This License Agreement (this “Agreement”) contains the terms and conditions of (i) your use of the Koa Aloha Media digital AlohaStream distribution program (the “Program”) for distribution of audio visual programs and related content via the digital video services operated by Koa Aloha Media or its Affiliates and (ii) Koa Aloha Media ‘s use of such content on the AlohaStream platform (also referred to as the “Service“). This Agreement is a binding agreement between you and Koa Aloha Media . As used in this Agreement, “Koa Aloha Media”, “we” or “us” means, individually: (a) Koa Aloha Media, and (b) any other Koa Aloha Media Affiliate that joins as a party to this Agreement as provided herein, in each case solely with respect to such entity’s exercise of its rights and compliance with its obligations in connection with the countries, territories, and provinces designated by Koa Aloha Media. As used in this Agreement, “Content Provider” or “you” means the person or entity accepting this Agreement. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with Koa Aloha Media or Content Provider, as appropriate.
Any version of this Agreement in a language other than English is provided for convenience and the English language version will control if there is any conflict. Given the importance of this Agreement, we encourage you to review it carefully.
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, Content Provider and Koa Aloha Media hereby agree as follows:
Agreement Acceptance You accept this Agreement by clicking “Agree” where you are given the option to do so. If you do not accept the terms of this Agreement, you may not use the Program. By accepting this Agreement, you confirm that you are at least 18 years old (or the age of majority where you reside, whichever is older) and that you are able to form a legally binding contract. If you are accepting this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the legal authority to bind that company or legal entity by the terms of this Agreement.
This Agreement commences upon your acceptance of it and continues in perpetuity until terminated as set forth in this Agreement (the “Term“). From the time of acceptance of the Program as outlined in this Agreement, you grant Koa Aloha Media the right to license your content through AlohaStream, sometimes called AlohaStreamTV, for a minimum of 12 consecutive months.
We may terminate this Agreement by providing notice to you at any time. If we contract the Agreement any time prior to the initial 12-months, we will payout any royalties owed in accordance with our quarterly royalty schedule.
In the case your agreement is only for the AlohaStream.com streaming service, you may terminate this Agreement at any time by providing notice of termination to us, in which event we will cease offering your Titles within thirty (30) days from the date that we receive notice of termination; if termination occurs during the initial 12-months of acceptance, you will forfeit any royalties for the remaining royalty schedule.
In the case your agreement is for the AlohaStream.com service, physical media distribution, and digital distribution, you are agreeing to a 36-month term; however, you may choose to cancel this agreement at the conclusion of any 12-month period, with the understanding that the AlohaStream.com streaming service will remove your title within thirty (30) days that we receive the termination notice; we will also submit removal from all third-party services within that same thirty (30) day period, however, we can not guarantee the interval in which third parties will remove the title; we will payout any royalties owed in accordance with our quarterly royalty schedule.
For the AlohaStream.com Service, the territory, with respect to any Title, shall be any territory in which AlohaStream can be watched. For other physical and digital media, the Content Provider can elect to grant North American rights or Worldwide rights to Koa Aloha Media.
3. Rights Granted
You hereby grant Koa Aloha Media a non-exclusive license in the Territory to use, reproduce, reformat for online delivery, encode, encrypt, market, promote, transmit, distribute and display on the Service the audio-visual programs (“Titles“).
“Service” means one or more digital video services branded with a brand of Koa Aloha Media through AlohaStream or a Koa Aloha Media Affiliate. As used in this Agreement, Titles refer solely to the audio-visual programs viewable and authorized for distribution on the Service.
