CONTRACT OF SERVICES PROVISION AND OTHER AGREEMENTS
Through this private instrument, on one hand,
I. OOZO CONSULTORIA DE INTERNET E SERVIÇOS DE MÍDIA S.A., business corporation, with registered office in the City São Paulo, State of São Paulo, at Rua Cardoso de Almeida, no. 1005, Casa 01, CEP 05013-001, with its incorporation acts registered at the Commercial Registry of the State of São Paulo under NIRE 35.300.47326-4, enrolled with the National Corporate Taxpayers´ Registry of the Ministry of Finances (“CNPJ/MF”) under no. 21.474.140/0001-71, herein represented pursuant to its Bylaws (“OOZO”);
And, on the other,
II. USER, any natural person or legal entity that, having Subscribed at the OOZO TV website or by filling out the Business Proposal (Annex A), becomes OOZO User, under the terms herein defined, binding on OOZO and being bound to comply with everything set forth in this contract (“OOZO User”, and jointly with OOZO, “Parties”)
WHEREAS the execution of this Contract implies the entire acceptance of its terms, which effectiveness shall be immediate and automatic, by means of filling out the Business Proposal, personally or at the website of OOZO;
WHEREAS the activities developed by OOZO User and transmitted in certain programs and/or Internet pages, amongst them “Facebook”, “Twitter”, “Instagram”, “YouTube”, “Vimeo”, and ”Foursquare”, in addition to others that the Parties regard as relevant (“Social Networks”), such as texts, images, and videos, of own authorship or of third parties (“Activities”), can be monitored, captured, managed, and retransmitted by means of a system developed by OOZO (“OOZO System”);
WHEREAS because of the complex nature of Social Networks, it is possible that any third party, either a natural person or a legal entity, undetermined and not related to the Parties, (i) develop Activities captured by the OOZO System; (ii) get in touch with the Activities managed by the OOZO User; or (iii) the Activities managed by the OOZO User and transmitted by the OOZO System have third party object not related to the Parties (individually or jointly, “Third Party”);
WHEREAS the OOZO System can be used to transmit the Activities of the OOZO User on the Social Networks in fixed or mobile devices (“OOZO TV”), in Third Parties´ websites or in certain electronic systems of image reproduction (“Screen”);
WHEREAS the final user and exclusive addressee of OOZO TV shall always be a Third Party;
Whereas any interested party, either a natural person or legal entity, once respected the OOZO use terms, can purchase an advertisement space, and advertise its own contents at OOZO TV (“Advertiser”);
WHEREAS the OOZO User intends to access all the functionalities available in the OOZO System and OOZO TV, and OOZO wishes to provide its services to the OOZO User;
The Parties decide to enter into this Contract of Services Provision and Other Agreements ("Contract”), which shall be governed by the following clauses and conditions:
1.1. This Contract has as object the provision of monitoring, capture, management, and retransmission services of the Contents of OOZO TV, by means of the OOZO System, by OOZO to the OOZO User (“Service”).
1.1.1. Oozo User can purchase and keep at its own expenses the Infrastructure needed to use the OOZO TV, comprising a Screen, Computer, Connection to the Internet, and electric power, (“Infrastructure”), with the following minimum requirements: (A) Screen with VGA or HDMI inlet; (B) Personal computer with any operational system and Internet browser; (C) Internet connection with at least 5MB/s. (A; B; C, jointly, “Minimum Requirements”).
1.1.2. Under the terms of the Loan for Use, if applicable, OOZO can provide the computer and other equipment to OOZO User, as defined in Clause 5.
1.1.3. OOZO can, at any time, provided that previously requested in written, request to the OOZO User to upgrade the Infrastructure with new technical specifications (“Upgrade”).
1.1.4. OOZO can provide to the OOZO User, according to the terms of the Business Proposal, and at its own discretion, one or more relationship channels where the OOZO User can solve doubts, obtain information, and receive assistance, strictly related to the use of the OOZO System and OOZO TV, and the communication can be done through digital mean, by telephone, or in person (“Assistance”).
