Instant TV Channel Agreement
 Instant TV Channel Agreement

PLEASE READ CAREFULLY - BY CLICKING THE "CREATE ACCOUNT" BUTTON or "UPGRADE CHANNEL" BUTTON, YOU ARE ENTERING INTO A LEGAL CONTRACT WITH INSTANT TV CHANNEL.

This Instant TV Channel Agreement ("Agreement") is made and effective on today's date ("Effective Date") by and between Instant TV Channel, a Pennsylvania limited liability corporation with a mailing address of PO Box 111, Marysville, PA 17053 ("ITVC") you ("Publisher").

ITVC is in the business of providing a content management service (the "Platform") for distributing digital content via the Internet to Roku devices and Publisher desires to utilize ITVC's Platform.

NOW, THEREFORE, in consideration of the mutual agreements and covenants herein contained the parties hereto agree as follows:

1. DEFINITIONS

A. As used in this Agreement, the following terms have the following definitions:

      "Platform" means the content management service provided by ITVC, including the features and functionality of ITVC's software and systems as of the Effective Date and as is subsequently added, removed or disabled by ITVC.

      "Publisher Content" means audio, video, and other digital content that are owned or licensed by Publisher.

      "Roku" means Roku, Inc, a privately held company located at 12980 Saratoga Ave, Saratoga, CA 95070.

      "Roku Channel" means a software package that can be installed onto a Roku Player and associated configuration files. When the software package is executed on a Roku Player, it causes Publisher Content to be delivered. The specific functionality of the Roku Channel is at the sole discretion of ITVC.

      "Roku Player" means a device that provides a means to execute a Roku Channel in order to display, reproduce, or play back Publisher Content on a suitable display, reproduction, or playback device or system.

      "Services" means the use of the Platform to upload, manage, manipulate, distribute, syndicate, integrate one or more Roku Channels into other systems and to provide reports.

2. DESCRIPTION OF SERVICES

A. ITVC will create a Roku Channel for Publisher. Publisher understands and agrees that approval of the Roku Channel for inclusion in the Roku Channel Store, and the timing for approval, if at all, is outside of ITVC's control and is at Roku's sole discretion. Payment for the Roku Channel is due and payable whether or not Roku approves Publisher's Roku Channel so long as non-approval is not the result of gross negligence of ITVC.

B. As set forth below, ITVC is granting to Publisher a license to use the Platform in order to distribute Publisher Content via the Internet to Roku Players.

C. At any time, ITVC may include, without compensation to publisher, an accreditation or an advertisement which promotes ITVC, anywhere in a Roku Channel as the same is delivered or updated by ITVC, and in ITVC's sole discretion.

D. ITVC will provide Publisher with technical support via email for Roku Channels designated as "Free" or "Unlimited", and via email and telephone for Roku Channels designated as "Commercial" or "Custom".

E. ITVC will not host or serve Publisher Content. All Publisher Content will be hosted or served by the Publisher, or from a 3rd-party hosting or service provider.

3. LICENSE

A. Subject to the terms and conditions of this Agreement, ITVC hereby grants to Publisher, and Publisher hereby accepts from ITVC, a non-exclusive, nontransferable, revocable license to use the Platform for purposes set forth herein. Except as expressly permitted by ITVC, Publisher shall not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Platform in any way; (ii) modify or make derivative works based upon the Platform; (iii) reverse engineer, decompile, modify, translate, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon Publisher's access to or usage of the Platform; (iv) rent, lease or otherwise transfer rights to any aspect of the Platform; or (v) take any act to remove, obscure, interfere with or modify the presentation or functionality of any aspect of the Platform.

B. Publisher agrees that upon termination or expiration of this license, Publisher shall no longer have the right to use the Platform or any Roku Channel created using the Platform or otherwise provided by ITVC.

C. This license shall terminate automatically upon the termination or expiration of this Agreement.

4. TERM

A. The Services set forth herein shall start on the Effective Date and continue on a month to month basis until terminated by either party, for any reason whatsoever and with or without cause, by giving notice to the other party by email.

B. Publisher can terminate by sending a notice of termination to .

C. ITVC can terminate this agreement by sending a notice of termination to the email address that Publisher provides to ITVC as the appropriate Publisher contact. It is Publisher's responsibility to ensure that contact information is current and accurate.

D. Publisher understands that if the agreement is terminated mid-month, it will be billed for the entire month and that it will be responsible for all charges incurred prior to ITVC receiving notice of termination.

5. PAYMENT TERMS

A. Publisher shall pay ITVC an agreed upon monthly recurring fee for each Roku Channel designated as "Unlimited", "Commercial", or "Custom". All fees are waived for any Roku Channel designated as "Free".

B. Publisher shall pay ITVC for the Roku Channels on a monthly recurring basis beginning with the creation date of the first purchased Roku Channel.

C. Purchases of additional Roku Channels by Publisher will be pro-rated for the first month of use so that the recurring monthly payment to ITVC for any newly purchased Roku Channel falls on the same date as the first Roku Channel that was purchased by Publisher.

D. If Publisher deletes a Roku Channel before the end of the Roku Channel's monthly billing period, ITVC shall issue a pro-rated monthly credit that can applied towards the purchase of a new Roku Channel.

E. Refunds shall not be issued by ITVC for partial months of Roku Channel use or other use of Services.

F. Publisher shall be liable for all late fees, credit card charges and collection fees, if any.

6. REPRESENTATIONS, WARRANTIES AND LIMITATION OF LIABILITY

A. Each party warrants that (i) it has the legal right to enter into this Agreement and perform its obligations hereunder, and (ii) the performance of its obligations will not violate any applicable U.S. laws or regulations or cause a breach of any agreements with any third parties.

B. ITVC warrants that it will operate the Platform in a manner consistent with industry standards. In the event of a breach of the warranties set forth in this Section, Publisher's sole remedy is termination of this Agreement pursuant to Section 4(B). Except for the express warranty as set forth in this Section 6(B), the Platform and Services are provided on an "AS IS" basis and ITVC disclaims ALL OTHER EXPRESS OR IMPLIED WARRANTIES, WHETHER ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EVEN IF ITVC HAS BEEN INFORMED OF SUCH PURPOSE. PUBLISHER AGREES THAT ITVC SHALL NOT IN ANY EVENT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS OR OTHER ECONOMIC LOSS ARISING UNDER THIS AGREEMENT OR IN CONNECTION THE SERVICES, PLATFORM AND PUBLISHER CONTENT.

C. ITVC does not and cannot control the flow of data to or from the Platform or within any portion of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt Publisher's connections to the Internet (or portions thereof). Although ITVC will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events, ITVC cannot guarantee that such events will not occur. Accordingly, except to the extent of the express warranties set forth in this Agreement, ITVC disclaims any and all liability resulting from, or related to, such events.

7. CONTENT AND INDEMNIFICATION

A. Publisher shall not distribute any content using the Platform or Services that encourages conduct that would be considered a criminal offense or bring forth civil liability, violate any law, or is otherwise inappropriate.

B. Publisher shall not publish content that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless Publisher is the owner of such rights or has permission from the rightful owner to publish such content.

C. Publisher shall indemnify and hold ITVC, its agents and employees, harmless from any loss, damage or liability for infringement, slander, libel, breach of this Agreement or any other cause of action with respect to the Publisher Content or content published by Publisher.

8. OWNERSHIP

A. Publisher retains all right, title and interest in and to Publisher Content, including all intellectual property rights related to Publisher Content.

B. ITVC retains all right, title and interest in and to the Platform and any materials created, developed or provided by ITVC in connection with this Agreement, including all intellectual property rights related to each of the foregoing.

C. Publisher is not required to provide any feedback or suggestions to ITVC. To the extent Publisher does provide any such feedback or suggestions, Publisher agrees to assign and hereby does assign all right, title and interest in and to such feedback or suggestions to ITVC.

9. MISCELLANEOUS

A. Assignment. Neither this Agreement, nor any right or license under this Agreement may be sublicensed, assigned or otherwise transferred by Publisher without ITVC's prior written consent.

B. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original instrument, but all of which together shall constitute only one and the same instrument.

C. Law to Govern and Arbitration. The construction, interpretation and performance of this Agreement and all transactions related thereto shall be governed by and construed in all respects in accordance with the laws of the Commonwealth of Pennsylvania, U.S.A., without giving effect to the principles of conflicts of law thereof. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in Harrisburg, Pennsylvania and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Notwithstanding anything to the contrary, ITVC may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.

D. Agreement. ITVC may modify this Agreement at its sole discretion and ITVC shall have no obligation to apprise Publisher of changes to the Agreement. ITVC's then current Agreement shall be the agreement that governs the rights and obligations of the parties. Publisher may terminate this Agreement upon notice should it not agree with the revised terms and conditions.

E. Publicity. ITVC may use Publisher's name and logo in marketing materials as it deems appropriate.

F. Notice. Any notice or communication required or permitted to be given hereunder may be sent to the email address referenced in Section 4(B).

G. Relationship of Parties. ITVC and Publisher are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.

H. Force Majeure. Neither party is responsible for delays due to causes or occurrences beyond its control including, but not limited to, civil disobedience, acts of God, casualty or accident, war, labor disputes, government actions, or the like.

I. Survival. Sections 6(B), 7(C) and 9(C) shall survive termination of this Agreement.