Submission Terms

Terms of Submission

Prior to submitting Licensed Content (as defined below) to Bullpen, you (“Content Provider”) will be required to accept these Terms of Submission (the “Agreement”) which will govern your relationship with Bullpen Sports Network, Inc.’s (“Bullpen”) regarding your Licensed Content. By uploading Licensed Content to Bullpen’s content submission website, Content Provider is agreeing to all of the terms and conditions of this Agreement. If Content Provider does not agree to everything in this Agreement, Content Provider shall not upload or otherwise provide any Licensed Content to the Bullpen Network.

NOTE: THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION THIS AGREEMENT AND WITH RESPECT TO DISPUTES CONTENT PROVIDER MAY HAVE WITH BULLPEN. CONTENT PROVIDER MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.

 

Definitions.

“Bullpen Network” means the Bullpen accounts on a social media provider such as Facebook, Twitter, YouTube, Snapchat or Instagram, as well any websites or web applications provided by Bullpen through which Bullpen may display or receive the Licensed Content.

“Licensed Content” means the video and audio files and other content that Content Provider makes available to Bullpen under this Agreement, by uploading any of the foregoing to or through the Bullpen Network.

“Users” means the persons and entities that use the Bullpen Network.

Scope of License and Content Provider’s Rights and Responsibilities.

License Grant. Content Provider grants to Bullpen a worldwide, exclusive, perpetual, irrevocable, royalty-free license to use, sublicense and exploit the Licensed Content, including to (a) use, reproduce and distribute the Licensed Content in appropriate format, for display via the Bullpen Network; (b) modify the size and format of the Licensed Content as necessary to provide the Licensed Content via the Bullpen Network; (c) perform, display and make the Licensed Content available via the Bullpen Network; and (d) modify and create derivative works of the Licensed Content and provide the Licensed Content, as modified, to Users via the Bullpen Network. Content Provider represents and warrants that it has all necessary rights to grant the rights and licenses to Bullpen hereunder, without obligating Bullpen to make any payments to any third party, the Licensed Content has not been, and will not be, licensed, made available or provided by Content Provider to any third party, and this Agreement is not inconsistent and does not conflict with agreement to which Content Provider is a party or by which it is bound.

Use of Licensed Content. All Licensed Content is made available to Bullpen for use and distribution as contemplated by this Agreement. Regardless of whether offered to or obtained by Bullpen, Bullpen is entitled to select from the Licensed Content the actual content that it wishes to use in connection with the Bullpen Network and make available to its Users. The Licensed Content is provided free of charge. Bullpen owes no amounts to Content Provider for use and exploitation of the Licensed Content.

Contents of Licensed Content. Content Provider represents and warrants that all Licensed Content made available to Bullpen does and will comply with all applicable laws, rules and regulations, including, without limitation, those promulgated by the United States Federal Communications Commission and the Federal Trade Commission, and will ensure that the Licensed Content is original to Content Provider and does not and will not infringe or violate any intellectual property rights, privacy rights, rights of publicity or other rights of a third party. Content Provider agrees that Licensed Content shall not: (a) facilitate or promote illegal activity, or contain content that is illegal; contain content that is defamatory, obscene, distasteful, racially or ethnically offensive, harassing, or that is discriminatory based upon race, gender, color, creed, age, sexual orientation, or disability; (c) contain sexually suggestive or explicit content; (d) infringe upon or violate any right of any third party; or (e) disparage, defame, or discredit Bullpen or any social media networks, or contain content that is derogatory, detrimental, or reflects unfavorably on the name or business reputation of Bullpen or any social media networks. Bullpen is not required to act upon any Licensed Content that is not in accordance with this Section.

Availability of Licensed Content with Bullpen Network. In addition to any remedies set forth in this Agreement, Content Provider acknowledges and agrees that Bullpen may add to, change or suspend the Bullpen Network or other parts of its distribution network, in whole or part, as Bullpen deems necessary in the normal management and operation of its business or otherwise elect not to offer or continue to offer the Licensed Content in connection with the Bullpen Network or to sublicensees. Content Provider understands and agrees that Bullpen has no obligation to make the Licensed Content available to Users or to accept or use any Licensed Content. If Bullpen elects to temporarily or permanently suspend the availability of the Licensed Content under this Section, it may notify Users that the Bullpen Network or the Licensed Content is unavailable. Bullpen shall have no obligation to use or pay for any item of Licensed Content that Bullpen rejects.

