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Stitcher Content Distribution Agreement
The following constitutes an agreement between you, a content distributor or producer (subsequently referred to as "Producer") and Stitcher, Inc. (subsequently referred to as "Stitcher")a Delaware corporation which operates its primary place of business at 121 2nd Street, San Francisco, CA 94105, and provides a streaming media service (herein referred to as the "Service") through which Producer desires to have its Submitted Content, defined below, distributed.
I. Roles and Responsibilities.
A. Stitcher's Obligations: Upon Producer's acceptance of the terms of this agreement and the submission of the Content Producer Application and/or Submitted Content, Stitcher agrees to the following:
1. Stitcher will evaluate each Content Producer Application and determine, at its sole discretion, whether the Submitted Content will be distributed on the Service.
2. Should Stitcher distribute the Submitted Content, Stitcher:
i. shall perform the necessary processing of Submitted Content to allow that content to stream more effectively over the Service. Such processing includes downloading and copying each audio episode file on to the Stitcher server. Stitcher end-users will stream Producer's audio files from the Stitcher server. Stitcher will incur all costs associated with, hosting, serving and processing the Submitted Content.
ii. shall use commercially reasonable efforts to make Submitted Content available to as many users of the Service as possible. Stitcher may, in its sole discretion, sell advertising in connection with the distribution of the Submitted Content via the Service. Unless agreed to in a separate written agreement, Stitcher shall be entitled to all revenues it receives from the advertising it sells. Stitcher shall not be entitled to any revenue that Producer receives from selling advertising in Submitted Content, unless otherwise arranged.
iii. shall provide Producer with data regarding the use and distribution of Submitted Content (e.g., number of users listening to Submitted Content) through the Stitcher Provider Portal. Producer understands and agrees that Stitcher's usage data regarding the consumption and listenership of Submitted Content is separate and distinct from any metrics Producer obtains from its own servers and feeds.
iv. shall remove Submitted Content from the Service in accordance with Producer's right to remove Submitted Content as outlined in this agreement.
B. Producer Obligations: Upon accepting the terms of this agreement and submitting the necessary materials required for Stitcher to distribute Submitted Content on the Service, the Producer agrees as follows:
1. Producer shall continually maintain the production quality of the Submitted Content intended to be distributed through the Service at or above the level expected by a reasonable listener to similar types of audio programming. Production quality includes but is not limited to audio quality and update frequency.
2. Producer shall provide promotional consideration to Stitcher as agreed upon between Producer and Stitcher. Examples of such promotional consideration include but are not limited to on-air mentions of Stitcher, social media promotion and links from Producer's website to Stitcher website.
II. Distribution of Submitted Content on Service.
A. Stitcher acknowledges that Producer owns and/or controls the copyright in Submitted Content, subject to the rights that Producer grants to Stitcher hereunder.
B. Producer hereby acknowledges that Producer is entirely responsible for everything contained in the Submitted Content made available by Producer on the Service, including compliance with all laws and the intellectual property rights of third parties.
C. All materials that Producer submits to Stitcher including, without limitation, audio recordings, metadata, images, names, or other materials submitted to Stitcher ("Submitted Content") shall be subject to the applicable terms and conditions set forth herein.
D. Solely in consideration of the possibility of distribution on the Service, by uploading, posting, emailing or otherwise making available Submitted Content to Stitcher, Producer hereby grants to Stitcher a non-exclusive, irrevocable, sub-licenseable, royalty-free, and perpetual (subject to Producer's right to have Submitted Content removed per Section IV) right to:
1. Exhibit, display, reproduce, distribute, store, adapt, perform, market, transmit, promote, and otherwise use Submitted Content, in whole or in part, via the Stitcher platform and types of supported devices (e.g. - smartphone, tablet, PC, television, car audio system), now known or hereafter devised, throughout the world (the "Distribution Rights"). Stitcher shall have the right to syndicate the Submitted Content itself or through affiliated companies or designated agents;
2. Exhibit the Submitted Content via all forms of media throughout the world in for promotional and/or advertising purposes ("Promotional Rights") or for any other purpose as determined by Stitcher in its sole discretion; and,
3. Create and use derivative works therefrom.
E. Producer acknowledges that Producer shall not be entitled to any monetary compensation in exchange for Producer's grant to Stitcher of the Distribution Rights or the Promotional Rights or Stitcher's subsequent exercise of those rights. Producer acknowledges that all information, data and metadata collected by Stitcher - including information about the popularity of the Submitted Content - in connection with the delivery of the Service is owned exclusively by Stitcher.
