Podcast Owner Agreement

By registering on ElectraCast.com you herby agree to the following terms:

EXCLUSIVE PODCAST NETWORK HOSTING AND ADVERTISING SALES REPRESENTATION AGREEMENT

Parties:

ElectraCast Media LLC (“ECM”)

Podcast Owner (you)

Territory: Worldwide

Sales Representation:

During the Term of this Exclusive Podcast Network and Advertising Sales Representation Agreement (“Agreement”), ECM will be the exclusive distributor, providing hosting services and acting as exclusive representative selling advertising inventory for the Podcast series, of which Podcast Owner warrants that they own copyright and or have full legal control. As the exclusive representative, ECM will facilitate all Podcast distribution, advertising placement and all advertising revenue for the Podcast will be transacted and contracted by ECM, with Podcast Owner granting ECM all rights, except as otherwise stated herein, to place advertisements on its Podcast and on any services, channels, networks or platforms on which ECM has the right to distribute. Subject to the terms and conditions of this Agreement, ECM has the exclusive right to negotiate ad sales on Podcast Owner’s behalf and will take its best efforts to negotiate maximum rates during negotiations. Any terms and conditions of advertising including but not limited to setting or modifying ad rates or prices shall be the sole responsibility of ECM. ECM shall disclose to Podcast Owner the terms and rates of any such ad sale negotiations for any host-read ads requested by advertisers to be read by Podcast Owner. ECM shall make no claims of ownership of copyright, trademark, patent, trade secrets, and other intellectual property rights in the content of the Podcast and any associated materials nor any derivative rights to Podcast, unless otherwise agreed to in writing.

Term:

This Agreement shall commence at the date upon which the first new and previously unpublished episode of the Podcast is commercially released by ECM (“Date of Publication”) and shall expire 12 months from the Date of Publication (“Expiration Date”). The Agreement will renew automatically for an additional term of 12 months on the Expiration Date, and on each new Expiration Date created through renewal thereafter, unless Podcast Owner provides written notice of termination not less than 60 days prior to the Expiration Date. Any existing agreement with third party advertisers specifically for the Podcast which shall exceed the Term shall be approved in writing by Podcast Owner and then extend the Expiration Date for the length of such agreement. This agreement can be terminated at any time by ECM, for any reason, with a 30-day notice by ECM to the Podcast Owner, or otherwise by written agreement between the two Parties.

This Podcast Hosting Agreement (“Agreement”) shall commence at the date upon which the podcast is first commercially released (“Date of Publication”) and shall expire 12 months from the Date of Publication Agreement (“Expiration Date”). The Agreement will renew automatically for additional terms of 12 months on the Expiration Date,” and each new Expiration Date created through renewal thereafter, unless Podcast Owner provides written notice of termination not less than 60 days prior to the Expiration Date. This agreement can be terminated at any time by ECM, for any reason, with a 30-day notice by ECM to the Podcast Owner, or otherwise by written agreement between the two Parties.

Hosting Services:

ECM holds a license for a podcast hosting platform (“Platform”) which it has rights to sub-license to Podcast Owners. As of 05/01/21 the Platform is Megaphone. ECM reserves the right to change Platform providers and in the event of such a change, shall provide Podcast Owner with as much advance notice as reasonably possible.

ECM Hosting Responsibilities:

During the Term of this Agreement, ECM will provide the following services to Podcast Owner:

Use of the Platform to the Podcast and Podcast Owner.
Assist with the transition of the Podcast from its current hosting platform.
On-boarding and tech support as needed during the Term.
Assistance with the redirect of the Podcast to a new hosting platform after the Term.

Fees and Service:

The hosting platform is provided at no cost to the Podcast Owner for the Podcast.

Revenue split between “ECM” and “Podcast Owner” Reporting & Payment are detailed herein. This includes dynamic marketplace advertisements facilitated by ECM.

Marketplace includes dynamically inserted ads from ECM not recorded by hosts, SPAN (Spotify Audience Network), and additional 3rd party ad providers.

Content:

Podcast Owner retains all rights and ownership of Podcast content hosted on the Platform. ECM agrees to not modify any Podcast. Podcast Owner acknowledges (i.e. accepts) inserted advertisements from the Platform marketplace as acceptable modification of Podcast for the purposes of Podcast monetization.