Compliance With Laws. In addition to compliance with the terms of this Agreement, Content Provider hereby represents and warrants to comply with all applicable laws, rules and regulations relating to the Licensed Content and its collection, use and provision.

Service Offering. Bullpen may modify the Bullpen Network from time to time to conform with Bullpen’s current product and service offerings or as otherwise necessary to comply with applicable laws or the needs or requirements of its Users and customers.

Right to Reject. For Licensed Content provided by Content Provider, Bullpen may decide at any time to reject any item of Licensed Content that may subject Bullpen to criminal or civil liability, is inconsistent with Bullpen’s or any social media provider’s policies or business objectives, or is rejected by a social media provider (“Rejected Content”). Bullpen is free to not use Rejected Content and may destroy it.

Proprietary Rights.

Content Provider’s Ownership Rights. As between the parties and except for the licenses granted to Bullpen under this Agreement, Content Provider will retain all right, title and interest in and to the Licensed Content together with any and all intellectual property rights embodied therein.

Bullpen Ownership Rights. As between the parties, Bullpen will retain all right, title and interest in the Bullpen Network (excluding the Licensed Content) together with any and all intellectual property rights embodied therein.

Confidentiality.

Nondisclosure of Confidential Information. Content Provider acknowledges that it will have access to certain confidential information of Bullpen concerning Bullpen’s business, plans, technology, services and products, and other information held in confidence by Bullpen (“Confidential Information”). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, Content Provider knows or reasonably should know is to be considered confidential to Bullpen. Content Provider agrees that it will not disclose to any third party, or use in any way for its own account or the account of any third party except as reasonably required to perform under this Agreement, any of Bullpen’s Confidential Information, and will take precautions to protect the confidentiality of such information at least as stringent as it takes to protect its own Confidential Information, but in no event less than reasonable care. In the event of any breach of this paragraph, Bullpen may suffer irreparable harm for which money damages would be an inadequate remedy. Accordingly, Bullpen will be entitled to injunctive relief, in addition to any other available remedies at law or in equity.

Indemnification.

Content Provider shall indemnify and hold Bullpen and its officers, directors, employees, service providers, agents, contractors, sublicensees and direct and indirect customers and users (collectively, “Bullpen Indemnified Parties”) harmless from any and all liabilities, losses, damages, judgments, settlements, costs, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) arising out of, relating to or resulting from and any third party claim, suit, action, or proceeding (each, an “Action”) brought against any Bullpen Indemnified Parties arising out of or alleging: (a) any violation of or failure to comply with this Agreement; (b) any claim that, if true, would constitute a breach of any representations or warranties in this Agreement; or (c) the infringement or violation by the Licensed Content of any intellectual property or proprietary right of any third party, including any violation of a person’s rights of privacy or publicity, and, if requested by Bullpen, shall defend the Bullpen Indemnified Parties in the Action.

Warranties and Disclaimer of Warranties.

Warranties. Content Provider represents and warrants that: (a) Content Provider alone owns and has all right, title and interest in and to the Licensed Content and has the full power and authority to enter into this Agreement, to carry out its obligations under this Agreement, and to grant the rights granted in this Agreement to Bullpen hereunder, without obligating Bullpen to make any payments to any third party; (b) there are no liens or other encumbrances against the Licensed Content; (c) Content Provider has not granted any third party any license or right to, or option to use or buy, the Licensed Content; (d) no fees or royalties are payable with respect to the Licensed Content; (e) there exists no actual, pending or threatened litigation, claims or other proceedings relating to the Licensed Content; (f) no other parties have any claims or rights to the Licensed Content; (g) to Content Provider’s knowledge, no third parties are misusing or infringing upon any of the Licensed Content; (h) the Licensed Content and the use and exploitation of it by Bullpen as contemplated by this Agreement does not and will infringe, violate or misappropriate the intellectual property rights, privacy rights, right of publicity or other rights of any third party, of any third party and the Licensed Content made available to Bullpen does and will comply with all applicable laws, rules and regulations, including, without limitation, those promulgated by the United States’ Federal Trade Commission; (i) the Licensed Content is not libelous, slanderous or defamatory or in violation of any Bullpen Licensed Content Policy and does not contain any explicit, harmful or offensive content or material; (j) Content Provider is of majority age and has the power and authority and is duly authorized to execute and enter into this Agreement and to license it to Bullpen as contemplated hereunder; (k) Content Provider has cleared all rights with respect to all persons and things appearing in the Licensed Content, including, without limitation, all intellectual property rights, and it has received consents from the persons appearing in the Licensed Content; (l) the Licensed Content has not been, and will not be, licensed, made available or provided by Content Provider to any third party; (m) this Agreement does not conflict with any other agreement or contract to which Content Provider is a party or bound, and (n) this Agreement is binding upon Content Provider and enforceable in accordance with its terms.

