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GENERAL TERMS OF USE OF THE PARTNER PROGRAM - New

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THESE GENERAL TERMS OF USE ("TOU") OF THE PARTNER PROGRAM ARE GOVERNED BY FRENCH LAW AND SHALL APPLY TO THE USE OF DAILYMOTION'S PARTNER PROGRAM AND ANY RELATED FEATURES. BY USING THE PARTNER PROGRAM, AS A PERSON OR A PROFESSIONAL ENTITY, YOU SHALL BE CONSIDERED AS HAVING FULLY AND EXPRESSLY ACCEPTED THESE TOU AND ANY PROVISIONS CONTAINED IN ANY NOTICE ("NOTICE") WHICH APPLIES TO THE DAILYMOTION SITE, INCLUDING IN PARTICULAR THE PRIVACY POLICY. IF YOU NAVIGATE ON THE DAILYMOTION SITE OR USE THE DAILYMOTION SITE AS A PROFESSIONAL ENTITY, YOU WARRANT TO DAILYMOTION THAT YOU ARE THE SOLE OWNER OF ANY RIGHTS, AUTHORIZATIONS OR POWERS NECESSARY TO AGREE TO THESE TOU FOR THE COMPANY, ASSOCIATION, PARTNER OR ANY LEGAL ENTITY ON BEHALF OF WHICH YOU ARE NAVIGATING ON THE DAILYMOTION SITE OR USING THE PARTNER PROGRAM AND/OR ON BEHALF OF WHICH YOU ARE CREATING AN ACCOUNT UNDER THE CONDITIONS SET FORTH HEREUNDER. IN SUCH EVENT, BY NAVIGATING ON THE DAILYMOTION SITE OR USING THE PARTNER PROGRAM, YOU SHALL BE CONSIDERED AS HAVING FULLY AND EXPRESSLY ACCEPTED THESE TOU AND ANY NOTICES ON BEHALF OF SUCH LEGAL ENTITY.
You will be referred to herein as the "PARTNER". DAILYMOTION and PARTNER may be referred to hereinafter, individually as a "Party" and collectively as the "Parties".
DAILYMOTION operates a free video-hosting worldwide website available at www.dailymotion.com, which enables users to access, stream, upload, store, share and comment on videos on the internet, and from any other technical, communication or transmission protocols or platforms now known or hereafter devised, discovered, or developed including, without limitation, mobile phones, tablets, IPTV platforms and other devices.
PARTNER has agreed to the following TOU of the program (the « PARTNER Program ») provided by DAILYMOTION to the PARTNER enabling an optimized exploitation of PARTNER's content and the use of features available on the DAILYMOTION Site, including but not limited to the Video Monetization Feature, Paid Content Feature and Website Monetization Featureas defined hereunder, and any current or future tool which may be supplied by DAILYMOTION to PARTNER.
In consideration of the mutual agreements and covenants set forth below, the Parties agree as follows.
TITLE 1: PREAMBLE
DEFINITIONS
Unless otherwise specifically provided, and in addition to the other capitalized terms defined in this Agreement, the following terms shall have the meanings set forth below:
« Advertising »: means Display Advertising together with In-Stream Advertising.
« Content »: means all videos uploaded on one or all PARTNER's Accounts by the PARTNER including any associated data (title, duration, etc.) in digital format as specified under Section 17.
« DAILYMOTION** Site** »: means the video-hosting worldwide website available at www.dailymotion.com or at any other URL specifically dedicated to a country (e.g.: www.dailymotion.fr, www.dailymotion.us, etc.).
« Display Advertising »: means advertisements inserted around the Video Player including, but without limitation, ad formats such as medium rectangle, leader board, roadblock, or hyperlink ads, as available.
« In-Stream advertising »: means advertisements inserted in the Video Player before and/or during and/or after the Content and/or the Third Party Videos (as the case may be) distributed on the Service including ad formats such as pre/post roll, player branding, overlay ads, as available.
« Paid ContentFeature** **»: means the tools of pay video-on-demand supplied to PARTNER by DAILYMOTION enabling PARTNER to offer to the Public the viewing of its Contents in exchange of a payment per unit, per groups of videos or a 30 days subscription to a specific Partner Account under the terms specified in the general terms and conditions available on the Service.
« PARTNER Account(s) »: means the PARTNER Master Account together with PARTNER Sub-Accounts.
« PARTNER Master Account »: means the Content storage space which is dedicated to PARTNER and from which it can also administrate all the PARTNER Sub-Accounts. The PARTNER Master Account shall notably include information regarding the total number of items of Content available on all PARTNER Sub-Accounts, the number of comments, the number of views for all Content (in total and per Content), and the number of bookmarks, if any.
« PARTNER Sub-Account(s) »: means any space on the Service dedicated to the storage of the Content that has been attached to the PARTNER Master Account upon request to DAILYMOTION. These accounts shall be directly managed by PARTNER, being agreed that the PARTNER Sub-Accounts will be subject to the same terms and conditions than those provided for the PARTNER Master Account. DAILYMOTION does not have any obligation to link any given account on the Service to the PARTNER Master Account.
« PARTNER Website(s**)** »: means the Internet websites owned and operated by PARTNER or for which it has been duly appointed to operate by their legitimate owners and that PARTNER has restrictively indicated in the dedicated area of its PARTNER Accounts. A specific URL domain registered as a PARTNER Website in a given PARTNER Account shall apply for all the other PARTNER Accounts as long as it is registered in at least one of the PARTNER's PARTNER Accounts.
« Public »: means any person having access to the Service.
« Service »: means the DAILYMOTION Site and the Video Player exportable on any third party website and any declination of the DAILYMOTION Site in the form of an application or a web application, as accessible (online or offline) via: (i) any devices for which the Service's distribution is provided through a wireless handheld network, and by any means of access, including smartphones, tablets and game consoles and/or (ii) any IP/IPTV platform for which the Service's distribution is provided through a high-speed Internet connection on IP protocol, including without limitation, through a widget integration on TV devices or through the Service referencing on different portals and IPTV distribution network, and/or (iii) through any internet-enabled television devices or any television (TV) platform for which the Service distribution is provided through cable, satellite or terrestrial transmission, and (iv) through any current or future device capable of distributing the Video Player.
« Syndication Key »: means PARTNER's personal key that may be generated and communicated to PARTNER by DAILYMOTION for insertion by PARTNER in the Video Player when PARTNER wishes to export Content and/or Third Party Video(s) onto an Internet website(s) that is not registered as PARTNER Website(s) under the PARTNER Accounts.
« Video Monetization Feature »:means the ability for PARTNER to monetize the Content on the Service and to record and share the corresponding revenues generated by such advertising.
« Website Monetization Feature »: means the tools supplied to PARTNER by DAILYMOTION enabling the export of the Video Player to PARTNER Website(s) in order to share the revenues generated by Instream Advertising associated with Third Party Video(s) through the Video Player as integrated on PARTNER Website(s) and/or to which the Syndication Key is associated.