F. Stitcher shall have no obligation to post, exhibit, distribute or otherwise make use of any Submitted Content.
III. Representations, Warranties and Indemnities.
A. Producer hereby warrants and represents that:
1. Producer possesses all rights in the Submitted Content necessary to permit Producer to make the grant of rights to Stitcher included this agreement and is duly authorized to do so;
2. Submitted Content is not unlawful, obscene, fraudulent, indecent; does not defame, abuse, harass, or threaten others; and is not hateful or racially, ethnically or otherwise objectionable;
3. Submitted Content does not contain any software viruses, Trojan horses, worms, bombs, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information;
4. Submitted Content does not infringe the copyright, patent, trademark, trade secret, right of publicity or other intellectual property, proprietary, contracted, personal or other right of any third party;
5. Submitted Content does not violate the privacy of individuals, including other users of the Service;
6. Submitted Content does not violate any applicable local, state, national or international law;
7. All information provided in Producer's Content Producer Application is true, accurate, current and complete information about Producer as prompted by the Service's application form (such information being the "Application Data");
8. Submitted Content is not - and to the best of Producer's knowledge, will not be - the subject of any threatened or pending litigation, claim or dispute. Producer has not done anything which has impaired and will not do anything to impair the rights granted to Stitcher in any way;
9. Stitcher shall have no obligation to make any payments to any third parties for exercising its rights to Submitted Content; and,
10. The individual authorizing this agreement, as the representative of Producer, is an adult and at least 18 years of age, and is capable of lawfully entering into and executing this agreement.
B. Producer will indemnify and hold harmless Stitcher, Inc and its subsidiaries, affiliates, successors, licensees, and assigns, and each of their directors, officers, agents, equity holders and employees, and each and every Stitcher sponsor and advertiser (individually and collectively referred to as the "Released Parties"), from and against any and all claims, losses, costs, damages, liabilities and costs and expenses (including reasonable attorneys' fees and costs) which arise out of any breach of any of Producer's covenants, agreements, obligations, representations or warranties set forth herein and/or arising out of or in connection with, any materials or Submitted Content that Producer submits, posts to or transmits to the Service, Producer's use of the Service, Producer's connection to the Service, Producer's violation of this agreement or Producer's violation of any rights of another party.
IV. Removal of Content. If Producer requests that any portion of the Submitted Content be deleted, replaced, or made inaccessible because such Submitted Content may contain errors, is or could be subject to a third party claim, or for any other reasonable business purpose, then Stitcher may remove the particular piece of Submitted Content as soon as practicable. Stitcher may remove Submitted Content at any time. Requests for removal can be sent to email@example.com. Stitcher reserves the right to remove or modify any Submitted Content in order to comply with federal, state, local, or international law, including, but not limited to, the Digital Millennium Copyright Act. Producer understands and agrees that any hyperlinks created prior to Stitcher's removal of Submitted Content may continue to connect to Submitted Content after any removal of Submitted Content from the Service.
V. Stitcher's Intellectual Property Rights and Limited License. All text, graphics, multimedia content or other material that can be heard or read on the Service, except for Submitted Content, (such content being the "Materials") is owned or being used with permission by Stitcher, and may not be used by Producer except as provided in this agreement.
VI. Copyright and Trademarks
A. The Materials embodied in the Service are copyrighted under the United States intellectual property laws and/or similar laws of other jurisdictions. Without limitation, Stitcher either owns a copyright in the Materials including, without limitation, the selection, coordination, arrangement and enhancement thereof, as well as in the content original to Stitcher, or has been authorized to exploit the Materials on the Service.
B. "Stitcher SmartRadio", the Stitcher logo, along with related marks that may appear on the Service ("Marks"), are the service and trademarks of Stitcher. All other trademarks, service marks and logos used on this Service, with or without attribution, are the trademarks, service marks or logos of their respective owners. Without Stitcher's written permission, Producer agrees not to display or use, in any manner, the Marks or Materials. In addition, elements of the Service are protected by trade dress and other federal and state intellectual property laws and may not be copied, reproduced, downloaded or distributed in any way, in whole or in part, without the written permission of Stitcher.
