You upload your videos. We’ll load your bank account! We’re Spondo, and we make it easy for you to stick your videos on your website and make money whenever someone hits play.
If you like the sound of that, read on and let’s get you registered to Spondo!
These Terms of Service explain our obligations as a Service provider and Your obligations as a Content Owner. You should read them carefully, there are some important things You need to know in here. The most important thing is that these Terms are binding on any use of the Services and apply to You from the time that Spondo provides You with access to the Services. The Spondo Services will evolve over time based on user feedback, we’re developing awesome features constantly and want to hear from You if You have any suggestions. Be aware these Terms aren’t intended to answer every question or address every issue raised by the use of the Spondo Services and Spondo reserves the right to change these Terms at any time – we’ll post the modified Terms and Spondo will make every effort to let You know about these changes via email or notification via the Services. To be clear, it’s Your obligation to ensure that You have read, understood and agree to the most recent Terms available on the Website. By registering to use the Services you acknowledge that You have read and understood these Terms and have the authority to act on behalf of any person for whom You are using the Services. You are deemed to have agreed to these Terms on behalf of any entity for whom you use the Services.
These Terms were last updated on 17 July 2012.
1 DEFINITIONS
"Access Fee"
means the fee according to your Subscription (including any taxes and duties) payable by You in accordance with the Fee Schedule set out on the Website (which Spondo may change from time to time on notice to You).
"Account Settlement"
means the statement detailing the preceding one month period’s Net Earnings minus the Access Fee, any Excess Data Charges, any Excess Storage Charges and any other charges for services as requested by You in writing for the preceding one month period. Your Account Settlement constitutes a tax invoice in respect of taxable supplies (if any) made by Spondo to You.
"Affiliate"
means any individual or organisation registered to promote Your Content through their own networks and website.
"Affiliate Commission"
means the portion of Net Receipts owed to Affiliates (including any taxes and duties) payable by You in accordance with the Fee Schedule set out on the Website (which Spondo may change from time to time on notice to You).
"Affiliate Marketplace"
means the facility provided by the Services which enables Content Owners to make Content available to Affiliates for them to sell (Affiliate Commissions apply).
"Agreement"
means these Terms of Service.
"Confidential Information"
includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Services but does not include information which is, or becomes, publicly available other than through unauthorized disclosure by the other party.
"Content"
means any digitised media You upload or stream live using the Services.
"Content Owner"]
means the person who registers to use the Services to distribute Content, and, where the context permits, includes any entity on whose behalf that person registers to use the Services.
"Default Rate"
means interest on the amount due, calculated and payable daily, computed from the due date until the amount is paid in full. The Default Rate is (x + 5)% per annum where x is the penalty rate fixed under the Penalty Interest Rates Act 1983 (Vic).
"Disclosing Party"
means the party who discloses information to the other party in connection with this Agreement.
"Excess Data Charge"
means the fee for any data exceeding the usage allowance, according to Your Subscription, (including any taxes and duties) payable by You in accordance with the Fee Schedule set out on the Website (which Spondo may change from time to time on notice to You).
"Excess Storage Charge"
means the fee for any digital storage exceeding the usage allowance, according to Your Subscription, (including any taxes and duties) payable by You in accordance with the Fee Schedule set out on the Website (which Spondo may change from time to time on notice to You).
"Fee Schedule"
means the fees applicable to using the Services as outlined on the Website.
"Flagfall Fee"
means the transaction fee charged per Content item viewed or downloaded (including any taxes and duties) payable by You in accordance with the Fee Schedule set out on the Website (which Spondo may change from time to time on notice to You).
"Gross Receipts"
means the total amount of Paid Content Fees collected by Spondo from Viewers who access Your monetised Content.
"Intellectual Property"
includes any: copyright; design, patent, trademark, semiconductor or circuit layout rights (whether registered, unregistered or applied for); trade, business, company or domain name; and know how, inventions, processes, Confidential Information (whether in writing or recorded in any form); and any other proprietary, licence or personal rights arising from intellectual activity in the business, industrial, scientific or artistic fields; service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
"Invited User"
means any person or entity, other than the Content Owner, that uses the Services with the authorization of the Content Owner from time to time.
"Net Earnings"
means Net Receipts minus Spondo Commission and Affiliate Commission.
"Net Receipts"
means Gross Receipts minus Flagfall Fees and Refunds.
"Notice"
means a notice or other communication connected with this Agreement.
"Paid Content"
means any Content You charge the Viewer to access, view or download.
"Paid Content Fee"
means the fee (including any taxes and duties) payable by the Viewer to access, view or download Paid Content.
"Paid Subscription"
means any Subscription which includes components of the Services which attract an Access Fee or other fees as outlined this Agreement and detailed in the Fee Schedule (which Spondo may change from time to time on notice to You).
"Publish"
means to publish, distribute and, where applicable, monetise Your Content.
"Receiving Party"
means the party to whom information is disclosed in connection with this Agreement.
"Refunds"
means any refunds of Paid Content Fees made to Viewers who did not receive the Paid Content they selected.
"Services"
means the Content sales, live streaming, content management, reporting and content delivery network Services made available to Content Owners (as may be changed or updated from time to time by Spondo).
"Spondo"
means rivusTV Limited (ABN 48 123 741 613) trading as Spondo of Suite 702/198 Harbour Esplanade, Docklands, Victoria 3008, Australia.
"Spondo Commission"
means the portion of Net Receipts owed to Spondo (including any taxes and duties) payable by You in accordance with the Fee Schedule set out on the Website (which Spondo may change from time to time on notice to You).
"Subscription"
means the components of the Services to which the Content Owner has registered to access.
"Viewer"
means any individual or organisation who can view or download Your Content.
"Website"
means the internet site at the domain www.Spondo.com or any other internet site operated by Spondo.
"You"
means the Content Owner, and where the context permits, an Invited User. "Your" has a corresponding meaning.
2 USE OF SOFTWARE
2.1 Access rights
Spondo grants You the right to access and use the Services with the particular user roles, Service access, data and storage limits available to You according to Your Subscription. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. You acknowledge and agree that, subject to any applicable written agreement between the Content Owner and the Invited Users, or any other applicable laws:
(1) the Content Owner determines who is an Invited User and what level of user role access to the relevant Content and Services that Invited User has;
(2) the Content Owner is responsible for all Invited Users’ use of the Services;
(3) the Content Owner controls each Invited User’s level of access to the relevant Content and Services at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, as the case may be;
(4) if there is any dispute between a Content Owner and an Invited User regarding access to any Content or Services, the Content Owner shall decide what access or level of access to the relevant Services that Invited User shall have, if any.
3 YOUR OBLIGATIONS
3.1 Paid Content
You may earn revenue from Publishing Your Content utilising the Services and charging a Paid Content Fee to Viewers to access the Content, via Your own website or that of an Affiliate. The fees associated with Paid Content are set out in the Fee Schedule. In respect of all Paid Content Fees collected by Spondo, Spondo shall:
(1) calculate the:
(a) Gross Receipts
(b) Flagfall Fees; and
(c) Refunds;
(2) subtract from the Gross Receipts all Flagfall Fees and Refunds to arrive at the Net Receipts;
(3) subtract from the Net Receipts the Spondo Commission and Affiliate Commission to arrive at Your Net Earnings; and
(4) pay to You, via PayPal, Your Net Earnings (if any).
If your Paid Content is not viewed by anyone for a period of 60 days it will be considered dormant and Spondo will issue You a Notice to advise that the Paid Content will be deleted from the Services and cannot be recovered. You will be provided with the option to register for a Paid Subscription which will allow you to store your Content.
3.2 Paid Subscriptions
You are obliged to make payment for any Paid Subscriptions to which You are registered to have access, in accordance with the Fee Schedule. If You are using the Services for Paid Content and You have a Paid Subscription, Your Net Earnings will be credited against the amounts due to Spondo by You, this will be calculated in Your monthly Account Settlement.
3.3 Monthly Account Settlement
Each month, starting one month from the date you register to use the Services, Spondo will issue Your Account Settlement. If Your Gross Receipts are not greater than the combined total of the Flagfall Fees, Refunds, Spondo Commission, Affiliate Commission, Paid Subscriptions, Access Fees, Excess Data Charges, Excess Storage Charges and any other amounts due to Spondo by You, the shortfall is payable within 7 days of the Account Settlement date. Spondo will continue issuing Your Account Settlement until this Agreement is terminated in accordance with clause 8.
If You accept a pre-approved payment agreement through PayPal, Spondo will automatically either debit or credit Your PayPal account according to Your monthly Account Settlement. Alternatively, you will need to arrange payment in the manner specified on the Account Settlement.
If You fail to make any payment to Spondo by the due date then, without prejudice to any other right or remedy of Spondo:
(1) Spondo may suspend or terminate Your Subscription and access to the Services; and
(2) You must pay to Spondo interest at the Default Rate on the amount due, calculated and payable daily, computed from the due date until the amount is paid in full.
Notwithstanding any other clause of this Agreement, if an amount is payable by You to Spondo, Spondo is entitled to set off that amount against any amount payable by Spondo to You under this Agreement.
All Spondo Account Settlements will be sent to You, or to a billing contact whose details are provided by You upon registering to use the Services.
For any upgrade or downgrade in Paid Subscription level, You will be charged the new Paid Subscription fee on your next Account Settlement cycle. Any Excess Data Charges or Excess Storage Charges for the current one month period will be charged as appropriate for Your current month’s Subscription.
All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
3.4 PayPal account
Upon registering to use the Services, you must nominate Your PayPal account. This account will be credited by Spondo for any Net Earnings You generate. If You have a Paid Subscription and set up a pre-approved payment agreement with Spondo this account will automatically be debited for any Paid Subscription fees, Access Fees, Excess Data Charges, Excess Storage Charges and any other amounts due to Spondo which exceed Your Net Earnings according to your monthly Account Settlement.
3.5 Preferential pricing or discounts
You may from time to time be offered preferential pricing or discounts for the Spondo Commission as a result of the volume of sales that You have generated using the Services. Eligibility for such preferential pricing or discounts, as detailed in the Fee Schedule set out on the Website, is conditional upon payment of all Account Settlement shortfalls in full by the due date. Without prejudice to any other rights that Spondo may have under these Terms or at law, Spondo reserves the right to render Account Settlement shortfalls for the full (non-discounted) fees due, or suspend or terminate Your Subscription and access to the Services, in the event that any Account Settlement shortfalls are not paid in full by the due date for payment.
3.6 Publishing rights
In respect of all Content Published using the Services, You must ensure that:
(1) You own or have a licence to Publish the Content;
(2) Publishing of the Content will not infringe the Intellectual Property rights of any third party;
(3) Publishing of the Content will not infringe any applicable laws; and,
(4) the Content is not likely to be considered offensive by any reasonable person.
Should Spondo become aware that Your Content infringes any Intellectual Property rights, is unlawful or is considered offensive, Spondo reserves the right to suspend Your access to the Services and un-Publish any Content at any time in its sole discretion.
Should Spondo suspend Your access to the Services or un-Publish any of Your Content, You will be notified immediately by Spondo of this action.
3.7 Affiliate Marketplace
As the Content Owner, You may choose to allow Your Content to be available in the Affiliate Marketplace, thereby increasing Your potential audience by giving Affiliates access to sell Your Paid Content. Affiliate Commissions apply when you utilise the Affiliate Marketplace facility.
3.8 Refunds
Spondo’s Refund policy sets out the circumstances under which Spondo will issue a Refund to the Viewer. You should read that policy at www.Spondo.com/refunds/ and You will be taken to have accepted that policy when You accept these Terms.
3.9 General obligations
You must only use the Services and Website for lawful and legitimate purposes, in accordance with these Terms of Service and any notice sent by Spondo or condition posted on the Services or Website. You may use the Services and Website on behalf of others or in order to provide services to others but if You do so you must ensure that You are authorized to do so and that all persons for whom or to whom services are provided comply with and accept all terms of this Agreement that apply to You.
3.10 Communication conditions
As a condition of these Terms, if You use any communication tools available through the Services or Website (such as any forum, chat room or message centre), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services or Website, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person's computing devices or software, Content that may be offensive to any Viewers or other users of the Services or Website, or material in violation of any law (including material that is protected by Intellectual Property rights, copyright or trade secrets which You do not have the right to use). When You make any communication via the Services or Website, You represent that You are permitted to make such communication.
Spondo is under no obligation to ensure that the communications via the Services or Website are legitimate or that they are related only to the use of the Services or Website. As with any other web-based forum, You must exercise caution when using the communication tools available on the Services and Website. However, Spondo does reserve the right to remove any communication at any time in its sole discretion.
You must:
(1) comply with the Privacy Act 1988 (Cth) as if it were an “organisation” as defined in that Act;
(2) comply with Spam Act 2003 (Cth) in connection with Your use of the Services; and,
(3) not use any data obtained from a “list” purchased, licensed or otherwise obtained from any third party in order to distribute information using the Services.
3.11 Access conditions
(1) You must ensure that all usernames and passwords that You use to access the Services are kept secure and confidential. You must immediately notify Spondo of any unauthorized use of Your passwords or any other breach of security and Spondo will reset Your password and You must take all other actions that Spondo reasonably deems necessary to maintain or enhance the security of Spondo's computing systems and networks and Your access to the Services.
(2) As a condition of these Terms, when accessing and using the Services, You must:
(a) not attempt to undermine the security or integrity of Spondo's computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
(b) not use, or misuse, the Services or Website in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or Website, or impair the ability of any other user to use the Services or Website;
(c) not attempt to gain unauthorized access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
(d) not transmit, or input into the Services or Website, any: files that may damage any other person's computing devices or software, Content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
(e) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver or operate the Services or Website except as is strictly necessary to use either of them for normal operation.
3.12 Usage Limitations
Use of the Services may be subject to limitations, including but not limited to data and storage volumes and the number of Content items You are permitted to upload. Any such limitations will be specified within the Services.
3.13 Indemnity
You indemnify Spondo against all losses and liabilities incurred by Spondo, and costs actually payable by Spondo to their own legal representatives (whether or not under a costs agreement) and other expenses incurred by them in connection with a demand, action, arbitration or other proceeding (including mediation, compromise, out of court settlement or appeal), in connection with any:
(1) breach by the Content Owner of its obligations under this Agreement;
(2) Content Published utilising or in connection with the Services; and
(3) misconduct or gross negligence of the Content Owner, its associates or employees, officers and agents in connection with this Agreement, except to the extent caused or contributed to by Spondo or its employees, officers or agents.
4 CONFIDENTIALITY AND PRIVACY
4.1 Confidentiality
Each party acknowledges that Confidential Information disclosed by the Disclosing Party in connection with this Agreement is proprietary, confidential or a trade secret of the Disclosing Party. Except as stated in this Agreement, the Receiving Party must not and must not permit any of its officers, employees, agents, contractors or related entities to use or to disclose any of the Confidential Information to any other person without the prior written consent of the Disclosing Party or as necessary to fulfil its obligations under this Agreement. The parties can state, in the normal course of business that they are engaged in a business relationship, but neither may make a public statement concerning this Agreement without the prior consent of the other party. This clause 4.1 does not apply to any information which is generally available to the public (other than as a result of the wrongful disclosure by the Receiving Party), or required to be disclosed by any law.
4.2 Privacy
Spondo maintains a privacy policy that sets out the parties’ obligations in respect of personal information. You should read that policy at www.Spondo.com/privacy/ and You will be taken to have accepted that policy when You accept these Terms.
5 INTELLECTUAL PROPERTY
5.1 Intellectual Property
All Intellectual Property remains the property of Spondo (or, where Spondo licenses it from a third party, that third party), and You obtain no right, title or interest in the Intellectual Property other than a bare licence under clause 2, as specifically set out in this Agreement.
You must:
(1) use the Intellectual Property only in the manner prescribed by Spondo (including as set out in the user manual and training videos); and
(2) advise Spondo immediately of any infringement, potential infringement or challenge to the rights of Spondo in the Intellectual Property by a third party.
You must not:
(3) cause any of the Intellectual Property to be prejudicially affected or contested;
(4) register or seek to register any of the Intellectual Property;
(5) broadcast, redistribute or publish any of the Intellectual Property; make any alterations to the Intellectual Property; or
(6) interfere with or inhibit the authorised use of the Intellectual Property by any party.
6 WARRANTIES AND ACKNOWLEDGEMENTS
6.1 Acknowledgements
(1) You acknowledge that You are authorized to use the Services, and to access the Content that You upload or stream using the Services, including any Content that is uploaded or streamed using the Services by any person You have authorized to use the Services. You are also authorized to access the processed information and reporting that is made available to You through Your use of the Services.
(2) You remain solely responsible for complying with all applicable Intellectual Property rights, tax and other applicable laws.
(3) If the Services provide You with access to view Your account and make payments to Spondo, You acknowledge that the information may not be updated in real time.
(4) The provision of, access to, and use of, the Services is on an "as is " basis and at Your own risk.
(5) You acknowledge and agree that Spondo is unable to provide any warranty or make any representation in relation to the operation of the third party Content Delivery Network (CDN) and Data Centre used to make the Services available. The CDN and Data Centre operators currently provide a 99.9% up-time Service Level Agreement with respect to the CDN and Data Centre infrastructure.
6.2 No warranties
To the maximum extent permitted by law Spondo excludes all representations, warranties, terms, conditions, undertakings and consumer guarantees in respect of the Services that are not expressly set out in this Agreement. Spondo does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Spondo is not in any way responsible for any such interference or prevention of Your access or use of the Services.
6.3 Consumer guarantees
You warrant and represent that You are acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Website or these Terms of Service.
7 LIMITATION OF LIABILITY
7.1 Limitation of Liability
To the maximum extent permitted by law, Spondo excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of Content, information and profits) or damage resulting, directly or indirectly, from any use of, or reliance on, the Services or Website. The maximum total amount which You may recover from Spondo (whether in contract, tort, under statute or otherwise) in respect of all loss in connection with this Agreement is the total amount paid by You to Spondo under this Agreement in the previous 12 months. If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with clause 8.
8 TERMINATION
8.1 Termination
This Agreement may be terminated by either party:
(1) on 30 days’ written notice to the other party; or
(2) immediately on written notice to the other party, if the other party:
(a) commits a material breach of the Agreement which is incapable of being remedied (which includes a breach of clauses 3.6 or 5.1) or, if the breach is capable of being remedied, the other party does not do so within 21 days of a written request; or
(b) is insolvent or bankrupt.
If this Agreement is terminated:
(3) You must immediately pay all moneys owing to Spondo; and
(4) all of Your Content will be immediately deleted from the Services and cannot be recovered. Spondo is not liable in any way for loss of Content or any other consequences flowing from the termination of Your Subscription.
8.2 Expiry or termination
Clauses 3.3, 4, 5, 6, 7, 8 and 10 survive the expiry or termination of these Terms.
9 DISPUTE RESOLUTION
9.1 If a dispute arises in connection with this Agreement, a party to the dispute must give to the other party Notice specifying the dispute and requiring its resolution under this clause 9. The chief executive officers of each party must confer within 3 days after the Notice is given to try to resolve the dispute.
9.2 If the dispute is not resolved within 7 days after the Notice is given, the dispute is by this clause 9.2 submitted to mediation. The mediation must be conducted in Melbourne, Australia. The Institute of Arbitrators and Mediators Australia Mediation and Conciliation Rules (at the date of this Agreement) as amended by this clause 9 apply to the mediation, except where they conflict with this clause 9.
If the parties have not agreed upon the mediator and the mediator’s remuneration within 7 days after the dispute is submitted to mediation:
(1) the mediator is the person appointed by; and
(2) the remuneration of the mediator is the amount or rate determined by;
the Chair of the Victorian Chapter of the Institute of Arbitrators and Mediators or their nominee, acting on the request of any party to the dispute.
The parties must pay the mediator’s remuneration in equal shares. Each party must pay its own costs of the mediation.
9.3 If the dispute is not resolved at mediation, either party may take such further action as it considers appropriate to resolve the dispute. Despite anything in this clause 9, a party at any time may commence court proceedings in relation to any dispute or claim arising under or in connection with this Agreement where that party seeks urgent interlocutory relief.
9.4 This clause 9 applies even where the Agreement is otherwise void or voidable.
10 HELP DESK
10.1 Technical problems
In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting Spondo. If You still need technical help, please check the support provided online by Spondo on the Website or failing that email us at help@Spondo.com.
10.2 Service availability
Whilst Spondo intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable to permit maintenance or other development activity to take place. If for any reason Spondo has to interrupt the Services for longer periods than Spondo would normally expect, Spondo will use reasonable endeavours to publish in advance details of such activity on the Website.
11 GENERAL
11.1 Force majeure
The obligations of either party (other than the obligation to pay money) is suspended during the time and to the extent that the party is prevented from complying with them by force majeure.
11.2 Assignment
You may not assign or otherwise deal with this Agreement (including sublicensing its rights under it) except with the prior written consent of Spondo, which may be withheld in its absolute discretion.
Spondo may transfer all or any part of its rights, interests, obligations and liabilities under this Agreement by assignment or by novation without prior notice to You.
Spondo may sub-contract performance of its obligations under this Agreement.
11.3 Entire agreement
This Agreement is the entire agreement and understanding between the parties on everything connected with its subject matter, and supersedes any prior agreement or understanding on anything connected with that subject matter.
11.4 Severability
If any provision in this Agreement is unenforceable, illegal or void or makes this Agreement or any part of it unenforceable, illegal or void, then that provision is severed and the rest of this Agreement remains in force.
11.5 Waiver
If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. A waiver is not effective unless it is in writing.
11.6 Interpretation
In this Agreement:
(1) reference to:
(a) the singular includes the plural and the plural includes the singular;
(b) a person includes a body corporate and its executors, administrators, successors and permitted assigns; and
(c) a statute, regulation, code or other law or a provision of any of them includes any amendment or replacement of it, and another regulation or other statutory instrument made under it (or made under it as amended or replaced);
(2) “including” and similar expressions are not words of limitation; and
(3) where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
Headings do not form part of this Agreement or affect its interpretation.
11.7 Governing law and jurisdiction
The law of Victoria governs this Agreement. The parties submit to the non-exclusive jurisdiction of the courts of Victoria and of the Commonwealth of Australia.
11.8 Notices
Any Notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Spondo must be sent to help@Spondo.com or to any other email address notified by email to You by Spondo. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
11.9 Rights of third parties
A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.
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