UPSTREAM DISTRIBUTION TERMS & CONDITIONS

2. Upstream Services.
(a) Upstream provides its clients with certain content management and royalty administration services (the “Upstream Services”) including:
(i) formatting, reformatting and otherwise preparing content for distribution to third party digital service providers;
(ii) identifying, claiming, tracking, flagging, registering, distributing and monetizing content, whether in whole or in part (including as embodied in end-user generated content, to the extent matched on third party platforms);
(iii) promotional (non-monetized) opportunities in respect of content;
(iv) monetization (e.g., ad-supported, subscription-based, digital downloads, etc.) opportunities in respect of content; and
(v) other services Upstream may from time to time offer to clients.
(b) Client desires that Upstream provide Client with certain Upstream Services in respect of the Client Content (as defined below) and Upstream hereby agrees to provide Client with such Upstream Services subject to the terms and conditions herein.
(c) Exclusivity; Other Deals. Client acknowledges that Upstream expends significant resources to prepare Client Content for monetization and claiming and to provide the Upstream Services and that, except as otherwise agreed between the parties, Upstream does not receive a share of revenue from the exploitation of Client Content hereunder unless Upstream is able to so monetize and claim the Client Content and provide the Upstream Services in respect of the Client Content. Client further acknowledges that conflicting monetization claims by third parties may reduce monetization opportunities of Client Content. As such, Client agrees that, Client will not enter into an assignment, license, sale, content management, monetization and/or royalty administration agreement, in each case, in respect of the Client Content, with any third party, whether or not similar to this Agreement, during the Term in the Territory. Without prejudice to the foregoing, Client shall not enter into an agreement with a record label, music publisher or other rights administrator in respect of the Client Content without Upstream’s prior written consent (in Upstream’s sole discretion). If Upstream determines in its reasonable discretion that Client has violated the foregoing in this Section 2(c), then such violation will be deemed to be a Usage Violation hereunder and, without prejudice to Upstream’s other rights and remedies at law or equity, Client hereby agrees that Upstream may elect (in its sole discretion) one or more of the following remedies:
(i) Upstream may request Client to continue to make available Client Content hereunder for Upstream to continue to provide the Upstream Services in respect of the Client Content (including monetization of Client Content) and for Client to otherwise perform all of its obligations hereunder; and Client agrees that to the extent that Client purported to enter or entered into any agreement that conflicts with the grant of rights hereunder, during the Term, such agreement shall be deemed null and void ab initio to the extent of such conflict and Client will not use such other agreement as a defense against any claim by Upstream hereunder to enforce this Agreement against Client;
(ii) Upstream may request that Client waive and Client hereby waives its rights to receive Royalties from the date Client breached Section 2(c) hereunder and Upstream may, in its sole discretion, either terminate this Agreement immediately on Certified Notice to Client or continue to monetize and claim the Client Content through the end of the then-current Initial Term or Renewal Term; or
(iii) Client hereby assigns to Upstream a percentage of gross compensation (however characterized and without setoff and/or deduction) credited to and/or received by or on behalf of Client in respect of the Client Content (and/or work that would have been Client Content hereunder during the then-current Initial Term or Renewal Term), from the third party (for example, record label, music publisher and/or monetization service) through the end of the then-current Initial Term or Renewal Term, such percentage calculated as follows: (the Upstream Share plus 5%). In the event that Upstream selects the remedy in this Section 2(c)(iii), Client shall deliver or cause to be delivered such additional documents and other papers and to take or cause to be taken such further actions as may be necessary, proper or advisable to make effective the assignment contemplated hereby and to carry out the provisions hereof. Client hereby consents to the disclosure of this Agreement as and to the extent necessary to make effective such assignment.

3. Client Content.
(a) “Client Content” means:
(i) the sound recordings, musical compositions (including lyrics), images, audiovisual works, and all other content, in each case, identified in Client’s account on the www.upstreamdistribution.com website (and related and successor websites i.e. portal.upstream.us) and Upstream’s mobile application(s) (the “Interface”);
(ii) all other content claimed by or on behalf of Client via: (1) written notice to Upstream (including via email), (2) oral notice to Upstream, or (3) other means of notice to Upstream (e.g., via SMS text messages), in each case, which such notice is confirmed by Upstream in writing (including via email, SMS, in-app push notification, etc.) (and, subject to the terms and conditions herein, such content will be deemed Client Content hereunder effective as of the date of Upstream’s written notice);
(iii) all other content provided or delivered by or on behalf of Client to Upstream;
(iv) any other content subject to any content license agreements by and between Client and Upstream that were executory immediately prior to the Effective Date (for clarity, other than Ancillary Agreements (as defined below)); and
(v) any names, likeness, images (including album artwork), text and metadata associated with the preceding clauses (i) through (iv) to the extent reasonably necessary to provide the Upstream Services to Client hereunder.
(b) Except to the extent that Client notifies Upstream in writing via the Interface, “Client Content” includes one hundred percent (100%) of all works set forth in the Interface (including all copyrights and copyrightable interests therein). Client will notify Upstream in the event it owns or controls less than 100% of all interests in the works set forth in the Interface. Client represents and warrants to Upstream, on a present and continuing basis throughout the Term (as defined below), that Client owns or controls all valid right, title, and interest in and to the Client Content.
(c) Notwithstanding anything to the contrary, “Client Content” excludes musical compositions to the extent such musical compositions are, as of the Effective Date, or become, subsequent to the Effective Date, subject to a separate publisher administration agreement by and between Client and Upstream (an “Ancillary Agreement”).