Koa Aloha Media may advertise, market, and promote, in any and all media (whether now known or hereafter devised), the availability of Titles on the Service using the Delivery Materials and any images, trailers, logos, artwork, publicity materials, and metadata provided by you as it deems appropriate (including any non-substantial edits to such materials (e.g. cropping, re-sizing and re-formatting)) as well as any video clips from the Titles created by Koa Aloha Media of up to (i) 1 consecutive minute of footage from Titles that are under 22 minutes in duration and (ii) 3 consecutive minutes of footage from Titles that are 22 minutes or longer in duration (collectively, the “Promotional Materials“). Koa Aloha Media may insert advertisements before, during or after Titles made available in the Service for Ad-Supported Access and may insert pre-roll and post-roll advertisements, graphics, videos, and logos into or over Titles made available on the Service via any Distribution Modes. Koa Aloha Media may feature the Promotional Materials in advertisements outside the Program Site, in any media, to promote the Titles and related products, the Service and any features of the Service, and the availability of the Titles on the Service.
Koa Aloha Media may make such modifications as may be necessary to conform the Title to applicable law in the Territory, provided Koa Aloha Media will use commercially reasonable efforts to ensure such modifications do not to impair the creative integrity, quality or meaning of the Title.
4. Additional Rights Granted
If Content Provider elects additional to be granted to Koa Aloha Media, those selected would be included as follows:
A) Exclusive Transactional VOD Rights, also called Digital Rights, Subscription VOD Rights, Ad-sponsored VOD Rights, Television Rights, Hotel VOD Rights, Airline Rights, Home-Video Rights, Series Rights, for all digital media considered to fall within VOD, SVOD, AVOD, TVOD, or other similar method of digital distribution.
B) “Physical Media Rights” shall mean the exclusive right to sell, market, license, or otherwise exploit the Program on the following formats: Digital Video Disk (“DVD”) and Blu-Ray Disk (“BRD”), including the authoring and encoding, replication, packaging, and delivery of the Program.
5. General Description of the Service; Distribution Modes
Koa Aloha Media, in its sole option, may allow customers to access Titles in the following ways:
(a) access audio visual content via one or more subscription offerings, where a fee is required to be paid for such access (other than in the case of a free trial), for repeated private viewing by subscribers during the Term, which may be through (i) a subscription offering branded with a brand of Koa Aloha Media or a Koa Aloha Media Affiliate including the subscription offering known as of the date hereof as AlohaStream, AlohaStreamTV, or any successor thereto; and
(a) access audio visual content on an ad-supported basis (i.e., at no charge to the customer) for delivery and repeated private viewing during the Term.
The Service may be offered on a stand-alone basis and/or bundled with other products, services, or offerings, including Koa Aloha Media. As between the parties, Koa Aloha Media will have sole control over the Service, all features, terms, and other aspects thereof (including, without limitation, the rights and entitlements granted to authorized users, the terms under which the Service is offered and the sale of advertisements in connection with the Service); provided, however, that Koa Aloha Media’s distribution of Titles on the Service shall be in accordance with the terms of this Agreement.
Without limiting the foregoing, you acknowledge that Koa Aloha Media may (i) make the Service available through any websites, applications, device interfaces, third-party platforms and any other online platforms or points of presence now known or hereafter devised, (ii) grant authorized users who receive Digital Rental, Non-transactional Access and Ad-supported Access to audio-visual content the right to access such content via streaming, and any other means of digital distribution now known or hereafter devised, for online or offline viewing on any device supported by the Service, and (iii) deliver audio-visual content on the Service via any means now known or hereafter devised (including, without limitation, cable, wire, fiber, satellite, wireless and/or cellular).
6. License Fee Payment
Subject to the limitations set forth in this Section, Koa Aloha Media ill pay you the applicable license fees set forth below (“License Fees“). Such License Fees are the only compensation payable to you under this Agreement and constitute full and complete compensation to you for all rights granted under this Agreement.
