and figures related to all of the PARTNER Accounts owned by PARTNER.
However, only the conclusive account statements available within 60 (sixty) days from the end of each month within the PARTNER HQ of the PARTNER Master Account (“Statement Availability Date”) shall determine the billing and payment of PARTNER Program Revenues for the previous months, being agreed that the account statement and payment shall be deemed final and conclusive unless disputed in writing by PARTNER within 15 (fifteen) days of the relevant Statement Availability Date.
PARTNER acknowledges and agrees that data being generated by DAILYMOTION’s tools will be the sole measurement data to be used for any reporting and invoicing purposes in connection to these Terms.
If PARTNER has (i) duly filled in all mandatory information necessary for payment through the PARTNER HQ of the PARTNER Master Account and (ii) accepted the corresponding self-billing authorization, then DAILYMOTION shall generate an invoice on the PARTNER’s behalf and in the name of the PARTNER within 15 (fifteen) days following the relevant Statement Availability Date (“Invoice Generation Date”), provided 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 purposes, it 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/or the mandatory information required and the self-billing authorization are not properly filled in and accepted.
PARTNER acknowledges that PARTNER is solely liable for any consequences of missing, incomplete or erroneous payment information, including, without limitation, currency fluctuation or payment charges.
For the avoidance of doubt, self-billing of the PARTNER Program Revenues shall only be managed from the PARTNER HQ of the PARTNER Master Account.
9.3.1. Payments by DAILYMOTION shall be made 30 (thirty) days after the last day of the month of the Invoice Generation Date, by using the services provided by one of the third-party vendor payment systems made available by DAILYMOTION (“TVP”), as chosen by PARTNER in PARTNER’s sole discretion. Payments shall be made in US Dollars unless another currency is chosen by PARTNER amongst the currencies proposed through the TVP. PARTNER understands that if any amount is due by PARTNER to DAILYMOTION under the present Terms DAILYMOTION may set if off against (i.e. deduct it from) the invoiced PARTNER Program Revenues.
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 TVP, NOR FOR ANY ACTION, ERROR OR OMISSION PERFORMED BY THE TVP.
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 TVP account (as the case may be) bearing the same name as that of PARTNER.
9.3.6. It is agreed that certain amounts may be deducted by DAILYMOTION from the PARTNER Program Revenues which correspond to (i) taxes, levies or other charges from 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 TVP fees that result from the direct error, negligence, or omission of PARTNER in the communication of its relevant account information to DAILYMOTION). Moreover, PARTNER acknowledges and agrees that any fees related to PARTNER’s use of a TVP, and/or any fees charged by PARTNER’s own banking institution in order for PARTNER to receive the PARTNER Program Revenues, shall be borne by PARTNER. In addition, DAILYMOTION or the TVP may deduct from the payment of the PARTNER Program Revenues any fees incurred by the TVP to process such payment.
9.3.7. PARTNER agrees and acknowledges that in the scope of counter-terrorism, anti-corruption and anti-money-laundering measures, financial transactions may be banned if they are directed to, issued by or otherwise involving a country, territory, individual or company that is subject to economic or trade sanctions or restrictive measures enacted, administered, imposed or enforced by (i) any governmental institutions and agencies (e.g. official sanctioned countries lists issued by the OFAC, the United Nations, the European Union, etc.) and/or (ii) any internal policies from DAILYMOTION or DAILYMOTION’s Affiliates that are in line with international regulations, and/or (iii) any TVP’s own policies (a “Banned Entity”). PARTNER shall be solely responsible for ensuring that the country in which PARTNER intends to receive payments from DAILYMOTION or issue payments to DAILYMOTION (as the case may be) is not considered as a Banned Entity.
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
All rights not expressly granted herein are reserved. 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 Marks, including but not limited to copyright, trademark and patent rights, 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 other right to the DAILYMOTION Service including the DAILYMOTION Properties and the Video Player, the Third-Party Video(s) or DAILYMOTION’s logos and brands.
PARTNER expressly undertakes and warrants that PARTNER will not disassemble, reverse engineer, modify or otherwise alter the DAILYMOTION Service or any part thereof and, in particular, remove or modify any legal notices, content reporting functionalities or consent collection mechanisms available within the DAILYMOTION Service.
Any Intellectual Property Rights arising from and/or in relation with the Content, PARTNER’s Website(s) and PARTNER’s Marks shall remain PARTNER’s exclusive property. Except as otherwise provided herein, no provision herein shall grant DAILYMOTION any Intellectual Property Right or other right to PARTNER’s Website(s) or PARTNER’s logos and brands.
10.2.1 Corporate Warranties
Each Party represents and warrants at all times that: (i) it is duly authorized to execute and deliver these Terms and duly authorized to perform its obligations and exercise its rights hereunder; (ii) these Terms are a legal and valid obligation, binding and enforceable in accordance with its terms; and (iii) the execution, delivery and performance of these Terms does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any Law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it.
