DIVYA DRISHTI PLAYER PVT. LTD. SUPPLEMENTAL TERMS AND CONDITIONS – PUBLISHING ADMINISTRATION
THE FOLLOWING PUBLISHING ADMINISTRATION TERMS AND CONDITIONS (THE “PUBLISHING ADMINISTRATION TERMS”) APPLY TO USERS OF WWW.DIVYADRISHTIPLAYER.COM “DIVYA DRISHTI PLAYER”, WHICH ARE OWNED AND OPERATED BY DIVYA DRISHTI PLAYER PRIVATE LIMITED. DIVYA DRISHTI PLAYER OTT IS ALSO REFERRED TO AS “PUBLISHER”, “US” OR “WE” THROUGHOUT THE PUBLISHING ADMINISTRATION TERMS AND IN CONNECTION WITH YOUR USE OF THE DIVYA DRISHTI PLAYER OTT SITES AND THE USE OF ANY CONTENT, INFORMATION, PRODUCTS, AND/OR THE PUBLISHING ADMINISTRATION SERVICES HEREIN (COLLECTIVELY, THE “PUBLISHING ADMINISTRATION SERVICES”). THE PUBLISHING ADMINISTRATION TERMS REPRESENT A LEGALLY BINDING AGREEMENT BETWEEN YOU, AN INDIVIDUAL USER, OR A SINGLE ENTITY (COLLECTIVELY OR INDIVIDUALLY “USERS”) AND DIVYA DRISHTI PLAYER OTT REGARDING YOUR USE OF THE PUBLISHING ADMINISTRATION SERVICES. TOGETHER, USERS AND DIVYA DRISHTI PLAYER OTT ARE EACH REFERRED TO HEREIN INDIVIDUALLY AS A “PARTY” OR COLLECTIVELY AS THE “PARTIES”. WHEN USING THE DIVYA DRISHTI PLAYER OTT SITES, YOU WILL BE SUBJECT TO (I) THE TERMS AND CONDITIONS AVAILABLE AT [INSERT LINK] (THE “CORE TERMS”; CAPITALIZED TERMS USED HEREIN AND NOT OTHERWISE DEFINED HAVE THE MEANINGS ASCRIBED TO THEM IN THE CORE TERMS); (II) ANY ADDITIONAL POSTED SUPPLEMENTAL TERMS OR RULES APPLICABLE TO SPECIFIC SERVICES AND FEATURES WHICH MAY BE POSTED FROM TIME TO TIME ON THE APPLICABLE SITE (THE “SUPPLEMENTAL TERMS”); AND (III) ANY OTHER BINDING AGREEMENTS ENTERED INTO BETWEEN YOU AND DIVYA DRISHTI PLAYER OTT. THESE PUBLISHING ADMINISTRATION TERMS CONSTITUTE “SUPPLEMENTAL TERMS”.
BEFORE USING THE PUBLISHING ADMINISTRATION SERVICES, PLEASE READ THE FOLLOWING PUBLISHING ADMINISTRATION TERMS CAREFULLY. BY REGISTERING FOR AND/OR USING THE PUBLISHING ADMINISTRATION SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE PUBLISHING ADMINISTRATION TERMS, THE CORE TERMS, ANY OTHER APPLICABLE SUPPLEMENTAL TERMS, AND FUTURE MODIFICATIONS (COLLECTIVELY, THE “TERMS”). IF YOU DO NOT AGREE WITH THESE TERMS, PLEASE TERMINATE YOUR USE OF THE DIVYA DRISHTI PLAYER OTT SITES.
- GRANT OF RIGHTS.
1.1 During the term, you hereby grant to the publisher, throughout the world (the “territory”), the sole and exclusive right to be the administrator of the Content owned or controlled by you, to the full extent of your interest therein, and submitted by you to the publisher during the term (the “Contents”)
1.2 In connection with the aforementioned grant of rights, you hereby appoint Publisher your true and lawful agent and attorney in fact (with the full power of substitution and delegation) to make, execute and deliver any and all documents, instruments, and writings in Publisher’s and/or your name and to take any other action in Publisher’s and/or your name which in the reasonable business judgment of Publisher is necessary or desirable to carry out the purposes of this agreement.