4. Territory. The Territory of this Agreement is the Universe, subject to any territorial restrictions on Client’s rights existing as of the Effective Date that may apply in respect of specified items of Client Content, which restrictions are communicated to Videpush via the Interface or, provided such email is acknowledged by Upstream, via email.

5. Term. The term of this Agreement commences on the Effective Date, continues, subject to earlier termination (as set forth herein), through the end of the Initial Period and renews, subject to earlier termination or expiration (as set forth herein), automatically for successive Renewal Periods unless and until either party gives Certified Notice in writing to the other party of its intention not to renew, sent at least thirty (30) but no more than sixty (60) days prior to the expiration of the then-current Initial Period or Renewal Period (the “Term”). Notwithstanding the foregoing, Client may not issue such a Certified Notice of non-renewal or otherwise terminate this Agreement while Client is then in breach of this Agreement. Notwithstanding anything to the contrary herein, Upstream may terminate this Agreement for convenience on thirty (30) days written email notice and/or Certified Notice to Client of its intention to so terminate this Agreement.

6. Rights.
(a) Rights Granted. In order to receive the Upstream Services, Client hereby grants to Upstream, during the Term and throughout the Territory, on an exclusive (other than with respect to Unsupported Channels (as defined below)) and sublicensable basis, the DSP Rights and the Upstream Rights as set forth below:
(i) “DSP Rights” means the rights for Upstream to authorize third party digital service providers and digital music retailers (collectively, “DSPs”) to do the following in connection with their respective products and services:
(1) host Client Content delivered by or on behalf of Upstream to the DSP and Client Content as uploaded by end users;
(2) make streams (whether on an interactive or non-interactive basis), conditional downloads and/or permanent downloads of the Client Content (in whole or in part), on a through to the end user basis, in each case, across any and all apps, devices, networks, platforms, services, stores, and/or websites, now known or hereinafter developed (collectively, “Platforms”) on a commercial or promotional basis,
(3) format or reformat the Client Content to facilitate the foregoing,
(4) market or promote the Client and/or the Client Content;
(5) create fingerprints of, reference files relating to, metadata concerning or other digital attributes of (collectively, “Fingerprints”), Client Content; and
(ii) “Upstream Rights” means the rights for Upstream to:
(1) make claims in respect of third party uses of the Client Content (in whole or in part) and to block, permit and/or monetize such uses, in each case, across any and all Platforms,
(2) format or reformat the Client Content to facilitate the foregoing,
(3) create Fingerprints of Client Content in furtherance of the Upstream Services as may be reasonably necessary,
(4) collect royalties in respect of the Client Content (including in respect of the exploitation of Client Content) from third parties; and
(5) make other uses of the Client Content (in whole or in part) and otherwise exploit, modify, excerpt, encode, host, cache, transmit, distribute, store, copy, embed, upload, perform, communicate to the public, display, render, sell copies of, sell advertising against and/or subscriptions access to (or otherwise monetize), block, disable, and/or take down, the Client Content (in whole or in part), to facilitate the provision of the Upstream Services to Client.
(b) Contractors. Notwithstanding anything to the contrary, Upstream may sublicense it rights and delegate its obligations to affiliates and subcontractors to provide the Upstream Services.
(c) Additional Rights Granted. Client hereby grants Upstream a limited, non-exclusive, royalty-free, sublicensable license to use Client’s names, images and likenesses including all associated trademarks, trade names, names, professional names, photographs, video stills, designs, logos, cover art and/or other materials related to Client Content, as well as any artist, performer, producer, creator and/or person, associated with and/or featured within the Client Content, for use to promote and/or market the Client Content, Upstream, the Upstream Services or for other reasonably related uses, including, use in Upstream presentations, marketing materials, financial reports, press releases, customer lists; in each case, during the Term and throughout the Universe.
(d) Distribution; Monetization.
(i) Upstream may, in its sole discretion, provide to Client with functionality via the Interface or otherwise an opportunity to select which DSPs Upstream distributes Client Content to. Notwithstanding anything to the contrary, Client agrees that Upstream may distribute or monetize Client Content via such DSPs as Upstream may select in its sole discretion (collectively, “Upstream Partners”). Without prejudice to the foregoing, Upstream has sole discretion over the distribution or monetization of Client Content and Client agrees that Upstream may distribute or monetize Client Content on select Upstream Partner’s offerings/service tiers or via all Upstream Partners’ offerings/service tiers and in some countries of the Territory or all countries of the Territory. UPSTREAM DOES NOT GUARANTEE THAT CLIENT CONTENT WILL GENERATE ANY ROYALTIES.
(ii) Unsupported Channels. At any time during the Term, if Upstream is not then-making available the Client Content in a particular country of the Territory and/or via a particular DSP, Client will submit a Certified Notice to Upstream requesting that Upstream make available the Client Content in such country via such DSP in such country(ies) as part of the Upstream Services before seeking to make available Client Content on or via such DSP in such country(ies). Within sixty (60) days of such Certified Notice, Upstream may (i) make available the Client Content via such DSP in the applicable country; or (ii) send the Client written notice (which may be via email) that it is unable to so make available the Client Content via such DSP in the applicable country of the Territory (such DSP in such country, an “Unsupported Channel”), provided that if Upstream does not respond to Client’s Certified Notice after ninety (90) days then such DSP in the applicable country shall be deemed to be an Unsupported Channel hereunder. Upstream shall have no obligations to Client hereunder in respect of the exploitation of Client Content on or via Unsupported Channels. For clarity, nothing herein shall prevent Client from seeking to distribute Client Content on or via Unsupported Channels, provided Client has complied with the notice requirements of this Section 6(d)(ii).
(e) For clarity and without prejudice to the licenses granted hereunder, the Client Content may be offered to end users on a free-to-the-user, ad-supported and/or paid subscription basis, in each case, on and/or via websites and applications, regardless of the device or media, including PCs, mobile devices (e.g., smart phones, tablets and watches), connected media players (e.g., Sonos, Apple TV, Amazon Echo, IPTV, etc.).
(f) Upon Upstream’s request, Client shall use commercially reasonable efforts to deliver or cause to be delivered such additional documents and other papers and to take or cause to be taken such further actions as may reasonably be necessary, proper or advisable, to make effective the rights granted by it to Upstream hereby and to carry out the provisions hereof.
(g) Notwithstanding anything to the contrary, Upstream shall have no obligation to exercise any of the rights granted to it hereunder or to distribute or monetize Client Content via any DSP or any particular DSP.