Warranty Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Limitations of Liability.

IN NO EVENT WILL BULLPEN BE LIABLE OR RESPONSIBLE TO CONTENT PROVIDER FOR ANY TYPE OF SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE OR LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. BULLPEN’S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO DIRECT DAMAGES, NOT TO EXCEED $100. Without limiting the foregoing, Bullpen will have no liability for any failure or delay resulting from delays, breakdowns or disruptions to the Internet, wireless network or other communications facilities, any Bullpen Network, equipment, systems or networks, or any governmental action, natural disaster, power failure, labor or material shortage, transportation interruption of any kind, work slowdown, or any other condition affecting production or delivery in any manner beyond the reasonable control of Bullpen. Content Provider acknowledges that Bullpen has entered into this Agreement in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.

Term; Termination; Survival.

Term. This Agreement will commence on Content Provider’s assent to its terms (as signified by, among other things, Content Provider’s acceptance of this Agreement or by Content Provider uploading Licensed Content to Bullpen content submission website) and, unless terminated as set forth below, will continue until this Agreement is terminated in accordance with its express terms.

Termination For Convenience. Bullpen may terminate this Agreement for convenience at any time upon written notice.

Survival. Without limiting the foregoing, the rights, duties and obligations of the parties that by their nature continue and survive, including those set forth in the Sections titled “License Grant,” “Proprietary Rights,” “Confidentiality,” “Indemnification,”, “Warranty Disclaimer,” “Limitation of Liability,” “Survival,” “Dispute Resolution and Arbitration; Class Action Waiver,” and “General Provisions”, will survive any termination or expiration of this Agreement.

Dispute Resolution and Arbitration; Class Action Waiver (the “Provision”).

 

Please read this carefully. It affects Content Provider’s rights.

 

Most concerns can be resolved quickly by contacting Bullpen at support@wearewave.tv. This Provision facilitates the prompt and efficient resolution of any disputes that may arise between Content Provider and Bullpen. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. Content Provider has the right to opt-out of this Provision (as explained below), which means Content Provider would retain its right to litigate its disputes in a court, either before a judge or jury.

 

Please read this Provision carefully. It provides that all Disputes between Content Provider and Bullpen shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, Content Provider may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of Content Provider’s right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).

 

For the purpose of this Provision, “Bullpen” means Bullpen Sports Network, Inc. and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between Content Provider and Bullpen regarding any aspect of Content Provider’s relationship with Bullpen, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to Content Provider (such as Bullpen’s licensors, suppliers, dealers or third-party vendors) whenever Content Provider also asserts claims against us in the same proceeding.

 

THE PARTIES AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.

 

Pre-Arbitration Claim Resolution

For all Disputes, whether pursued in court or arbitration, Content Provider must first give Bullpen an opportunity to resolve the Dispute. Content Providermust commence this process by mailing written notification to Bullpen, 755 O’Farrell Street, San Francisco, California 94109. That written notification must include (1) Content Provider’s name, (2) Content Provider’s address, (3) a written description of Content Provider’s Claim, and (4) a description of the specific relief Content Provider seeks. If Bullpen does not resolve the Dispute within 45 days after it receives such written notification, Content Provider may pursue its Dispute in arbitration. Content Provider may pursue its Dispute in a court only under the circumstances described below.

