UPLOADER AGREEMENT 

Please read these Terms and Conditions and the Frequently Asked Questions section on our website (the "Website") before continuing with registration to use the video upload service (the "Upload Service") which enables the uploading of content to the Service. If you have any questions, please email us before clicking "Register" below. 

The following terms and conditions together with the information you provide in the registration form on this webpage (the "Registration Form") and the defined terms in the Appendix (together, the "Agreement") govern your provision of item(s) of audiovisual content to Babel Networks Limited ("Babel" or "We"), including your use of the uploading software (the "Software"), and govern the hosting of all audio-visual content and related material you may upload on the free-to-viewer service which is branded Babelgum, operated by Babel and delivered via the Internet, which services may be amended from time to time by Babel (the "Service") and also govern the making available of such audio-visual content by Babel to the End Users of the Service and any related reproduction or distribution. 

In this Agreement, the term "You" or "Your" refers (where no company is listed in the Registration Form) to the individual named in the Registration Form or (where a company is listed in the Registration Form) to the company listed in the Registration Form. 

You accept and agree to be bound by this Agreement, as amended by Babel from time to time by notification to You (see Paragraph 17 below). 

By clicking on the "Register" button below, you (in your capacity as an individual) represent and warrant either: 

(a) (where no company is listed in the Registration Form) that you are the individual named in the Registration Form; or 
(b) (where a company is listed in the Registration Form) that you have full legal authority to bind the company listed in the Registration Form to this Agreement. 

We may seek to confirm your identity and/or your capacity to bind the company listed in the Registration Form prior to making available particular Programme(s) on the Service. 

All capitalised terms used in this Agreement have the meanings given to them herein or in the Appendix. 

1. Admission to Upload Service and Service 
By accepting this Agreement and using the Upload Service, You are applying to participate in the Service, subject to Babel's prior approval, which shall be deemed given in respect of a Programme if Babel makes it available to the End Users through the Service. 

2. Rights 
You grant to Babel: (a) in respect of each Programme, the right to reproduce, distribute and make available that Programme (including excerpts thereof, and in this respect the right to create such excerpts) by means of Internet Free-On-Demand Delivery throughout the Territory in any and all languages as part of the Service (including without limitation via Affiliate Services) and during the License Period in respect of that Programme (the "Licensed Rights"); (b) in respect of each Programme, the Promotional Rights throughout the Territory prior to and during the relevant License Period in respect of that Programme; (c) the right to insert online tickers, banners, links to websites, text or video comments by Babel or End Users, pop-ups, commercials, sponsorship or promotional messages or additional data streams in or around each Programme; (d) the right to insert Babel’s logo and trade marks into each Programme. 

3. Programme Uploads 
3.1 You shall be solely responsible for Programme uploads and the consequences of making Programme(s) available to End Users. Babel does not endorse any opinion, recommendation or advice expressed in any Programme and Babel expressly disclaims any and all liability in connection with any Programme. 
3.2 Babel reserves the right 
(a) to remove any Programme from the Service; 
(b) to terminate Your access to the Upload Service and Service, for any reason whatsoever at any time without prior notice to You and at Babel's sole and absolute discretion. 
3.3 Babel also reserves the right in its absolute discretion to decide whether or not the content of Programme(s) is appropriate for inclusion on the Service and complies with this Agreement provided always that all responsibility and liability in relation to the contents of Programme(s) uploaded by You will at all times remain with You. 
3.4 Subject to Paragraph 3.5, the Upload Service and all relevant tools are provided "as is" with no warranties whatsoever as to their security, reliability and performance or as to their merchantability and fitness for any particular purpose. Babel shall not be responsible for any damage to Your computer system or loss of data that results from the download or use of the Software. It is hereby acknowledged and agreed by You that Babel shall not be liable for any unlawful or unauthorised use of any Programme made by third parties. In no event shall Babel be liable for any loss, theft, forwarding, misuse, misappropriation or damage of any kind to or of any Programme or for any direct, consequential, special, indirect, exemplary or punitive damages, whether in contract, tort or otherwise. 
3.5 Nothing in this Agreement shall operate to exclude or restrict either party's liability for: (a) death or personal injury resulting from negligence; (b) breach of the obligations arising from section 12 of the Sale of Goods Act, 1893 (as amended by the Sale of Goods and Supply of Services Act, 1980); or (c) fraud or deceit. 
3.6 You shall immediately inform Babel in writing of any claim relating to any Programme which is made or threatened by any third party in any form. 

4. Copy Protection 
4.1 Babel shall make commercially reasonable endeavours to restrict unauthorised access to and viewing of the Programmes. 
4.2 Babel shall exercise the Licensed Rights by means of Streaming only and with a view to ensuring that the Programmes shall not be capable of being forwarded, copied or removed from the Service by End Users. 

5. License Fee and Payments 
5.1 As full and final consideration for the Licensed Rights and subject to the compliance by You with the provisions of this Agreement, Babel agrees to pay You fifty per cent (50%) of Net Attributable Revenue (the "License Fee") in respect of each Programme which has been made available by Babel on the Service for a period of at least ninety (90) days (a "Qualifying Programme"). 
5.2 The License Fee payable under Paragraph 5.1 above shall be payable following the end of each calendar quarter in respect of each Qualifying Programme made available by Babel on the Service during all or part of such calendar quarter provided that the sum payable exceeds the minimum payment threshold of US$100 (“Payment Threshold”). Any balance below the Payment Threshold will accrue to Your account until such time as it becomes equal to or greater than the Payment Threshold. In the event of termination of this Agreement, You will receive the remaining balance, if any. 
5.3 The License Fee payable under this Agreement shall be exclusive of any applicable VAT or sales taxes (the payment of which (if applicable) and all relevant reporting obligations in relation thereto shall be the responsibility of You) but inclusive of any and all other duty or taxes or fees any kind whatsoever. 
5.4 You agree and confirm that Babel shall have the right to deduct any applicable withholding tax from the License Fee on Your behalf and remit the balance to You. 
5.5 If Babel believes that, as a result of intentional, malicious or fraudulent acts of You or a third party, streaming or Viewing data relating to any Programme(s) is being artificially altered, then Babel reserves the right to withhold or suspend any payments pending an investigation. If, in Babel's reasonable opinion, having made due enquiries, the streaming data in respect of any Programme has been artificially altered then Babel reserves the right to terminate and/or suspend this Agreement and shall have no liability to You in respect of any payments related to any such Programme. 

6. Reporting and Invoicing 
6.1 In relation to each Qualifying Programme, Babel shall deliver to You within forty-five (45) days after the end of each quarter a statement detailing the applicable License Fee payable in accordance with this Agreement, together with a report detailing in respect of that quarter: 
(a) the total number of Views of each Qualifying Programme; and (b) the total amount of Net Attributable Revenue. 
6.2 Within seven (7) days of the delivery of the statement referred to in paragraph 6.1, Babel shall invoice Babel on Your behalf for the amount of the License Fee shown due to You in such statement and Babel shall pay such amount to You within 45 days after the invoice date. 
6.3 You agree that Babel may draw up and issue invoices on Your behalf (settlement vouchers). All invoices issued by Babel on Your behalf shall be deemed to have been accepted by You except where You contact Babel in writing, by fax or by email within seven (7) days of the date of issue of the invoice to dispute the contents of the same. 
6.4 You undertake to remit to the appropriate tax authorities the VAT or sales tax (if any) which is payable on each amount of the License Fee due to You under this Agreement. 
6.5 You undertake to inform Babel in the event that You cease to be registered for VAT or sales tax under the number notified to Babel or of any other relevant change in Your VAT or sales tax status. 

7. Your Warranties 
As a material inducement to Babel entering and performing this Agreement, You irrevocably represent, warrant and undertake that: (a) You have the power and authority to enter into this Agreement and grant to Babel the Licensed Rights and all other rights granted under this Agreement and to perform fully Your obligations hereunder and that You have not entered into and shall not enter into any arrangement or do any act or thing which would inhibit, restrict, impair or terminate the exercise by Babel of the Licensed Rights in accordance with this Agreement; (b) You control, and throughout the License Period in respect of each Programme shall control, the Licensed Rights and the Promotional Rights free from any encumbrances; (c) You are under no contractual or other legal obligation which shall in any way interfere with Your full, prompt and complete performance hereunder; (d) nothing in any Programme shall libel any third party nor shall the use of any Programme violate or infringe upon, or give rise to any Claim with respect to, any contractual right or any other right of any party (including without limitation any intellectual property right (including copyright), moral right, performers' rights, trade mark, or other intellectual property right or right of privacy or publicity or any right to equitable remuneration) or violate any law; (e) You shall prepay all equitable remuneration now or in future payable to any person in respect of the use of any Programme in the Territory under this Agreement out of the sums payable to You under this Agreement or Your other resources; (f) each person whose name, voice, likeness, work, composition, or material appear in or are used in connection with each Programme has granted, released and authorized the use of same in the relevant Programme and in advertising, publicity and promotion thereof, all as contemplated by this Agreement; (g) You shall be solely responsible for obtaining and paying for all clearances, licences and consents in respect of the musical compositions, sound recordings and music videos contained in the Programmes that are necessary in respect of the usage licensed in this Agreement (including without limitation all synchronisation licences (such licences to include usage by way of IFOD Delivery) , all rights of any kind in respect of sound recordings and all performers' consents) save only public performance and/or communication to the public rights in respect of the use of musical compositions contained in the Programme(s) on the Service which shall be cleared by Babel provided that full details of all music content is provided by You to Babel in the form of completed music cue sheets (h) the Programmes do not contain any direct or indirect or subliminal promotion advertisement or publicity of any kind whatsoever; (i) You shall do any and all acts and execute any and all documents in such manner as may be required by Babel in its sole discretion to protect perfect or enforce any of the Licensed Rights. 

8. Babel’s Warranties 
Babel represents and warrants that it has the power and authority to enter into this Agreement and that it is under no contractual or other legal obligation which shall in any way interfere with its performance hereunder. 

9. Force Majeure 
Neither Party shall be liable to the other for the failure or the delay to perform its obligations hereunder by reason of any cause, circumstance, act or omission of any kind whatsoever beyond the reasonable control of either Party which results in the failure, delay, interruption or non-performance of the respective Parties’ obligations hereunder including but not limited to acts of God, strikes or other labour disturbance, governmental action, regulation or decrees, interruption and/or failure of utilities services, service outages, technical issues, the effects of any unauthorised malicious code (including, without limitation, computer viruses, logic bombs, Trojan horses, worms or other malicious software) that affects any computer equipment, computer programs, data or other proprietary material, unauthorised hacking (including, without limitation, unauthorised access to any relevant server, computer or database), any unauthorised malicious attacks on any computer equipment, computer programs, data or electronic systems, breach of contract by any essential personnel or disruption or damage to any production, receiving or transmitting equipment or facilities used by Babel. 

10. Termination 
10.1 Either Party may, at its discretion, terminate this Agreement (i) upon 30 days' written notice to the other Party, or (ii) immediately upon written notice to the other Party if the other Party becomes bankrupt or insolvent or the subject of any judicial or administrative proceeding launched in good faith relating to its bankruptcy or insolvency. 
10.2 You may withdraw any Programme(s) from inclusion in the Service by giving Babel at least 30 days' prior written notice. In the event that, pursuant to the foregoing, You withdraw all Programmes which You have uploaded, this Agreement will automatically terminate on expiry of such written notice. 

11. Indemnification 
You agree to indemnify Babel and keep Babel indemnified against all Claims arising directly or indirectly from any breach or non performance of any of Your undertakings, obligations, representations and/or warranties in this Agreement. 

12. Confidentiality 
You shall not disclose in any manner whatsoever any of Babel's Confidential Information to any person, other than Your respective officers, employees, accountants, lawyers or agents whose province is to know the same, without Babel's prior written consent provided, however, that disclosures may be made (i) to the extent necessary to comply with government disclosure requirements or applicable laws and (ii) as may be necessary and appropriate in connection with the proper performance and enforcement of this Agreement. Confidential Information includes any information not otherwise available to the public and includes all information relating to (i) all software, technology, technical specifications and documentation relating to the Upload Service; (ii) economic terms or conditions (including pricing) or any other business or financial information not stated in this Agreement and (iii) any other information designated as "Confidential". 

13. Privacy and Information Rights 
Babel may use and disclose to third parties any information You provide to Babel for the purposes of approving and enabling Your participation in the Upload Service and Service, and in accordance with Babel's Privacy Policy at http://www.babelgum.com/privacy-policy which is deemed a part of this Agreement. Babel may also provide information in response to any request of any judicial, administrative or regulatory authority. 

14. Assignment 
You shall not assign the benefit of this Agreement nor grant any right herein in whole or in part nor subcontract any of Your obligations without the prior written consent of Babel. Babel may freely assign the benefit of this Agreement or grant any right herein in whole or in part or subcontract any of Babel's obligations without requiring Your consent or approval. 

15. Waiver 
The waiver by either Party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself in whole or in part of any right, power or privilege which it has or may have hereunder operate as a waiver of any breach of default by the other party. 

16. Entire Agreement 
This Agreement supersedes all previous agreements either oral or written relating to the subject matter hereof and sets out all the terms agreed between the Parties. 

17. Amendments and Alterations 
17.1 Babel may at any time amend the terms of this Agreement and shall provide any such amendments to You by e-mail sent to the address set out in Your Registration Form. 
17.2 Any such amended terms will take effect thirty (30) days following receipt of the e-mail referred to in Paragraph 17.1 and the amended terms shall apply in respect of all Programmes that You have previously uploaded using the Upload Service and in respect of all Programmes that You subsequently upload using the Upload Service UNLESS You notify Babel before the expiry of such thirty (30) day period that You wish to terminate this Agreement, in which case this Agreement shall terminate automatically on the expiry of such thirty (30) day period. 

18. Notices 
18.1 All notices to Babel under this Agreement will be sent to paul.johnston@babelgum.com  and by registered mail to Paul Johnston, Babel Networks Limited Block J, East Point Business Park, Dublin 3, Ireland. 
18.2 All notices to You under this Agreement will be sent by e-mail to the e-mail address set out in Your Registration Form. 

19. Governing Law and Jurisdiction 
This Agreement shall be governed by and construed in accordance with the laws of England and Wales. The Parties agree to submit to the non-exclusive jurisdiction of the English courts in relation to any dispute or Claim arising out of this Agreement. 

APPENDIX - DEFINITIONS 

The following terms shall have the following meanings when used in this Agreement: 

Affiliate Service - means any service, website, mobile application, platform or similar accessible by any online and/or mobile delivery means owned, operated or controlled by (i) Babel or any Group Company of Babel or (ii) any third party authorized by Babel (a list of which Affiliate Services may be obtained by You from time to time following a written request to Babel) or (iii) any third party that uses Babel’s Embed Tags to use the Babelgum player in order to make available Babelgum Content (which may include the Programmes) via such service, website, mobile application, platform or similar. 

Babelgum Content - means any item of audio-visual content which is available as part of the Service. 

Claim - means any claim, suit, damage, liability costs, expense or legal fees suffered, incurred or to be incurred by Babel arising from any breach or alleged breach by You of any term or condition of this Agreement. 

Embed Tags – means an HTML tag or other data or code which is linked to, from or around the Programmes in order to enable Babelgum Content (which may include the Programmes and/or the Promotional Materials) to be made available as part of the Service by means of the "embedding" of such content in a third party website, blog or similar.

End User - means any member of the general public in the Territory accessing any Programme through the Service. 

Gross Attributable Revenue - means, in respect of a calendar quarter, the aggregate of all Session Attributable Revenue in relation to all Viewing Sessions in which any Programme(s) has or have been Viewed during that calendar quarter. 

Group Company - means any entity controlling, controlled by or under common control with a Babel and, for the purposes of this definition, "control" means the power of an entity (directly or indirectly) to direct or cause the direction of the management and policies of any other entity or the ownership (directly or indirectly) of not less than fifty per cent (50%) of the equity or capital of, or the voting power in, any other entity. 

Internet - means the network of interconnecting computer systems known as the Internet which transfers data using Internet Protocol (IP) (but excluding IPTV Delivery). 

Internet Free-on-Demand Delivery - means the delivery or provision to an End User, by means of Streaming via the Internet and/or by means of Streaming to an application on a Viewing Device (and in each case including any such delivery or provision via any fixed or wireless telecommunications system, including by means of any and all mobile technology delivery mechanisms now known or hereafter invented), and for reception and/or viewing on any Viewing Device, of audio-visual content which is selected by that End User and delivered or provided in response to an individual request to receive or access such content for viewing at a time specified or selected by that End User where no charge is made to the End User for the privilege of viewing such content. 

IPTV Delivery - means the delivery of broadcast quality television programming to viewers using Internet Protocol by means of a private (or virtual private) or closed user group network or networks over (i) a fixed telecommunications and/or fixed wireless system (including but not limited to Wi-Fi (802.11), WiMAX (802.16) and DSL systems) or (ii) a cable television system. 

License Period - means, in relation to each Programme, a period commencing upon the date that Programme is uploaded by You using the Upload Service and continuing until such Programme is withdrawn from the Service in accordance with this Agreement or until this Agreement is terminated in accordance with its terms. 

Licensed Rights - has the meaning set forth in Paragraph 2. 

Licensor Percentage Share - means, in respect of a Viewing Session, the time spent by the relevant End User during that Viewing Session in Viewing Programme(s) licensed by You under this Agreement, expressed as a percentage of the total time spent by that End User during that Viewing Session in viewing items of Babelgum Content (whether or not Programmes). 

Net Attributable Revenue - means Gross Attributable Revenue, less the deduction of all agency commissions and any applicable local taxes. 

Programmes - means the individual item(s) of audiovisual content uploaded by You on the Service using the Upload Service (including all metadata, credits and copyright notices) (each a "Programme"). 

Promotional Rights - means the right to edit the Programmes to create the Promotional Materials and to edit and utilize the Promotional Materials in respect of each Programme in any and all media (whether now known or hereafter invented) exclusively in order to publicize, advertise, market and/or promote the applicable Programme, the Service and/or its presence upon Affiliate Services, including without limitation by making available any of the Promotional Materials in respect of each Programme by means of so-called viral marketing in the form of video "widgets", Embed Tags or similar means. 

Promotional Materials means, in relation to a Programme: (i) any biographical notes (including the names, biographies and likenesses of the cast, authors, composers, artists, and other principal persons connected with the production of that Programme), press releases, reciprocal website info, Your company name, Your logo and trade marks, Your background info, graphic assets, jpegs, audio and/or audio-visual material, photographs, stills, behind the scenes, B-rolls, making ofs as may be made available by You and delivered to Babel; (ii) audiovisual excerpts not exceeding 20% of the entire duration of that Programme or 2 minutes thereof (whichever is the lesser) of, from and/or relating to that Programme; and (iii) any other promotional materials as may be made available by You and delivered to Babel. 

Session Attributable Revenue - means, in respect of a Viewing Session, the Session Revenue multiplied by Licensor Percentage Share. 

Session Revenue - means, in respect of an End User's Viewing Session, the aggregate of all advertising revenue received by Babel from spot advertising, pop-up, tickers, banners and/or bottom boards which are visible to that End User whilst viewing items of Babelgum Content (whether or not Programmes) during the relevant Viewing Session. 

Streaming - means the delivery of audio-visual content to an End User’s Viewing Device such that such content may be viewed contemporaneously (or near-contemporaneously) with its transmission to the Viewing Device, but no copy of the content is retained on the Viewing Device (other than such transient copy as is required to be made (and is therefore immediately deleted) for the purposes of such contemporaneous or near-contemporaneous viewing). 

Territory - means the World. 

View - occurs when an item of Babelgum Content of 10 minutes or less in duration is viewed by an End User for at least 50% of its running time in a Viewing Session, or when an item of Babelgum Content of over 10 minutes in duration is watched by an End User for at least 5 minutes in a Viewing Session, and "Viewed" and "Viewing" shall be construed accordingly. 

Viewing Device - means any device, whether fixed, mobile, wired and/or wireless, which is capable of receiving and/or displaying audiovisual content (whether by itself or in conjunction with another such device) including, without limitation, computers (including desktops, notebooks, netbooks and tablets), set-top boxes, audiovisual monitors, mobile phones, handheld games consoles, portable media players (including i-Pods), personal digital assistants and other portable electronic devices. 

Viewing Session - means, in respect of an End User, a period which: 
(a) begins when that End User selects an item of Babelgum Content (whether or not a Programme) for viewing and either that item of Babelgum Content, or any commercial messages attached to it, begins to run; and 
(b) ends the earlier of: 
(i) 6 hours after the Viewing Session begins; or 
(ii) when that End User returns to the homepage within the Babelgum player (or, in the case of viewing via an Affiliate Service, within any embedded Babelgum player on that Affiliate Service); or 
(iii) when that End User exits (or is exited from) the Service (or, in the case of viewing via an Affiliate Service or embedded service on a third party web site or blog or similar leaves the destination location on that Affiliate Service or embedded service on a third party web site or blog or similar where the Service is displayed).