7. Royalties. Subject to the terms and conditions herein and provided that Client is not then in breach of this Agreement, Upstream will pay to Client the Client Share of Royalties in respect of each Accounting Period during the Term. After the Term, Royalties received by Upstream in connection with exploitation of Client Content during the Term hereunder, if any, will continue to be subject to the payment provisions herein.
(a) Definitions:
(i) “Gross Receipts” means monies actually received by Upstream from Upstream Partners (after deduction of Upstream Partners’ respective commissions) during the applicable Accounting Period and not subject to return or contingency, which are solely and directly attributable to exploitation of the Client Content on Upstream Partners’ Platforms in connection with Upstream’s provision of the Upstream Services during the Term. For clarity, Upstream usually receives Gross Receipts after the Accounting Period during which the associated exploitation of Client Content took place on the Upstream Partner’s Platform.
(ii) “Royalties” means any and all Gross Receipts less the Upstream Service Fee and less any and all expenses incurred by or on behalf of Upstream in connection of such gross receipts, including payment processing fees, payment rejection fees, app store fees, ad sales commissions, fees (however characterized) payable to Client’s agent in consideration for such agent’s services in respect of the Client and/or Client Content, etc. and less Taxes.
(iii) “Upstream Service Fee” means Gross Receipts multiplied by the Upstream Share.
(iv) “Upstream Share” means 100% less the Client Share.
(v) “Taxes” means sales, use, excise, value-added or similar taxes and other amounts as may be required under applicable law to be withheld from Client hereunder.

8. Delivery of Client Content.
(a) Client will deliver to Upstream all Client Content (including, for clarity, all associated album cover art and metadata (including ISRC/ISWC codes, as applicable, artist, writer, etc.)) to Client’s Interface, within 5 business days of the Effective Date and, thereafter, with respect to new Client Content, within 2 business days after the same becomes Client Content hereunder. Except as otherwise may be agreed in writing between the parties, Client represents, warrants and covenants to Upstream that all once content becomes “Client Content” hereunder, it will remain Client Content through the Term.
(b) Client agrees that content delivered by or on behalf of Client to Upstream will not contain any so called “bugs”, logos, chyrons, or overlay messaging of any kind, or include any so called “bumpers”, pre-roll content, third party advertising or promotional messaging of any kind. Client represents and warrants, on a present and continuing basis through the Term, that none of the Client Content contains or constitutes (or will contain or constitute) a computer virus or other contaminating or destructive feature

9. Third Party Rights. Client acknowledges and agrees that, as between Upstream and Client, Client is solely responsible for procuring and paying for any and all necessary third party rights, licenses and/or clearances, including any payments required to be made to labels, publishers, recording artists, composers, creators, actors, models, producers, directors, videographers, editors and all other royalty participants, from Upstream’s authorized exploitations of the Client Content hereunder. Client shall furnish to Upstream, at any time upon Upstream’s request, any and all agreements, licenses, clearances and/or other documents required by Upstream to evidence Client’s compliance with this Section 9.