Statements Of Account
- DIVYA DRISHTI PLAYER PVT. LTD. shall make payments of the revenue earned through ticket sales ( except advertisement revenue) and shall also share the dashboard, and all Records including all financial statements and books of accounts, with you on a quarterly basis. DIVYA DRISHTI PLAYER shall maintain full, true, and accurate books of account, an account of all revenues generated, proper records of all bills, invoices, and all other relevant details or communications pertaining to the films including the proof of any payment to any third party (all such records, documents are collectively referred to as “Records
- You shall receive 80 percent (80%) of net receipts derived from the exploitation of Contents in the territory, including but not limited to mechanical royalties, print income, and the so-called “publisher’s share” of public performance income. Publisher shall be permitted to retain 20 percent (20%) of net receipts after the deduction of expenses of 25 percent (25%) on gross receipts. For the avoidance of doubt, the payments to you set forth above are inclusive of all right holder’s royalties, not including the “writer’s share” of public performance income which you shall receive from your designated performance society (the “pro”). In the event that any Contents are created in whole or in part by you, and you are not a member of the pro and elect not to affiliate with a pro during the term, then, subject to the rules and regulations of the pro, as between you and publisher, the publisher shall where possible have the right to collect and receive so-called “writer’s share” in addition to the so-called “publisher’s share” of performance income generated by the relevant Contents.
2.2 you shall receive statements as to your share of gross receipts, and such monies shall be credited to your DIVYA DRISHTI PLAYER OTT account within forty-five (45) days after the end of each calendar quarter for each such preceding quarterly period. Once payment has been credited to your account, you will be able to withdraw all or a portion of the balance of your account, at your discretion. You will be responsible for any bank fees or other charges related to such withdrawals. Any objection relating to any accounting statement or any legal claims arising therefrom must be made (and any lawsuit commenced) no later than one (1) year after the date the statement is initially sent to you, and you waive any longer statute of limitations that may be permitted by law. No general objection, including, but not limited to, a general claim of over-reporting of deductions or underreporting of income, shall be deemed a valid objection. Similarly, in the event there is an over-reporting of income to you, or if you are paid any share of gross receipts from any third party that should have been paid to publisher hereunder, publisher shall have the right to deduct any overpayments, or publisher’s portion of any income that should have been paid to publisher, from any income otherwise payable to you, now or accruing in the future, from this agreement or under any other agreement between you and DIVYA DRISHTI PLAYER OTT.
2.3 the gross receipts posted to your DIVYA DRISHTI PLAYER OTT account will be pooled in an interest-bearing bank account with the gross receipts of other DIVYA DRISHTI PLAYER OTT customers until you withdraw such funds. You agree that you will not receive interest or other earnings on the gross receipts that publisher handles as your agent and places in such pooled account. In consideration for your use of the publishing administration services, you irrevocably transfer and assign to publisher any ownership right that you may have in any interest that may accrue on gross receipts held in such pooled account. In addition to or instead of earning interest on such pooled account, publisher may receive a reduction in fees or expenses charged for banking services by the banks that hold your gross receipts.
2.4 in the event that publisher has, in its good faith discretion, reason to suspect that your account has been subjected to and/or involved in fraudulent or infringing activities, publisher reserves the right to discontinue the posting of gross receipts to your account and block your ability to otherwise withdraw funds therefrom until resolution of the suspect activities to the satisfaction of publisher is obtained. Furthermore, you agree that such revenues will be forfeited by you if publisher determines, in its good faith discretion, that they are the result of fraud and/or infringement. To the extent that any fraudulent and/or infringing activities are determined to be caused by your or your affiliates actions or omissions, any costs incurred by publisher (including legal fees and expenses) in connection therewith may, in addition to its other remedies, be deducted by publisher from any monies otherwise payable to you hereunder. Certain of publisher’s licensees may also have policies related to fraud and suspected fraudulent activities and you agree that it is your responsibility to investigate such policies and such policies shall be binding upon you hereunder.
