BRAND AFFINITY TECHNOLOGIES, INC. - TERMS AND CONDITIONS
Last Updated: February 19, 2010
<Website and Services Terms of Use>
<Endorsement Agreement>
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY CLICKING “ACCEPT” AND ACCESSING OR USING THIS WEBSITE AND THE SERVICES PROVIDED THEREIN, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT ACCESS OR USE ANY PORTION OF THIS WEBSITE OR THE SERVICES.
Website and Services Terms of Use
These terms and conditions of website and services use (“Terms of Use”) apply to your use of this website (the “Site”) and the services provided therein. These Terms of Use are in addition to, and do not modify, the terms or conditions of any written agreement you may have with Brand Affinity Technologies, Inc. or any terms and conditions specific to certain uses of this Site that you must affirmatively accept before proceeding with such use, each of which shall control over these Terms of Use in the event of any conflicting terms. By accessing or using this Site, you accept these Terms of Use on your own behalf and on behalf of any entity for whom you are accessing or using this Site.
Ownership
This Site is owned by Brand Affinity Technologies, Inc. (“BAT”). All of the content available on this Site, including but not limited to text, graphics, data, statistics, photographs, audio files, video and software (collectively, “Content”) is owned by BAT or its licensors or content providers. BRAND AFFINITY TECHNOLOGIES and the BAT logo are trademarks of BAT and may not be used without BAT’s prior written permission.
The name of each team or league names, logos, symbols, insignias, emblems, designs, uniforms, trademarks, and other identifications of a team or league, the team mascot and team dance team, and other similar items (collectively, “Team Brand Assets” or “League Brand Assets” as applicable) are owned by and used with permission from such team or league or their rights holders.
The name of each athlete, his or her voice, likeness and rights of publicity and privacy, and all nicknames, biographical information, and/or other identifying features (“Athlete Brand Assets”) are owned by and used with permission from such athletes or their rights holders.
The name of each celebrity, his or her voice, likeness and rights of publicity and privacy, and all nicknames, biographical information, and/or other identifying features (“Celebrity Brand Assets”) are owned by and used with permission from such celebrities or their rights holders.
The Team Brand Assets, League Brand Assets, Athlete Brand Assets, and Celebrity Brand Assets are referred to in these Terms of Use as the “Talent Brand Assets” and the team, league, athlete and celebrity are referred to in these Terms of Use as the “Talent.”
Certain statistical information is owned and provided under license by STATS LLC.
The Content and Talent Brand Assets are protected by laws governing copyright, trademark, rights of privacy or publicity, and other intellectual property rights.
Use of the Site
You must register to use portions of this Site.
Certain services available on this Site will require you to affirmatively accept additional terms and conditions specific to those services before proceeding with the use of such services. The acceptance of those additional terms and conditions will constitute a written agreement between you and BAT or the applicable licensor or content provider.
You may not use this Site, or any Content or Talent Brand Assets, or any service for any purpose not expressly permitted by these Terms of Use or the terms of any written agreement governing the use of specific Content, Talent Brand Assets or services. You may view the Content and Talent Brand Assets but are specifically prohibited from: (a) downloading, printing (including printing of “screen shots”), copying, re-transmitting or using in any way any of the Content or Talent Brand Assets without a written agreement governing such Content or Talent Brand Assets or in violation of any such written agreement; (b) using any automated data gathering or extraction methods; or (c) modifying the Site or any Content or Talent Brand Assets or framing the Site or Content or Talent Brand Assets.
BAT reserves the right to suspend or terminate your use of the Site or any service available through this Site at any time, without notice, for any reason, in BAT’s sole discretion.
Account Registration
You may register for an account by contacting a BAT representative <BAT contact>. You will be required to accept these Terms of Use as part of your use of the Site.
You may not register on behalf of another person or entity unless you are expressly authorized by such person or entity to do so.
By maintaining an account to use the Site, you agree to: (a) provide accurate and complete user information; (b) promptly update your user information when changes occur; (c) maintain the security of your user name and password; and (d) immediately notify BAT if you become aware of any unauthorized use of your account or other breach of security.
You agree that BAT may use or disclose any information about you obtained through your registration or from your use of this Site to comply with law, to respond to a subpoena, court order or other legal process, or to protect the rights or property of BAT or its customers, licensors or content providers.
BAT reserves the right to terminate your account at any time, without notice, for any reason, in BAT’s sole discretion.
Endorsement Opportunities
Registered users may use the BAT research and selection tools to view Content and Talent Brand Assets that satisfies their desired marketing objectives and use the BAT platform to build and submit proposals for advertising, sponsorship, endorsement and/or other promotional or marketing campaigns incorporating existing Content or seeking to create new Content that includes any Talent Brand Assets (each an “Endorsement Opportunity”). You may not use any Content or Talent Brand Assets in connection with any Endorsement Opportunity until acceptance and approval by Talent of such Endorsement Opportunity in its final form, inclusive of all design, content or other relevant information, has been received through the BAT Site and any required agreements have been signed or electronically accepted and delivered by all parties to such agreements.
Payment Terms
When you submit an Endorsement Opportunity, you will be required to pay a minimum service fee, as calculated based upon the details of the Endorsement Opportunity (“Campaign Initiation Minimum”). The total service fees billed to you include the amounts payable to BAT and any billing premiums payable to the Talent for participating in the campaign (“BAT Service Fees”). The amount of the Campaign Initiation Minimum will be provided to you at the time you submit the Endorsement Opportunity.
Subject to other terms and fees as specified in any other agreement that you may enter into with BAT and/or Talent, you will be billed for the BAT Service Fees on a monthly basis, within ten (10) calendar days after the last day of each calendar month, beginning upon commencement and delivery of the approved Endorsement Opportunity. If you do not start the campaign within thirty (30) days after approval by Talent of the Endorsement Opportunity, you agree to pay the Campaign Initiation Minimum. The Campaign Initiation Minimum will be treated as a non-refundable deposit and credited towards campaign billings in connection with your use of an approved Endorsement Opportunity. BAT will be entitled to the greater of the Campaign Initiation Minimum or the BAT Service Fees based on your actual spending on the approved Endorsement Opportunity and other terms and fees as specified in any other agreement that you may enter into with BAT and/or Talent.
All payments are due within thirty (30) days from invoice date, unless otherwise agreed upon. You agree to pay interest on all past-due amounts at the lower of one and one-half percent (1.5%) per month or the highest rate allowed by law. You will pay for, and will indemnify BAT for, any applicable sales, use, transaction, excise or similar taxes and any federal, state or local fees or charges imposed on, in respect of or otherwise associated with any payments made to BAT, provided, however, that you will not be responsible for any income taxes, employee taxes or taxes related to BAT’s general operation.
Confidential Information
You agree to maintain in confidence and not disclose to any third party the terms of any Endorsement Opportunity submitted via the Site or amount of the BAT Service Fees paid or payable to BAT. BAT agrees to maintain in confidence and not disclose to any third party (other than the Talent or the Talent’s representatives, who will be obligated to maintain such information in confidence) the terms of any Endorsement Opportunity submitted via the BAT Site or the estimated or actual amount of any campaign spending or the service fees paid or payable to BAT
Linking to Our Site
We generally do not object to links made from third party web sites to the home page of our Site. Links to our Site should use our name, Brand Affinity Technologies, but not our trademarks. Without our prior written consent, (a) you may not link to any page of our Site other than the home page and (b) links may not be presented in any way that suggests we control, endorse or recommend the third party site, its content or any goods or services offered by the third party. You may not link to this Site if we notify you in writing to remove links to this Site. You may not use metatags or any other hidden text incorporating our name or trademarks without our prior written consent.
Links to Third Party Sites
This Site may contain links to web sites that are owned or operated by third parties. Clicking on a link to a third party site will cause you to leave this Site. All third party links are provided to you as a convenience. Third party sites are not endorsed or controlled by us and we are not responsible for the content of or any goods or services available through any third party site. We reserve the right to terminate any link at any time. We disclaim any liability for third party sites.
When you leave this Site, please be aware that our Terms of Use do not govern any third party sites to which we link. You should review the applicable terms of use and policies, including privacy policies, of any third party site.
Notices of Alleged Infringement
We respect the intellectual property of others, and we ask you to do the same. If you believe your copyright, trademark, or other property rights have been infringed by the display of any Content, Talent Brand Assets or other material on this Site, please send a written notification to our Designated Agent for Notices of Infringement:
Brand Affinity Technologies, Inc.
