BRAND INSERTION ORDER STANDARD TERMS
These Brand Insertion Order Standard Terms (the “Standard Terms”) shall govern the Ad Placement Insertion Order (“IO”) between Modern Stoa Limited (“Agency”) and the party purchasing sponsored content placement therein (“Brand”).
- OWNERSHIP; GRANT OF RIGHTS. Brand acknowledges and agrees that the creator designated in the IO (“Creator”) owns all rights, title, and interest in and to any and all copyrights, trademarks, and other proprietary and intellectual property rights in and to the Integration (as defined below) and all elements, content, and materials, except any Brand Materials (as defined below) incorporated therein, that Creator creates, provides, or licenses to Brand, by way of Agency, in connection with the IO, including but not limited to Creator’s trademarks, copy, or talking points (the “Creator Materials”). Brand shall have no right to publish, perform, distribute, edit, modify, make derivative works from, or otherwise exploit the Creator Materials except as expressly provided for in the IO. Agency acknowledges and agrees that Brand owns all rights, title, and interest in and to any and all copyrights, trademarks, and other proprietary and intellectual property rights in and to all elements, content, and materials that Brand creates, provides, or licenses to Agency, in connection with the IO, including but not limited to Brand’s trademarks, copy or talking points (the “Brand Materials”). Brand grants to Agency a limited, non-exclusive, royalty-free, fully paid up, and sublicensable license to utilize the Brand Materials solely in connection with Creator’s promotion of Brand’s products/services on Creator’s podcast(s), website(s), social media channel(s), and/or other media outlet(s) as outlined in the IO (the “Integration”). Unless otherwise stated in the applicable IO, Creator shall only be required to keep the Integration live for ninety (90) days following its initial publication.
- PAYMENT. Brand shall pay Agency the Total Fees as defined in the IO no later than the earlier of (a) thirty (30) days of execution of the IO, or (b) before the first Estimated Flight Date indicated therein. All payment fees (ex. processing fees) shall be borne solely by Brand. Any payments due by Brand that are incomplete due to Brand’s failure to pay payment fees shall incur a one hundred dollar ($100) service fee that will be invoiced to Brand alongside the remaining balance. All late payments shall be subject will be subject to a two hundred fifty dollar ($250) per day late fee.
- REPRESENTATIONS AND WARRANTIES. Brand represents and warrants that: (a) Brand has the full right, power, and authority to enter into and fully perform Brand’s obligations under the Standard Terms and the IO (collectively, the “Agreement”) and to grant all rights and privileges under the Agreement; (b) Brand is not a party to any agreement (whether oral or written) nor does it have any other obligation that will or may prevent, impair, or otherwise interfere with Brand’s obligations under and execution of this Agreement; and (c) the Brand Materials and all other materials provided by Brand to Agency or Creator shall be Brand’s original creation (or shall otherwise be properly licensed to Brand) and shall not infringe upon or violate the law, violate any personal or property rights or any other rights of any person or entity (including, without limitation, the rights of copyright, trademark, privacy, and publicity), or contain any element or material that in any manner constitutes libel, slander, or defamation of any person or entity; and (d) Brand shall comply with all applicable laws, rules, and regulations in performing its obligations and exercising its rights hereunder, including current standards and guidelines outlined by the FTC. Brand also represents and warrants that it shall be solely responsible for drafting, generating, and creating any scripts or links required to be included in or alongside the integration and that any such scripts or links, and the websites that the links redirect to, will be optimized for use by Creator’s audience.
- INDEMNIFICATION. Brand agrees to indemnify and hold Agency and Creator, and each of their respective affiliates, subsidiaries, successors, assigns, licensees, officers, directors, and employees (collectively, “Agency Indemnitees”) harmless from and against any liabilities, losses, damages, judgments, fines, penalties, and expenses (including reasonable outside attorneys’ fees and litigation costs) resulting from any claim, suit, investigation, or proceeding brought against an Agency Indemnitee by any third party arising or resulting from (a) Brand’s breach of any representation, warranty, covenant, or obligation contained in this Agreement; (b) any allegation that the Brand Materials, including specifically those incorporated into the Integration, misappropriates or infringes upon any intellectual property rights of a third party; (c) Brand’s gross negligence or willful misconduct; or (d) Brand’s exploitation of Brand Materials. Brand shall provide assistance and information to Agency as reasonably required by Agency in defending any claim, suit, investigation, or proceeding. Agency agrees to indemnify, defend and hold Brand harmless from and against any liabilities, losses, damages, judgments, fines, penalties, and expenses (including reasonable outside attorneys’ fees and litigation costs) resulting from any claim, suit, investigation, or proceeding brought against Brand by any third party arising or resulting from Agency’s gross negligence or willful misconduct.
- LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF CONFIDENTIALITY AND EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST DATA OR PROFITS, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AGENCY’S LIABILITY FOR DAMAGES ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAYABLE TO AGENCY UNDER THIS AGREEMENT.
- CONFIDENTIALITY. Each party (a “Receiving Party”) may obtain information relating to the other party (a “Disclosing Party”), its business, or its clients’ or customers’ business, which is of a confidential and proprietary nature (“Confidential Information”). Such Confidential Information may include but is not limited to, financial information, product and service pricing structures, business, sales and/or marketing plans, sales data, analytics, technology, software, and any other information that the Receiving Party knows or has reason to know is, or which by its nature would reasonably be considered to be, confidential or proprietary information of the Disclosing Party. The parties agree that the terms and conditions of this Agreement shall be deemed Confidential Information. The Receiving Party shall use the Confidential Information solely as necessary to perform its obligations under this Agreement and shall not disclose Confidential Information to any third party except to those of its employees, agents, professional advisors, or contractors who have a need to know such Confidential Information in connection with the Receiving Party’s obligations under this IO, provided such parties are bound by confidentiality obligations at least as restrictive as those set forth herein. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information if required by law or any judicial or governmental request, requirement, or order; provided that the Receiving Party takes reasonable steps to give the Disclosing Party sufficient prior notice so that the Disclosing Party may contest such request, requirement or order.
- NON-CIRCUMVENTION. During the Term of this Agreement (as defined in the IO) and for one (1) year thereafter, Brand will not, directly or indirectly, in any manner whatsoever engage Creator in any capacity for any commercial purpose or opportunity unless Brand engages in such communications solely with Agency.
- ARBITRATION. In the event of a disagreement between the parties concerning this Agreement, the complaining party must provide the other party with written notice of the dispute. The parties agree that they will meet and use all reasonable efforts to amicably resolve the dispute. If the parties are unable to come to a resolution, the dispute will be resolved by arbitration which will take place in Travis County, Texas. All arbitrations proceedings will be conducted via JAMS using the JAMS Streamlined Arbitration Rules & Procedures. Each party will bear its own costs except that the parties will share the cost of the arbitrator and applicable administrative fees, if any, equally. The requirements of this section will not apply to disputes regarding allegations of a breach of confidentiality or intellectual property infringement.
- MISCELLANEOUS. This Agreement will be governed by and construed in accordance with the laws of the State of Texas without regard to its conflict of laws provisions. To the extent not subject to the arbitration provisions herein, each party to this Agreement consents to the exclusive jurisdiction of the state and federal courts in Travis County, Texas for any legal proceeding arising out of or relating to this Agreement. Service of any court paper may be made on either party to this Agreement by mail, or in such other manner as may be provided under applicable laws, rules of procedure, or local rules. The parties hereunder are independent contractors. Except as expressly provided herein, neither party will have any right to assume, create, or incur any expense, liability, or obligation, express or implied, on behalf of the other party. This Agreement is not intended, nor will it be construed as a joint venture, association, partnership, or any other form of a business organization or agency relationship. If any term or provision of the Agreement is held by a court or other tribunal of competent jurisdiction to be illegal, invalid, or unenforceable, such provision will be limited or eliminated to the minimum extent necessary so that the remaining terms and provisions of this Agreement will remain unimpaired and in full force and effect. In the event of a conflict between a term of these Standard Terms and a term of the IO, the IO shall control. Brand may not assign this Agreement, in whole or in part, without Agency’s prior written consent. No modification of this agreement shall be valid unless in a writing signed by both parties. This IO may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.