 

Exclusions from Arbitration/Right to Opt Out

Notwithstanding the above, Content Provider or Bullpen may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) CONTENT PROVIDER OPTS-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT CONTENT PROVIDER FIRST CONSENTS TO THIS AGREEMENT (the “Opt-Out Deadline”). Content Provider may opt out of this Provision by mailing written notification to Bullpen, 755 O’Farrell Street, San Francisco, California 94109. Content Provider’s written notification must include (1) Content Provider’s name, (2) Content Provider’s address, and (3) a clear statement that Content Provider not wish to resolve disputes with Bullpen through arbitration. Content Provider’s decision to opt-out of this Arbitration Provision will have no adverse effect on its relationship with Bullpen. Any opt-out request received after the Opt-Out Deadline will not be valid and Content Provider must pursue its Dispute in arbitration or small claims court.

 

Arbitration Procedures

If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either Content Provider or Bullpen may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.

 

For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.

Because the Site and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

 

Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

 

Location of Arbitration – Content Provider or Bullpen may initiate arbitration in either San Francisco, California or the federal judicial district that includes Content Provider’s billing address. In the event that Content Provider selects the federal judicial district that includes its billing address, Bullpen may transfer the arbitration to San Francisco, California in the event that it agrees to pay any additional fees or costs Content Provider incurs as a result of the transfer, as determined by the arbitrator.

 

Payment of Arbitration Fees and Costs – Bullpen will pay all arbitration filing fees and arbitrator’s costs and expenses upon Content Provider’s written request given prior to the commencement of the arbitration. Content Provider is responsible for all additional fees and costs that Content Provider incurs in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if Content Provider provides notice and negotiate in good faith with Bullpen as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that Content Provider is the prevailing party in the arbitration, Content Provider will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.

 

Class Action Waiver

Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both Content Provider and Bullpen specifically agree to do so following initiation of the arbitration. If Content Provider chooses to pursue its Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to such Content Provider. Neither Content Provider, nor any other user of the Bullpen Network can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.

 

Jury Waiver

Content Provider understands and agrees that by entering into this Agreement Content Provider and Bullpen are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, Content Provider and Bullpen might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that Content Provider would have if it went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.

 

Severability

If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.

 

Continuation

This Provision shall survive the termination of this Agreement Notwithstanding any provision in this Agreement to the contrary, the parties agree that if Bullpen makes any change to this Provision (other than a change to the Notice Address), Content Provider may reject any such change and require Bullpen to adhere to the language in this Provision if a dispute between the parties arises.

 

General Provisions.

This Agreement is made under and will be governed by and construed in accordance with the laws of the State of California (except that body of law controlling conflicts of law) and specifically excluding from application to this Agreement that law known as the United Nations Convention on the International Sale of Goods. Except for Disputes subject to arbitration as described above, any disputes relating to this Agreement will be heard in the courts located in San Francisco in the State of California. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect and the illegal provision will be enforced to carry out the parties’ intention to the greatest lawful extent. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party This Agreement will bind and inure to the benefit of each party’s successors, heirs and assigns. Bullpen is, and at all times will be, an independent contractor in all matters relating to this Agreement. Content Provider and its employees are not agents of Bullpen for any purposes and have no power or authority to bind or commit Bullpen in any way. Content Provider and its employees are not and will not act as employees of Bullpen for any purpose, or under any other laws or regulations, which would or might impute any obligation or liability to Bullpen by reason of any employment relationship. Content Provider shall not enter into any agreement, contract or arrangement with any government or government representative or with any other person, firm, corporation, entity or enterprise imposing any legal obligation or liability of any kind on Bullpen. This Agreement has been negotiated by the respective parties hereto and their attorneys and the language hereof shall not be construed for or against any party. The titles and headings herein are for reference purposes only and shall not in any manner limit the construction of this Agreement, which shall be considered as a whole. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. All earlier and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile) is considered an original. This Agreement may be changed only by a written document signed by authorized representatives of Bullpen and Content Provider. No amendment to or modification of this Agreement shall be effective unless it is in a writing that identifies itself as such and is signed by both parties. This Agreement has been prepared and executed in the English language only, which language shall be controlling in all respects. Any translations of the provisions of this Agreement into any other language are for reference only and shall have no legal or other effect. Any notice which is required or permitted to be given by one party to the other under this Agreement will be in the English language and in writing. All proceeding related to this Agreement will be conducted in the English language.

Rev 3/2020

 

 

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