« Territory »: means worldwide, unless if PARTNER excluded, by using the DAILYMOTION API on a case-by-case basis, certain territories on which the Content shall be communicated to the Public through the PARTNER Account(s).
« Third Party Video(s) »: means any video(s) uploaded by a third party onto the Service, which such third party authorized to be exported via the Video Player for a specific territory onto any website other than the DAILYMOTION Site.
« Video Player »: means a technology developed and owned by DAILYMOTION, enabling viewing by streaming of content (including Content and Third Party Videos) uploaded and hosted on the Service, notably on the DAILYMOTION Site and outside the DAILYMOTION Site.
Section 1: PURPOSE
The purpose of the TOU is to specify the terms and conditions applicable to the tools and features made available to the PARTNER by DAILYMOTION in the PARTNER Program, being agreed that PARTNER shall be free to use all or part of such tools and features at its sole discretion.
PARTNER may elect, on a case-by-case basis and at its sole discretion, (i) to communicate to the Public the Content free of charge through the Video Monetization Feature associating advertising to such Content, (ii) to communicate the Content to the Public in exchange of payment through the Paid Content Feature and/or (iii) to communicate Third Party Videos on PARTNER Website through the Video Player via the Website Monetization Feature. Through acceptance of the TOU, PARTNER is considered to have agreed and acknowledged all of the terms and conditions corresponding to each of the tools and features of the PARTNER Program contained herein.
Section 2: SUBSCRIPTION
2.1. By using the PARTNER Program, either as an individual or a corporate entity, PARTNER expressly agrees to be bound by the TOU as well as to all other DAILYMOTION policies, specifically including but not limited to DAILYMOTION Site's general Terms of Use and Privacy Policy (all collectively referred to as the " DAILYMOTION Policies"). If the PARTNER does not agree to any of the terms herein stated or within the DAILYMOTION Policies, the PARTNER shall not use the PARTNER Program or the DAILYMOTION Site.
  • --If the PARTNER is an individual, PARTNER warrants that: (i) PARTNER is at least 18 years old and legally capable of entering into binding contracts. PARTNER acknowledges that the PARTNER Program is intended solely for persons who are 18 years of age or older and that any access to or use of the Service by anyone under 18 years of age is expressly prohibited; and (ii) PARTNER shall comply with the TOU and all applicable laws and regulations. In that case, the TOU will apply to that individual PARTNER.
  • --If the PARTNER is not an individual, PARTNER represents to DAILYMOTION that PARTNER has all necessary corporate or equivalent authority and power to agree to the TOU. PARTNER hereby agrees that the TOU shall be binding on the corporation, partnership, association or other entity in whose name the PARTNER is registering the PARTNER Accounts. In that case, the TOU will apply to that organization.
By agreeing to the TOU, PARTNER will have direct access to the tools and features available in the PARTNER Program, being agreed however that PARTNER shall not be entitled to any revenues generated by the use of the said tools and features until having duly completing the payment form available through the PARTNER Master Account or any other required information from DAILYMOTION.
2.2. PARTNER expressly guarantees to provide its complete and accurate contact information to DAILYMOTION and promptly update such information from time to time as necessary in the case of any changes.
Furthermore, the user id and password which are necessary to access the PARTNER Accounts and the tools provided by DAILYMOTION are confidential. PARTNER acknowledges that it shall be solely responsible for its user id and password associated herewith and for any possible disclosure, whether intentional or not. DAILYMOTION is not liable for any unauthorized or fraudulent use of the user id and password of PARTNER and is not liable for any unauthorized or fraudulent use of the tools provided to PARTNER.
TITLE 2: VIDEO MONETIZATION FEATURE
Upon use by PARTNER of the tools and features related to the Video Monetization Feature on one or more of the PARTNER Accounts, the following provisions shall apply:
Section 3: AUTHORIZATION AND LICENSE OF RIGHTS FOR THE USE OF THE TOOLS AND FEATURES AVAILABLE THROUGH THE VIDEO MONETIZATION FEATURE
3.1. PARTNER grants to DAILYMOTION, for the term of the TOU and the Territory, and transferable to its affiliates, the non-exclusive rights to reproduce, represent, stream, replay (including offline display without permanent download), exploit, exhibit, show, market, distribute and to, modify and translate the Content strictly necessary for the purposes of the viewing of the Content on the Service by the Public
3.2. DAILYMOTION (or any advertising sales representative chosen at its own discretion) is granted the exclusive right to sell advertisements in connection with the Content on the Service in the form of Insream Advertising and Display Advertising.
PARTNER agrees and acknowledges that DAILYMOTION shall have the sole control, discretion and approval over the (i) terms and conditions negotiated with advertisers, (ii) Advertising rates and (iii) the look and feel, placement, architecture of the Service, webpages, and/or Advertising.
Furthermore, subject to the exclusivity granted to DAILYMOTION, PARTNER is prohibited to sell Advertising (directly or by any third party) associated with the Content on the Service.
DAILYMOTION warrants that the Advertising associated with the Content on the Service will be compliant with applicable laws.
Section 4: FINANCIAL CONDITIONS APPLICABLE TO THE TOOLS AND FEATURES AVAILABLE THROUGH THE VIDEO MONETIZATION FEATURE
4.1. DAILYMOTION shall pay to PARTNER a revenue share equal to 30% (thirty percent) of the Net Advertising Revenues related to the Video Monetization Feature.
The Net Advertising Revenues related to the Video Monetization Feature are defined as gross revenues received from the sale of In-Stream Advertising served in connection with the Content distributed under the Video Monetization Feature on the Service (at the exclusion of any advertising revenues due under section 4.2 of the TOU), after deduction of any applicable taxes
4.2. DAILYMOTION shall pay to PARTNER a revenue share equal to 50% (fifty percent) of the Net Advertising Revenues related to the Video Monetization Feature received by DAILYMOTION for the sale of In-Stream Advertising associated with the Content distributed under the Video Monetization Feature (i) on the PARTNER Website(s) through the Video Player and/or (ii) on any third party website (other than the DAILYMOTION Site and the PARTNER Website(s)) through the Video Player associated with the Syndication Key, if any.
For the sake of clarity, if the export of Content through the Video Player is not made either (i) onto PARTNER Website(s) duly registered in the PARTNER Accounts, or (ii) onto an Internet website (other than the DAILYMOTION Site) with the Syndication Key having been duly associated in the export metadata of the Video Player for the Content, such export of the Content shall not benefit from the revenue sharing rate defined in Section 4.2, but will instead be applied the revenue sharing rate as defined in Section 4.1.
TITLE 3: PAID CONTENT FEATURE
Upon use by PARTNER of the tools and features related to the Paid Content Feature on one or more of its PARTNER Accounts, the following provisions shall apply:
Section 5: AUTHORIZATION AND LICENSE OF RIGHTS FOR THE USE OF THE TOOLS AND FEATURES AVAILABLE THROUGH THE PAID CONTENT FEATURE
PARTNER may use the Paid Content Feature developed by DAILYMOTION to offer to the Public the viewing of the Content in exchange for: (i) a payment per Content video, (ii) a payment per group of Content, or (iii) a 30-day subscription to the PARTNER Accounts, in accordance with the terms specified in the general terms and conditions available on the Service at the following URL address: http://www.dailymotion.com/legal/termsofsales .