During the Term, Podcast Owner agrees not to host any illegal content including any form of hate speech on the Platform. Hate speech is defined as a written, visual or verbal attack a person or group on the basis of attributes such as gender, ethnic origin, religion, race, disability, or sexual orientation.

Podcast Owner agrees not to host any Content which infringes on the copyrights or intellectual property of any third party.

Advertising and Sponsorship Sales:

ECM Networks: ECM will include various independently produced podcasts aggregated in a network (“Network”) or multiple Networks of ECM controlled or contracted podcasts and marketed to targeted advertising verticals with the purpose of selling advertising media and sponsorships collectively across each Network.

Network Ad Buys: In the case of any Network-based ad buy (“Network Ad Buy”), the Podcast Owner shall be paid a pro rata share of the Network Ad Buy based on entire ad impressions. No share of any one Network Ad Buy shall be paid to Podcast Owner unless entire length of said ad appearing in the Podcast is played or downloaded completely. Terms of that payment are 50% of Net Revenues, defined as net after sales commissions, network management fees and any third-party transaction fees or taxes (“Net Podcast Payment”). Sales commissions may vary based on the source of the sale. Network management commissions are currently 10%.

Multiple Networks: ECM reserves the exclusive right to create and control each and every Network. Except as otherwise stated herein, ECM shall have the right to assign the Podcast to a Network including multiple Networks at the same time or sub-networks of Podcasts within a specific Network. Podcast Owner shall have the right to request removal from any Network or sub-network it reasonably deems incompatible with its Podcast. The objection must be made within a reasonable amount of time. Any ad sales agreement specific to the Podcast based on Network distribution shall be honored until the expiration of that agreement.

Individual Podcast Ad Buys: ECM may also sell advertising media and sponsorships specifically for an individual Podcast exclusive of a Network Ad Buy, such as host-read ads. Such income shall be subject to the Net Podcast Payment terms, with the exception of income for individual Podcasts produced, controlled or owned by ECM.

Host-Read Ads: In the cases of host-read ads, the Podcast host or co-hosts will deliver recordings to ECM specifications and satisfaction containing their read of each ad, which shall include language or talking points provided by ECM or the advertiser, scheduling to be agreed upon with no unreasonable delays.

Paid Guests: In the event that a guest appearance on the Podcast is paid for by the guest or a third party, any income from such appearance subject to the same terms as Net Podcast Payment. The Podcast Owner will have the right to decline any such paid guest opportunities at their own discretion.

OTT Opportunities: ECM may, at its discretion, distribute the Network or any Podcasts in the Network over streaming television (OTT i.e. Over-The-Top), or additional audio or audio-visual media delivery platforms (i.e. Amazon Audible or YouTube). Such income shall be subject to the Net Podcast Payment terms, and any additional third-party terms, fees or taxes.

ECM Value-Added Perks:

Podcast Hosting: ECM will cover hosting costs for the Podcast, as long as the Podcast is uploaded and served through ECM’s hosting partner (currently Megaphone).

Network Promotion: ECM will promote each Network as a whole brand and may include Podcast as part of such.

Podcast Cross Promotion: ECM may promote the Podcast on any of ECM controlled media or content channels, social media sites or on other ECM controlled or contracted podcasts with in-house advertisements and, where available and appropriate, by facilitating cross-podcast marketing and appearances.

Data Sharing: As made available to ECM through its hosting provider (currently Megaphone), ECM will share available Podcast-relevant data with the Podcast Owner upon request by the Podcast Owner.

Upgrade Guidance: ECM will provide best practices to Podcast including advisement on improving audio quality, show format, key art/album art and marketing. This guidance may be made available through group webinars or individual communications.

Ancillary Revenue Opportunities: ECM shall seek opportunities for additional commercial exploitation of the Podcast per the sections “Merchandising” and “Ancillary Media License” below.

Additional Marketing: ECM may, at its discretion include the Podcast in additional marketing and publicity including press releases, organic ad earned media, and paid media. Podcast Owner agrees to provide necessary source materials for such additional marketing at no additional cost to ECM.