VII. Infringement Complaints - Digital Millennium Copyright Act Notice
A. Stitcher respects others' intellectual property rights and has made every effort to secure appropriate clearances for all proprietary intellectual properties that Stitcher affirmatively makes available on the Service. Further, Stitcher relies upon the obligations imposed upon Producers by this agreement to protect against the publication on the Service of infringing material by Producers. Stitcher may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of Producers who it suspects to be infringers. If Producer believes any material on the Service is infringing, please contact Stitcher at the address below. Pursuant to the Digital Millennium Copyright Act, Stitcher has a designated agent to receive copyright infringement claims.
B. Producer may notify Stitcher of alleged intellectual property rights infringement by contacting our designated DMCA
121 2nd Street
San Francisco, CA
DO NOT SEND ANY INQUIRIES UNRELATED TO POTENTIAL INFRINGEMENT OF RIGHTS OR OTHER LEGALMATTERS (E.G., REQUESTS FOR TECHNICAL ASSISTANCE OR CUSTOMER SERVICE, ETC.) TO THE CONTACT LISTED ABOVE. PRODUCER WILL NOT RECEIVE A RESPONSE IF PRODUCER SENDS COMPLAINTS UNRELATED TO LEGAL MATTERS TO THAT CONTACT.
All other correspondence should be left at our feedback page.
C. If Producer's notification involves infringement of copyright or trademark rights, please include the following information in the notice:
1. Identification of the work(s) claimed to have been infringed and a statement of ownership to such work(s);
2. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
3. Information reasonably sufficient to permit us to contact a Producer representative, such as an address, telephone number and e-mail address at which Producer may be contacted;
4. A statement that Producer has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law;
5. A statement, under penalty of perjury, that the information in the notification is accurate and that Producer is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
6. A physical or electronic signature.
A. This agreement and its performance will be binding on Producer and Producer's heirs, administrators, successors and assigns. This agreement specifically applies to any submission of material that Producer makes to Stitcher by way of the Content Producer Application or other means of communication and, with respect to such submissions, supersedes any other agreement applicable to the Service. The construction, validity, interpretation and enforceability of this agreement will be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice of law or conflict of law rules. Notices to Stitcher shall be delivered to the address above. Notices to Producer shall be delivered to the address referenced in Producer's Content Producer Application.
B. This agreement will not be assignable by Producer except as approved in writing by Stitcher and any unauthorized, purported assignment will be null and void. Stitcher, and its successors and assigns, will have the unlimited right to assign this agreement and the rights granted at any time, in whole or in part, to any party.
C. Producer irrevocably agrees that, if a dispute arises out of or relates to this agreement, including, without limitation, Stitcher's use of Submitted Content, such dispute(s) will be resolved solely by binding arbitration before a sole arbitrator in San Francisco, with experience in digital media and copyright law, under the rules and regulations of the American Arbitration Association ("AAA"). The arbitration will be held in San Francisco, California where the arbitrator will issue a written decision and will have the power to award any legal remedies except as limited by this agreement.
D. Notwithstanding the foregoing, Producer acknowledges that Stitcher may:
1. Obtain injunctive or other equitable relief from a court to enforce the provisions of this agreement; and/or
2. Bring an action in court to protect or interpret any of Stitcher's purported intellectual property rights; and/or
3. Bring an action to enforce the decision of the arbitrator before any court of competent jurisdiction.
E. Producer hereby acknowledges and agrees that by submitting a Content Producer Application to www.stitcher.com, Producer has hereby agreed and shall be deemed to have executed this agreement as of the date the Content Producer Application was submitted online.
IX. Limitations on Liabilities; Remedies.
PRODUCER UNDERSTANDS AND AGREES THAT:
A. ANY AND ALL DISPUTES, CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH SUBMITTED CONTENT WILL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION.
B. ANY AND ALL CLAIMS, JUDGMENTS AND AWARDS ON BEHALF OF PRODUCER WILL BE LIMITED TO ACTUAL THIRD-PARTY, OUT-OF-POCKET COSTS INCURRED.
C. THAT UNDER NO CIRCUMSTANCES WILL STITCHER, ITS AFFILIATES OR SUBSIDIARIES, THEIR SPONSORS, CONTRACTORS, SPONSORS, VENDORS OR OTHER PARTNERS, ANY OF THEIR SUCCESSORS, ASSIGNS OR LICENSEES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES (COLLECTIVELY "RELEASED PARTIES") BE RESPONSIBLE OR LIABLE TO PRODUCER OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICE, THE USE OR THE INABILITY TO USE THE SERVICE, UNAUTHORIZED ACCESS TO OR ALTERATION OF PRODUCER TRANSMISSIONS OR DATA, THE MATERIALS AVAILABLE ON THE SERVICE, STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR IN CONNECTION WITH THE SERVICE OR ANY OTHER MATTER RELATING TO THE SITE INFORMATION CONTAINED WITHIN THE SERVICE, EVEN IF ANY OF THESE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY DAMAGES.
D. PRODUCER'S SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICE AND/OR SERVICE-RELATED MATERIALS IS TO STOP DISTRIBUTING SUBMITTED CONTENT THROUGH THE SERVICE. PRODUCER AGREES THAT THIS LIMITATION OF LIABILITY AND RELEASE IS MADE WITH THE KNOWING INTENT OF RELEASING ALL KNOWN AND UNKNOWN CURRENT AND FUTURE CLAIMS AND WITH THE INTENT OF WAIVING ALL RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542 OR OTHER LAWS REQUIRING SIMILAR WAIVERS TO BE KNOWINGLY MADE.
X. Disclaimer of Warranties.
PRODUCER EXPRESSLY UNDERSTANDS AND AGREES THAT:
A. PRODUCER'S USE OF THE SERVICE IS AT PRODUCER'S SOLE RISK. ANY CONTENT OR INFORMATION CONTAINED WITHIN THE SERVICE IS PROVIDED "AS IS" WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND.
B. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, STITCHER DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
C. PRODUCER ASSUMES TOTAL RESPONSIBILITY AND RISK FOR PRODUCER'S USE OF THIS SERVICE AND ANY SERVICE-RELATED MATERIALS. IN ADDITION, STITCHER DOES NOT WARRANT THAT THE FUNCTIONS ON THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN OR ON THE SERVICE WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVER THAT MAKES THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
D. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT PRODUCER'S OWN DISCRETION AND RISK AND PRODUCER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO PRODUCER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. UNDER NO CIRCUMSTANCES WILL STITCHER BE LIABLE IN ANY WAY FOR ANY MATERIAL, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY MATERIAL POSTED, EMAILED OR OTHERWISE TRANSMITTED VIA THE SERVICE.
XII. Waiver. Any delay or failure on the part of Stitcher to exercise or enforce any rights under this agreement to which it may be entitled shall not, in any event, be construed as a waiver of the right and privilege to do so at any subsequent time. Producer irrevocably agrees that Producer waives any and all rights to injunctive or other equitable relief.
XIII. Entire Agreement; Service Interruption. Stitcher reserves the exclusive right to modify, withdraw, update, maintain, suspend or discontinue, temporarily or permanently, at any time and from time to time any materials, information or content available on the Service and any functionality or features in or on the Service, including the cessation of all activities associated with the Service, with or without notice. Producer agrees that Stitcher shall not be liable to Producer or to any third party for any modification, suspension or discontinuance of the Service.
A. Stitcher may, in its sole discretion, terminate Producer's use of the Service for any reason, including, without limitation, if Stitcher believes that Producer has:
1. Breached this agreement or otherwise acted inappropriately;
2. Infringed the intellectual property right of a third party;
3. Provided any information that Stitcher is unable to verify or authenticate;
4. Uploaded or transmitted unauthorized Submitted Content to the Service; and/or
5. Violated or acted inconsistently with the letter or spirit of this agreement.
Producer agrees that any termination of access to the Service may be effected without prior notice to Producer.
B. Producer may at any time terminate use of the Service and request that that any or all Submitted Content be removed from distribution through the Service. Stitcher's obligation for removal is as defined in Section IV of this agreement.
C. This agreement may be terminated by either party at any time by providing a written notice of termination to the other party. However, all licenses granted to Stitcher for previously supplied Submitted Content shall survive termination of this agreement. In addition, Producer's indemnity obligations under this agreement shall survive the termination of this agreement.
XV. Modification. Stitcher reserves the right to change or modify this agreement at any time. This agreement shall not be modified except in writing, as posted on this site by Stitcher. Any change or modification made by Stitcher will be effective immediately upon posting on the Stitcher website and Producer's continued use of the Service means that Producer has agreed to accept any changes or modifications made by Stitcher. Producer should therefore periodically visit this page to review the most recent terms.
Last Revised: January 25, 2012