1.2. OOZO TV shall comprise programming and break, as herein defined. The programming shall comprise (i) any contents captured from the Activities of OOZO User by means of the OOZO System; (ii) any contents produced outside OOZO System, but provided by the OOZO User itself; (iii) any contents captured from the Activities of Third Party by means of OOZO System, when managed and accepted by OOZO User; and (iv) institution contents provided by OOZO User; (jointly, “Programming”).
1.2.1. The Free User, as defined in Clause 2.3.1, shall not have the faculty of approving the Activities captured by means of “hashtags” for exhibition at OOZO TV or of providing this type of contents for the public.
1.2.2. The time of exhibition at OOZO TV shall be divided between the Programming and the break, which shall be any defined contents, produced and managed, inside or outside OOZO System, directly by OOZO (“Break”), which shall be in charge of searching for the balance between the contents of the Programming and of the Break at OOZO TV.
1.3. OOZO User can negotiate the sale of advertisement space in the OOZO System installed in its operation site, provided that previously authorized by OOZO. In this case, and under the terms of the Business Proposal, the OOZO User shall be entitled to a commission on the amount effectively paid to OOZO by the advertiser indicated by OOZO User, when and if the contents are transmitted in its establishment (“Commission”).
1.3.1. The Free User, as defined in Clause 2.3.1, shall not be entitled to any Commission, under the terms of Clause 6.3.
1.4. OOZO can, directly or indirectly, conduct in the physical space of OOZO User opinion surveys and other inquiries to ascertain and size the result of the OOZO TV operation (“Ascertainment”).
1.6. The OOZO User authorizes OOZO to exhibit its brand, name, symbol, as well as any distinctive characteristic sign or term of OOZO User (“Brand”) for the purposes of divulgating the portfolio and inventory of works and services offered by OOZO, in addition to business success cases, exposing the OOZO User Brand, at discretion of OOZO.
Price and Payment Conditions
2.1. For the provision of Services described in this Contract, the OOZO User shall pay to OOZO a monthly fee, on the date and in the amount defined in the Business Proposal (“Monthly Fee”).
2.2. The OOZO User shall also pay to OOZO, for the activation of the OOZO System, an implementation fee, as defined in the Business Proposal (“Implementation Fee”).
2.3. OOZO shall pay the Commission to the OOZO User, on the date and in the amount defined in the Business Proposal.
2.3.1. Pursuant to the terms and conditions of the Business Proposal, OOZO can exempt the OOZO User from the Monthly fee, for a specific period of time, only and exclusively under the circumstances provided for and defined in the Business Proposal (“Free User”).
2.4. The payment of the Monthly Fee and/or Implementation Fee shall be done by OOZO User by means of paying a bank slip issued in his name by OOZO, through a credit card, or by any other payment instrument accepted by OOZO (“Payment Manner”), as defined in the Business Proposal.
2.5. Every tax, charge, contributions, and other costs associated and/or resulting from this Contract shall be paid by the tax responsible person defined by the applicable legislation, not being applicable to withhold from payments done to OOZO.
3.1. The duration of this Contract is defined under the terms of the Business Proposal, and the duration starts on the date of the signature of this Contract, and can be terminated pursuant to the terms and conditions herein defined (“Duration").
3.2. At the end of the Duration, and in the absence of manifestation to the contrary by the Parties, the Contract shall be renewed by an undetermined period of time, being kept valid and effective all the obligations of this Contract.
4.2. The OOZO User shall keep the Infrastructure functioning, and OOZO shall keep the OOZO system functioning, at least during Business Hours, herein defined as: (i) the period of regular functioning of OOZO User establishment; or (ii) the daily period comprised between 10:00 (ten) a.m. (ante meridiem) and 10:00 (ten) p.m. (post meridiem), and can be changed by the Parties pursuant to the activity and functioning of OOZO User (“Business Hours”).
4.3. The OOZO User agrees that OOZO TV can, in his name or through a legally instituted representative, visit the site of the OOZO System and OOZO TV operation to check, including, but without limitation, its functioning during the Business Hours, and to determine to the OOZO User to observe organization standards to allocate the Infrastructure, comprising, but without being limited to, the Screen position place, and the layout of the Infrastructure (“Audit").
4.3.1. The Audit shall be performed at the discretion of OOZO, upon a prior notification 5 (five) days in advance, in written from OOZO to OOZO User.
4.4. The OOZO User expressly authorize OOZO to directly or indirectly perform the Ascertainment and the Audit, as defined in this Contract, provided that previously informed to the OOZO User.
4.5. The OOZO User agrees that it shall be responsible for, and shall make its best efforts to, inspect, impede and prevent that every and any contents can be regarded by a Third Party as an offense, calumniation, insult, defamation, or that anyhow can generate pain and suffering or material damage to Third Party, are captured from the Activities and exhibited in the Programming (“Inspection”).
4.6.1. If it is diligent when performing the Inspection it is in charge of, the OOZO User shall be subject to the responsibilities stipulated in Clause 7 below.
4.6. The OOZO User agrees to provide to OOZO, upon request, updated data and information it has regarding the flow and profile of its customers, for the adjustment of the Break contents to the OOZO User customers.
4.7. The OOZO User cannot use or dispose of the business name, brand, or any other intellectual property right of OOZO before third parties, or divulge the OOZO name in any communication means, as reference of the services provided, without the prior written authorization from OOZO.
4.8. The User OOZO agrees and is bound to be responsible for every and any contents exhibited during the Programming, since now ensuring that such contents shall not violate personal rights, copyrights, or property rights of Third Party, indemnifying and holding OOZO harmless from any possible liabilities resulting from the contents exhibited during the Programming.
Loan for Use
5.1. According to the terms of this Contract and at OOZO discretion, OOZO can loan the Computer for the use of the OOZO User, for the defined Duration (“Loan for Use”).
5.1.1 The Loan for Use is an integral part of this Contract, its conditions and execution are defined in the Business Proposal, and the compliance of the herein agreed on obligations is a condition for the maintenance of the Loan for Use, which shall be terminated by OOZO in case of noncompliance with the obligations of this Contract or its termination.
5.1.2 The Computer loaned for use shall be used only and exclusively for the execution of the OOZO Contract, and its utilization for any other purpose is not admitted, under penalty of termination of the Contract and of the Loan for Use.
5.1.3 The OOZO User cannot sub-loan for use or lease the Computer to third parties, as well as to assign or transfer this Contract of Loan for Use without the previous written authorization from OOZO.
5.1.4 The manner of delivering the Computer to OOZO User and its return to OOZO can be in presence and immediate, by mailing, or by any other mean defined in the Business Proposal, and the delivery and return costs shall be borne by OOZO User.
5.2. The OOZO User is obliged to be diligent, and employ the necessary care in the use of the Computer, and should also use it strictly according to the instructions from OOZO.
5.2.1. If it is verified that the OOZO User did not make the correct use of the Computer, somehow damaging it, prejudicing its functioning, or violating its seal, OOZO shall be entitled to be reimbursed with the amount of the Computer replacement, or OOZO User can replace the damaged Computer by another with equal technical specification, provided that previously agreed on with OOZO.
5.3. The termination of this Contract generates in the immediate termination of the Contract of Loan for Use, and creates the obligation of OOZO User returning the Computer, in the state it has received it, to OOZO.
5.3.1. In the event of Contract termination, if the Computer is somehow damaged or with the seal violated, OOZO User shall reimburse OOZO with an amount equivalent to the computer replacement price.
6.1. The Business Proposal can be entered into by digital mean, telephone, or in presence, at the OOZO Website, through electronic mail, written document, or also in the best convenient manner to the Parties.
6.2. In the Business Proposal, either in physical or digital mean, OOZO User shall provide its personal information, and the following shall be regulated under the terms of this Contract: (i) the amount of the Monthly Fee; (ii) the Payment Manner; (iii) the amount of the Implementation Fee; (iv) the existence and percentage of the Commission; (v) the right to Assistance; and (vi) the existence and conditions of the Loan for Use, as per the Annex A.
6.2.1 The OOZO User shall fill out the Business Proposal with its information, comprising, among other information that might be requested by OOZO, the following: (i) name or corporate name; (II) number of the Individual Taxpayers´ Registry (“CPF”), if a natural person, or the number of the Corporate Taxpayers´ Registry (“CNPJ”), if a legal entity; (III) business/residential address; (IV) electronic address and telephonic data for contact; and, if applicable, (v) marital status, profession (jointly, “Personal Information”).
6.3. In case the Parties agree on the exemption of the Monthly Fee, the OOZO User is obliged, as counterpart, to set up only one account for each Social Network. The Break of the OOZO User in the Free modality (that is, with no payment of Monthly Fee) can be managed by Third Parties, with contents segmented according to the Free User profile. It is also established that, by reason of the monthly fee exemption agreed on by the parties, the OOZO User (free user profile) shall not be entitled to Commission, with no possibility of any type of demand in this regard.
6.4 Any information OOZO User identifies as incorrect in the Business Proposal, after filling it out, shall be notified to OOZO (“Error”), which shall rectify the Business Proposal. While OOZO User does not communicate the Error, the Business Proposal shall be applied by OOZO as filled out by the OOZO User.
6.4.1. In case of Error in Personal Information and/or Payment Manner, both the Contract and the Business Proposal shall be null and void, except if the Error is rectified, and no effect can result from the Contract, except for the provisions in Clause 7.
7.1. Upon entering into this Contract, the OOZO TV User agrees and entirely assumes all the risks related to the execution resulting from this Contract, so that it assumes the responsibility for the contents of the Programming captured by the OOZO TV System and exhibited by the OOZO TV. If the OOZO User fails in diligently perform the Inspection, it shall entirely assume the responsibility for the damages caused to OOZO and/or Third Parties, as defined in this Clause 7 (“Responsibility”).
7.2. The OOZO User shall indemnify and hold OOZO harmless from any lawsuit or out-of-court procedure filed by Third Party as the result of the Services provision, including, but not limited by, the exhibition of the Programming at OOZO TV in its establishment, in addition to be obliged to demand, in the first reasonable procedural opportunity, the exclusion of OOZO from the group of defendants in a possible lawsuit filed, or any other type of legal measure or out-of-court procedure, by Third Party against OOZO.
7.2.1 The OOZO User is obliged to bear the reasonable legal costs and expenses, and attorney´s fees incurred by OOZO by reason of a possible lawsuit filed by Third Party against OOZO as the result of the Programming.
7.3. If though OOZO User cannot prevent that OOZO becomes a defendant in the lawsuit or administrative procedure, it is expressly agreed on that, in case of penalty, imposition of a fine, reception of notification, summons, or conviction in any legal or administrative proceeding (i) with object results from any obligation defined in this Contract, or (ii) is filed by Third Party against OOZO, the OOZO User shall reimburse OOZO, no longer than 5 (five) days from receiving the communication, for all expenses resulting from such legal or administrative proceedings, including, but without limitation, attorney´s fees and legal costs duly evidenced (“Right to Compensation OOZO”).
7.4. The OOZO User shall be Entitled to Indemnification, under the same terms ensured to OOZO in regard to the Programming, in which concerns the Break generated by OOZO TV, and transmitted by the later at the OOZO TV of the OOZO User establishment.
7.5. After the termination of this Contract, the obligations contained in this Clause 7 shall remain in force for 5 (five) years.
8.1. OOZO and OOZO User agree on that the Services provided to the OOZO User shall enjoy exclusivity, the OOZO User being obliged to not use, directly or indirectly, any other mean of generation and distribution of contents, with any other natural person or legal entity, similar to OOZO System, during this Contract duration (“Exclusivity”).
8.1.1. For the purposes of this Clause 8, it is understood that any contents exhibition system using a structure similar to the Infrastructure and to the Equipment is equivalent to the service provided by OOZO (“Competitor”), and, therefore, the OOZO User agrees on cancelling and/or not entering into any legal or de facto relation with every and all Competitor.
9.1. The Parties acknowledge that the terms of this Contract, as well as its subsequent alterations and annexes, are and shall remain private, being confidential (“Confidentiality”).
9.1. The Parties are obliged to keep all the information regarding this Contract in secrecy, including, but not limited to, the prices policy, business and marketing plans, materials, technological innovations, business secrets, creations, technical and business specifications, of their activities.
10.1. This Contract can be terminated, by operation of the law, regardless of any notice, court or out-of-court notification, by OOZO in the occurrence of the following events:
a) Noncompliance with the obligations of Exclusivity and Confidentiality;
b) Noncompliance with the Obligations imposed to OOZO User n Clause 4 of this Contract;
c) In virtue of acts or facts performed, by OOZO User or any of its agents, with bad faith, fraud, intent or gross fault, that generates losses to OOZO, or to its image before Third Party;
d) Noncompliance with any clause or obligation defined in the Contract, if such noncompliance is not remedied within 10 (ten) days from the reception of the notification sent by OOZO to OOZO User; and
e) Assignment of this Contract to third parties, totally or partially, without the prior written notification to OOZO.
11.1. Assignment. Except if otherwise provided for in this Contract, the Parties cannot wholly or partially assign and/or transfer their respective rights and obligations, as provided for in this Contract, to any third parties, except by means of prior and written notification to the other Party.
11.2. Inexistence of Tacit Waiver. The fact of any Part do not demand, at any time, the compliance with the provisions of this Contract, or do not perform any option, alternative or right entitled to it, such fact does not means the waiver of any of its provisions, nor shall affect the validity or right, wholly or partially. Any Party is entitled to the right of, subsequently and at any time, demanding the compliance of any and every provision of this Contract, as well as to perform option, alternative and/or right, except when otherwise provided for or expressed in this instrument. No waiver of any provision of this Contract shall be effective before the other Parties, unless it is validly executed by the waiving Party in written.
11.3. Partial nullity. If any clause of this Contract is, for any reasons, declared invalid, illegal or unenforceable, such decision shall not affect the validity and effectiveness of the other provision, which shall remain in force, as if the clause declared invalid, illegal, or unenforceable has never been written, the Parties being obliged to make their best efforts to attain the objectives of the null, invalid, or ineffective provision through a mutual agreement, and also by means of including a substitute provision.
11.4. Binding Document. This Contract, duly signed by both Parties, binds the Client and the Contractor, and their successors at any title, constituting an out-of-court executive title, under the terms of article 585, II of the Brazilian Civil Procedural Code.
11.6. Independence and Autonomy of the Parties. The Parties expressly recognize that, by force of this Contract, no corporate relation, as well as no job relation is created between OOZO and OOZO User, including their employees, service providers, and representatives.
11.7. Maturity of obligations. All the obligations provided for in this Contract, and which have specific deadlines, shall be considered mature with no need of any type of notification or interpellation of one Party to the other.
11.8. Full Agreement. This Contract comprises the totality of what was agreed on by the Parties, thus regulating every legal relation existing between them, and replacing possible verbal or written agreements, letters and/or previous documents.
11.9. Applicable law. This Contract shall be governed by and construed in accordance with the laws of the Federative Republic of Brazil.
12.1. The Parties elect the central court of the jurisdiction of the City of São Paulo, State of São Paulo, as competent to resolve all disputes and/or controversies arising from this Agreement, expressly waiving any other, however privileged it is.
And, for having agreed, the parties sign this CONTRACT of Services Provision in 2 (two) counterparts of the same contents and form, in the presence of the witnesses hereinafter listed.