Additional ECM Rights:

House Ads: Podcast Owner grants ECM the right to run any advertisements for ECM controlled or contracted podcasts, properties including but not limited to music and products, or ECM as a company or brand, on its Podcast at ECM’s sole discretion (“House Ads”). If any House Ads are not directly paid for by an outside or third party, there shall be no revenue shared with nor accounted to Podcast Owner for said House Ads.

Right to Reject or Delete: ECM, at its sole discretion, shall have the right to reject or delete any Podcast episodes it reasonably believes to be detrimental to ECM’s reputation and operations, or which it believes may create legal issues for ECM.

Right to Listener Advisories or Disclaimers: Podcast Owner agrees to include any listener advisory or disclaimer requested by ECM for entire Podcast or any episode ECM chooses, such as but not limited to adult content warnings and notification that the views expressed in the episode may not reflect those of ECM or any of its employees.

Transcription Rights: ECM shall, at its discretion, have the non-exclusive right to transcribe and publish the Podcast including any or all episodes or any portion therein.

Translation: Podcast Owner grants ECM the non-exclusive right to translate the Podcast into other languages including but not limited to American Sign Language (ASL). The copyright of the translated work shall be co-owned 50/50 by ECM and the Podcast Owner. Net revenue from such translations shall be divided evenly between Podcast Owner and ECM per the terms of Net Podcast Payment herein which shall also include the cost of interpretation, media management or other reasonable expenses related to the translation and distribution.

Right to Decide Hosting Service: ECM, at its sole discretion, may choose the hosting service for the Podcast.

Right to Modify or Reject Advertising: ECM reserves the right to edit, revise, or reject any advertisement, campaign or other content for any reason.

Merchandising: Podcast Owner grants ECM the limited, nonexclusive right to manufacture and distribute branded merchandise using the name and/or trademarks associated with the Podcast, upon prior approval of Podcast Owner, such approval not being unreasonably withheld. Net revenue from such merchandise sales shall be divided evenly between Podcast Owner and ECM and distributed according to the terms of the Payment & Reporting section of this Agreement. Podcast Owner retains the right to manufacture and distribute such merchandise independently of ECM, retaining all revenue from such sales. Any merchandising business conducted with partners or contacts introduced by ECM shall be subject to net revenue shares per the Payment & Reporting section of this Agreement.

Ancillary Media License: Podcast Owner grants ECM the non-exclusive license to seek and secure opportunities to exploit the Podcast and underlying ancillary rights in all other forms of media including but not limited to film/TV/OTT, book deals, merchandising, brand licensing, staging ticketed events, or original soundtrack releases (OSTs) through ECM Records, videogames and NFTs. This license shall last for the Term of the agreement plus two (2) years. Any Ancillary Media business agreements shall be subject to the written approval of both Parties, such approval not being unreasonably withheld. Net revenue from such Ancillary Media sales shall be subject to net revenue before being divided evenly between Podcast Owner and ECM and distributed according to the terms of the Payment & Reporting section of this Agreement.

Podcast Owner Responsibilities:

Inbound Business: Make all reasonable efforts to refer all inbound advertising inquiries to the ECM team within 48 hours of receiving such inquiry.

ECM Branding:

Include “An ElectraCast Media Networks podcast” or other language provided by ECM (i.e. name of specific Network) in series description and individual episode show notes, and a link to ECM listing in show notes.
Include ECM’s logo (lower left corner) and specific Network logo (lower right corner) on podcast key art and marketing materials.
Include ECM/Network sonic branding at beginning and end of each episode which may also be added dynamically by ECM through the hosting platform. ECM shall provide all approved logos and sonic branding for such inclusion.
Include “An ElectraCast Media Networks podcast” or other language provided by ECM (i.e. name of specific Network) in series description and individual episode show notes, and a link to ECM listing in show notes.
Include ECM’s logo (lower left corner) and specific Network logo (lower right corner) on podcast key art and marketing materials.
Include ECM/Network sonic branding at beginning and end of each episode which may also be added dynamically by ECM through the hosting platform. ECM shall provide all approved logos and sonic branding for such inclusion.

Talent and Other Contributor Releases: Podcast Owner shall be responsible for securing signed talent releases from anyone appearing on the Podcast, and any other contributors or licensors to the Podcast. Upon payment and on-boarding of Podcast Owner, ECM shall provide such blank releases, provided with complimentary access to the cloud-based library of ElectraCast Network Resources.