2.5 in the event that publisher is presented with a claim of infringement of copyright, trademark, right of publicity or other intellectual property right, or failure to comply with any third party license requirement or any other claim which, if true, would constitute your breach of, or non-compliance with, any of your representations, warranties or agreements hereunder, you agree that publisher may freeze any and all revenues in your account that are received in connection with the disputed composition(s) or other materials submitted by you, and that such revenues will be forfeited by you if publisher determines, in its good faith discretion, they are the result of fraud and/or infringement. Furthermore, if in publisher’s reasonable business judgment, it elects to engage an attorney to review and/or respond to such claim, publisher shall, in its sole discretion, have the right to deduct from your account or charge any payment method (as defined in the core terms) a minimum of three hundred dollars (USD $300) to offset the costs of associated legal fees and expenses.
3. Third party obligations. You shall be solely responsible for the payment of all compensation, if any, to and any permissions required from, songwriters, licensors, income participants and other third parties to whom you are obligated to pay a portion of the income derived from any of the Contents. You warrant and represent that all such songwriters, licensors, income participants and other third parties to whom you are obligated to pay a portion of the income from the Contents shall look solely to you for any such payments and you hereby agree to indemnify publisher and hold publisher harmless from and against any and all claims, demands or actions by any such songwriters, licensors, income participants and other third parties for any such payments in accordance with the indemnification provisions set forth herein.
4.1 you shall pay publisher a one-time, non-refundable fee (the “set up fee”), as set forth on publisher’s website, to cover publisher’s administrative expenses with respect to registration of your Contents throughout the territory.
4.2 you agree that publisher is authorized to deduct the set-up fee, any applicable taxes and other charges you may incur in connection with your use of the publishing administration services directly from your DIVYA DRISHTI PLAYER OTT account or charge such fees to any payment method you provide to publisher (such as a PayPal account, credit card or debit card) (each a “payment method”). For the avoidance of doubt, if you or publisher terminates this agreement for any of the reasons set forth herein, you will not be entitled to a full or partial reimbursement of the set-up fee. Furthermore, if for any reason you fail to make a payment or a payment is reversed hereunder via the payment method or any other method after agreeing to the terms, publisher will be entitled to recoup the set-up fee, by any means necessary, including the right to keep your account active and collect any resulting royalties until the set-up fee is fully recouped. It is your responsibility to notify publisher if your payment method has changed by making the appropriate changes to your DIVYA DRISHTI PLAYER OTT account settings. If you do not provide a valid payment method your service may be disconnected or interrupted at publisher’s sole discretion.
5.1 the “term” of this agreement shall be for an initial period of one (1) year, commencing on the date the set-up fee (as defined above) is received and processed by publisher and continuing through the end of the calendar quarter in which publisher receives your cancellation notice. After the initial period, the term shall automatically renew and extend for additional quarterly periods unless you give publisher written notice of termination at least thirty (30) days prior to the end of the period then in effect.
5.2 publisher shall have the right to collect all income relating to the Contents earned prior to the beginning of, and during, the term. After the term, publisher shall have the right to a twelve (12) month post-term collection period to collect any and all income earned during the term but not yet paid (the “post-term period”). If publisher receives income that was earned after the post-term period from a collection society, licensee or any other entity due to their acts or omissions or your failure to update third parties of the expiration of this agreement, you acknowledge that publisher’s receipt will not be a violation of this agreement. Publisher will continue to account to you for all such income on the terms set forth herein.
6. Warranties; representations; indemnities.
6.1 you warrant and represent that: (i) you are at least eighteen (18) years of age; (ii) you have the full right and authority to enter into and fully perform this agreement and to grant to publisher all rights specified herein; (iii) the exercise by publisher of any and all rights with respect to the Contents, including music, title and/or lyrics, will not violate or infringe upon any common law or statutory rights of any person, firm or corporation including without limitation contractual rights, copyrights and rights of privacy; (iv) the rights granted herein are free and clear of any claims, demands, liens or encumbrances and (v) none of the Contents are defamatory or obscene. Without limiting the foregoing, no consent of any third party is required, nor shall it be required, in order to effectuate the rights granted by you to publisher hereunder.
6.2 furthermore, you warrant and represent that all registration and information that you submit to publisher is and will remain truthful and accurate. In the event that publisher receives notice with respect to a discrepancy or inaccuracy on the registration of a composition(s), publisher shall have the right to suspend payments in connection with the composition(s) in question until such discrepancy or inaccuracy is resolved.
6.3 You shall defend and indemnify Publisher and any of its affiliates (including any directors, members, officers, employees, sub-publishers and other representatives) and hold them harmless against any third party claims, damages, losses and expenses, including reasonable attorneys’ fees and expenses, arising out of any alleged breach or breach by you of any warranty, representation or agreement made herein, or pertaining to any act or omission made by you or under your direction or control. You will reimburse Publisher for any payment made at any time after the date hereof in respect of any liability or claim for which Publisher is entitled to be indemnified. Alternatively, Publisher may elect to deduct such payment from any income otherwise payable to you hereunder or under any other agreement between you and DIVYA DRISHTI PLAYER OTT .
- Legal Proceedings & Settlements.
7.1 Notwithstanding the provisions of Section 6.3 above, Publisher shall have the right but not the obligation to prosecute, defend and settle all claims and actions with respect to the Contents, and generally to do all things necessary concerning the same and the copyrights or other rights with respect to the Contents; provided, however, Publisher shall not settle claims without your consent (other than as set forth in Section 7.2 below). In the event of a recovery by Publisher or you of any monies as a result of a judgment or settlement, such monies shall be divided between you and Publisher in the same shares as provided for in Section 2 above, after first deducting the out-of-pocket expenses of obtaining said monies, including reasonable legal fees and expenses. You shall have the right to provide counsel for yourself, to assist in or assume the prosecution or Défense of any such matter, but at your own expense. Any judgments against Publisher and any settlements by Publisher of claims against it respecting any of the Contents, together with costs and expenses, including, without limitation, legal fees and expenses, shall be subject to the indemnity provisions of the Publishing Administration Terms, and your indemnity payments shall be paid to Publisher from any and all sums that may become due to you under any and all accounts owned by you and administered by Publisher or promptly upon demand by Publisher.
7.2 Notwithstanding anything to the contrary contained herein, Publisher shall have the right, but not the obligation, to opt its catalogue of administered Contents (including the Contents) into licensing arrangements and industry-wide settlements for the recovery of royalties presented and endorsed by advocacy groups such as the National Music Publishers Association without your prior consent.
8.1 At Publisher’s request, you shall execute and deliver to Publisher any documents needed regarding the granted rights of Publisher in the Contents, and if you fail to do so within ten (10) business days following Publisher’s request therefor, Publisher may sign such documents in your name.
8.2 Concurrently with your acceptance of the Publishing Administration Terms, you will supply Publisher with copies of any existing licenses or other agreements concerning the Contents. You further agree to notify Publisher of each recorded version of any Composition during the Term as soon as reasonably practicable after you become aware thereof. If and to the extent that you fail to provide to Publisher any of the materials and information referred to in this section, Publisher’s rights in and to the Contents shall not be impaired as a result thereof. Publisher shall not be responsible for any non-collection of monies or lack of copyright protection with respect to the affected Composition(s) that is the direct or indirect result of any such failure by you.
9. TERMS AND CONDITIONS UPDATES; CANCELLATION.
9.1 Publisher reserves the right to modify the publishing administration terms at any time and/or to include new provisions and/or conditions regarding your use of the DIVYA DRISHTI PLAYER OTT sites. Publisher will notify you of any material changes to the publishing administration terms and you shall have the right to terminate the term if you do not wish to accept them. Otherwise, if you continue to use the DIVYA DRISHTI PLAYER OTT SITES and do not terminate, such modifications and updates will be deemed accepted and incorporated into these publishing administration terms.
9.2 Other than as set forth above, you shall have the right cancel the term at any time after one (1) year, by filling out and sending back the following notice to us. Cancellation shall be effective at the end of the calendar quarter in which we receive such cancellation notice, subject to our post-term period and collection rights of the relevant performance, licensing and other collection rights organizations.10. Terms and Conditions Violations; Termination. You agree that Publisher may terminate any account (or any part thereof) you may have through the Sites or your use of the Sites and Publisher may remove and discard all or any part of your account, at any time for any reason (including without limitation your violation of these Publishing Administration Terms) or no reason, at Publisher’s sole discretion. You agree that your access to the Sites and/or any account you may have, or any portion thereof, may be terminated without prior notice, and you agree that Publisher shall not be liable to you or any third-party for any such termination. These remedies are in addition to any other remedies Publisher may have at law or in equity.