10.2.2. Warranties related to the Content
PARTNER agrees to associate the Content with complete and accurate metadata (including but without limitation, the title, tags video category, duration, language, video description, and any other information requested by DAILYMOTION from time to time) necessary for the exploitation of the Content on the DAILYMOTION Service. Notably, PARTNER represents and warrants that if PARTNER uploads video content which is directed towards children, that PARTNER shall indicate that such video falls under the “Kids” category (or any other similarly named related category, ex. 'Children') by selecting such category from the drop-down menu of categories made available to PARTNER when uploading the video, or any other method made available by DAILYMOTION in the future. PARTNER understands that doing so is crucial to ensure legal compliance with Laws protecting children (including but not limited to the US Children’s Online Privacy Protection Act (COPPA)) and that failure to do so whether by negligence or intentional misidentification shall be considered a material breach of these Terms. PARTNER acknowledges that PARTNER shall indemnify DAILYMOTION for any Claims brought against DAILYMOTION for PARTNER’s failure to identify video content direct at children as being under the ‘Kids’ or other similarly named related category) category.
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, artists-performers or executors, technicians and, in general, from anyone who has participated directly or indirectly or otherwise contributed to the creation of the Content and/or from any third-party that may be entitled to claim any right on or to the Content as required to respect its obligations, exercise its rights, and grant licenses according to these Terms and as such, releases DAILYMOTION from any claim or action arising from any third-party as a result of 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 Prohibited Content and/or (iii) violate any applicable Laws.
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 Content hosted on the PARTNER Accounts after obtaining knowledge of its illegal character or as otherwise provided under applicable Laws. PARTNER shall nonetheless remain fully liable for such Content.
PARTNER is solely responsible for any Content or other material that PARTNER posts, uploads, submits, Streams, distributes or otherwise makes available in relation to the present Terms. In particular, PARTNER is prohibited from posting, uploading, submitting, Streaming or distributing Prohibited Content. Any Content that violates these Terms will be subject to removal upon DAILYMOTION becoming aware of such Content.
PARTNER is solely responsible for taking its own steps to backup its Content, and DAILYMOTION recommends that PARTNER routinely archives its Content. DAILYMOTION disclaims any responsibility for deleted, lost, corrupted or inaccessible Content.
10.2.3. Common warranties related to the use of the PARTNER Program
PARTNER warrants, as an essential condition, that PARTNER shall only claim as a PARTNER Property in the PARTNER HQ on websites and/or mobile applications that PARTNER owns and/or 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 Prohibited Content and/or (iii) violates any applicable Laws.
PARTNER undertakes not to generate any Invalid Traffic, nor to authorize or encourage any third-party, including by offering any financial incentive, to do the same.
In the event of the good faith belief by DAILYMOTION of PARTNER’s violation of its material obligations and/or warranties defined in this Section 10, DAILYMOTION may, at its sole discretion, without waiver or prejudice of any other of DAILYMOTION’s rights or remedies immediately: (i) retain payment of any unduly generated Advertising Revenues, and/or (ii) request from PARTNER reimbursement of any already issued payment corresponding to any unduly generated Advertising Revenues, and/or (iii) suspend and/or terminate the PARTNER’s subscription to the PARTNER Program and/or any of the features or tools therein.
PARTNER acknowledges that DAILYMOTION is authorized to provide the information and personal data about PARTNER to relevant authorities upon a valid request from such authorities.
10.2.4. Clearance of exploitation rights
PARTNER represents and warrants, with respect to the Content, 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 in accordance with collective management agreements DAILYMOTION may have entered into for this purpose, if any.
PARTNER shall not, directly or indirectly, collect or otherwise process any personal information, whether directly identifiable or indirectly identifiable, in relation to end-users accessing Content and related material on the DAILYMOTION Service ("Personal Data"). Any requests received by PARTNER from such end-users for Personal Data related to DAILYMOTION’s exploitation of the DAILYMOTION Service shall be transmitted by PARTNER to DAILYMOTION (via email to firstname.lastname@example.org or any other email address which DAILYMOTION may specify in the future) as soon as is reasonably feasible but in any event no later than 8 (eight) days following receipt of such request. Each Party may process personal data of the other Party as necessary for the proper execution of the present Agreement. If PARTNER is an individual residing in the European Economic Area (EEA) (“EEA PARTNER”) the statutory rights to request access to, rectification, and/or erasure of personal data, to request the restriction of the processing of personal data, to object to the processing of personal data, and the right to data portability, may be exercised by the EEA PARTNER by emailing email@example.com. Such EEA PARTNER also has a right to file a complaint with a competent supervising authority. The personal data that may be provided to or disclosed to DALYMOTION under the present Agreement may be processed by DAILYMOTION and its subsidiaries. Any related transfer of personal data of an EEA PARTNER outside of the EEA is undertaken pursuant to the applicable laws (i.e. the European Commission standard contractual clauses or Privacy Shield certification as applicable).