It is agreed that the Content will be provided by PARTNER through the Paid Content Feature to the Public in exchange for payment, and that the Content will not be associated with any In-Stream Advertising.
PARTNER shall determine, at its own discretion, (i) the retail price of the Content (per Content, per group of Content, or for a 30-day subscription to its PARTNER Account) through the Paid Content Feature and (ii) the viewing time of each Content offered individually in the Paid Content Feature.
PARTNER acknowledges and agrees that by using the Paid Content Feature an excerpt of each Content shall be made available free of charge to the Service's end-users, being agreed that the length of such excerpts will be determined by PARTNER at its sole discretion.
The Parties agree that the number of devices through which the streaming of a purchased Content is allowed in the Paid Content Feature will be fixed at DAILYMOTION's sole discretion.
Section 6: FINANCIAL CONDITIONS APPLICABLE TO THE TOOLS AND FEATURES AVAILABLE THROUGH THE PAID CONTENT FEATURE
DAILYMOTION shall pay to PARTNER a revenue share equal to 70% (seventy percent) of the Net Revenues related to the Paid Content Feature.
" Net Revenues related to the Paid Content Feature" are defined as the amounts paid by the end-users of the Paid Content Feature for Content purchased on a per video basis or per group of videos basis or for purchase of a subscription (for an unlimited access to the Content available on a PARTNER Account for a 30-day period), less (i) any applicable taxes (including VAT) (ii) and/or any amount due to a collecting society (as defined herein).
TITLE 4: WEBSITE MONETIZATION FEATURE
Upon use by PARTNER of the tools and features related to the Website Monetization Feature on one or more of the PARTNER Accounts, the following provisions shall apply:
Section 7: AUTHORIZATION AND LICENSE OF RIGHTS FOR THE USE OF THE TOOLS AND FEATURES AVAILABLE THROUGH THE WEBSITE MONETIZATION FEATURE
DAILYMOTION authorizes PARTNER to make available the Third Party Videos, in the Territory, exclusively through the Video Player, on web pages and/or part of services of PARTNER Website(s) or any Internet website(s) when the Syndication Key has been provided to PARTNER, as selected in PARTNER's discretion.
PARTNER may immediately remove any such specific Third Party Video from PARTNER Website(s) or third party Internet website(s) if PARTNER reasonably believes that the distribution of such Third Party Video violates any applicable law or for any other reason.
A Syndication Key unique to PARTNER may be generated and communicated to PARTNER (at DAILYMOTION's sole discretion) in order to allow PARTNER to insert the Syndication Key within each export of Third Party Video() made onto any Internet website(s) that is not registered as PARTNER Website(s) under the PARTNER Accounts.
The Parties agree that the Third Party Video(s) available in the Video Player embedded on the PARTNER Website(s) will include In-Stream Advertising. DAILYMOTION (or any advertising sales representative chosen at its own discretion) will be allowed, on an exclusive basis, to sell the advertising spaces dedicated to In-Stream Advertising in the Video Player integrated into PARTNER Website(s).
PARTNER agrees and acknowledges that DAILYMOTION shall have the sole control, discretion and approval over the (i) terms and conditions negotiated with advertisers, (ii) Advertising rates and (iii) the look and feel, placement, architecture of the Service, webpages, and/or Advertising.
Furthermore, subject to the exclusivity granted to DAILYMOTION, PARTNER is prohibited from selling advertising (directly or by any third party) associated with the Third Party Video(s) through the Video Player.
DAILYMOTION acknowledges and agrees that it is not authorized to sell advertising spaces dedicated to Display Adverting on PARTNER Website(s).
DAILYMOTION warrants that the Advertising associated with the Content on the Service will be compliant with applicable laws.
Section 8: FINANCIAL CONDITIONS APPLICABLE TO THE USE OF THE TOOLS AND FEATURES AVAILABLE THROUGH THE WEBSITE MONETIZATION FEATURE
DAILYMOTION shall pay to the PARTNER a revenue share equal to 50% (fifty percent) of the Net Advertising Revenues related to the Website Monetization Feature.
The Net Advertising Revenues related to the Website Monetization Feature are defined as the gross revenues received by DAILYMOTION from the sale of In-Stream Advertising served in connection with Third Party Video(s) distributed through the Video Player either (i) on the PARTNER Website(s) duly registered in the PARTNER Accounts, or (ii) on any Internet website(s) (other than the DAILYMOTION Site) on which the Syndication Key is associated in the export metadata of the Video Player, both less (i) potential applicable taxes and (ii) sales, technical and adserving costs and (iii) payment of the advertising revenue share to content partners from the Dailymotion Site user account of which the videos have been exported in accordance with the agreement entered between DAILYMOTION and them, being agreed that (ii) and (iii) are fixed to a flat rate of 60% (sixty percent) of the gross revenue.
For the sake of clarity, if the export of a Third Party Video through the Video Player is not made either (i) on a PARTNER Website duly registered in the PARTNER Accounts as indicated by DAILYMOTION or (ii) on an Internet website but with the Syndication Key having been duly associated in the export metadata of the Video Player, such export of a Third Party Video will not be taken into account for the calculation of In-Stream Advertising revenues to be shared with PARTNER.
Section 9: SPECIFIC WARRANTIES FOR THE USE OF THE WEBSITE MONETIZATION FEATURE
PARTNER acknowledges and agrees that DAILYMOTION, in accordance with its hosting provider status, shall not perform any prior monitoring of the user generated content available on the DAILYMOTION Site. Therefore, the display of any user generated content selected by PARTNER and embedded into PARTNER Website(s) or any other Internet website will be at PARTNER's sole liability, being agreed that PARTNER shall indemnify DAILYMOTION and keep DAILYMOTION indemnified from and against all costs, expenses (including reasonable legal expenses) losses, damages and other liabilities (of whatever nature, whether contractual, tortuous or otherwise) suffered or incurred by DAILYMOTION and arising out of or in connection with any claim by any third party due to the selection and display by PARTNER of any user generated content embedded on PARTNER Website(s) or on any other Internet website through the Video Player.
PARTNER acknowledges and agrees that DAILYMOTION may remove at any time and at its sole discretion any Third Party Video from the DAILYMOTION Site, being agreed that in such case the removed Third Party Video will no longer be available for streaming through the Video Player on the PARTNER Website(s).
PARTNER warrants, as an essential condition, that PARTNER shall only export any Third Party Video through the Video Player on websites that PARTNER owns and operates or for which it has been duly appointed to operate by their legitimate owners. Moreover, PARTNER warrants that all websites on which PARTNER exports Content and/or Third Party Video(s) through the Video Player do not include any element that: (i) breaches any intellectual property rights of any third parties or (ii) constitutes an injury to any person (including defamation, slander, abuse, etc.) or to any third party's privacy rights or (iii) encourages violence or hatred against any individual or group, or cruelty to animals (iv) or contains sexually explicit or highly suggestive content or (v) encourages drug use or any illegal activity (vii) constitutes a threat to public order or standards of decency and good morals or (viii) violates any applicable laws.
In the event one of suspicion by DAILYMOTION of any of the above elements (without any justification or proof required), DAILYMOTION shall be free to (i) retain any Net Advertising Revenues related to the Website Monetization Feature unduly generated to the benefit of PARTNER and/or to (ii) immediately terminate PARTNER Account(s) without any indemnification or further payment of Net Advertising Revenues related to the Website Monetization Feature generated by PARTNER Account(s), without any prejudice of any other remedies of DAILYMOTION.
PARTNER acknowledges and agrees that DAILYMOTION is not responsible for any data related to Third Party Video(s) provided by their relevant owners, even if such data creates discrepancy between the Third Party Video(s) embedded via the Video Player and the topic selected by PARTNER.
TITLE 5: GENERAL PROVISIONS
Section 10: AUTHORIZATION AND LICENSE OF RIGHTS FOR ALL THE FEATURES PROVIDED TO PARTNER UNDER THE PARTNER PROGRAM
In the event PARTNER uploads Content onto the Service,whether under the Video Monetization Feature or the Paid Content Feature, PARTNER expressly authorizes DAILYMOTION to reproduce the Content in its entirety and without alteration (with the exclusion of potential Advertising insertions under the Video Monetization Feature) for their communication to the Public on the Service and as necessary if applicable for the (i) compression and digitalization,(ii) hosting and storage of the Content, and/or (iii) for technical needs related to the streaming of the Content.
The Parties agree that the rights granted under the TOU covers retroactively, if applicable, any exploitation of the Content on the Service, prior to the date of acceptation of the TOU. PARTNER hereby waives any rights to any claim it may be entitled to against DAILYMOTION and users of the Service arising from the exploitation or distribution of the Content on the Service before PARTNER's acceptance of the TOU and warrants DAILYMOTION thereof.
Section 11: PROMOTION
DAILYMOTION shall have the sole control, discretion and approval over the promotional materials of the Content on the Service and of DAILYMOTION's newsletters. PARTNER authorizes DAILYMOTION to use and/or refer to PARTNER's trademarks and/or logos. Any use of the latter, other than on the Service and in DAILYMOTION's newsletters or other promotional materials related to the Service shall be subject to PARTNER's prior approval.
Any use by PARTNER of DAILYMOTION's trademark or logo must be approved in advance by DAILYMOTION in writing. This approval may be given by email.
The Parties agree and acknowledge that each Party may issue a press release announcing their partnership, provided that the Parties have mutually agreed to the wording of any such press release.
Section 12: COMMON FINANCIAL CONDITIONS TO ALL THE FEATURES PROVIDED TO PARTNER UNDER THE PARTNER PROGRAM
The Net Advertising Revenues related to the Video Monetization Feature, the Net Revenues related to the Paid Content Feature and to the Net Advertising Revenues related to the Website Monetization Feature shall be jointly defined as "PARTNER Program Revenues".
It is agreed that DAILYMOTION may deduct any amount from the PARTNER Program Revenues due (i) to the local authorities of any country as relevant and/or (ii) to enable the transfer and/or payment of any amounts due to PARTNER.
Section 13: TRACKING AND REPORTING REVENUE, INVOICING, AND PAYMENT
13.1. Tracking and Reporting Revenue
PARTNER will be provided with an online interface in the PARTNER Accounts enabling PARTNER to track its monthly (i) Net Advertising Revenues related to the Video Monetization Feature, (ii) Net Revenues related to the Paid Content Feature and (iii) Net Advertising Revenues related to the Website Monetization Feature. The online interface available for each PARTNER Sub-Account will only include the data and figures related to the use of the features related to such account and Content hosted on it, but the online interface available from the PARTNER Master Account will compute the data and figures related to all the PARTNER Accounts owned by PARTNER.
However, only the conclusive account statements available within 30 (thirty) days at the end of each month within the "Invoicing" section of the PARTNER Master Account for the previous months shall determine the billing and payment of PARTNER Program Revenues, being agreed that PARTNER agrees and acknowledges that the account statement and payment shall be deemed final and conclusive unless disputed in writing by PARTNER within 15 (fifteen) days after the posting of the account statement in the online interface for a given month.
13.2. Invoicing
If PARTNER has duly filled in all mandatory information necessary for payment through the online interface of the PARTNER Master Account and accepted the corresponding self-billing authorization, DAILYMOTION shall issue an invoice within 30 (thirty) days following the end of the month in the name of and on behalf of PARTNER with respect to the authorization of self-billing under the condition that the total amount due with regards to the PARTNER Program Revenues is more than an amount equal to $100 (one hundred US dollars) whatever the currency of payment required by PARTNER for payment purpose, being agreed that any amounts not paid for one or more reasons mentioned in this paragraph shall be carried forward to the next month as long as the minimum threshold is not met and the mandatory information required and the self-billing authorization are not properly filled in and accepted.
For the avoidance of doubt, self-billing of the PARTNER Program Revenues shall only be managed from the PARTNER Master Account.
13.3. Payment
13.3.1. Whatever invoicing method chosen, payments shall be made within 30 (thirty) days after receipt or the generation of the invoice (as the case may be) either by direct wires or by using the services provided by one of the third party vendor payment systems made available by DAILYMOTION. Payments shall be made either in US Dollars or in the currency chosen by PARTNER amongst the currencies proposed through the third party vendor payment systems.
13.3.2. DAILYMOTION selects at its own discretion the third party vendor payment systems made available in the scope of the PARTNER Program, such systems may be PayPal, Payoneer, or another similar payment system. In order to receive payment from one of such third party vendor payment systems, PARTNER will have to accept the terms and conditions of the payment system it decided to use, being agreed that DAILYMOTION will not have any liability regarding the breach of those terms and conditions either by PARTNER or by the payment system vendor. PARTNER agrees that DAILYMOTION grants the same guarantees as the ones respectively received from the PayPal, Payoneer or the applicable payment system. PARTNER understands that DAILYMOTION does not conserve the bank account information provided by PARTNER through the payment system it chose. Provided that PARTNER does not offer proof to the contrary, the records of the applicable payment system, be they of PayPal company, Payoneer company, or another similar payment system company, shall be considered proof of payments made between PARTNER and DAILYMOTION. The archiving of these items is performed in a reliable and sustainable manner to reflect a true and lasting copy in accordance with Article 1348 of the French Civil Code. PARTNER shall bear the fees of its use of third party vendor payment systems, if any.