10. Takedowns.
(a) As used herein, “Usage Violation” means:
(i) the Client Content or the use thereof as authorized in this Agreement violates or may violate the intellectual property rights or other rights of any third party;
(ii) the Client Content or the use thereof as authorized in this Agreement violates or may violate any applicable law or is subject to an injunction;
(iii) the Client Content or the use thereof as authorized in this Agreement, is or may be found to be pornographic, obscene or in violation of Upstream’s and/or any Upstream Partner’s then-applicable terms and conditions/terms of use and/or privacy policy(ies);
(iv) a breach of Section 10(c) or a breach of Section 2(c); or
(v) the Client Content or the use thereof as authorized in this Agreement has given or may give rise to Claims (as defined below) against Upstream, violates or may violate applicable law or may otherwise subject Upstream to liability.
If Upstream receives notice, or Upstream becomes aware or otherwise determines in its sole discretion, that a Usage Violation has occurred or that a Usage Violation is imminent, then Upstream may, in its sole discretion and without limiting any of its rights or remedies, all of which are expressly reserved: (u) cooperate with any Upstream Partner’s investigation including by, as reasonably necessary to protect Upstream, disclosing Client’s identity to Upstream Partners or third parties (which, for clarity, Client hereby consents to); (v) suspend Client’s access to or ban Client from accessing the Interface; (w) suspend making such Client Content available through, withdraw such Client Content from or block such Client Content from the applicable DSPs; (x) withhold Royalties, whether or not generated in connection with the applicable Client Content as set forth in Section 10(b) below; (y) credit Royalties (whether or not generated in connection with the applicable Client Content) toward the reimbursement of potential Losses (defined below) as set forth in Section 10(b) below (after which point, such Royalties shall cease to be deemed “Royalties” and such amounts will not be payable to Client hereunder); and/or (z) assess a standard investigation and processing fee of one thousand dollars ($1,000) per violation or potential violation (e.g., to offset Upstream’s costs of investigation or outside counsel legal fees) (“Usage Violation Fee”).
(b) Client hereby agrees that Upstream may withhold any amount of Royalties then-in Client’s account, in its sole discretion, in the event of a Usage Violation (regardless of whether the Usage Violation relates to the Client Content that generated such Royalties or not). Client further agrees that any such Royalties shall be forfeited by Client if Upstream determines, in its sole discretion, that such Royalties are the result of any illegal act, misrepresentation, deception, fraud and/or infringement or in the event of a breach by Client hereof (regardless of whether the breach relates to the Client Content that generated such Royalties or not) including a breach by Client of Section 2(c). Client agrees that Client will not be entitled to reimbursement for any fees paid by Client to Upstream (e.g., in connection with extra storage or other services pursuant to a separate agreement between Client and Upstream), or to any Royalties forfeited by Client as set forth herein, in the event Upstream disables access to the Interface and/or Client Content as permitted herein. Client further agrees that Upstream may, at any time, with or without notice, terminate this Agreement as a result of any Usage Violation, and/or any Client activity which, in Upstream’s sole discretion, constitutes infringing, illegal, misrepresentative, deceptive and/or fraudulent activity. Client acknowledges that Upstream’s damages stemming from any Usage Violation are impossible to predict. Client expressly agrees that the foregoing remedies, including but not limited to the Usage Violation Fee, forfeiture of Royalties and/or termination of this Agreement, are reasonable and not a penalty and are without prejudice to any other remedies that Upstream may have at law or equity. Client hereby agrees not to raise any objection to any or all such remedies as may be exercised by Upstream in its sole discretion.
(c) Prohibition on Manipulating Play Counts or Streams. Client will not directly or indirectly manipulate content play counts by methods including automated systems, robots, spiders, scripts and/or other means including with the intent to inflate or exaggerate streams, plays, views, impressions or outcomes or otherwise send more requests to access content to service providers in a given period of time than a human can reasonably in the same period using a conventional online web browser. Any such conduct shall be deemed to be a Usage Violation hereunder.
(d) Client will notify Upstream of Client Content which is or may become subject to a demonstrable third party Claim. Upon Upstream’s request, Client will promptly provide Upstream with an electronic copy of all communications received by Client in connection with such Claim. Upon review of such Claim, Upstream may, in its sole discretion, use commercially reasonable efforts to promptly send a request to Upstream Partners to take down, block or disable the Client Content subject to such Claim. Upstream will not be held liable for any failure to take down, block or disable such Client Content, and Client hereby agrees to indemnify and hold harmless Upstream and its designees in connection therewith.

11. Metadata. Upstream may create and use such metadata as is reasonably required to claim Client Content across various asset types as applicable, including sound recording, composition, music video, video, art track and/or such other uses applicable now and/or developed in the future that Upstream determines in its sole discretion to be worthwhile and effective in supplying Upstream Services.
11A. International Users: The www.upstreamdistribution.com website (and related and successor websites i.e. portal.upstream.us) (for the purposes of this 11A, the “Site”) and Interface are hosted in the United States.
(a) If Client a customer or Client is accessing the Site and/or Interface from the European Union, Asia, or any other region with laws or regulations governing personal data collection, use, and disclosure, that differ from United States laws, then please note that Client is transferring Client’s personal data to the United States which does not have the same data protection laws as the EU and other regions.
(b) European Union and European Economic Area: the Site and/or Interface is not intended for children accessing the Site from the European Union or the European Economic Area by children under the age of 16.