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 associated with or arising out of: (i) DAILYMOTION's and/or its Affiliates’ exploitation of the Content as specified herein; and/or (ii) PARTNER’s use of the DAILYMOTION Service and of the tools, features and functionality of the PARTNER Program (including but not limited to the Video Monetization Feature and the Website Monetization Feature) contrary to the provisions contained herein; and/or (iii) the infringement of any third-party Intellectual Property Rights or other rights arising from the use of PARTNER’s Marks 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, subject to DAILYMOTION’s representations and warranties hereunder, 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, and (ii) the protection of its computer hardware and information systems 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 and/or used communication technologies, 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 (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, and (iii) DAILYMOTION’s obligations as a web hosting service provider may result in taking-down of content without DAILYMOTION’s having any liability in relation to such content and/or any obligation to participate in any legal proceedings PARTNER may initiate or be involved related to such content.
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 and the Third-Party Videos are provided “AS IS” without warranty, provided that DAILYMOTION may enhance, modify and update the DAILYMOTION Service at its sole discretion. Furthermore, PARTNER acknowledges and agrees that DAILYMOTION is not responsible for any data related to Third-Party Video(s) provided by their relevant uploaders, such as the video title, description, category, etc. 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.
The Parties agree that the Content and/or Third-Party Video(s) available for embedding through the Video Player may include In-stream Advertising wherever such Content and/or Third-Party Video may be embedded. PARTNER further acknowledges and agrees that DAILYMOTION makes no representations concerning the volume of advertising inventory available on, and/or the volume of advertisements delivered in relation to the Content and/or Third-Party Videos. Furthermore, DAILYMOTION makes no warranties concerning a minimum total amount of PARTNER Program Revenues to be earned by PARTNER during the Term. Furthermore, PARTNER agrees that DAILYMOTION reserves the right to at any time turn off the monetization of PARTNER’s Content, meaning that DAILYMOTION reserves the right to not associate any In-stream Advertising with PARTNER’s Content via the Video Player.
Without prejudice to any of its obligations in these Terms, DAILYMOTION, its Affiliates, and their respective 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 DAILYMOTION 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 PARTNER 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 PARTNER’s 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 of PARTNER’s membership in the PARTNER Program will be the last calendar day of the month in which the termination notice was given, meaning that after this date PARTNER will no longer benefit from any of the tools or features of the PARTNER Program, or accrue any PARTNER Program Revenues. PARTNER will continue, for administration purposes only, to have access to its PARTNER HQ for a period of 60 (sixty) days following the effective termination date.
13.3. Either Party may terminate these Terms, without liability to the other Party, by notice to the other Party with immediate effect if:
- 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 these Terms); or
- 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 60 (sixty) days of the effective termination date, if (i) PARTNER has filled in all mandatory information necessary for payment through the PARTNER HQ of the PARTNER Master Account, and (ii) PARTNER has accepted the corresponding self-billing authorization, and (iii) all outstanding PARTNER Program Revenues accrued in the PARTNER Account until the effective termination date equal at least $100, then DAILYMOTION shall generate an invoice on the PARTNER’s behalf and in the name of the PARTNER, and pay to PARTNER such outstanding PARTNER Program Revenues accrued in the PARTNER Account.
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), and PARTNER’s membership in the Partner Program, 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 or to the PARTNER Program as articulated herein, PARTNER’s only recourse is to stop using the DAILYMOTION Service.
13.6. Immediately upon the effective termination date 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 and closes its user account.
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 Terms 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 Terms which is expressly intended to come into or continue in force on or after such termination.
Section 14: MISCELLANEOUS
14.1. Neither Party may assign, transfer or otherwise delegate its rights and/or obligations hereunder without the consent of the other Party; provided, however, that (a) no consent shall be necessary from PARTNER for an assignment to any DAILYMOTION Affiliate, and (b) either Party may, without the consent of the other Party, assign these Terms as a result of a merger, acquisition or similar change of control transaction.
14.2. By accepting these Terms, PARTNER expressly acknowledges and agrees to be bound by all DAILYMOTION Policies. The DAILYMOTION Policies may be updated from time to time, and the newest version of which shall always be accessible from the home page of the DAILYMOTION Site; if PARTNER disagrees with such modifications, PARTNER’s recourse shall be to stop using the DAILYMOTION Service. In the event of any conflict between the DAILYMOTION Policies and these Terms, these Terms shall control.
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 the Terms, the interpretation and validity of the Terms, and any disputes arising from the Terms, shall be governed by the substantive Laws of France, applicable to contracts made and to be performed therein and without reference to its conflicts of laws rules that would result in the application of the laws of another jurisdiction. 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.
14.4. In the event that either Party defaults in its obligations under these Terms and such default is a result of a Force Majeure event, the defaulting Party shall not be liable to the other Party for such default so long as such Force Majeure event is in effect; provided that the defaulting Party takes commercially reasonable efforts to mitigate the effects of such Force Majeure event.
14.5. 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 corporate 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.
14.6. 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.
14.7. 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, letters of intent, 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.
14.8. 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, 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. Such specific amendments to new functionality or legal amendments will be effective immediately upon notice. 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 CONSTITUTES BINDING ACCEPTANCE OF ALL AMENDMENTS.
Last updated on February 3rd, 2020