Koa Aloha Media will calculate, report and pay the License Fees in arrears within thirty (30) days after the completion of the applicable calendar month following the close of a quarter. While Koa Aloha Media reserves the right to make payments within 30 days, the typical goal is on the 15th day at the close of each quarter as follows:
- First Quarter ends March 31; Payout April 15
- Second Quarter ends June 30; Payout July 15
- Third Quarter ends September 30; Payout October 15
- Fourth Quarter ends December 31; Payout January 15
If a third party asserts that you did not have all rights required to make one of your Titles available through the Service or if we determine that you may be in breach of this Agreement, we may withhold all License Fees due to you with respect to such Title pending resolution of the issue. If we determine that you did not have all of the required rights or that you have otherwise breached this Agreement with regard to a Title, we will not owe you License Fees for that Title and we may offset any of the License Fees that were previously paid against future License Fees, or require you to remit a refund to us. We may also withhold and offset any sums you owe to us against amounts that are payable to you. When this Agreement terminates, we may withhold all License Fees due for a period of three months from the date they would otherwise be payable, in order to ensure our ability to offset any customer refunds or other offsets to which we are entitled. If we terminate your account because of your breach of this Agreement, you will forfeit any License Fees accrued but unpaid from the date of the notice of termination. If after we have terminated your account, you open a new account without our express permission, we will not owe you any License Fees through the new account. Our exercise of these rights does not limit other rights we may have to withhold or offset License Fees or exercise other remedies under applicable law.
7a. License Fee Payment/Royalty Distribution Specific to AlohaStream Digital Subscriptions
Koa Aloha Media will distribute 30% of quarterly “monthly subscription” profits evenly as a Royalty Distribution among each Title licensed and available on the AlohaStream.com Service. Title must be available for a minimum of 15 days on AlohaStream.com Service in a quarter to qualify for the 30% Royalty Distribution.
- Example being – assume 30% of “monthly subscription” subscription profits is equal to $100. For simplicity, let’s assume ten titles are licensed. Those titles would each receive $10 as part of the Royalty Distribution.
7b. License Fee Payment/Royalty Distribution Specific to Physical Media
Movies licensed for physical media are paid out as follows:
- 75/25% profit share between Koa Aloha Media and individually Licensed Films
- 75% goes to the filmmaker; 25% goes to Koa Aloha Media
7c. License Fee Payment/Royalty Distribution Specific to Transactional VOD Rights / Digital Rights
Digitally licensed movies are paid out as follows:
- 80/20% profit share between Koa Aloha Media and individually Licensed Films
- 80% goes to filmmaker; 20% goes to Koa Aloha Media
8. Taxes As between the Parties
Koa Aloha Media will be solely responsible for collecting and paying to the appropriate taxing authorities any national, state or local sales or use taxes, value added taxes (“VAT“) or similar taxes (collectively “Transaction Taxes“) applicable to customers. Koa Aloha Media will not be required to pay any taxes imposed on or measured by your net income, net profits, income, profits, revenues, gross receipts, franchise, doing business, capital, intangible, value added (other than value added tax in the nature of sales or use or similar taxes), net worth, all real property and ad valorem taxes imposed by any governmental authority on the fees payable to you under this Agreement, or similar taxes or taxes in lieu thereof, whether collected by withholding or otherwise.
All payments payable by Koa Aloha Media to you under this Agreement are inclusive of all Transaction Taxes that apply to the license of the Titles by you to Koa Aloha Media , unless Koa Aloha Media advises you otherwise. If and to the extent any payments hereunder are subject to and include any applicable Transaction Taxes, you will supply Koa Aloha Media with an original, valid tax invoice, to the extent available under the applicable law, separately stating these Transaction Taxes, to enable Koa Aloha Media to claim credit for these taxes as applicable. Koa Aloha Media may provide you with an exemption certificate or equivalent information acceptable to the relevant taxing authority, in which case, you will not charge or collect the Taxes covered by such certificate. If taxes are required to be deducted or withheld on any payments to be made to you under applicable law, then Koa Aloha Media will (i) deduct such taxes from the amount owed to you and pay them to the appropriate taxing authority as required by applicable law and (ii) secure and deliver to you a receipt or other legally required documentation for any taxes withheld as required under applicable laws.
Payment to you as reduced by such deductions or withholdings will constitute full payment and settlement to you of amounts payable under this Agreement. Except as specified in this Section, each Party will be responsible for its own taxes as levied by the applicable taxing authorities; provided, any charges toward the stamp duty payable under the applicable laws shall be borne by you. Throughout the term of this Agreement, you will provide Koa Aloha Media with any forms, documents or other certifications as may be required by Koa Aloha Media to satisfy any information reporting or withholding tax obligations with respect to any payments under this Agreement.
9. Delivery of Content: For each Title
Content Provider, at its sole cost, will deliver to Koa Aloha Media the Delivery Materials in accordance with such technical specifications as provided by Koa Aloha Media to Content Provider (including, without limitation, the requirement that the Title not contain any advertisements, bugs, visible on-screen logos, or tracking tags).
Content Provider authorizes Koa Aloha Media to re-purpose and otherwise use in accordance with this Agreement (i) any Delivery Materials previously delivered to Koa Aloha Media or its Affiliates by Content Provider or a third party, for purposes of exercising express and incidental rights granted hereunder with respect to the Titles and (ii) any Delivery Materials delivered by Content Provider under this Agreement, for purposes of Koa Aloha Media exercising any rights granted to Koa Aloha Media in respect of any Title under a subsequent agreement, solely to the extent authorized under any such subsequent agreement. Where any Delivery Materials have previously been delivered to Koa Aloha Media by a third party, Content Provider will obtain any necessary clearances from such third party (if any) on behalf of Koa Aloha Media and/or use its best efforts to assist Koa Aloha Media in obtaining any such necessary clearances, to enable Koa Aloha Media o use such previously delivered Delivery Materials. You will have no obligation to re-deliver Delivery Materials, except as necessary to comply with other obligations set forth pursuant to the terms of this Agreement.
With respect to each Title, the “Delivery Materials” means (i) a copy of the Title at the highest resolution available to you, (ii) all Promotional Materials (including, but not limited to, all images, trailers, logos and artwork associated with the Title), (iii) captions and audio language files for the Title in accordance with Koa Aloha Media’s technical specifications, but in any event, in accordance with applicable law for the Territory and Section 11 of this Agreement (iv) all metadata associated with the Title and (v) all available content ratings information, including rating and consumer advice, in accordance with applicable law for the Territory and Section 13 of the Agreement.
The Titles made available to Koa Aloha Media hereunder for distribution, to the best of Content Provider’s knowledge, include all audio-visual programs for which Content Provider has necessary rights to offer on a transactional video on demand basis in the Territory but solely to the extent such Titles are also offered by Content Provider via any other non-physical distributor in the Territory; provided such Titles as licensed to Koa Aloha Media hall have the same or better delivery dates as any other distributor in the Territory.
10. Representations and Warranties
You hereby represent and warrant that (i) you have the sole, full and unencumbered right to grant to Koa Aloha Media and its Affiliates, and have obtained all necessary clearances and releases to grant to Koa Aloha Media and its Affiliates, all of the rights set forth herein (excluding public performance rights for the communication to the public of the musical compositions contained within the Titles, such rights to be cleared by Koa Aloha Media), (ii) any information and documentation you provide to us will be current, complete, and accurate (iii) the Delivery Materials and Promotional Materials will not contain any subject matter or materials that are defamatory, libelous, obscene, or otherwise illegal under the applicable laws of the Territory and (iv) none of the following will violate any law; require us to obtain any license, authorization, or other permission from any governmental agency or other third party; contain any defamatory material; or violate or infringe any intellectual property, proprietary, or other rights of any person or entity (including contractual rights, copyrights, trademarks, patents, trade dress, trade secret, common law rights, rights of publicity, or privacy, or moral rights): (a) the exercise of any rights granted under this Agreement; (b) any materials embodied in your Titles; (c) the sale, distribution, or promotion of the Titles as authorized in this Agreement; or (d) any notices, instructions or advertising by you for or in connection with any Titles.
You further represents and warrants that you are not subject to sanctions or designated on any list of prohibited or restricted parties (and is not owned or controlled by such a party), including but not limited to the lists maintained by the United Nations Security Council, the US Government, the European Union or its member states, or other applicable government authority.
You acknowledge that Koa Aloha Media’s Code of Business Conduct and Ethics (the “Code“) prohibits the paying of bribes to anyone for any reason, whether in dealings with governments or the private sector. You will not violate or knowingly permit anyone to violate the Code’s prohibition on bribery or any applicable anti-corruption laws in performing under this Agreement. Koa Aloha Media may immediately terminate or suspend performance under this Agreement if you breach this requirement.
11. Closed Captions; Subtitles
You will deliver closed captions for all Titles in accordance with Koa Aloha Media’s technical specifications as provided on the Program Site, but in any event, in accordance with applicable law for the Territory. You may not be able to publish a Title via one or more Distribution Modes in certain Territories until Koa Aloha Media has received closed captions from you.
You will deliver English language versions of the Titles, unless the original version of a Title is not in English, in which case you will deliver (i) either audio descriptions, subtitles or dubbed language tracks and (ii) the title and synopsis information for the Title, in each case, in at least one core language identified by Koa Aloha Media for the Territory.
Further to the rights granted hereunder, Koa Aloha Media may create, insert and distribute closed captions, audio descriptions, dubbed language tracks and subtitles for Titles in any language for which Content Provider is able to grant the necessary rights in the Territory and may use or distribute any such closed caption, dubbed language track, subtitle file or audio description it creates in any such Territory. In connection with such creation, Koa Aloha Media will use reasonable commercial efforts to ensure that such closed caption and subtitled versions reflect the original version of the Licensed Title.
12. Geo-filtering; Access Controls
Koa Aloha Media will utilize industry standard geo-filtering techniques and digital rights management technology in a non-discriminatory manner in relation to similarly situated content providers. Content Provider agrees that Koa Aloha Media shall be deemed to be exercising the rights granted herein solely within the Territory as long as Koa Aloha Media complies with the foregoing. Content Provider acknowledges that Koa Aloha Media makes no representation as to the efficacy of any geo filtering technique or digital rights management technology it employs and agrees that Koa Aloha Media shall not be responsible for the failure of such.
Content Provider acknowledges and agrees that: (i) Content Provider’s ability to suspend distribution of Titles on the Service shall be Content Provider’s sole and exclusive right and remedy, and Koa Aloha Media’s sole and exclusive obligation, for any circumvention or failure of any geo filtering techniques or digital rights management technology used by Koa Aloha Media on the Service for Titles and (ii) Content Provider shall not be entitled to any other remedies, including without limitation monetary damages, in connection therewith.
Feedback Subject to the rights you grant to us under this Agreement, as between us and you, you retain all ownership rights in and to the copyrights and all other rights and interest in and to your Titles and Subscriptions. We retain all ownership rights in and to the copyrights and all other rights and interests in and to the Program, the Program Site and all Koa Aloha Media properties, and any materials we use or provide to you for use relating to your Titles and Subscriptions (such as a generic cover image used for your Titles or Subscriptions if you do not provide one). We are solely responsible for, and will have full discretion with respect to the terms, features, and operation of the Program and the Program Site and related marketing, but our use of the Titles, Promotional Materials and Subscriptions will be subject to the terms of this Agreement. If you elect to provide suggestions, ideas, or other feedback to Koa Aloha Media or any of its Affiliates in connection with the Service, the Program, the Program Site or anything on the Program Site (“Feedback“), Koa Aloha Media and its Affiliates will be free to use and exploit the same in any manner without restriction and without any need to compensate you. This Agreement does not grant you any license or other rights to any intellectual property or technology owned or operated by us or any of our Affiliates, including, without limitation, any trademarks or trade names. You agree not to use any trade name, trademark, service mark, logo or commercial symbol, or any other proprietary rights of Koa Aloha Media or any of its affiliates in any manner without prior written authorization. Nothing in this Agreement restricts any rights we may have under applicable law or a separate agreement.
14. Termination of Agreement
If either party is in breach of this Agreement and fails to cure such breach within 30 days following written notice from the other party, the non-breaching party may terminate this Agreement upon 5 business days’ written notice to the breaching party. Following any termination or expiration of this Agreement, any provision which, by its nature or express terms should survive will survive such termination or expiration, including, but not limited to, Sections 16 through 20.
You will indemnify, defend and hold harmless Koa Aloha Media, its officers, directors, employees, shareholders, affiliates, subcontractors, successors and assignees, from and against any and all third-party claims, actions, causes of action, demands, judgments, liabilities, damages, losses, injuries, costs and expenses (including, without limitation, reasonable attorneys’ fees and court costs) brought against Koa Aloha Media that arise from or relate to: (a) any breach or alleged breach by you of any of your representations, warranties or obligations set forth herein, including any failure to deliver closed captions, audio descriptions or ratings information for any Titles in compliance with applicable law; or (b) any claim that Koa Aloha Media’s exercise of the rights granted by you under this Agreement violates any law or regulation or the right(s) of any third party (individually, a “Claim“,and collectively, the “Claims“). You will not consent to the entry of a judgment or settle a Claim without our prior written consent, which may not be unreasonably withheld. You will use counsel reasonably satisfactory to us to defend each Claim. If we reasonably determine that a Claim might adversely affect us, we may take control of the defense at our expense (and without limiting your indemnification obligations).
16. Limitation of Liability
KOA ALOHA MEDIA WILL NOT BE LIABLE TO THE CONTENT PROVIDER FOR ANY LOST PROFITS OR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, EVEN IF KOA ALOHA MEDIA HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. KOA ALOHA MEDIA WILL NOT BE LIABLE TO CONTENT PROVIDER FOR DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR OTHER THEORY) OR OTHERWISE, FOR AN AGGREGATE AMOUNT IN EXCESS OF THE AMOUNT OF FEES DUE AND PAYABLE BY KOA ALOHA MEDIA UNDER THIS AGREEMENT FOR THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM. NOTWITHSTANDING THE FOREGOING, THIS SECTION WILL NOT BE DEEMED TO WAIVE ANY OF CONTENT PROVIDER’S RIGHTS AT LAW OR IN EQUITY TO ENFORCE THIS AGREEMENT WITH RESPECT TO UNDISPUTED LICENSE FEE PAYMENTS DUE TO CONTENT PROVIDER BY KOA ALOHA MEDIA HEREUNDER. THE SERVICE IS MADE AVAILABLE ON AN AS IS BASIS AND KOA ALOHA MEDIA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SERVICE, INCLUDING WITHOUT LIMITATION, (I) THAT THE SERVICE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, OR OPERATE WITHOUT ERROR OR (II) AS TO THE VOLUME OF SALES OR LICENSE FEES THAT WILL BE GENERATED BY TITLES CONTENT ON THE SERVICE. TO THE EXTENT REQUIRED BY LAW IN THE RELEVANT JURISDICTION OF THE PARTIES, THE PARTIES DO NOT EXCLUDE OR LIMIT LIABILITY FOR DEATH OR PERSONAL INJURY, FRAUDULENT MISREPRESENTATION OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY SUCH APPLICABLE LAW.
You will not, without our express, prior written permission: (a) issue any press release, media pitch or make any other public disclosures regarding this Agreement or its terms; (b) disclose Koa Aloha Media Confidential Information (as defined below) to any third party or to any employee other than an employee who needs to know the information; or (c) use Koa Aloha Media Confidential Information for any purpose other than the performance of this Agreement. You may however disclose Koa Aloha Media Confidential Information as required to comply with applicable law, provided you: (i) give us prior written notice sufficient to allow us to seek a protective order or other appropriate remedy; (ii) disclose only that Koa Aloha Media Confidential Information as is required by applicable law; and (iii) use reasonable efforts to obtain confidential treatment for any Koa Aloha Media Confidential Information so disclosed. “Koa Aloha Media Confidential Information” means (1) any information regarding Koa Aloha Media, its affiliates, and their businesses, including, without limitation, information relating to our technology, customers, business plans, promotional and marketing activities, finances and other business affairs, (2) the nature, content and existence of any communications between you and us, and (3) any sales data relating to the sale of digital videos or other information we provide or make available to you in connection with the Program. Koa Aloha Media Confidential Information does not include information that (A) is or becomes publicly available without breach of this Agreement, (B) you can show by documentation to have been known to you at the time you receive it from us, (C) you receive from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (D) you can show by documentation that you have independently developed without reference to any Koa Aloha Media Confidential Information. Without limiting the survivability of any other provision of this Agreement, this Section will survive three years following the termination of this Agreement.
All rights granted to Koa Aloha Media under this Agreement may be exercised by Koa Aloha Media, its Affiliates, and subcontractors providing services in connection with the Service. Any Koa Aloha Media Affiliate may join as a party to this Agreement and will notify you if it does so. The joining Koa Aloha Media Affiliate will be entitled to exercise the rights that you grant under this Agreement. Each Koa Aloha Media party is severally liable for its own obligations under this Agreement and is not jointly liable for the obligations of other Koa Aloha Media C parties. In addition, each Koa Aloha Media party is solely responsible with respect to its exercise of its rights and compliance with its obligations in connection with the territory or territories for which it is responsible, as determined by Koa Aloha Media in its sole discretion. You may not assign any of your rights or obligations under this Agreement without the prior written consent of Koa Aloha Media. A waiver by either party of any breach or default by the other party under this Agreement will not constitute a waiver of any other or subsequent breach or default by such other party. The failure of either party to enforce any term of this Agreement will not constitute a waiver of such party’s rights to subsequently enforce the term. The remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity. For the purposes of this Agreement, Koa Aloha Media and you are independent contracting parties, and nothing herein will be construed as creating an agency relationship, a fiduciary relationship, an employer-employee relationship, a partnership, a joint venture, or an obligation to form any such relationship or entity between Koa Aloha Media and you. You will not represent yourself to be an employee, representative, or agent of Koa Aloha Media or misrepresent the nature of your affiliation with Koa Aloha Media or the Program Site. You will have no authority to enter into any agreement on Koa Aloha Media’s behalf or in Koa Aloha Media’s name or otherwise bind Koa Aloha Media to any agreement or obligation.
Any dispute or claim arising from or relating to this Agreement or the Program is subject to the binding arbitration, governing law, disclaimer of warranties and limitation of liability and all other terms in the Koa Aloha Media Conditions of Use. You agree to those terms by entering into this Agreement or using the Program. The United States Federal Arbitration Act, applicable United States federal law, and the laws of the State of Washington, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and Koa Aloha Media relating to this Agreement or the Program.
To be effective, except where specified otherwise in this Agreement, any notice hereunder by either party must be in writing and delivered (i) if by Koa Aloha Media, via email using the email address provided in your Program account, posting on the Program Site or message through your Program account or (ii) if by you, via email to email@example.com. Notices will be effective and deemed received on the date transmitted or posted. This Agreement constitutes the complete and final agreement of the parties pertaining to the subject matter of this Agreement and supersede the parties’ prior agreements, understandings, and discussions related to the subject matter of this Agreement. If any term of this Agreement is held to be invalid, void or unenforceable, then the remaining terms of this Agreement will be unaffected and will be valid and enforceable to the fullest extent permitted by law. Nothing in this Agreement will restrict Koa Aloha Media from exercising any right it has pursuant to another applicable permission or would have at law in the absence of this Agreement.
Last Updated: November 8, 2022