Effective Date: 06/18/2018
PLEASE READ THIS AGREEMENT CAREFULLY! THIS AGREEMENT IS A LEGAL AND CONTRACTUALLY BINDING AGREEMENT BETWEEN YOU AND TRILLER (DEFINED BELOW). YOU INDICATE YOUR WILLINGNESS TO BE BOUND BY THIS AGREEMENT BY SUBMITTING A REGISTRATION APPLICATION FOR THE TRILLER CREATORS PROGRAM (THE “PROGRAM”) TO BE CONSIDERED AS A TRILLER CREATOR (“CREATOR”). BY APPLYING FOR THE PROGRAM, YOU CERTIFY THAT YOU HAVE READ AND UNDERSTAND THE TERMS SET FORTH IN THIS AGREEMENT, AND THAT YOU ARE AUTHORIZED TO AGREE TO THIS AGREEMENT.
Reference is made to that certain Triller End User License Agreement and Terms of Service (the “EULA”), entered into between you, an individual user (“you”), and Triller, Inc. (“Triller”, “we”, “us” or “our”) governing your use of the Triller mobile software application (the “App”) and the related website located at www.triller.co (“Site”, and collectively with the App, the “Service”). BY PROCEEDING FURTHER WITH YOUR PROGRAM APPLICATION, AS ENABLED BY VIRTUE OF YOUR BEING PRESENTED WITH THIS CREATORS AGREEMENT, WHICH CONSTITUTES AN ADDENDUM TO THE EULA (THIS “ADDENDUM”), YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS ADDENDUM. IF YOU DO NOT AGREE TO THE TERMS OF THIS ADDENDUM, DO NOT PROCEED FURTHER WITH APPLYING TO PARTICIPATE IN THE PROGRAM. THE TERM OF THIS ADDENDUM SHALL BE THE PERIOD COMMENCING ON THE DATE ON WHICH YOU ARE APPROVED BY TRILLER AS A CREATOR AND CONTINUING THROUGHOUT THE DURATION OF YOUR INCLUSION IN THE PROGRAM UNLESS WE TERMINATE YOUR PARTICIPATION EARLY AND IS HEREINAFTER REFERRED TO AS THE “CREATOR TERM”. Except as otherwise provided in this Addendum, all terms contained herein will have the same meanings as those used in the EULA. All other provisions of the EULA that are not specifically modified by this Addendum will remain in full force and effect.
1. Program Registration, Approval Process and Participation.
a. Program Registration and Approval. To become a Creator in the Program, you may apply by filling out the registration materials (“Registration Application”) found at: [email protected] and submitting it to Triller through the Service. You understand and agree that Triller will use a variety of methods to confirm your eligibility to become a Creator, including, without limitation, contacting references and other methods to verify your Registration Application is accurate. By submitting your Registration Application to become a Creator, you explicitly give permission to Triller and its vendors to independently confirm your eligibility to participate in the Program. Triller reserves the right to continue to verify the accuracy of your Registration Application at any time as long as you are a Creator. We will endeavor to provide you with notice whether your Registration Application is approved within five (5) business days of our receipt of your Registration Application. We may deny you access to the Program, in our sole discretion for any or no reason, without notice and without liability.
b. Participation in the Program. We grant you the non-exclusive right to participate in the Program to promote and advertise the Service and your status as a Service Creator, subject to the terms and conditions hereof. We reserve the right to terminate this Addendum, your Program account and your participation in the Program at any time and for any or no reason, in our sole and absolute discretion by giving you notice at your e-mail address that we have in our records for you. The reasons we may terminate this Addendum, your Program account and your participation in the Program, include, without limitation, failure to keep your page up to date, or your page or other marketing materials incorporate images or content that we determine to be detrimental to Triller or incorporate materials that may infringe or assist others to infringe on any copyright, trademark, other intellectual property or any other rights of any third party. In addition to this Addendum, you acknowledge that you have carefully read and agree to comply with all of Triller’s policies and procedures as may be provided to you or are available on the Service from time to time, including, without limitation, the EULA, all of which are incorporated into and made part of this Addedum. You agree that if a conflict exists between this Addendum and any of the terms and conditions of the documents referenced in the previous sentence, this Addendum will control.
- Triller License. We grant you a non-exclusive, non-transferable, revocable license to use our trademarks, service marks, logos, links, Triller marketing materials and other intellectual property (all only in the form(s) provided to you by us) for use in connection with the Program (collectively, “Licensed Materials”) solely: (i) to promote and advertise your participation in the Service and the Program in accordance with this Addendum, and (ii) if you are a member in good standing of the Program. You may not alter, modify, or change the Licensed Materials in any way without our express prior written approval. You will not make any specific use of any Licensed Materials for purposes other than advertising and promoting your participation in the Program. You agree that you will not present the Licensed Materials in combination with any other name or mark, in connection with your own goods or services, or in any manner that may suggest or imply that you or your goods or services are supplied by, sponsored by or endorsed by us without first obtaining our prior written approval in each instance. You agree not to use the Licensed Materials, the Service, content or other materials or property in conjunction with, or to promote any activity that, in our sole discretion, is detrimental to the Triller brand or brands, including, without limitation, in any manner that is disparaging or that otherwise portrays us in a negative light. The determination of whether you are using the Licensed Materials, the Service, your page, or any other content or materials related to this Addendum in the best interest of Triller is left to our sole and absolute discretion. We reserve all of our rights in the Licensed Materials and our other proprietary rights. Your use of our Licensed Materials does not give you any rights in them other than as described in this Addendum. We may revoke your license to the Licensed Materials at any time, upon notice to you, at which time you agree to immediately cease using the Licensed Materials. We may from time to time e-mail you with any changes or updates to the Licensed Materials, the Program and/or Triller’s related products and services and you must promptly comply with any directions from us in connection therewith.
- Creator License. In addition to the rights granted to us to your User Videos as set forth in the EULA and subject to the terms below, you grant us a non-exclusive, royalty-free, unrestricted, unconditional, unlimited, worldwide right and license (with right to sublicense) to use your approved names, usernames, nicknames, titles, logos, trademarks, trade names, and service marks, copyrights, and any other materials created or used by you (which must be approved by us in writing) in connection with the Program (collectively, the “Creator Materials”) to advertise, market, promote and publicize in any manner the Program, your participation in the Program and/or to promote Triller or our Services. Triller will not be required to use the Creator Materials or to advertise, market, promote or publicize your affiliation with the Program. You represent and warrant that the Creator Materials, your page and any other materials created or used by you in connection with the Program will not contain anything that, in Triller’s sole judgment, violates any law, regulation or ordinance or third party rights, is considered to be defamatory or constitute libel or slander, may be inconsistent with Triller’s public image, may be in bad taste, are indecent or in Triller’s opinion otherwise objectionable, or may tend to bring disparagement, ridicule, or scorn upon Triller or any Creator and/or subsidiary companies. You are responsible for ensuring that the Creator Materials and any other materials posted on your website do not violate, infringe or misappropriate copyrights, right of publicity, trademark rights or other rights of us or any third party. You must have express written permission to use another party’s intellectual, proprietary or contractual rights, or to use another’s name, portrait, voice or likeness and you agree to provide such written permission to us promptly upon request. You will be solely responsible for the development, operation and maintenance of your page, for all materials that appear on your page, and for all marketing and promotion you conduct on your own.
- Ownership. Subject to the limited licenses above, as between Triller and you, each party will exclusively own and control its respective intellectual property. All goodwill that accrues from the licensed use of a party’s trademarks hereunder will inure exclusively to the party that owns the trademark.
- Procurement of Advertising, Sponsorship, Endorsement and/or Branding. During the Creator Term, you grant Triller the non-exclusive right (but not the obligation) to undertake efforts to procure advertising, sponsorship, endorsement and/or branding opportunities for you (any such procured opportunities are hereinafter referred to as the “Triller-Procured Opportunities”). Any Triller-Procured Opportunities shall be subject to good faith negotiation of a separate agreement between, you Triller and the third party sponsor.
- Third Party Rights. Unless otherwise approved by Triller in writing, no additional license or consent from, or obligation to attribute or credit, any third party is necessary for Triller to receive or use the User Videos without obligation or liability to any third party.
3. Compliance with Law. Without limiting anything else in this Addendum, and notwithstanding anything to the contrary, you will at all times comply with all government laws and regulations, and voluntary industry standards, applicable to the Program and your activities, including, without limitation, labor and employment laws and anti-bribery and corruption laws (e.g., the United States Foreign Corrupt Practices Act), The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the “CAN-SPAM Act”), Federal Communications Commission (“FCC”), Federal Trade Commission (“FTC”) and other government regulations and guidelines, and will maintain appropriate customary high quality standards during the Creator Term (defined below). Further, in any Creator Materials that are sponsored by a third party, you will conspicuously disclose your Creator status with respect to the Program and that you receive compensation from Triller for promoting the Services, all in compliance with the requirements of the FTC’s Endorsement and Testimonial Guidelines, available at: http://www.ftc.gov/opa/2009/10/endortest.shtm. Further, and without limitation, you: (i) will clearly and conspicuously disclose your true identity and that you have received compensation, product and/or other incentive items from Triller or a brand partner proximate to any mention by you of Triller or brand partner; (ii) will not make any false, misleading or deceptive statement and will not make any product performance or attribute claims about products (you may express opinions, but will not make factual claims about the products); (iii) will ensure that all of your statements accurately reflect only your honest, current opinions and beliefs based on your personal experience; (iv) will not purport to speak on behalf of Triller or a brand partner; and (v) will maintain your social media channels and activities related to the services in a manner appropriate for a family audience and will not be rude or abusive. Accordingly, when creating or publishing a blog post in connection with the Program, you must always clearly and conspicuously disclose that you have a connection with a brand partner and Triller (e.g., you are participating in the Program) and, you have received something of value. You must make these disclosures whether you are providing brand partner publicity orally or in writing. For certain online media venues, you can use short-form disclosures such as “AD”, “PAID” and “SPONSORED” or otherwise you must make a disclosure that is materially similar to the following: “I have accepted compensation from [insert name of brand partner] in exchange for my post.” Triller reserves the right to monitor and/or review all Creator Materials and User Videos. Triller reserves the right at all times to require you to edit, take down, or otherwise remove Creator Materials published through Service accounts that in our sole discretion are objectionable or in violation of this Addendum.
4. Revenue Sharing.
a. Your Net Revenue Share. We shall credit to your account under the EULA (as amended by this Addendum) the following royalties derived from Net Receipts (as defined below), if any (“Your Net Revenue Share”):
(i) “Tokens” or Similar Third-Party Virtual Currency Contributions. fifty percent (50%) of Net Receipts derived from so-called Tokens (as defined in the EULA) or other similar third-party virtual currency contributions (“Third-Party Contributions”) (with the remainder of such Net Receipts being retained by us for our own account); and
(ii) Earnings Derived from Procured Opportunities. Eighty percent (80%) of Net Receipts derived from Procured Opportunities (together with Third-Party Contributions, collectively, “Subject Earnings”) (with the remainder of such Net Receipts being retained by us for our own account).
b. Accounting. Within thirty (30) days of the end of each month where Net Receipts are received by us that exceed the minimum amount set forth below, we will compute the total amount of Your Net Revenue Share pursuant to this Addendum and will submit to you, by email (or to any other email address that you may subsequently specify in an email forwarded to [email protected]), a royalty statement (or access to an online reporting dashboard) for each such period (if we make such available generally to all Creators), and remit Your Net Revenue Share to you by PayPal or other similar online method of payment, by mailing you a check or by any other payment method selected at our sole discretion. Notwithstanding the foregoing, we will not be obligated to make any payment otherwise due hereunder if an amount less than One Hundred Dollars (U.S. $100.00) is due to you with respect to any applicable accounting statement, provided that any such amount will be carried forward until such time as the amount due to you equals or exceeds One Hundred Dollars (U.S. $100.00). Notwithstanding anything to the contrary expressed or implied in this Addendum, (i) each accounting statement will be deemed to have been rendered on the date ninety (90) days after the last day of the applicable quarter-annual period unless, within thirty (30) days after such deemed-rendered date, we receive notice, in an email forwarded to [email protected], of non-receipt of such statement from you, (ii) any objection relating to any accounting statement must be made (and any claim arising therefrom must be commenced in arbitration, pursuant to the terms of the EULA) no later than one (1) year after the date on which such statement is rendered to you (or deemed rendered as aforesaid), and you hereby waive any longer statute of limitation that may otherwise be applicable.
c. Net Receipts Definition. The term “Net Receipts”, as used herein, means all sums (if any) derived from Subject Earnings earned throughout the world that are actually received by us in the United States, less any actual out-of-pocket costs incurred by us in connection with such Subject Earnings and/or in connection with the payment to you of Your Net Revenue Share (including, without limitation, wire transfer and/or payment processing fees, if applicable) and/or any amount that you may owe us for any reason. Notwithstanding anything to the contrary expressed or implied in this Addendum, (i) in no event will you be entitled to share in any payment of any kind or nature that we receive except to the extent, if at all, that such payment relates solely or is specifically and identifiably attributable to your User Videos, (ii) you will not be entitled to any additional consideration of any kind or nature whatsoever, whether under the EULA (as amended by this Addendum) or otherwise, in connection with any rights granted by you hereunder or the exploitation thereof, and (iii) in no event will you be entitled to audit or otherwise examine any of our books or records, whether relating to Your Net Revenue Share or otherwise.
d. Payments. Prior to receiving Your Net Revenue Share payments from us, you may be required by us to fill out and submit a W-9 and send it back to us in the method we request. Only after your W-9 has been received by us will you be eligible to receive Your Net Revenue Share payments from us. Subject to compliance with the terms of this Addendum, we will pay you any of Your Net Revenue Share earned by you on a monthly basis and only after our actual receipt of the payment from the purchaser. If you terminate this Addendum, we will pay you any undisputed Net Receipts earned by you within sixty (60) days of the date your written notice of termination is received by us. Notwithstanding the foregoing, we reserve the right to extend the time in which we send out any Net Receipts if we offer the ability to obtain a refund from the purchase of a product or service until sixty (60) days after the refund period expires. Subject to the foregoing, we will either deposit Your Net Revenue Share in your designated PayPal account or send you a check for any Net Receipts you have earned via mail to the address we have on file for you. If returns, refunds or other events require recalculation of Net Receipts for a period for which Your Net Revenue Share has already been paid, we will offset from Net Receipts payable in succeeding periods by the amount which Net Receipts are reduced by such recalculation. We may maintain a reasonable reserve against such deductions. If there are no subsequent Net Receipts payable, we will send you an invoice for reimbursement of the overpaid Net Receipts, and you agree to pay any such invoice within fifteen (15) days of the date of such invoice. You will be solely responsible for reporting and paying all income and other related taxes associated with Your Net Revenue Share paid to you and for all compensation benefits and taxes to or for your employees and any third parties engaged by you in connection with your participation in the Program. If you are an individual, we may deduct from Your Net Revenue Share any unemployment insurance payments or any other payments required by law for us to withhold or pay in connection with your participation in the Program. You will defend, indemnify and hold us harmless in all respects with respect to any taxes, penalties, damages, costs and expenses relating to our payments made to you hereunder without withholding of taxes. We reserve the right, in our sole and absolute discretion, to withhold payment of any Net Receipts owed to you if we have any suspicion or actual evidence of electronic or non-electronic tampering with any portion of the Program, or if a computer virus, bug, unauthorized intervention, fraud, technical difficulties, or failures compromise or corrupt or affect the administration, integrity or security of the Program by you or a third party.
5. Termination. Either party may terminate this Addendum at any time, with or without cause, by giving the other party written notice of termination. Additionally, if at any time there has been no substantial activity on your Program account for at least twelve (12) consecutive months, and you have not earned at least $100 in Net Receipts during that twelve (12) month period, we may close your inactive account and terminate this Agreement. If you have accrued Net Receipts in your account, a maintenance fee will be deduced from your remaining balance. The maintenance fee will be the lesser of the accrued Net Receipts in your account or $25.00. Any remaining balance will be paid to you. If we terminate this Addendum because you are in material breach of a term hereof, we may withhold compensation payable to you and we may terminate this Addendum without further obligation to you including the obligation to pay compensation. All licenses granted by us to you terminate automatically upon termination of this Addendum, and you will immediately cease use of any Licensed Materials.
6. Representations and Warranties. You hereby represent and warrant to us as follows:
- This Addendum has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
- Your execution, delivery, and performance of this Addendum and the consummation of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, or (iii) any agreement or other instrument applicable to you or binding upon your assets or properties.
- You are the sole and exclusive owner or authorized licensee of the Creator Materials and have the right and power to grant to us the license to use the Creator Materials in the manner contemplated herein, and such grant does not and will not: (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon, violate or misappropriate any trademark, trade name, service mark, copyright, patent, or other proprietary contractual or other right of any other person or entity. In addition, your performance under this Addendum will not infringe upon, violate or misappropriate any trademark, trade name, service mark, copyright, patent, or other proprietary contractual or other right of any other person or entity.
- No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third-party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Addendum or the taking by you of any other action contemplated hereby.
- There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any personnel of yours, with respect to the execution, delivery or consummation of this Addendum, or with respect to the Creator Materials, and, to the best of your knowledge, there is no basis for any such claim, action or proceeding.
7. Disclaimers. We make no express or implied warranties or representations with respect to the Program, and WE EXPRESSLY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. In addition, we make no representation or warranty that the operation of the Service, the Tokens, or our procedures and systems tracking sales generated by Tokens will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
8. Limitation of Liability. WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES; ANY LOSS OF REVENUE, PROFITS, OR DATA; OR BUSINESS INTERRUPTION ARISING IN CONNECTION WITH THIS ADDENDUM OR THE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ALLEGED IN CONTRACT OR EQUITY. IN THE EVENT THE FOREGOING LIMITATION IS MODIFIED OR CURTAILED AS A MATTER OF LAW, OUR AGGREGATE MONETARY LIABILITY ARISING WITH RESPECT TO THIS ADDENDUM AND THE PROGRAM WILL NOT IN ANY EVENT EXCEED THE TOTAL COMPENSATION PAID TO YOU UNDER THIS ADDENDUM IN THE PREVIOUS THREE (3) CALENDAR MONTHS.
9. Indemnification. You hereby agree to indemnify, defend and hold harmless Triller, its shareholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all actual or threatened claims, losses, liabilities, damages or expenses (including attorneys’ fees and costs) of any nature whatsoever incurred or suffered by us (collectively, the “Losses”), in so far as such Losses (or actions in respect thereof) arise out of, are related to, or are based in any way on: (i) any claim or threatened claim that the Creator Materials infringe, misappropriate or violate the rights of any third party; (ii) the breach or alleged breach of any covenant, agreement, representation or warranty made by you herein; (iii) any claim related to your page, the conduct of your business, or your goods or services; (iv) your violation of any law, rule, regulation, ordinance or applicable policy of or agreement in connection with the Program or your obligations or services hereunder; or (v) your infringement, misappropriation or other violation of any third party intellectual, property, contractual or other right.
10. General Provisions.
- Entire Agreement. The EULA and this Addendum is the entire agreement between the parties with respect to its subject matter, and it supersedes all prior agreements, representations and understandings, whether express or implied and whether oral or written.
- Modification. We may modify any of the terms contained in this Addendum, at any time and in our sole discretion. Notice of any change by e-mail, to your address on our records, or the posting on the Service of a change notice or a new agreement designated by us to be applicable to you or a group of persons or entities including you, is agreed to constitute sufficient notice of a binding modification of this Addendum. If any modification is unacceptable to you, your only recourse is to terminate this Addendum pursuant to Section 5 of this Addendum. Your continued participation in the Program following our posting of a change notice or new agreement on the Service will constitute binding acceptance of the modified terms. It is your responsibility to have a working email address available in our records so that such notices can be delivered.
- Assignment. You may not assign this Addendum or delegate your obligations, in whole or in part, by operation of law or otherwise, without our prior written consent. We may freely assign this Addendum, in whole or in part. Subject to that restriction, this Addendum will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
- Waiver. Our failure to enforce your strict performance of any provision of this Addendum will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Addendum.
- Relationship of Parties. You and Triller are independent contractors, and nothing in this Addendum will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers, enter into any contracts, or make any representations on our behalf, or to act as a distributor, seller, or reseller of the Service.