DIVYA 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 OTT SITES”), 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 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 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 THAT 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 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, AND 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 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 a 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 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.
2.1 “gross receipts” as used in these publishing administration terms shall mean all revenue derived
from the exploitation of the rights in the Contents granted to publisher herein, which are actually
received by publisher, solely allowing for the deduction of arrangers’, adaptors and translators fees and
royalties (subject always to local collection society rules and practices), any tax deductions and/or
standard commissions deducted by bona fide collection agencies and/or societies operating at arm’s
length, and sub publisher and/or administrator fees and/or commissions in any part of the territory.
Publisher shall have the right to collect all gross receipts including any monies earned by the Contents
prior to the commencement of the term but not yet collected.
- You shall receive after tax deduction of 25%of gross receipts Ninety percent (90%) of gross
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 Ten percent (10%) of 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 a pro and elect
not to affiliate with a pro during the term, then, subject to the rules and regulations of the pro’s,
as between you and publisher, 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 PLAYET 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 PLAYET 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.
- 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
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 PLAYEROTT 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.
- 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 PLAYET 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 defense 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
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 noncollection 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.
- 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 PLSYET 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.
- 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.