Attn: Notice of Infringement
101 Academy, Suite 110
Irvine, CA 92617
Phone: (949) 242-7980
Email: info@brandaffinity.net
To be effective, the notification must be in writing and include:
- Identification of the copyrighted work or other right claimed to have been infringed;
- Identification of the Content, Talent Brand Assets or other material that is claimed to be infringing and information reasonably sufficient to permit us to locate such material;
- Information reasonably sufficient to permit us to contact the complaining party, such as address, telephone number, and if available, an e-mail address;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, agent, or law;
- A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
- A physical or electronic signature of a person authorized to act on behalf of the owner of the work that is allegedly infringed.
Upon receipt of a valid notice of a claim of infringement, we may immediately remove the identified material from our Site without liability as provided in the Digital Millennium Copyright Act.
BAT may terminate the right to use this Site of any user who BAT believes may be infringing the intellectual property rights of BAT or any third party.
Indemnification
You agree to defend, indemnify and hold harmless BAT and its officers, directors, employees, affiliates, customers, licensors, and content providers against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or relating to (a) your (or anyone using your BAT account's) breach of these Terms of Use, (b) your (or anyone using your BAT account's) unauthorized use of any Content or Talent Brand Assets or (c) the infringement or misappropriation of any intellectual property right of any third party arising out of any Endorsement Opportunity submitted by you. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
Disclaimer and Limitation of Liability
THIS SITE AND ITS CONTENT ARE PROVIDED “AS IS” AND BAT AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, CUSTOMERS, LICENSORS AND CONTENT PROVIDERS EXCLUDE AND DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. THIS SITE IS NOT WARRANTED TO BE UNINTERRUPTED OR WITHOUT ERROR.
BAT AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, CUSTOMERS, LICENSORS AND CONTENT PROVIDERS WILL NOT BE LIABLE TO USERS OF THIS SITE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE OR THE CONTENT, OR ANY INTERRUPTION OR DISCONTINUATION OF THE SITE OR ANY CONTENT, PRODUCTS OR SERVICES, OR ANY LOSS OF DATA, INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES OR LOST PROFITS, REGARDLESS OF WHETHER SUCH DAMAGES ARISE UNDER A CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, AND EVEN IF WE HAVE BEEN ADVISED (OR KNOW OR SHOULD KNOW) OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF BAT OR ITS AFFILIATES TO YOU EXCEED THE GREATER OF THE AMOUNTS PAID BY YOU TO BAT OR $10,000.
BAT uses reasonable efforts to ensure the accuracy of the Content, but makes no representations or warranties as to the accuracy of any Content.
Some jurisdictions do not permit the exclusion of implied warranties or certain limitations on liability. Some of the disclaimers or limitations above may not apply to you to the extent they are prohibited by law.
Governing Law
The laws applicable to the interpretation and enforcement of these Terms of Use shall be the federal law of the United States and the laws of Delaware, without regard to any conflict of law provisions.
Disputes
Any proceeding or action at law or in equity arising out of or relating to these Terms of Use shall be filed only in the state or federal courts located in Delaware. You hereby consent to irrevocably submit to the exclusive jurisdiction and venue of, and agree that venue is proper in, such courts.
Severability
The provisions of these Terms of Use are intended to be severable. If for any reason any provision of these Terms of Use is held to be unenforceable in whole or in part, such provision shall, as to such jurisdiction, be ineffective to the extent of such unenforceability without in any manner affecting the validity or enforceability of that provision in any other jurisdiction or the remaining provisions of these Terms of Use in any jurisdiction.
Miscellaneous
BAT may assign all or any portion of its rights or obligations under these Terms of Use without your consent. You may not assign these Terms of Use, or any of your rights or obligations hereunder, without the prior written consent of BAT, provided, however that you shall have the right to assign or transfer all of your rights or obligations hereunder to any successor-in-interest by way of sale, merger, consolidation, reorganization, restructuring or the acquisition of all or substantially all of your business and assets or more than 50% of your outstanding ownership interests. Subject to the foregoing, these Terms of Use will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No provision of these Terms of Use will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter exercise such rights or remedies.
Changes to Our Terms of Use
We reserve the right to change any of the terms and conditions contained in these Terms of Use, at any time and in our sole discretion. When we make changes, we will revise the “last updated” date at the top of these Terms of Use and shall notify registered users by email. Any changes will be effective immediately upon posting on the Site. Your continued use of the Site following the posting of changes will constitute your acceptance of such changes. Please check back to this page from time to time to determine if any changes have been made.
The terms “Team Brand Assets”, “Athlete Brand Assets” and “League Brand Assets” as used in this Terms of Use have the same meaning as the terms “Team Property”, “Athlete Property” and “League Property”, respectively, found in the previous versions of our Terms of Use.
How to Contact Us
You can contact us by email at info@brandaffinity.net or by calling (949) 242-7980.
ENDORSEMENT AGREEMENT
You as the advertiser or the advertiser on whose authority you act, as the case may be, (“Advertiser”) agree to be bound by the following terms and conditions of this Endorsement Agreement (the “Agreement”). Upon the acceptance of Advertiser’s campaign proposal, which may be sent directly from Advertiser or its authorized agent, by the athlete, team, league or other person or organization that Advertiser desires to participate in such campaign (“Talent”), this Agreement will be binding on Advertiser, Talent and Brand Affinity Technologies, Inc. (“BAT”).
1. Grant of Rights. Subject to the terms and conditions of this Agreement, Talent hereby grants Advertiser a non-exclusive limited license to use the Talent Brand Assets specified in the advertisement, sponsorship, endorsement and/or other promotional or marketing campaign submitted to Talent (“Endorsement Opportunity”) and approved by Talent (“Approved Endorsement Opportunity”) through the BAT Syndicated Endorsement Program (the “BAT Program”). For purposes of this Agreement, an Endorsement Opportunity could include one or more media components, including but not limited to online, radio and outdoor (e.g billboards) (each a “Media Component”). “Talent Brand Assets”, as used in this Agreement, means all photographs, drawings, images, video clips and other materials using, depicting or incorporating the “Talent Property” (as defined herein), whether audio or visual, in any form or media, whether now known or hereafter devised. “Talent Property”, as used in this Agreement, means Talent’s name and all nicknames, likeness, voice, initials, autographs and other identifying features and any trademarks, brand names and logos incorporating any of the foregoing. Advertiser may use only those Talent Brand Assets, including any BAT Custom Content (as defined below), approved by Talent through the BAT Program (the “Approved Brand Assets”), and shall not make use of any Talent Brand Assets that were not approved by Talent. Advertiser may use the Approved Brand Assets solely in connection with the Approved Endorsement Opportunity, and shall not use the Approved Brand Assets for any other purposes. No Talent Brand Assets may be used in connection with any Approved Endorsement Opportunity until all materials produced by Advertiser for use in connection with such Approved Endorsement Opportunity have been approved by Talent. Subject to the terms and conditions of this Agreement, BAT hereby grants Advertiser a non-exclusive limited license to use any BAT Custom Content specified in the Approved Endorsement Opportunity. Any modification or variation by Advertiser of an Approved Endorsement Opportunity, or any element or portion thereof, shall be resubmitted to Talent for approval.
2. Ownership. Talent shall own all of rights to the Talent Brand Assets. Certain customized content incorporating the Talent Property made available through the BAT Program may be owned by BAT (“BAT Custom Content”), but BAT does not own the Talent Property incorporated therein. Advertiser shall own the concepts underlying the Approved Endorsement Opportunity and any materials produced by or on behalf of Advertiser in connection with an Approved Endorsement Opportunity, other than the Talent Brand Assets and any BAT Custom Content.
3. Clearances. Talent shall be responsible for approving and obtaining all necessary rights, consents and clearances for use of any Talent Brand Assets (other than BAT Custom Content) in an Approved Endorsement Opportunity. BAT shall be responsible for obtaining all necessary rights, consents and clearances to use any BAT Custom Content or any Talent Brand Assets obtained by BAT from third parties. Advertiser shall be responsible for obtaining all necessary rights, consents and clearances in connection with any Approved Endorsement Opportunity (other than with respect to the approvals for use of Talent Brand Assets and the BAT Custom Content obtained via BAT).
4. Approvals. Talent may reject any proposed advertisement, sponsorship, endorsement and/or other promotional or marketing campaign or any related materials in Talent’s sole discretion.
5. Compensation/Residuals.
(a) Advertiser, or its authorized agent, shall pay BAT the compensation for BAT’s services and use of the BAT Program Talent Brand Assets in connection with the Approved Endorsement Opportunity as established through the BAT Program and in accordance with BAT’s Term of Use (“BAT Service Fees”). BAT shall have the sole and exclusive right to collect payments from Advertiser or its authorized agent with respect to any Approved Endorsement Opportunity. However, if BAT has been unsuccessful in obtaining payment from Advertiser or its authorized agent and with BAT’s prior written consent, such consent not to be unreasonably withheld, Talent may proceed with collecting payments due Talent directly from the Advertiser or its authorized agent, whichever the case may be. BAT shall be responsible for calculating and remitting to Talent the amount owed to Talent with respect to the Approved Endorsement Opportunity.
(b) Advertiser hereby acknowledges and agrees that where applicable Advertiser shall provide, or be responsible for the costs associated with the provision of, a signatory entity for engagement of Talent and Advertiser hereby assumes and agrees to pay all applicable (if any) guild, union, and collective bargaining agreement payments, including, without limitation, PH&W and residuals together with any other applicable third party payments.
6. Term. The term of this Agreement shall commence on Talent’s acceptance of the proposal for the advertisement, sponsorship, endorsement and/or other promotional or marketing campaign and, unless terminated sooner in accordance with this Agreement, shall continue for the duration specified in the proposal for the Approved Endorsement Opportunity, as may be modified by the mutual agreement of Talent and Advertiser.
7. Termination. This Agreement may be terminated only as follows:
(a) Advertiser may terminate this Agreement, or any Media Component of the Approved Endorsement Opportunity, at any time upon not less than one (1) business day’s prior written notice sent to BAT.
(b) BAT may terminate this Agreement, or any Media Component of the Approved Endorsement Opportunity, at any time for any reason upon not less than one (1) business day’s prior written notice sent to Advertiser and Talent.
(c) For Approved Endorsement Opportunities with Outdoor Media Component(s) with durations longer than 90 days, Talent may terminate such Outdoor Media Component(s) for any reason beginning on the 91st day after the date such Media Component(s) of the Approved Endorsement Opportunity commences circulation, upon not less than twenty-one (21) days prior written notice to Advertiser and BAT.
(d) Talent or BAT may terminate this Agreement immediately upon notice to Advertiser for the following reasons: (a) if Advertiser files a petition for bankruptcy or is adjudicated bankrupt; (b) if an involuntary petition in bankruptcy is filed against Advertiser, and such petition has not been dismissed within thirty (30) days after such filing; (c)Advertiser makes a general assignment for the benefit of creditors or has a receiver appointed for its assets, or (d) Advertiser ceases doing business or an order has been made for Advertiser’s liquidation or winding-up.
(e) If Advertiser breaches any of the terms and conditions of this Agreement, including without limitation the use of Talent Brand Assets in a manner not approved by Talent (other than a failure to pay BAT any amount when due), Talent or BAT may terminate this Agreement immediately upon notice to Advertiser. If Advertiser fails to pay BAT any amount when due, and such breach is not cured within thirty (30) days after notice from BAT to Advertiser, Talent or BAT may terminate this Agreement upon notice to Advertiser.
(f) Following termination or expiration of this Agreement, Advertiser will discontinue all use of the Talent Brand Assets and shall have no further right to use the Talent Brand Assets, subject to applicable wind-down periods and terms in this Section 7(f). Upon notice of termination of this Agreement or any Media Component of an Approved Endorsement Opportunity, Advertiser, or BAT on behalf of Advertiser, shall remove the Approved Endorsement Opportunity from all circulation or from circulation on the specified Media Component(s), as the case may be, as soon as practicable within the wind-down period specified herein this Section 7(f). Advertiser shall also be subject to any early termination fees specified herein this Section 7(f).
- Online Media Component: Each terminated or expired Online Media Component of Approved Endorsement Opportunity shall be removed from online circulation within 72 hours after receipt of such notice of termination or expiration (“Online Wind-down Period”). Advertiser shall remain obligated to pay any BAT Service Fees incurred during the Online Wind-down Period. Other fees specified in any other agreement between Advertiser and BAT and/or Talent may apply as well.
- Radio Media Component: Each terminated or expired Radio Media Component of Approved Endorsement Opportunity shall be removed from radio circulation within 72 hours after receipt of such notice of termination or expiration (“Radio Wind-down Period”). Advertiser shall remain obligated to pay any BAT Service Fees incurred during the Radio Wind-down Period. Other fees specified in any other agreement between Advertiser and BAT and/or Talent may apply as well.
- Outdoor Media Component: Each terminated or expired Outdoor Media Component of Approved Endorsement Opportunity shall be removed from display or circulation within thirty (30) days after receipt of such notice of termination or expiration (“OOH Wind-down Period”). Advertiser shall not be obligated to pay for any BAT Service Fees incurred during the OOH Wind-down Period; provided, however, that if Advertiser terminates this Agreement or Outdoor Media Component early pursuant to Section 7(a), Advertiser shall remain obligated to pay a) for Approved Endorsement Opportunities with specified durations of 90 days or less, the total BAT Service Fees that would have been paid to BAT had the Approved Endorsement Opportunity not been terminated early or b) for Approved Endorsement Opportunities with specified durations of more than 90 days, the greater of i) total BAT Service Fees that would have been paid to BAT had the Approved Endorsement Opportunity’s duration been 90 days or ii) the total BAT Service Fees incurred by Advertiser up to the date of termination, including any BAT Service Fees incurred during the OOH Wind-down Period (“Termination Fees”). Such Termination Fees shall be netted against any amounts already paid to BAT for such Approved Endorsement Opportunity by Advertiser.
(g) Subject to the terms of this Section 7, Advertiser or its authorized agent shall within 15 days of such termination remit to BAT all monies owed to BAT pursuant to this Agreement.
(h) Failure to terminate this Agreement pursuant to this section shall not effect or constitute a waiver of any remedies the party having the right to terminate would have been entitled to demand in the absence of this section, whether by way of damages, termination or otherwise. Termination of this Agreement for whatever reason shall be without prejudice to the rights and liabilities of any party to the others in respect of any matter arising under this Agreement.
8. Prohibited Media. In no event shall any Approved Endorsement Opportunities be displayed or disseminated on media that promote objectionable or illegal content, including without limitation, adult content, gambling and illegal activities (“Prohibited Media”). In the event BAT becomes aware that an Approved Endorsement Opportunity is being displayed or disseminated on Prohibited Media, BAT shall notify Advertiser of such prohibited use. Advertiser, or BAT on behalf of Advertiser, agrees that it shall suspend such prohibited use as soon as practicable within forty-eight (48) hours of receiving such notification.
9. Parties in Interest. Talent may have transferred ownership or control over some or all of the Talent Brand Assets to an entity responsible for licensing such Talent Brand Assets (“Licensing Entity”). In such case, references to “Talent” shall mean the Licensing Entity and BAT will use reasonable efforts to have Talent separately acknowledge and consent to this Agreement in writing. Except for the foregoing, this Agreement is neither expressly nor impliedly made for the benefit of any party other than Talent, Advertiser and BAT.
10. Confidential Information. The parties shall hold any information, data, formula, pattern, compilation, program, device, method, technique, or process, that derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use that is disclosed by or on behalf of one party to or on behalf of the other party (“Confidential Information”) in the strictest confidence and shall protect all Confidential Information from unauthorized disclosure. It is understood that all terms and conditions of this Agreement, Endorsement Opportunities and Approved Endorsement Opportunities are Confidential Information of each of the parties and shall not be disclosed without the other party’s prior written consent; provided that the existence of this Agreement may be disclosed by any of the parties. Confidential Information shall not be released by the receiving party to anyone except an employee or agent who has a need to know same, and who is bound by confidentiality obligations. Each party shall not use any portion of Confidential Information provided by any other party hereunder for any purpose other than those provided for under this Agreement. Notwithstanding anything contained herein to the contrary, the term "Confidential Information" shall not include information which: (i) was or becomes generally available to the public through no fault of the receiving party; (ii) was known to or rightfully in receiving party's possession free of any obligation of confidence at, or subsequent to, the time it was communicated to receiving party by the disclosing party; (iii) was developed by employees or agents of receiving party independently of and without reference to any Confidential Information communicated to receiving party by disclosing party; or (iv) was communicated by disclosing party to an unaffiliated third party free of any obligation or confidence. Notwithstanding the foregoing, any of the parties may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law, as required by the rules of any applicable securities exchange or as necessary to establish the rights of the parties under this Agreement; provided, however, that the parties will stipulate to any orders necessary to protect said information from public disclosure.
11. Assignment. Talent acknowledges that the services to be provided by Talent and the rights and privileges granted to Advertiser hereunder are of a special and unique character, giving them a peculiar value to Advertiser. Talent shall not have any right to assign this Agreement or assign or delegate any right or obligation hereunder. BAT may assign this Agreement. Advertiser may not assign this Agreement, in whole or in part, without the prior consent of Talent and BAT, such consent not to be unreasonably withheld, provided, however that Advertiser shall have the right to assign or transfer the Agreement hereunder to any successor-in-interest by way of sale, merger, consolidation, reorganization, restructuring or the acquisition of all or substantially all of the business and assets of Advertiser or more than 50% of the outstanding ownership interests of the Advertiser. This Agreement shall be binding on the permitted assignees and successors of the parties hereto.
12. Representations and Warranties. Talent represents and warrants that: (a) this Agreement constitutes the valid and binding obligation of Talent enforceable against Talent in accordance with its terms; (b) Talent has the right and authority to enter into this Agreement and the right and authority to grant Advertiser all of the rights granted to Advertiser in this Agreement on the terms provided in this Agreement; and (c) the use of the Approved Brand Assets as authorized in this Agreement does not, and will not, infringe any right of any third party. Advertiser represents and warrants that Advertiser has the right and authority to enter into this Agreement.
13. Indemnification. Advertiser shall defend, indemnify, and hold harmless Talent and BAT and their respective affiliates, successors, officers, employees, agents and representatives, against any claims, losses, damages, suits, fees (including, without limitation, reasonable attorneys’ fees and expenses) and settlement costs (collectively, “Losses”) arising from or related to Advertiser’s failure to comply with applicable laws and/or regulations, and arising from or related to any complaints, disputes, claims, proceedings, litigations, arbitrations or investigations (collectively “Actions”) asserted or brought by third parties against Talent or BAT related to Advertiser’s products, services and /or events, and any infringement or misappropriation of the trade secret, trademark, copyright, patent right, right of publicity, right of privacy or other intellectual property right of any third party arising from, relating to any Approved Endorsement Opportunity (except to the extent such Losses result from any claim that the Talent Brand Assets infringe or misappropriate any such rights), or relating to any breach or claim of breach of Advertiser's representations, warranties, and/or covenants hereunder. Talent shall defend, indemnify, and hold harmless Advertiser and BAT against any Losses arising from or related to any Actions asserted or brought by third parties against Advertiser or BAT related to any infringement or misappropriation of the trade secret, trademark, copyright, patent right, right of publicity, right of privacy or other intellectual property right of any third party arising from or relating to any Talent Brand Assets (except to the extent such Losses result from any claim that any Approved Endorsement Opportunity (exclusive of the Talent Brand Assets or Custom Content) infringes or misappropriates any such rights), or relating to any breach or claim of breach of Talent's representations, warranties, and/or covenants hereunder. BAT shall defend, indemnify, and hold harmless Talent and Advertiser against any and all Losses arising from or related to any Actions asserted or brought by third parties against Talent and Advertiser related to (i) any infringement or misappropriation of the trade secret, trademark, copyright or patent right of any third party by the operation of the BAT Program (except to the extent such Losses result from any claim that the Talent Brand Assets provided by Talent or any Approved Endorsement Opportunity (exclusive of the Talent Brand Assets or Custom Content) infringes or misappropriates any such rights) or (ii) any Customized Content or Talent Brand Assets obtained by BAT from third parties. This Section shall survive the termination of this Agreement.
If any action will be brought against either party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from the other party (“Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party, which such consent shall not be unreasonably withheld.
14. Limitation of Liability. EXCEPT FOR CLAIMS ARISING UNDER SECTION9 (CONFIDENTIALITY), THE INDEMNITY OBLIGATIONS SET FORTH IN SECTION12 (INDEMNIFICATION), AND ANY USE BY ADVERTISER OF ANY TALENT BRAND ASSETS OTHER IN CONNECTION WITH AN APPROVED ENDORSEMENT OPPORTUNITY, THE PARTIES AGREE THAT NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), OR FOR LOST BUSINESS, LOST DATA OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF (OR KNOWS OR SHOULD KNOW OF) THE POSSIBILITY OF SUCH DAMAGES
15. