This Content Creator Agreement (this “Agreement”) is entered into as of [Effective Date] (the “Effective Date”) by and between AfrobeatRadio, Inc. (“AfrobeatRadio” or “we”) and the undersigned (the “Creator” or “you”). In consideration of the promises and mutual covenants contained in this Agreement, AfrobeatRadio and the Creator (each a “Party” and collectively, the “Parties”) agree as follows:
- 1. Purpose. This Agreement sets forth the terms and conditions under which AfrobeatRadio will provide online hosting services and certain other services to the Creator, in each case as set forth on https://afrobeatjournal.org/ (the “Platform”), which may be amended and/or updated from time to time at AfrobeatRadio’s sole discretion, and may be supplemented by Exhibit A attached hereto (such services collectively, the “Services”), enabling the Creator to stream online or upload to the Platform their content (including, for clarity, all publicly facing activity on the Platform, which includes written posts, chats, and the like) that complies with the requirements of this Agreement (and any other guidance communicated to Creator or otherwise made available on Platform) (the “Content”).
2. Account and Initial Fee.
(1) Account. The Creator shall complete the Platform’s registration process as set forth on https://afrobeatjournal.org/wp-signup.php to create an account on the Platform (the “Account”) and agree to the terms of this Agreement before accessing and using the Services. The Creator shall ensure that any the information provided to AfrobeatRadio, including during Creator’s Account registration, is at all times complete, accurate, and up-to-date. The Creator shall at all times comply with this Agreement and any other instructions provided by AfrobeatRadio, including the terms of service,
terms of use and policies of AfrobeatRadio, each as updated from time to time by AfrobeatRadio. In the event that AfrobeatRadio suspects any non-compliance therewith by Creator, then AfrobeatRadio may (in its sole discretion) terminate or suspend Creator’s Account, use of the Platform and the Services, and receipt of any Program Fee. The Creator shall comply with all applicable laws and regulations when using the Platform, the Services and when conducting any activities relating to this Agreement and the Services.
(2) Account Security and Non-Transferability. The Creator acknowledges that the Account credentials are unique and confidential. The Creator agrees not to share, distribute, or disclose the Account information to any third party, and not to share, transfer or otherwise permit any third party to access to or use the Account or Services. Any activities conducted through the Creator’s Account are the sole responsibility of the Creator. Failure to comply with this Section 2 may result in the suspension or termination of the Creator’s Account and / or this Agreement.
(3) Initial Fee. No registration fee will be charged in connection with the registration of the Account on the Platform, provided, however, that additional fees may be incurred if the Creator elects to register as a site owner to create his or her own site on the Platform and customize the site with additional plugins. Payment shall be completed through the designated payment portal available on the Platform.
- 3. Intellectual Property Rights and License
(1) Ownership. The Creator is and will be the sole and exclusive owner in perpetuity throughout the universe of all right, title, and interest in and to the Content that is streamed on or uploaded to the Platform, including all copyrights and other intellectual property rights therein and all exploitation and allied, ancillary, and subsidiary rights therein.
(2) License. By streaming or uploading the Content to the Platform, the Creator hereby grants to AfrobeatRadio and its affiliates, and each of its and their respective direct and indirect licensees, successors, and assigns (collectively, the “Licensees”), a non- exclusive, worldwide, perpetual, irrevocable, freely transferable and sublicensable, fully paid-up and royalty-free right and license to use, copy, reproduce, store, translate, transmit, distribute, perform, publicly display, display and advertise the Content that is streamed on or uploaded to the Platform, and perform Licensees’ obligations under this Agreement (including the Services), in all formats and channels, on (or for use on) AfrobeatRadio’s or its affiliates’ (or their successor’s or assigns’) websites, radio or streaming programs, or any other audio-visual broadcast or performance. If the Creator’s creations contain any personal data, the Creator also recognizes Licensees’ “legitimate interest” in it in accordance with the scope of this license. To the extent permitted by applicable laws, the Creator hereby waives any moral rights or rights of attribution concerning the Content that is streamed on or uploaded to the Platform.
4. Content.
(a) The Creator shall be solely responsible for all costs and expenses associated with the creation of the Content that is streamed on or uploaded to the Platform. All Content streamed on or uploaded to the Platform by the Creator shall meet the following requirements:
(i) it shall be original and created solely by the Creator (except as permitted by (ii) below);
(ii) it shall not include the intellectual property of other parties, including any third-party music, photographs, artwork, trademarks, logos, or slogans. Notwithstanding the foregoing, the Creator may include in the Content that is streamed on or uploaded to the Platform (i) third-party music, or (ii) third-party trademarks (including logos) provided that such inclusion of any trademarks does not suggest an endorsement, sponsorship, or any other relationship with the owner of the trademark, in each case if the Creator has secured all rights necessary to incorporate the third-party music or trademark into such Content and such rights allow AfrobeatRadio to exercise the license granted in Section 3 and distribute such Content on any medium, whether now known or hereinafter devised, in perpetuity, and throughout the universe;
(iii) it shall comply with all applicable laws, rules, and regulations;
(iv) it shall not be libelous or otherwise defamatory; and
(v) any other requirements AfrobeatRadio may request in any form and from time to time.
(b) The Creator understands that AfrobeatRadio will be reviewing and monitoring the Content that is streamed on or uploaded to the Platform for compliance with this Agreement and applicable laws. Without limiting the rights granted in Section 2, AfrobeatRadio shall have the right to address noncompliant Content that is streamed on or uploaded to the Platform by taking any of the following actions alone or in combination:
(i) requiring that the Creator to correct such non-compliance;
(ii) withholding payment of any fees; and/or
(iii) terminating this Agreement immediately.
5. Subscriptions and Revenue Sharing
(1) As a participant on the Platform, the Creator may use the Services to offer subscriptions to the Creator’s channel (“Channel Subscription(s)”). The Creator may receive a fee approximately equal to the percentage set forth on Exhibit B attached hereto of the Net Revenue (as defined below) from paid and gifted Channel Subscriptions (the “Program Fee”). “Net Revenue” means all revenue actually received by AfrobeatRadio for which the Creator may receive a share in connection with the Creator’s channel, less any (a) billing or platform fees, licensing costs and fees, advertisements costs of sales, and any other costs and fees of any kind incurred in connection with providing and marketing the Services; (b) taxes, returns, refunds, chargebacks, discounts, currency exchange fees in connection with the Creator’s chosen payment method, bad debt, and any other applicable credits; and (c) bank and transaction fees associated with the Creator’s chosen payment option. The Creator acknowledges and agrees that the stated percentage set forth on Exhibit B is provided for reference purpose only, and does not constitute a fixed or guaranteed amount. The actual revenue share received by the Creator may vary, and the Platform reserves the right to modify the revenue share percentage at its sole discretion from time to time by providing prior written notice to the Creator.
(2) Payment Terms: Program Fees payable by AfrobeatRadio to the Creator will be paid within forty-five (45) days after the end of each calendar month, and in United States Dollars, unless otherwise agreed in writing by the Parties. The Creator’s receipt of Program Fees is contingent on the Creator’s providing AfrobeatRadio all information and documentation necessary and appropriate to effectuate payment. If the Creator does not provide such information and documentation within 180 days following any Program Fees becoming payable to the Creator by AfrobeatRadio, the Creator will forfeit such Program Fees on a month-to-month rolling basis until such information and documentation is received by AfrobeatRadio. AfrobeatRadio will pay any Program Fees via a payment method the Creator chooses from the payment options AfrobeatRadio makes available for the Services. To ensure proper payment, the Creator is responsible for providing and maintaining accurate contact and payment information. Any changes to the Creator’s contact and payment information will not be ffective until at least 15 business days after submission to AfrobeatRadio. AfrobeatRadio shall have the right to offset any amounts owing by AfrobeatRadio to the Creator against any amounts owing from the Creator to AfrobeatRadio, whether under this Agreement or otherwise. If any excess payment has been made to the Creator for any reason whatsoever, AfrobeatRadio reserves the right to adjust or offset the same against any subsequent fees payable to the Creator under this Agreement. If the Creator violates this Agreement or any other terms or policies of AfrobeatRadio, in addition to any other rights or remedies available to AfrobeatRadio, and to the extent permitted by applicable law, AfrobeatRadio reserves the right to withhold (and the Creator agrees that the Creator will not be eligible to receive) Program Fees otherwise payable to the Creator under this Agreement, whether or not directly related to such violation.
(3) The Creator acknowledges and agrees that AfrobeatRadio does not make any representation or warranty regarding any revenue or fees the Creator can expect at any time in connection with this Agreement, and AfrobeatRadio will not be liable for any actions the Creator undertakes based on the Creator’s expectations.
- 6. Representations and Warranties. The Creator represents and warrants that:
(a) The Creator has the legal capacity to enter into this Agreement, and all other agreements contemplated hereby to which the Creator is a party and perform the Creator’s obligations hereunder and thereunder. This Agreement, and all other agreements contemplated hereby to which the Creator is a party, have been duly executed and delivered by the Creator and constitute the legal, valid and binding obligations of the Creator, enforceable in accordance with their respective terms.
(b) The Creator is not prohibited from using the Services or participating in the sharing of revenues contemplated hereunder.
(c) The Creator’s participation in the sharing of revenues will not violate any applicable laws, ordinances, rules, regulations, orders, licenses, permits, industry standards, judgments, decisions, or other requirements of any applicable governmental authority, including all such rules governing communications and marketing.
(d) The Creator’s acceptance of this Agreement, and the Creator’s performance of the obligations and duties hereunder, do not and will not violate any agreement by which the Creator is bound.
(e) The information the Creator provides in connection with this Agreement is and will be accurate and complete at all times.
(f) The Creator is not a Sanctioned Person. “Sanctioned Person” means any entity or individual that is, or is owned or controlled by persons that are, (i) the subject of any sanctions administered or enforced by the United States Department of the Treasury Office of Foreign Assets Control, the United States Department of State, or other relevant sanctions authority; (ii) included in the “Entity List” or the list of “Denied Persons” administered by the United States Department of Commerce, Bureau of Industry and Security; (iii) located, organized, or resident in any country or territory that is, or whose government is, subject to a general prohibition on imports, exports, or financial transactions under the economic sanctions laws of the United States; or (iv) otherwise the subject of the blocking of assets or other restrictions on transacting business with United States persons under any economic sanctions laws applicable to the United States.
- 7. Term and Termination. This Agreement will commence as of the Effective Date and will continue until the termination of this Agreement as set forth herein. Subject to the terms of this Agreement, (i) the Creator may terminate this Agreement for any reason immediately upon his or her deletion of the Account in accordance with the procedures set forth on the Platform; and (ii) AfrobeatRadio may terminate this Agreement for any reason immediately upon providing a written notice to the Creator of such termination. Notwithstanding the termination of this Agreement, any payment obligations hereunder that accrued prior to the effective date of termination shall survive and remain enforceable in accordance with the terms of this Agreement.
8. Use of Name, Likeness, and Information. The Creator hereby grants to AfrobeatRadio (and its affiliates, successors and assigns) the right to use Creator’s name, image, likeness, and biographical, professional, and other identifying information (collectively, “Likeness”) in connection with AfrobeatRadio’s and other Licensees’ exercise of the rights granted in Section 3. The Creator hereby waives the right to inspect or approve any use of Creator’s Likeness as contemplated in this Agreement.
- 9. Confidentiality. The Creator understands that the Creator may be exposed to information about AfrobeatRadio’s products, advertising campaign, marketing/brand strategies and ideas and other information that may not have been disclosed to the public (collectively, the “Confidential Information”). The Creator agrees to maintain the confidentiality of all Confidential Information disclosed to the Creator (or which otherwise becomes available to Creator) and will hold all Confidential Information in strict confidence. For the avoidance of doubt, Confidential Information shall not include any information that is in the public domain or otherwise publicly available (other than as a result of a disclosure by the Creator).
- 10. Indemnification. The Creator agrees to indemnify, defend, and hold harmless AfrobeatRadio and its affiliates, and its and their respective members, donors, beneficiaries, staff, volunteers, partners, officers, directors, employees, agents, successors, assigns, and other representatives (collectively, the “AfrobeatRadio Indemnitees”) from and against any and all claims, judgments, damages, liabilities, settlements, losses, costs, and expenses, including attorneys’ fees and disbursements, arising from or relating to the Creator’s use of the Services, performance of this Agreement (or any other instructions, terms, policies or procedures provided by AfrobeatRadio to Creator), and any breach by the Creator of Creator’s representations, warranties, covenants, agreements or other obligations hereunder and/or under applicable laws or regulations.
- 11. Limitation of Liability. NEITHER AFROBEATRADIO NOR ANY OF THE OTHER AFROBEATRADIO INDEMNITEES WILL BE LIABLE TO THE CREATOR FOR LOST REVENUE, LOST PROFITS, LOST BUSINESS, OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF AFROBEATRADIO OR ANY OF THE FORGOING HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS AGREEMENT (INCLUDING, FOR CLARTY FOR EACH REFERENCE MADE TO THIS AGREEMENT IN THIS SECTION 11, THE SERVICES AND ANY EXPLOITATION OF THE CONTENT BY AFROBEATRADIO). FURTHER, AFROBEATRADIO’S AGGREGATE LIABILITY TO THE CREATOR, UNDER ANY THEORY OF LIABILITY, IN CONNECTION WITH THIS AGREEMENT \ WILL NOT EXCEED THE PROGRAM FEE PAID OR PAYABLE TO THE CREATOR UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED. NO ACTION, REGARDLESS OF FORM, RELATING TO THIS AGREEMENT, MAY BE BROUGHT BY THE CREATOR OR ANY OF HIS OR HER AFFILIATES OR REPRESENTATIVES AGAINST AFROBEATRADIO OR ANY OTHER AFROBEATRADIO INDEMNITEES MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUED UNDER APPLICABLE LAW.
- 12. Relationship of the Parties. It is the express intention of the Parties that the Creator is an independent contractor of AfrobeatRadio. Nothing in this Agreement shall in any way be construed to constitute the Creator as an agent, employee or representative of AfrobeatRadio nor shall the Creator have any authority to bind AfrobeatRadio in any respect.
- 13. Taxes: The Creator shall be solely responsible for reporting and paying all applicable taxes related to the Creator’s activities under this Agreement. The Creator shall be responsible for payment of, and shall indemnify, defend and hold AfrobeatRadio Indemnitees harmless against, all taxes, including Federal, state and local taxes arising out of the Creator’s activities in accordance with this Agreement.
14. Miscellaneous.
(a) All written notices required to be given under this Agreement will be delivered by email transmission and will be sent: (a) if to the Creator, to the email address provided to us in connection with the Account; and (b) if to AfrobeatRadio, to info@afrobeatradio.org. Notices will be deemed effective on the date shown on the sender’s copy of the sent email.
(b) The Creator may not assign this Agreement (or rights to access the Platform or Services), by operation of law or otherwise, without AfrobeatRadio’s express prior written approval. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the Creator and AfrobeatRadio and each of their respective successors and assigns. Any attempt to assign in violation of this section is void in each instance. AfrobeatRadio may assign this Agreement: (a) to any of its affiliates; or (b) in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets, or any similar transaction.
(c) The waiver by AfrobeatRadio of a breach of, or a default under, any provision of this Agreement will be in writing and will not be construed as a waiver of any subsequent breach of, or default under, the same or any other provision of this Agreement.
(d) Any determination that any provision of this Agreement, or any application thereof, is invalid, illegal, or unenforceable in any respect and in any instance will not affect the validity, legality, and enforceability of such provision in any other instance, or the validity, legality, or enforceability of any other provision of this Agreement, and such provision will be deemed to be reinstated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law.
(e) This Agreement is the complete and exclusive agreement between the Creator and AfrobeatRadio with respect to the subject matter contemplated by this Agreement, superseding, canceling, and replacing all prior or contemporaneous agreements, communications, and understandings, both oral and written, regarding that subject matter. This Agreement may be amended only by a written agreement signed by authorized representatives of each of the Parties. The Parties desire that this Agreement be construed fairly, according to its terms, in plain English, without constructive presumptions against the drafting party, and without reference to the titles or section headings, which are for reference only. All uses in this Agreement of the words “including,” “include(s),” “such as,” “for example,” and “e.g.” are deemed “without limitation.”
(f) This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the Parties shall be governed, construed and interpreted in accordance with the laws of the State of New York, without giving effect to principles of conflicts of law. Any and all disputes arising under or relating to this Agreement shall be brought and resolved solely and exclusively in the federal or state court located in the State of New York. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND THEREFORE EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(g) This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.
AFROBEATRADIO, INC.
By:____________________
Name: Wuyi Jacobs
Title: Vice President
Accepted and agreed as of the date
of signature:
[NAME OF CREATOR]