Audio Trailer: Podcast Owner agrees to provide a :30 second series-wide ad or trailer, that includes the ECM audio logo, for use by ECM to promote and market Podcast on other channels and podcasts controlled by ECM, to ECM technical and length specifications. ECM shall provide the audio logo.

Notification: Notify ECM of podcast delivery schedule, any scheduled episodes that will not air, and any gaps in delivery of podcasts or cessation of production.

Episode Deletion: Podcast Owner shall not delete any episodes without ECM’s permission.

Show Topics: Upon ECM’s request the Podcast Owner shall inform ECM of topics and guests featured in upcoming episodes

Conflicts: If Podcast Owner believes there is any conflict between brands advertised or a brand is not appropriate for the podcast, Podcast Owner shall promptly notify ECM.

Social Media Presence: Podcast Owner to provide ECM with numbers of social media followers on all platforms utilized for Podcast marketing including size of any email lists, to be updated upon request by ECM.

During the Term of this Agreement, Podcast Owner will deliver services in accordance with the following guidelines:

Podcast Owner gives ECM the exclusive rights to 100% of the Podcast’s ad inventory.
Use Megaphone as their only hosting platform for the Podcast (unless ECM chooses to change platforms).
Podcast Owner agrees to opt into the dynamic ad program through the hosting Platform. Please note that opt-in approval can, in some instances, take up to 60-days from the start day but ECM will work to minimize approval time.
Podcast Owner will place the agreed upon Ad Markers in Podcast episodes for dynamic ad insertion.
If the Podcast is not accepted or removed from the dynamic ad program, this Agreement shall become null and void.

An Ad Marker may be skipped upon approval of ECM if a “baked in” Host-read ad is sold by ECM in an episode. Any other approvals should be accepted before an episode publishes.

Podcast Owner has the right to opt-out of accepting inserted advertisements by advertiser category only; maximum of three categories. List of categories provided upon request.

If any of these responsibilities are not met, ECM reserves the right to terminate the hosting Agreement, giving the Podcast Owner 30 days to locate and facilitate a move to a new hosting platform, provided that ECM will first attempt to confer with Podcast Owner in good faith to resolve any such disputes before terminating with 30 days notice.

Podcast Owner agrees to Community Guidelines found on their website.

Required Ad Markers:

(Minimum) 2 Pre-roll, 2 Mid-roll and 2 Post-roll ad inventory slots per episode (3 or 4 Ad Markers depending on length of episode). Markers may be removed for host-voiced ads sold by ECM upon approval.

Reporting & Payment:

ECM shall deliver to Podcast Owner bi-annual accounting reports of financial activity, with a detailed breakdown of any and all revenue, fees and line item deductions of any costs or fees in connection with the Podcast and related income, included but not limited to advertisements and sponsorship revenue, licensing and distribution fees, related merchandise, as well as any and all derivative works; and if a balance of more than $100 in net revenues is owed to Podcast Owner at the end of any period, ECM shall remit such funds within fourteen (14) business days of issuing accounting report to Podcast Owner by ACH or company check.

For periods ending June 30th and Dec. 31st of each year (“PE”), reports shall be accounted to Podcast Owner in each of the following months:

PE: 06-30 – Report issued: Oct. 1st

PE 12-31- Report issued Apr. 1^st

All transaction and payout fees related to accepting payments from advertisers and processing payouts to Podcast Owner will be covered by ECM.

Indemnification:

Podcast Owner will defend, indemnify and hold harmless ECM and its directors, officers, employees, successors, assigns and agents from and against any third-party claim, demand or action, and all resulting damages, settlement amounts, penalties, costs and expenses (including reasonable outside legal costs), that arises out of or relates to a breach or alleged breach by Podcast Owner of any of its representations, warranties or obligations set forth in this Agreement, or any actual or alleged violation of any applicable law or regulation by Podcast Owner.

ECM will defend, indemnify and hold harmless Podcast Owner and its directors, officers, employees, successors, assigns and agents from and against any third-party claim, demand or action, and all resulting damages, settlement amounts, penalties, costs and expenses (including reasonable outside legal costs), that arises out of or relates to a breach or alleged breach by ECM of any of its representations, warranties or obligations set forth in this Agreement. or any actual or alleged violation of any applicable law or regulation by ECM.

General:

Each party represents and warrants that it has the authority and capacity to enter into this Agreement.

Podcast Owner acknowledges that, as an internet-delivered software application, the Platform may experience periods of downtime, including but not limited to due to scheduled maintenance, and third-party service outages. Accordingly, ECM MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM, AND ECM SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY.

ECM DOES NOT WARRANT THAT THE PLATFORM WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.

Liability:

Podcast Owner will defend, indemnify and hold harmless ECM and its corporate affiliates, directors, officers, employees, successors, assigns and agents from and against any third party claim, demand or action, and all resulting damages, settlement amounts, penalties, costs and expenses (including reasonable outside legal costs), that arises out of or relates to the following including without limitation claims that Podcast Owner Content infringes or violates any intellectual property or proprietary rights of a third party, violates any confidentiality obligation owed to a third party, or violates any applicable law or regulation; or otherwise arising in connection with a breach or alleged breach by Podcast Owner of any of its representations, warranties or obligations set forth in this Agreement.

EXCLUDING THEIR INDEMNIFICATION OBLIGATIONS ABOVE, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES IN CONNECTION WITH ANY CLAIM OF ANY NATURE ARISING UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN GIVEN ADVANCE NOTICE OF SUCH POSSIBLE DAMAGES.

Breach and Cure:

Neither party shall be in breach of any of its obligations hereunder unless and until it receives from the other party written notice (to be delivered by USPS or courier with signature proof of receipt) of any alleged breach and fails to cure any such breach within thirty (30) days after the date of receipt of such notice.

Not more than once per year either Party, at their own expense, may audit the other Party’s financial records in connection with earnings related to the reverted rights and

as a result of the exploitation of the Podcast, upon at least fourteen (14) business days’ notice.

Disclaimers:

ECM makes no promises, representations, warranties or guarantees that any of revenue or profit for the Podcast but shall conduct its operations and provide its services in a professional manner and in accordance with good industry practice and all federal, state and local laws, using best efforts to deliver in accordance with this agreement.

ECM is not responsible for any service outages by the hosting service or individual podcast delivery platforms.

Confidentiality:

The Parties acknowledge that the existence and the terms of this Agreement and any oral or written information exchanged between the Parties in connection with the preparation and performance this Agreement are regarded as confidential information (“Confidential Information”). Each Party shall maintain confidentiality of all such Confidential Information, and without obtaining the written consent of the other Party, it shall not disclose any relevant Confidential Information to any third parties, except for the information that: (a) is or will be in the public domain (other than through the receiving Party’s unauthorized disclosure); (b) is under the obligation to be disclosed pursuant to the applicable laws or regulations, rules of any stock exchange, or orders of the court or other government authorities; or (c) is required to be disclosed by any Party to its shareholders, investors, legal counsels or financial advisors regarding the transaction contemplated hereunder, provided that such shareholders, investors, legal counsels or financial advisors shall be bound by the confidentiality obligations similar to those set forth in this Section. Disclosure of any Confidential Information by the staff members or agencies hired by any Party shall be deemed disclosure of such Confidential Information by such Party, which Party shall be held liable for breach of this Agreement.

Force Majeure:

In the event either party is unable to perform its obligations under the terms of this Agreement because of acts of God, strikes, equipment or transmission failure or damage reasonably beyond its control, or other causes reasonably beyond its control, such party shall not be liable for damages to the other for any damages resulting from such failure to perform or otherwise from such causes.

Relationship of Parties:

Nothing contained in this Agreement will be deemed to be construed by the Parties or any third party as creating a partnership or joint venture between the Parties or any of their respective employees, representatives or agents.

Notices:

All notices and other communications provided for or permitted hereunder shall be made in writing by email, hand-delivery, first-class mail (registered or certified, return receipt requested), telex, telecopier, or air courier guaranteeing overnight delivery as follows:

ElectraCast Media LLC

1126 24th Street, Ste 3

Santa Monica, CA 90403

admin@electracast.com

310-751-0515

Dispute Resolution:

The parties agree that any dispute hereunder shall be settled by a single neutral arbitration held in Los Angeles, California in accordance with the rules and regulations of J.A.M.S Entertainment and Sports Group.

Successors and Assigns:

This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

Severability:

In case any provision in this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.

Entire Agreement:

This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof.