Smashcast offers a one-stop service for publishers offering gaming related online videos content.
The Parties have agreed to enter into this Commercial Contract (“Agreement” or “Contract”) starting as stated in the Service Terms section below.
This Agreement extends and elaborates the obligations, duties and conditions which are already part of the TOU.
2. Smashcast SERVICES
Smashcast agrees to provide the following services:
Live Streaming and Video-On-Demand Services for Gaming
Video Content Management System
Share of Advertisement Revenues and Subscription Revenues
Smashcast will provide an online overview of all earnings made by the Publisher
For the duration of this agreement, Smashcast will be hosting and distributing the Publishers gaming video content published on the smashcast platform, regardless whether this content is copyright protected or not as stated in the TOU.
Smashcast services are accessible on a global basis, daily 24/7.
Smashcast however does not guarantee an uninterrupted uptime of its services and is therefore not liable for such incidents.
3. PUBLISHER SERVICES
The Publisher herewith and for the duration of this agreement grants Smashcast the right to reproduce, distribute, combine, compile, amend, make available and market in any way the Publisher’s content.
Smashcast is free to choose any kind of actual and future medium (print, digital, TV, etc., but also any prospective marketing forms yet to come) and to combine Publisher’s content in whole or in part with the content of third parties.
Publisher agrees to produce live gaming content according to the ruleset and conditions agreed in this contract and the Smashcast TOU.
“Smashcast Network” means the publisher and advertising network consisting of several publishers operated by Smashcast.
“Publishers Content” or “Content” are all video on demand files or live broadcasts that belong to the Publisher and are uploaded to Smashcast servers by the Publisher’s Smashcast account.
“Advertisement Revenues” are defined as all revenues actually collected from third-party by smashcast advertisers for the exhibition of pre-roll advertisements and mid-roll advertisements based on Publisher’s content, net of any taxes and transaction fees paid to third parties (e.g. ad-serving fees). The revenue share to be paid to Publisher will either be at a fixed CPM (“Cost per Mille”; “Cost per Thousand” Advertisement Impressions) rate on to viewers and end users delivered Advertisement Impressions or a percentage of Advertisement Revenues as set in the commercial terms below. Advertisement Revenues expressly exclude revenues for any other branding, advertising or promotional materials, which may appear near, adjacent, before, during or after the Publisher’s Content.
“Pre-Roll” means a video advertisement that plays before the start of a video that user selected to play, shown prior to the user’s selected content starting to play.
“Post-Roll” means a video advertisement shown at the end of the video a user selected to view.
“Mid-Roll” means a video advertisement shown in the middle of the video that user selected to play.
“Subscription Revenues” means the total revenues received by smashcast from viewers and end users and generated through subscribing on Publishers channel. Gross for all standard payment methods and net of any transaction fees paid to third parties for non-standard payment methods. The Publisher has an opt-in functionality for these non-standard payment methods on the Publishers Channels Settings Page.
Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Luxembourg, Netherlands, Norway, Sweden, Switzerland, United Kingdom, United States.
“Group B Territories” includes all countries worldwide which are not listed in “Group A”
Subject to the terms and conditions of this Agreement, Smashcast agrees to pay the Publisher a percentage of Subscription Revenues as well as geographical related Advertising Revenues based on advertising with publisher’s content.
Except for the Publisher earnings mentioned so far, Smashcast shall have no obligation to share with the Publisher, pay the Publisher, or account to the Publisher for any other revenues or other consideration obtained by Smashcast in coherence with any branding, advertising or other content which may appear near, adjacent, before, during or after the Publisher’s Content.
The Publisher agrees that Smashcast has the right to display, place, serve and otherwise make available any branding, advertisements and promotional materials, the nature, size, display, and other characteristics of which shall be determined in Smashcast’s sole discretion, near, adjacent, prior to, during or after the display, exhibition, streaming or other distribution of any of the Publisher’s Content.
Also, Smashcast shall have no obligation to any third parties whose content is included within the Publisher’s Content, including third parties who provided authorized third party content to the Publisher, regardless of whether such third party has an account with Smashcast or whether such third party makes such content available through such third party’s own account or channel, if any, via the Smashcast Service. For purposes of clarity, the Publisher will be solely responsible and liable for any payment of any nature to such third party relating to third party’s content.
Payments shall be made by Smashcast on a monthly basis according to the statistics and overview described in Point 2 “Smashcast Services” above. The billing period for monthly earnings is 45 days from the last day of the respective month.
In order to take part in the Partner Program the Publisher needs to own a verified Paypal account. It is his sole responsibility to provide Smashcast with the correct Paypal information during the registering process. Smashcast will take no responsibility for payments made to wrong accounts caused by incorrect data information given by the Publisher.
Smashcast will carry the transaction fees of its home bank, however will not pay any fees connected with the transferal of money to the Publishers Paypal account.
Smashcast will accrue and withhold payment until the minimum amount due to the Publisher is at least EUR/USD 25.
Smashcast reserves the right to withhold and deny any payment to the Publisher in case of any breach or violation of this contract or it’s TOU. If there is any evidence of such a breach or violation Smashcast will examine the situation and inform the Publisher about the ongoing process.
Furthermore the Publisher will be taken liable for any financial damage done to Smashcast as a result of any breach or violation of this contract or it’s TOU.
In case that payments made to the Publisher should cause a conflict with local or regional law Smashcast reserves the right to withhold the payment until the conflict has been solved.
All amounts stated herein are net of any taxes and fees and the then current exchange rates. By participating in the Smashcast Network, Publisher assumes complete and sole responsibility for any taxes owed as a consequence thereof.
8. CONTENT OWNERSHIP AND COPYRIGHT
Smashcast and the Smashcast Partner Program depend on Advertisers, Advertising Agencies and Ad Networks to generate Ad Revenues. Unprofessional, sexual, vulgar or copyright infringed content leads to loss of actual and potential revenues. In many cases related to Smashcast this applies to Partners showing 3rd party content like videos or 3rd party movies and music.
As such it is in everybody’s best interest to follow strict content terms which the parties agree on within this contract and the Smashcast TOU.
The Publisher shall be solely responsible for all Publisher’s Content and the consequences of submitting and publishing Content on Smashcast. The Publisher affirms, represents, and warrants that the Publisher owns or has the necessary licenses, rights, consents, and permissions to publish Content on Smashcast. Furthermore the Publisher licenses for the duration of the Agreement to Smashcast all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Smashcast Network pursuant to the terms of the Agreement.
The Publisher further agrees that all Content submitted to Smashcast will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless the Publisher has permission from the rightful owner of the material or is otherwise legally entitled to post the material and to grant Smashcast all of the license rights granted herein.
Smashcast does not endorse any Content submitted to Smashcast by any Publisher, user or other licensor, or any opinion, recommendation, or advice expressed therein, and Smashcast expressly disclaims any and all liability in connection with Content.
Smashcast does not permit copyright infringing activities and infringement of intellectual property rights on the Smashcast Network, and Smashcast will remove all Content if properly notified that such Content infringes on another's intellectual property rights. Smashcast reserves the right to remove Content without prior notice.
9. CONDUCT AND LIABILITIES
The Publisher guarantees that all Partner Content is related to Video Games as defined at: http://en.wikipedia.org/wiki/Video_game
The Publisher guarantees that none of the following or similar content is promoted or published on the Publisher’s web sites.
Third Party Web Sites & Apps
In order to attract advertising revenues Smashcast cannot afford to show third party sites, apps and brands that are not related to video games (as defined above). As such – Smashcast does not allow Content that shows third party videos.
Sex & Adult Content
Content focusing on sexual and pornographic context qualified to offend public moral. If a video is intended to be sexually provocative, it is less likely to be acceptable for Smashcast.
"Hate speech" refers to content that promotes hatred against members of a protected group. Racist or sexist content are examples for being considered as hate speech.
Dangerous Illegal Acts
Smashcast does not allow content that is intended to incite violence or encourage dangerous, illegal activities that have an inherent risk of serious physical harm or death.
Shocking and Disgusting
Smashcast does not allow to post violent or gory content that is primarily intended to be shocking, sensational or disrespectful. If a video is particularly graphic or disturbing, it has to be balanced with additional warnings, context and information.
Swearing itself is not prohibited on Smashcast. However content which consists most notably of swearing or similar behaviour and is qualified to offend public moral will not be tolerated on Smashcast.
The Publisher agrees that no Content or other material will be submitted to Smashcast that is contrary to the Smashcast TOU as well as to applicable local, national, and international laws and regulations.
In case of any documented content incidents Smashcast reserves the right to lower or exclude payments for the reported month in addition to actions taken according to Point 6 “Payment”.
The Parties agree that user generated content on forums and comment sections are not Publisher’s responsibility.
The Publisher acknowledges that advertisers and not Smashcast are responsible for advertising materials, especially advertisement videos. Smashcast shall not be liable for any claims, losses or liabilities related to or arising from advertising material and Smashcast content such as text, software, scripts, graphics, photos, sounds, music, videos, interactive features provided on Smashcast’s website.
The Publisher agrees to defend, indemnify and hold harmless Smashcast and its partners, and each of their officers, directors, employees, and suppliers, from and against any and all suits, claims, demands, damages, obligations, losses, liabilities of any nature or kind, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from or in any way relating to the Publisher’s activities related to this Agreement.
11. DURATION & TERMINATION
This Agreement shall enter into effect upon acceptance and registration by the Publisher and shall be effective until one of the parties decide to terminate it.
Smashcast may terminate this Agreement in writing with immediate effect if the Publisher breaches any of its obligations hereunder and according to the Smashcast TOU.
In the event of termination (i) the activities hereunder shall be brought to a prompt and orderly conclusion and (ii) any rights granted hereunder by one Party to the other Party shall revert immediately to the originating Party.
Notwithstanding the foregoing, the rights and obligations set forth in the clauses entitled “Indemnification” and “Confidentiality” shall survive, and is without prejudice to, the termination or expiry of this Agreement.
In case of termination of this Agreement the earnings of the Publisher do not exceed the minimum amount of EUR/USD 25, all earnings will be forfeited to Smashcast.
Each provision hereunder is severable and distinct. To the extent that any provision hereof is held to be invalid, illegal or unenforceable, this shall not affect or impair the continuation in force of the remainder of this SLA.
Any non-public information regarding a Party’s business, including but not limited to a Party's plans, processes, products, costs, equipment, finances, operations, customers, customers registration information, customers payment details and earnings, which is furnished or disclosed by that Party (the "Disclosing Party") to the other (the "Receiving Party") is considered confidential, and shall include information which is designated as confidential or information which should be regarded as confidential given the nature and circumstances of its disclosure (collectively "Confidential Information"). The Receiving Party will hold Confidential Information in confidence and will not, without written permission of the Disclosing Party, disclose such Confidential Information to any person other than its own employees and consultants who have a need to know in connection with this Agreement. The Receiving Party will use Confidential Information exclusively in connection with the performance of its obligations under this Agreement and shall not use such Confidential Information for any other purpose or use whatsoever. The Receiving Party agrees to exercise the same degree of care in handling Confidential Information that it exercises toward its own but in no event less than due care. These provisions will survive the term of this Agreement.
14. DISTRIBUTION RIGHTS
The Publisher provides Smashcast with the right to distribute the Publisher’s digital content, outside the Smashcast platform and Publisher network. Where the Smashcast player is used for distribution the Commercial Terms of this agreement apply.
15. INDEPENDENCE OF THE PARTIES
This Agreement shall not be deemed to create any joint venture, joint liability partnership, association or company of any sort between the Parties, nor shall any Party be deemed an agent of the other. The Parties shall be independent of each other and the relationship between them shall be that of two independent contractors.
Neither Party shall assign or transfer this Agreement or any part hereof to any third party. No provision hereof shall be enforceable by any third party, being any person other than the Parties to this Agreement.
17. APPLICABLE LAW
This Agreement shall be governed by Austrian substantive law, to the exclusion of the provisions of the conflict of law rules that refer to foreign law. The place of jurisdiction for all disputes arising out of or in connection with this Agreement shall be the competent court for the subject matter in Vienna, Austria.
18. SERVICE TERMS
Revenue Share for Advertisement Revenues and Subscription Revenues will be allocated between the parties as follows:
Revenues based on Advertising with publisher’s content
CPM Territory A - EUR/USD 2,50 (fixed)
CPM Territory B - Partner 50% : Smashcast 50% (share)
Partner 50% : Smashcast 50% share Subscription Revenues.
Smashcast reserves the right to modify the Service Terms if it is necessary to enhance or to protect the company’s business. The Publisher will be informed about every change made to the Service Terms via e-mail.
The Publisher acknowledges that the Services to be supplied under this Agreement will be governed by Smashcast Entertainment GmbH’s TOU. The Publisher confirms to have full legal authority to enter this Agreement.
Hitbox Entertainment GmbH