12. Accounting:
(a) Payment Process; Waiver. Notwithstanding anything to the contrary, Upstream has no obligations to pay to Client any Royalties hereunder unless and until Client complies with the following:
(i) Client will provide to Upstream (or, for clarity, in Upstream’s sole discretion, a third party service provider acting on behalf of Upstream) Client’s payment details as required by Upstream (“Payment Details”); and
(ii) Client will complete and provide to or on behalf of Upstream all documentation Upstream reasonably requires to comply with its legal obligations, including (1) for U.S. taxpayers, a fully completed Form W-9 and (2) for non-U.S. taxpayers, a fully completed W-8 (together with Payment Details, “Documentation”).
Client acknowledges that due to the nature of content release cycles, time is of the essence in making Client Content available online and that Upstream may not be able to obtain Client’s Documentation prior to making Client Content available online. CLIENT AGREES THAT IF CLIENT DOES NOT PROVIDE TO UPSTREAM ALL SUCH DOCUMENTATION WITHIN THIRTY (30) DAYS OF UPSTREAM’S REQUEST FOR SUCH DOCUMENTATION SENT TO CLIENT’S EMAIL ADDRESS THAT CLIENT PROVIDED TO UPSTREAM VIA THE INTERFACE, THEN CLIENT HEREBY FOREVER WAIVES ITS RIGHTS TO ALL THEN-ACCRUED ROYALTIES HEREUNDER AND UPSTREAM MAY, IN ITS SOLE DISCRETION, TERMINATE THIS AGREEMENT WITH IMMEDIATE EFFECT (WITH OR WITHOUT NOTICE TO CLIENT).
(b) Upstream will calculate Royalties on a monthly, quarterly or another periodic basis, as Upstream in its sole discretion elects to use hereunder (each such period, an “Accounting Period”). Subject to the terms and conditions herein, Upstream will pay Royalties to Client within 180 days after the applicable Accounting Period. Upstream may, in its sole discretion, calculate Royalties (including all other terms used to calculate Royalties): on a Upstream Partner-by-Upstream Partner basis (including on a tier-by-tier basis to the extent the Upstream Partner offers multiple tiers of service), country-by-country basis and/or on another basis. Other than Royalties, no additional fees, amounts or consideration of any kind, shall be payable to Client hereunder. Upstream will provide Client with access to a Royalties accounting statement (the “Accounting Statement”). Notwithstanding the foregoing, Upstream will not be required to provide a statement for any period(s) during which no Royalties are earned and/or generated. Likewise, Upstream will not be required to issue payments to Client until the Accounting Period when then-aggregate Royalties payable to Client total at least thirty-five ($35) or if payment processing fees chargeable to Upstream in connection with such Royalties exceed the amount of Royalties, provided that any Royalties payable to Client at the expiration or termination of the Term will be paid to Client after the expiry of the Accounting Period during which such expiration or termination occurs. Accounting Statements, if any, will be made available for access electronically via the Interface) and shall be deemed rendered when so available.
(c) Each Accounting Statement will be considered final and incontestable six (6) months from the date it is rendered if Client does not object to it within that period of time. Client agrees that Upstream may rely on accounting statements provided by Upstream Partners as true and accurate in accounting to Client hereunder and Client agrees that such accounting statements shall not be contestable by Client.
(d) Client shall be solely responsible for all Taxes imposed in connection with the distribution or sale of Client Content hereunder. If Upstream is required to deduct or withhold taxes from any amounts payable to Client hereunder, then Upstream may deduct and withhold such taxes from such amounts, without obligation to gross-up payments to Client or to indemnify Client in respect of such deductions and withholdings. In no event will Upstream be liable for any taxes that are based upon Client’s net or gross income or gross receipts.
(e) Upstream will be deemed to have fulfilled all obligations to pay Royalties to Client hereunder, where payment is made to the account Client (or Client’s designee) designates hereunder or where (i) Client’s bank, PayPal or any other third party payment processor rejects any payment(s) (for example, due to reasons specific to the Client’s geographic region); (ii) Client or such payment triggers an Anti-Money Laundering (AML) and/or Office of Foreign Assets Control (OFAC) review or (iii) for any other reason under applicable law or governmental regulation such payment is not permissible. Client acknowledges and agrees that it (or its designee) may change the account it has designated but Client agrees that if any changes to the account are made at the time payment is processed then Upstream’s obligations in respect of such payment will nonetheless be fulfilled. In the event that, in connection with any payment details Client provides to Upstream (either directly or indirectly through a third party), Upstream is charged any fees and/or penalties by any applicable third party payment processing services (as may be implemented by Upstream from time to time in its sole discretion), Client hereby agrees that Upstream shall have the right to deduct the full amount(s) of any and all such fees and/or penalties from any and all Royalties which may be due or become due to Client pursuant to this Agreement. Client hereby agrees not to raise any objection to any and all such deductions, which shall be made in Upstream’s sole discretion.

13. Representations and Warranties: Client represents and warrants on a present and continuing basis throughout the Term that: (a) Client has full power and authority to enter into this Agreement; (b) Client has read and understood the terms and conditions of this Agreement and will abide by them and Client is either: (i) a legal entity, and the individual entering into the Agreement is Client’s agent or representative authorized to enter into this Agreement on Client’s behalf; or (ii) a natural person and: (1) 18 years of age (or the applicable age of majority in Client’s jurisdiction) or older, or (2) if Client is under 18 years of age (or the applicable age of majority in Client’s jurisdiction), but at least 13 years of age or more Client may use Upstream Services only under the supervision of a parent or legal guardian who agrees to be bound by this Agreement; (c) Client owns or controls (and will maintain throughout the Term and Territory), all third party rights, authorizations and licenses that are necessary to perform Client’s obligations hereunder, to grant the DSP Rights and Upstream Rights as set forth herein, and to permit Upstream to exploit the Client Content as contemplated herein without any liability to any third party; (d) Upstream’s authorized use of the Client Content does not, and will not, infringe any third party rights, including intellectual property rights, privacy rights, rights of publicity, rights arising from any agreements between Client and any third party(ies) and/or any other proprietary rights; and (e) all Client Content is, and shall always be, in full compliance with any and all applicable laws, rules, and/or regulations. Client further acknowledges that Client has read and understands Upstream’s Terms and Conditions and Privacy Policy posted at www.upstreamdistribution.com, and by executing this Agreement and/or submitting Client Content to Upstream, Client expressly accepts and shall adhere to such Terms and Conditions and Privacy Policy, as may be amended from time to time, in Upstream’s sole discretion. Notwithstanding anything to the contrary, in the event of a conflict between this Agreement and any such Terms and Conditions and Privacy Policy, this Agreement shall control.
(A) Prohibited Use. Except as may be expressly permitted by Upstream, Client may not:
(i) interfere with www.upstreamdistribution.com website (and related and successor websites i.e. portal.upstream.us) (for the purposes of this 13A, the “Site”) and/or Interface by using viruses or any other programs or technology designed to disrupt or damage any software or hardware;
(ii) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the Site;
(iii) use a robot, spider or other device or process to monitor the activity on or copy pages from the Site, except in the operation or use of an internet “search engine”, hit counters or similar technology;
(iv) collect electronic mail addresses or other information from third parties by using the Site;
(v) impersonate another person or entity;
(vii) use any meta tags, search terms, key terms, or the like that contain Upstream’s name or trademarks;
(viii) engage in any activity that interferes with another user’s ability to use or enjoy the Site; or
(ix) assist or encourage any third party in engaging in any activity prohibited by this Agreement

14. Disclaimer: UPSTREAM HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: (A) WITH RESPECT TO MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (B) AS TO THE QUALITY OR PERFORMANCE OF THE MATERIALS, INFORMATION, GOODS, SERVICES, TECHNOLOGY OR CONTENT PROVIDED IN CONNECTION WITH THIS AGREEMENT; AND (C) WARRANTIES AS TO THE PERFORMANCE OF COMPUTERS, TECHNOLOGY, AND/OR NETWORKS, IN EACH CASE, WITH RESPECT TO THE UPSTREAM SERVICES AND UPSTREAM PARTNERS’ PLATFORMS. UPSTREAM MAKES NO WARRANTY THAT THE UPSTREAM SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE. UPSTREAM DOES NOT GUARANTEE THAT CLIENT CONTENT WILL GENERATE ANY ROYALTIES.
EXCLUSION OF DAMAGES. UPSTREAM WILL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE WWW.UPSTREAMDISTRIBUTION.COM WEBSITE (AND RELATED AND SCCESSOR WEBSITES i.e. PORTAL.UPSTREAM.US) FOR THE PURPOSES OF THIS PARAGRAPGH 14, THE “SITE”) AND/OR INTERFACE, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF A UPSTREAM’S REPRESENTATIONS AND WARRANTIES UNDER THIS AGREEMENT OR IN CONNECTION WITH UPSTREAM’S INDEMNITY OBLIGATIONS (IF ANY) UNDER THIS AGREEMENT, IN NO EVENT WILL THE LIABILITY OF UPSTREAM IN CONNECTION WITH THIS AGREEMENT EXCEED THE GREATER OF (i) THE AMOUNT PAID OR PAYABLE BY UPSTREAM TO CLIENT DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (ii) $100.

15. Indemnification.
(a) Client agrees to indemnify, defend and hold harmless Upstream and its affiliates and its and their respective directors, officers, employees and agents (“Related Parties”) from and against any and all damages, liabilities, costs, losses and expenses (including legal costs and reasonable attorneys’ fees and costs of investigation) (“Losses”) arising out of: a breach or threatened breach by Client of any warranty, representation, agreement, undertaking or covenant contained in this Agreement including, without limitation, any claim, demand, or action (“Claim”) which is inconsistent with any of the warranties, representations, agreements or covenants made by Client in this Agreement.
(b) Client agrees that Upstream may deduct from Royalties otherwise payable to Client hereunder, sums equal to any and all Losses and potential Losses. To the extent Royalties do not then cover the amount of any such remaining Losses and potential Losses (after such deduction) then, without prejudice to any of Upstream’s other rights or remedies, Client shall reimburse Upstream, on demand, for any such remaining Losses and potential Losses. Client further agrees that pending the final determination (as determined in Upstream’s sole discretion) of any Claim (if any) associated with potential Losses, Upstream may, in its sole discretion, withhold payment of Royalties otherwise payable to Client pursuant to this Agreement.
(c) If Upstream seeks to be indemnified pursuant to this provision, Upstream will (i) promptly inform Client to indemnify it pursuant to this provision of each Claim with respect to which Upstream seeks indemnity, (ii) furnish to Client a copy of each communication, notice or other action related to such Claim, and (iii) give Client the authority, information and reasonable assistance necessary to settle or litigate such Claim, using counsel selected by Client (provided, however, that Upstream will have the opportunity to participate in the defense of such Claim with counsel of its choice, at Upstream’s sole cost). Client will obtain Upstream’s prior written consent prior to entering into any settlement of any such Claim that imposes any requirements on Upstream or which involves agreements other than the payment of money by Client and receipt of a full release for the benefit of Client and Upstream.