13.3.3. PARTNER agrees that DAILYMOTION may from time to time provide a third party payment system vendor that PARTNER uses with any and/or all information DAILYMOTION holds on PARTNER upon request by the third party vendor, including any personal data. It is also agreed that third party vendor payment systems may directly contact PARTNER and/or suspend a payment in process for any of the reasons stipulated in the their terms and conditions, including notably for any suspicion of illicit activity or any information missing to perform the payment properly It is agreed that DAILYMOTION shall not be held responsible for any such activity by the third party payment systemvendors.
13.3.4 IN A GENERAL MANNER, PARTNER ACKNOWLEDGES AND AGREES THAT DAILYMOTION SHALL NOT BE HELD LIABLE FOR ANY ACTION, ERROR OR OMISSION PERFORMED BY PARTNER WHEN USING THE THIRD PARTY PAYMENT SYSTEMS, NOR FOR ANY ACTION, ERROR OR OMISSION PERFORMED BY THE THIRD PARTY PAYMENT SYSTEMS VENDORS.
13.3.5. For the avoidance of doubt, payments shall not be made to the benefit of any other person or entity other than PARTNER. Furthermore, PARTNER agrees that the payments shall only be made to a bank account or third party vendor service's account bearing the same name as that of PARTNER.
13.3.6 Parties agree and acknowledge that DAILYMOTION is free to deduct from PARTNER's Program Revenues any bank fees that may result from the error, negligence, and/or omission of PARTNER in the communication of its bank account information to DAILYMOTION. Moreover, PARTNER acknowledges and agrees that any cost related to its use of the third party payment systems like the ones provided by Paypal, Payoneer or any relevant third party vendor shall be borne by PARTNER, as the case may be.
13.4. Withholding Tax
PARTNER acknowledges and agrees that a withholding tax may be applied on the amounts paid by DAILYMOTION to PARTNER in the scope of the TOU. In this regard, it is PARTNER's responsibility to provide DAILYMOTION with a relevant certificate certified by PARTNER's home-country authorities, as soon as possible after its registration to the PARTNER Program to benefit from any exemption or reduction.
SECTION 14: INTELLECTUAL PROPERTY, WARRANTIES AND INDEMNIFICATION
14.1. Intellectual Property
Any intellectual property rights arising from and/or in relation with the Service including the DAILYMOTION Site and the Video Player (including without restriction any data collected through them), the DAILYMOTION's logos and brands shall remain DAILYMOTION's exclusive property or the relevant entitled person's exclusive property in respect to the Third Party Video(s).. Unless otherwise provided herein, no provision contained herein shall grant PARTNER any intellectual property right or right to use the Service including the DAILYMOTION Site and the Video Player, the Third Party Video(s) or DAILYMOTION's logos and brands.
Any intellectual property rights arising from and/or in relation with the Content, PARTNER's Website(s) and PARTNER's logos and brands shall remain PARTNER's exclusive property. Except as otherwise provided herein, no provision herein shall grant DAILYMOTION any intellectual property right or right to use PARTNER's Website(s) or PARTNER's logos and brands.
14.2. Warranties
14.2.1. Warranties related to the Content
Upon upload of the Content, PARTNER agrees to associate the Content with complete and accurate metadata necessary for the exploitation of the Content on the Service including but without limitation, the title, tags video category, duration, language, etc.
PARTNER represents and warrants to DAILYMOTION that it is the lawful owner of all exploitation rights in connection with the Content for the Territory and that there are no claims, liens, encumbrances, limitations, reversions, restrictions or rights of any nature in or to the Content, which will limit, impair, or interfere with the rights of DAILYMOTION. PARTNER warrants that it owns all necessary rights and clearances necessary with regards to any third party rights holders including, without limitation, authors, directors, producers, actors, technicians and, in general, from anyone who has participated directly or indirectly to the creation of the Content and/or from any third party that may be entitled to claim any right on the Content and as such, releases DAILYMOTION from any claim or action arising from any third party during the exploitation of such licensed rights.
PARTNER represents and warrants that, as an essential condition, the Content does not (i) breach any intellectual property rights of any third parties or (ii) constitute an injury to any person (including defamation, slander, abuse, etc.) or to any third party's privacy rights or (iii) encourage violence or hatred against any individual or group, or cruelty to animals or (iv) contain sexually explicit or highly suggestive content or (v) encourage drug use or (vii) constitute a threat to public order or standards of decency and good morals or, more generally, violate any applicable laws.
PARTNER also guarantees DAILYMOTION against any action, claim or complaint that may be brought by any third party, that has not contributed directly to the creation of the Content, but that may be entitled to exercise its rights on all or part of the Content and/or their exploitation by DAILYMOTION and in particular, that may be entitled to limit the exploitation of the Content on the Service.
PARTNER agrees to notify and forward to DAILYMOTION as soon as possible any action, claim or complaint relating to the Content hosted on the PARTNER Accounts.
In the event PARTNER's breach results in the impossibility for DAILYMOTION to exploit a Content on the Service, the revenue shares to be paid to PARTNER under section 4 and 6 of the TOU will not be paid to PARTNER, or if they were already paid to PARTNER, they shall be refunded by PARTNER within 10 (ten) days from DAILYMOTION's request without prejudice of any warranty claim or damages.
In accordance with applicable laws, DAILYMOTION may take down any illegal Content hosted on the PARTNER Accounts after obtaining knowledge of it. PARTNER shall remain fully liable for such Content.
If PARTNER breaches any of its obligations under the TOU which results in limitations, restrictions or encumbrances of the rights granted to DAILYMOTION including, without limitation, the impossibility for DAILYMOTION to exploit a Content on the Service, DAILYMOTION shall be free to (i) stop all payments to PARTNER with regards to the Video Monetization Feature and the Net Revenues related to the Paid Content Feature unduly generated to the benefit of the PARTNER for such Content, (ii) to terminate the PARTNER's subscription to the Video Monetization Feature, Website Monetization Feature and/or to the Paid Content Feature and/or (iii) to terminate immediately the TOU without further compensation or payment of PARTNER Program Revenues generated by PARTNER Accounts and without waiver to any other rights or remedies of DAILYMOTION within the scope of the TOU.
PARTNER acknowledges that DAILYMOTION is authorized to provide the personal data of PARTNER upon a valid request from the relevant authorities.
14.2.2. Common warranties related to the use of the PARTNER Program
PARTNER undertakes (i) not to falsely increase the number of views, impression of or clicks associated with the Content and/or the Third Party Video(s) directly or indirectly, automatically or manually, (ii) not to authorize or encourage any third party including offering any financial incentive to do the same and (iii) more generally, to comply with the rules of use of the PARTNER Program as specified in the "Frequently Asked Questions" section of the PARTNER Program and under each tool provided to PARTNER.
In the event or suspicion of a false or fraudulent increase as defined in this Section 14.2.2., DAILYMOTION may, without any justification, (i) withhold payment of the falsely generated PARTNER Program Revenue, (ii) terminate the PARTNER's subscription to the Video Monetization Feature, Website Monetization Feature and/or to the Paid Content Feature and/or (iii) immediately terminate the subscription of PARTNER to the PARTNER Program without compensation to PARTNER or payment of the falsely generated PARTNER Program Revenue and without waiver or prejudice of any other of DAILYMOTION's rights or remedies.