16. Limitation of Liability. WITHOUT LIMITING ANY INDEMNITY OBLIGATIONS HEREUNDER: (i) UPSTREAM SHALL NOT BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR SPECIAL DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) UPSTREAM’S TOTAL AGGREGATE LIABILITY TO CLIENT UNDER THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF ONE HUNDRED UNITED STATES DOLLARS (US $100) OR ROYALTIES FOR THE TWELVE MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO UPSTREAM’S LIABILITY.

17. Notice:
(a) Except as expressly set forth herein, all notices under this Agreement will be in writing and sent via certified mail return receipt requested, or via a nationally recognized overnight express delivery service with proof of delivery, all charges pre-paid (each, a “Certified Notice”), to the address of the applicable party as set forth herein, or to such other address as may be designated by the applicable party in writing. Except as otherwise set forth herein, such Certified Notices shall be deemed given two (2) business days after mailing as set forth herein.
(b) No suit, action or proceeding may be commenced by Client against Upstream unless (i) Client first gives Upstream Certified Notice via overnight express delivery service via a nationally recognized courier, of the specific details of the breach(es) or alleged breach(es) that form the basis of such suit, action or proceeding, and (ii) Videopiush has not cured such breach or alleged breach within one hundred and eighty (180) days after Upstream’s actual receipt of such Certified Notice.

18. DISPUTE RESOLUTION.
(a) Mandatory Arbitration. Please read this carefully. It affects Client’s rights. CLIENT AND UPSTREAM AND EACH OF UPSTREAM’S RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR CLIENT’S USE OF THE SERVICES. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
(b) Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by Client to Upstream, to Client via any other method available to Upstream, including via e-mail. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If Client and Upstream do not reach an agreement to resolve the claim within 30 days after the Notice is received, CLIENT or Upstream may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. If Client is required to pay a filing fee to commence an arbitration against Upstream, then Upstream will promptly reimburse Client for Client’s confirmed payment of the filing fee upon Upstream’s receipt of Notice that Client has commenced arbitration along with a receipt evidencing payment of the filing fee, unless Client’s Demand is equal to or greater than $1,000, in which case Client is solely responsible for the payment of the filing fee.
(c) Arbitration Proceeding. The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. Client and Vidopush agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(d) No Class Actions. CLIENT AND UPSTREAM AGREE THAT CLIENT AND UPSTREAM MAY BRING CLAIMS AGAINST THE OTHER ONLY IN CLIENT’S OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, CLIENT AGREES THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID.
(e) Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and shall include a statement setting forth the reasons for the disposition of any claim. The arbitrator shall apply the laws of the State of New York in conducting the arbitration. Client acknowledge that this Agreement and Client’s use of the Upstream’s website and/or Interface evidences a transaction involving interstate commerce. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this Agreement.
(f) Applicable Law. This Agreement and Client’s use of the Site shall be governed by the substantive laws of the State of New York without reference to its choice or conflicts of law principles and arbitration shall occur in the County of New York.
(g) Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which Upstream seeks equitable relief of any kind. Client acknowledges that, in the event of a breach of this Agreement by Upstream or any third party, the damage or harm, if any, caused to Client will not entitle Client to seek injunctive or other equitable relief against Upstream, and Client’s only remedy shall be for monetary damages, subject to the limitations of liability set forth in this Agreement.
(h) Claims. Client and Upstream agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this Agreement, the use of the Upstream’s website(s) and/or Interface, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.(i) Improperly Filed Claims. All claims Client brings against Upstream must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section shall be considered improperly filed. Should Client file a claim contrary to this Dispute Resolution section, Upstream may recover attorneys’ fees and costs up to $5,000, provided that Upstream has notified Client in writing of the improperly filed claim, and Upstream has failed to promptly withdraw the claim.

19. WAIVER OF RIGHTS. CLIENT AND UPSTREAM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. CLIENT AND UPSTREAM EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT BY OR AGAINST EITHER PARTY IN CONNECTION WITH THIS AGREEMENT.

20. Confidentiality. As used in this Agreement, “Confidential Information” means any non-public information, non-public beta features, statements, data, usage reports or other materials provided by Upstream in connection with this Agreement (other than Client Content and other information intended for storage and display to end users of Upstream Partners). Except with the prior written consent of Upstream, Client may not use or disclose any Confidential Information other than to Client’s employees, independent contractors and/or advisors who are bound by an agreement to limit use and disclosure of Confidential Information consistent with this provision, in each case, with a need to know to fulfill such party’s obligations hereunder, and/or legal and/or written obligations to third parties. Notwithstanding the foregoing, nothing in this Agreement prohibits or limits Client’s use or disclosure of information (a) previously known to it by lawful means without obligation of confidence, (b) independently developed by or for it without use of or access to the Upstream’s Confidential Information, (c) acquired by it from a third party which, to the reasonable knowledge of tClient, is not under an obligation of confidence with respect to such information, (d) which is or becomes publicly available through no breach of this Agreement or (e) in connection with any legal, governmental or administrative proceeding, provided that prior Certified Notice of such disclosure is furnished to Upstream in order to afford Upstream a reasonable opportunity to seek a protective order (it being agreed that if the non-disclosing party is unable to obtain or does not seek a protective order, disclosure of such information in such proceeding may be made without liability), which such information is required to be disclosed by operation of law, court order or other governmental demand, solely to the extent required to comply with such law, order or demand.

21. New Agreements; Amendments.
(a) Upstream reserves the right to revise this Agreementin its sole discretion at any time and without prior notice to Client other than by posting the revised Agreement on its websites and/or Interface. Any revisiosn to this Agreement are effective upon posting. It is incumbent upon Client to visit this page periodically to ensure Client’s continued acceptance of this Agreement. Client’s continued use of Upstream’s websites and/or Interface after a revised version of this Agreement has been posted, constitutes Client’s binding acceptance of such revision and the revised Agreement. Notwithstanding thepreceding sentences of this paragraph, no revisionsto this Agreement will aplly to any dispute between Cleint and Upstream that arose prior to the date of such revision. .
(b) To the extent that Upstream and Client have, prior to the Effective Date, entered into any agreement(s) or understandings in respect of Upstream’s provision of Upstream Services (or similar services) in respect of content owned or controlled by Client (other than to the extent of Ancillary Agreement(s) executory as of the Effective Date) (collectively, “Old Terms”), this Agreement shall be deemed to supersede any and all such Old Terms and such content shall be deemed to be Client Content hereunder, with effect from the Effective Date hereof except that Sections 15 (Indemnification) 17 (Notice) and 18 (Choice of Law) of this Agreement shall supersede any such Old Terms’ respective indemnification, notice and choice of law provisions from the effective date of such Old Terms (or if such Old Terms did not include such provisions, the corresponding provisions herein shall be deemed to have been a part of such Old Terms from the respective effective dates thereof, mutatis mutandis). The parties hereby agree that any such Old Terms shall be deemed terminated as of the Effective Date hereof.

22. Miscellaneous. Nothing in this Agreement will be construed to require the commission or omission of any act contrary to applicable law. In the event of a conflict between any provisions of this Agreement and any applicable law contrary to which the parties have no legal right to contract, such provision will be construed in a manner consistent with applicable law and all other provisions will remain in full force and effect. This Agreement cannot be waived, modified or amended, in full or in part, except by mutual written agreement of the parties or New Terms as may be issued by Upstream in its sole discretion pursuant to Section 21 above. No waiver by a party, whether expressed or implied, of any provision of this Agreement or default hereunder will affect such party’s right thereafter to enforce such provision or to exercise a right or remedy set forth herein in the event of any other default, whether or not similar. The rights and remedies of each party as specified in this Agreement are not, unless otherwise expressly set forth herein, to the exclusion of any other rights or remedies of such party. Each party may decline to exercise one or more of its rights and remedies as it may deem appropriate without jeopardizing any other of its rights or remedies. Notwithstanding anything herein, each of the parties may at any time exercise any right it now has or at any time hereafter may be entitled to as a member of the public as though this Agreement was not in existence. Any words following the terms ‘including’, ‘include’, ‘in particular’, ‘for example’ or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding or following those terms. The section headings used herein are solely for convenience and are not to be used in the construction of this Agreement. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns. Client may not assign this Agreement or any or all of Client’s rights and/or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to a third party, without the prior written consent of Upstream. Any assignment in contravention of the foregoing sentence shall be deemed null and void ab initio. A merger, change of control, reorganization (in bankruptcy or otherwise) or stock sale of a controlling interest in Client shall be deemed an “assignment” requiring such consent, regardless of whether Client is the surviving entity. Notwithstanding anything herein, Upstream may assign this Agreement or all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance hereunder to any third party, with or without notice to Client. No person or entity not a party to this Agreement has any rights or remedies under this Agreement, whether as a third party beneficiary or otherwise. Client and Upstream have and will have the status of independent contractors hereunder. Accordingly, there is no joint venture, partnership, agency or fiduciary relationship existing between Client and Upstream, and neither Client nor Upstream intend to create any such relationship by this Agreement. This Agreement may be executed via electronic means (e.g., if Client clicks “Agree” or if Client signs a PDF copy), in one or more counterparts and delivered by facsimile or via other electronic transmission, each of which will be deemed an original and all of which, when taken together, will constitute one and the same instrument. The parties agree that the electronic signatures appearing on this Agreement (if applicable) are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility. The provisions of Sections 7, 9, 10(b), 12(d), 13, 14, 15, 16, 17, 18, 19, 20, 21, this Section 22 and Section 23 will survive any expiration or termination of this Agreement.

23. Counsel: Client hereby acknowledges that Client has reviewed this Agreement with counsel of Client’s choosing and understands, approves and accepts all of the terms and conditions of this Agreement.

IN WITNESS WHEREOF, this Agreement has been duly executed by the parties and is effective as of the Effective Date.

ACCEPTED AND AGREED TO:

UPSTREAM (LNS Video LLC) CLIENT agrees to these terms by releasing content on Upstream Interface