14.2.3 Clearance of exploitation rights
PARTNER represents and warrants that it will procure and maintain during the term all third party rights and licenses which inure or may inure to the benefit of any third party rights holders including, without limitation, authors, artists, artistic directors, composers and producers and more generally to any rightful beneficiary of such rights.
DAILYMOTION shall be responsible for paying royalties to collecting societies dedicated to authors for the viewing of the Content and of Third Party Video(s) on the DAILYMOTION Site which will be paid by DAILYMOTION when such collective management agreements are provided for this purpose.
With regards to the Paid Content Feature specifically:
  • --the royalties inuring to the benefit of collecting societies, if applicable, shall be deducted from the gross revenues received by DAILYMOTION when calculating the net revenues as set forth under Section 6 of the TOU; and
  • --when applicable, regarding the potential royalties to be paid by DAILYMOTION to the SACD for the exploitation of VOD audiovisual works, it is agreed by the Parties that the protocol dated October 12th, 1999 providing for a minimum compensation of 1,75% of the received gross revenues for authors (the "SACD Compensation") for the exploitation of VOD audiovisual works has been waived in 2009 by three professional unions, making the application of the provisions of this protocol void for the whole industry.
Furthermore, it is agreed between the Parties that PARTNER shall notify DAILYMOTION (by e-mail to partner-support@dailymotion.com) any Content from which it is not necessary to subtract the SACD Compensation to the gross received revenues, in the event PARTNER is the producer's representative, or himself the producer, or is a member of a union of producers having waived the protocol or is a member of a union of producers which has not individually adhered to the protocol.
It is agreed by the Parties that in the event a future legislation shall provide for a minimal SACD compensation for authors for the exploitation of Content as VOD, this compensation shall apply to PARTNER.
14.3. Indemnity
PARTNER agrees, at its own expense, to indemnify, hold harmless and, at DAILYMOTION's option, defend DAILYMOTION and its affiliates from and against any and all third party claims relating to losses, claims, damages, liabilities, judgments, settlements or costs and expenses (including lawyers' fees and expenses from litigation), associated with or arising out of DAILYMOTION's and/or its affiliates' (i) exploitation of the Content as specified herein, (ii) the use of the PARTNER Program contrary to the provisions contained herein, (iii) the infringement of any third party intellectual property rights arising from the use of PARTNER's brand and (iv) and/or any breach by PARTNER of PARTNER's representations and warranties contained herein.
Section 15: LEGAL DISCLAIMERS & LIMITATION OF LIABILITY
PARTNER agrees that the partner's use of the service and the PARTNER's account shall be at the PARTNER's sole risk and liability. In this regard, PARTNER is solely responsible for (i) its use of the Service and more specifically for the Content it stores and makes available to the public through the Service (ii) and the protection of its computer hardware against any virus or interruption.
Dailymotion shall not be held responsible in any case for (i) any malfunctions, inherent of the nature of the Internet, in the access and/or the use of the Service, (ii) or any default of its obligations caused by force majeure or an unintentional cause. Unless otherwise stated in the Agreement, Dailymotion does not grant any guarantee of any kind to PARTNER, whether expressly or implicitly, in any area, including and in particular any guarantee of fitness for a particular purpose.
PARTNER acknowledges and agrees that (i) DAILYMOTION is not a pay-per-view audiovisual media but a web hosting service provider and that, (ii) DAILYMOTION is not required to perform any prior monitoring of the Content hosted on its Service, or to search for facts or circumstances revealing illegal activities according to applicable law.
PARTNER acknowledges and agrees that the Service, in whole or in part (including, without limitation, the look and feel, the thematic channels, the functionality, and/or the Video Player), on and through which the Content will be distributed is provided "as is" without warranty, provided that DAILYMOTION may enhance, modify and update the Service at its sole discretion. For the sake of clarity, PARTNER shall not be entitled to request any modification to the Service.
PARTNER further acknowledges and agrees that DAILYMOTION makes no representations concerning the volume of advertising sales or orders of Content and Third Party Videos, and DAILYMOTION makes no warranties concerning a minimum amount of PARTNER Program Revenues to be paid to PARTNER.
DAILYMOTION, its affiliated companies, officers, directors, employees, agents, vendors and suppliers (the " DM Parties") disclaim all warranties of any kind, either expressed or implied, including but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement to the fullest extent permissible under applicable law. The DM Parties make no warranty or representation that the service, in whole or in part, will be uninterrupted, error-free or secure, provided that the DAILYMOTION Site will generally be available 24 hours a day 7 days a week, except during any scheduled or unscheduled interruptions, for maintenance needs or cases of force majeure. PARTNER acknowledges and agrees that DAILYMOTION is not liable for any interruptions, and PARTNER waives any claim and/or lawsuit against DAILYMOTION for this reason.
Nothing in the TOU shall exclude or limit DAILYMOTION's liability for losses which may not be lawfully excluded or limited by applicable law. Subject to this overall provision above, DAILYMOTION shall not be liable for: (a) any indirect or consequential losses which may be incurred by PARTNER. This shall include; (i) any loss of profit (whether incurred directly or indirectly); (ii) any loss of goodwill or business reputation; (iii) any loss of opportunity; or (iv) any loss of data suffered; (b) any loss or damage which may be incurred as a result of: (i) any reliance placed by PARTNER on the completeness, accuracy or existence of any advertising, or as a result of any relationship or transaction between you and any advertiser or sponsor whose advertising appears on the Service; (ii) any changes which DAILYMOTION may make to the Service, or for any permanent or temporary cessation in the provision of the Service (or any features within the Service); (iii) the deletion of, corruption of, or failure to store, any Content and other communications data maintained or transmitted by or through your use of the Service; (iv) PARTNER's failure to provide DAILYMOTION with accurate account information (v) PARTNER's failure to keep its password or PARTNER Accounts details secure and confidential.
The limitations on DAILYMOTION's liability to PARTNER in this section shall apply whether or not DAILYMOTION has been advised of or should have been aware of the possibility of any such losses arising.
Section 16: CONTENT INTEGRITY
    DAILYMOTION undertakes to not edit, modify or otherwise alter the Content uploaded or available on the Service except that DAILYMOTION shall be entitled to compress or otherwise store the Content as is necessary for its activity.
Section 17: DELIVERY TECHNICAL SPECIFICATIONS
PARTNER shall deliver the Content to DAILYMOTION with a level of quality in accordance with the typical industry standards.
PARTNER shall provide the Content in one of the following digital formats: MPEG – 4, MPEG – 2, AVI, WMV.
Section 18: AMENDMENT OF THE TOU
DAILYMOTION may revise the TOU from time to time and the most current version will always be posted on a dedicated area of the DAILYMOTION Site. PARTNER should review the TOU on a regular basis. Amendments to the TOU will not apply retroactively and will become effective 7 (seven) days after posting. However, specific amendments to new functionality or legal amendments will be effective immediately upon notice. DAILYMOTION may also in its sole discretion notify PARTNER of material changes to the TOU by emailing the PARTNER with the new TOU to the email address associated with the PARTNER Master Account. By not terminating its subscription to the PARTNER Program after amendments become effective, PARTNER implicitly agrees to be bound by the amended terms. If PARTNER does not agree to the new terms, the PARTNER's only recourse is to terminate its subscription to the PARTNER Program. THE PARTNER'S FAILURE TO TERMINATE its subscription to the PARTNER Program FOLLOWING THE EFFECTIVE DATE OF THE AMENDMENTS TO THE TOU WILL CONSTITUTE BINDING ACCEPTANCE OF ALL AMENDMENTS.
Section 19: CONFIDENTIALITY
The Parties shall each keep all the information exchanged for the performance of the TOU and their subject matter confidential and agree not to disclose such information, including, without limitation, documents and information related to products, clients, strategy, development, financial, business practices, to any third parties except as necessary to any business and legal representatives or as necessary to perform the obligations under the TOU.
Section 20: DURATION AND TERMINATION
20.1. The TOU shall enter into effect on the date of their acceptance by PARTNER and shall continue until terminated as defined herein. It is agreed between the Parties that either Party may terminate PARTNER's subscription to the PARTNER Program at any time by sending an email to:
  • --the email address given by PARTNER in its PARTNER Master Account information if termination by DAILYMOTION.
  • --the email address fficial-termination@dailymotion.com if termination by PARTNER.
The termination will be effective 30 (thirty) days after sending the email notification.
20.2. Notwithstanding the foregoing, DAILYMOTION may terminate, immediately and at any time, the activation of some of the different features provided in the scope of the PARTNER Program (for all or part of the PARTNER Accounts) for any reason. For the sake of clarity, if PARTNER does not agreed to part or all of the terms and conditions applicable to a specific tool, its only recourse is not use the corresponding tool.
20.3. It is agreed that each Party may delete at any time one or all the PARTNER Sub-Account(s) and/or deactivate the subscription of the said PARTNER Sub-Account(s) to the PARTNER Program.
20.4. Immediately upon the deactivation of the subscription of a particular PARTNER Sub-Account to the PARTNER Program or upon the global termination of PARTNER's subscription to the PARTNER Program, the corresponding PARTNER Sub-Account or all of its PARTNER Accounts (as the case may be) shall cease to be registered to the PARTNER Program and shall not benefit from any provisions of the TOU including the revenue payment terms, promotion of the Content, etc. PARTNER shall continue to respect the DAILYMOTION Policies until PARTNER removes the Content hosted on the DAILYMOTION Site and the Video Player embedded on websites other than the Dailymotion Site.
20.5. Any termination of PARTNER's subscription to the PARTNER Program shall be without prejudice to any other rights or remedies a Party may be entitled to under those contracts or at law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision of those contracts which is expressly intended to come into or continue in force on or after such termination.
Section 21: MISCELLANEOUS
21.1. The TOU shall be binding upon and shall inure to the benefit of the Parties and their assigns for the duration of the rights of the TOU. Neither Party may assign, transfer or otherwise delegate its rights and/or obligations hereunder to any person without the consent of the other Party; provided, however, that no consent shall be necessary from PARTNER for an assignment to any legal entity that DAILYMOTION owns or that owns DAILYMOTION, or that is under common control with DAILYMOTION. "Control" or "Own" mean possessing greater than 50% interest in an entity or the right to direct the management of the entity..
21.2. The TOU are governed by, and subject to the laws of France. In the event of a dispute between the Parties resulting from the construction, application and/or performance of the TOU, exclusive jurisdiction shall be granted to the Paris civil courts, notwithstanding multiple defendants or third party claims, even for emergency proceedings and protective procedures.
21.3. In the event of a case of force majeure (as defined by French case law), where one of the Party shall not be in the capacity of performing one of its obligations on time, no PARTNER Program Revenue shall be due to PARTNER as long as the Parties shall not be capable of performing their obligations.
21.4. Both Parties have entered into the TOU as independent contractors, both legally and financially. The TOU shall accordingly in no way constitute joint entity, agency relationship, joint venture or partnership or any relationship of an employer and employee as between the Parties nor shall either party hold themselves out as being part of such an entity or relationship.
21.5. If one or more provision of the TOU is considered to be invalid as such or as a result of the application of a law, regulation, or the decision of a competent body having jurisdiction, it will be treated as not forming part of the TOU and all other conditions will remain in force. However, if the invalidity or unenforceability of any provision of the TOU should affect the legal and/or economical balance of the TOU, the Parties agree to negotiate in good faith the substitution of such provision with a valid provision as legally and economically similar as possible.
21.6. The TOU shall constitute the entire agreement and understanding between the applicable parties with respect to all matters which are referred to in the TOU and the subject matter of the TOU and shall supersede any previous agreements, letter of intents, prior drafts, undertakings, representations, warranties and arrangements of any nature whatsoever (whether or not in writing) between those parties in connection with the subject matter of the TOU.
21.7. In the event of translations of the TOU, it is agreed by the Parties that the English version of the TOU will prevail in any event, even if such translation is provided by DAILYMOTION.
Amended on March 3__rd2016
SCHEDULE 1
THESE SPECIFIC AND ADDITIONAL TERMS OF USE ("ADDITIONAL TERMS") SET OUT THE TERMS AND CONDITIONS GOVERNING THE USE OF THE WIDGET AS FURTHER DEFINED HEREIN.
In the scope of the use of the Website Monetization Feature by PARTNER ruled by the TOU provided hereabove, PARTNER wishes be provided with an additional tool entitled "Widget" enabling PARTNER to monetize and engage its audience by automatically pushing video content on the PARTNER Websites) as further defined. The Widget will recommend automatically organic and promoted video and allow PARTNER to get a share of advertising revenues from In-Stream Advertising and promoted content as respectively further defined herein.
The ADDITIONAL TERMS shall be construed without prejudice to the DAILYMOTION Policies and/or of the TOU that they supplement and amend specifically as regards to the Widget. The provisions of the DAILYMOTION Policies and/or of the TOU which are not amended by the ADDITIONAL TERMS will remain in full force and effect. In the event of any contradiction between, or ambiguity in the interpretation of the (i) DAILYMOTION Policies and/or of the TOU and (ii) the ADDITIONAL TERMS, the ADDITIONAL TERMS shall prevail.
You will be referred as "YOU" or "PARTNER" as provided under the TOU above.
SECTION A: DEFINITIONS
"Widget" shall mean the widget to be integrated by PARTNER on the PARTNER Website(s) to enable the feature of Third Party Video(s) and/or Content (both as defined in the TOU) and/or Promoted Content as defined below.
"Promoted Content" shall mean any Third Party Videos or Content (both as defined in the TOU) which is featured within the Widget at the request of a third party who seeks to promote such content and thereby agrees to be charged for the views associated with such content. The third party agrees to be charged for each click on the Promoted Content thumbnail or title by an end-user notably from the Widget as implemented on the PARTNER Website(s).
" Widget Content" shall mean collectively the Third Party Video(s), the Content and the Promoted Content made available via the Widget.
SECTION B: DURATION OF THE ADDITIONAL TERMS
B.1 The ADDITIONAL TERMS shall enter into effect on the date of acceptance of the TOU and shall continue for an indefinite period of time, unless earlier terminated as provided herein. However, it is expressly agreed that PARTNER shall benefit from the Widget only upon request.
For sake of clarity, the ADDITIONAL TERMS shall automatically terminate without notice in case of termination of the TOU (for any reason).
B.2 Either Party may immediately terminate the ADDITIONAL TERMS for any reason (including for convenience or for breach of the obligations, representations and warranties set out in the ADDITIONAL TERMS) at any time by sending an email to:
  • --the email address given by PARTNER in the contact information related to the PARTNER Program if terminated by DAILYMOTION; or
  • --the email address publisher-termination@dailymotion.com if terminated by PARTNER.
B.3 Any termination of the ADDITIONAL TERMS shall be without prejudice to any other rights or remedies a Party may be entitled to under the TOU or at law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision of the ADDITIONAL TERMS which is expressly intended to come into or continue in force on or after such termination.
B.4 Upon termination of these ADDITIONAL TERMS, PARTNER shall immediately cease to use the Widget and shall remove the Widget from all the pages of the PARTNER Websites and shall cease to receive any benefit issued from these ADDITIONAL TERMS, including any revenue sharing.
In the event the ADDITIONAL TERMS are terminated for any cause other than the termination of the TOU, the termination of these ADDITIONAL TERMS shall not affect the validity of the TOU.
SECTION C: WIDGET INTEGRATION ON PARTNER WEBSITES
DAILYMOTION authorizes PARTNER to make available the Widget, in the Territory, on pages and/or on part of services of the PARTNER Website(s) as selected at PARTNER's discretion.
PARTNER may customize the Widget and the categories of content that will be available through the Widget as follows:
  • --PARTNER may customize several elements related to the look and feel of the Widget (such as for example the layout, the titles, and the typeface's color and size), subject to the general Widget-wide framework that DAILYMOTION will provide to PARTNER;
  • --PARTNER may select the categories of Widget Content (e.g.: news, sport, etc.) to be featured on the PARTNER Website(s) through the Widget, subject to the categories selection framework that DAILYMOTION will provide to PARTNER ;
  • --PARTNER may select the language used in the Widget Content to be featured on the PARTNER Websites through the Widget.
The Third Party Videos and/or Content and Promoted Content to be featured on the PARTNER Website(s) through the Widget will be automatically selected and updated through an algorithm each time an end user refreshes the page onto which the Widget is embedded, and PARTNER acknowledges and agrees that DAILYMOTION shall not assume any responsibility regarding the selection of the Widget Content featured on the PARTNER Website(s).
PARTNER acknowledges and agrees that 5% (five percent) of the traffic generated by the Widget may be randomly selected and used for A/B testing purpose and will benefit for a user experience different than the rest of the traffic, being agreed DAILYMOTION will select the test to be run at its own discretion.
SECTION D: FINANCIAL CONDITIONS
D.1 DAILYMOTION shall pay to PARTNER a revenue share of 50% (fifty percent) of the Net Ad Revenues.
" Net Ad Revenues" means the gross revenues received by DAILYMOTION from the sale of In-Stream advertising served in connection of the Third Party Videos and/or Content featured through the Widget on the PARTNER Websites, less (i) potential applicable taxes and (ii) sales, technical and adserving costs and (iii) payment of the advertising revenue share to content partners from the DAILYMOTION Site user account of which the videos have been exported in accordance with the agreement entered between DAILYMOTION and them, being agreed that (ii) and (iii) are fixed to a flat rate of 60% of the gross revenue.
D.2 DAILYMOTION shall pay to PARTNER a revenue share of 50% (fifty percent) of the Net Promoted Revenues. " Net Promoted Revenues" means the gross revenues received by DAILYMOTION from third party wanted to promote the Promoted Content and based on the views generated by a click on a Promoted Content thumbnail or title (excluding autoplay).
D.3 Terms and conditions applicable in connection to the tracking, reporting, invoicing and payment of the revenues generated from the Widget are the same as the ones provided in the TOU.
D.4 PARTNER further acknowledges and agrees that DAILYMOTION makes no representations concerning (i) the volume of advertising associated with the Widget and/or (ii) the volume of Promoted Content pushed in the Widget and/or (iii) a minimum amount of Net Ad Revenues or Net Promoted Revenues to be paid to PARTNER.
SECTION E: REPRESENTATIONS AND WARRANTIES
PARTNER represents and warrants to DAILYMOTION that it has the full corporate right, power and authority to enter into the ADDITIONAL TERMS.
The DM Parties make no warranty or representation that the service, in whole or in part, will be uninterrupted, error-free or secure, provided that PARTNER acknowledges that the Widget, in whole or in part (including without restriction its look and feel, its functionalities, etc.) are provided "as is,"provided that solely DAILYMOTION may enhance, modify, update such tools at its sole discretion. For sake of clarity, PARTNER shall not be entitled to modify nor reverse engineer, decompile, modify, translate, disassemble or make derivative works based on the Widget without DAILYMOTION's prior approval
PARTNER acknowledges and agrees that, in accordance with its hosting provider status, DAILYMOTION does not prior monitor the Widget Content to be featured on the PARTNER Websites. Therefore, the display of such content on the PARTNER Website(s) will be at PARTNER's sole liability.
PARTNER acknowledges and agrees that DAILYMOTION and/or the relevant end-user having uploaded it may remove at any time and at its sole discretion any Third Party Videos and/or Content as well as Promoted Content from the DAILYMOTION Site, being agreed that in such case the removed content will be not available for streaming anymore onto the PARTNER Website(s).
SECTION F: INDEMNITY
In addition of any indemnity granted to DAILYMOTION under the TOU, PARTNER agrees, at its own expense, to indemnify, hold harmless and, at DAILYMOTION's option, defend DAILYMOTION and its affiliates from and against any and all third party claims relating to losses, claims, damages, liabilities, judgments, settlement,costs and/or expenses (including lawyers' fees and expenses from litigation), associated with or arising out of (i) any breach by PARTNER of the obligations, representations and warranties contained herein and (ii) any use by PARTNER of the Widget.
SECTION G: GENERAL TERMS
DAILYMOTION may modify all or part of the ADDITIONAL TERMS, at any time and at its sole discretion in accordance with the provisions of Section 18 of the TOU.
All provisions of the TOU not affected by the provisions of the ADDITIONAL TERMS shall remain valid and unchanged as long as they do not contravene the provisions of the TOU.
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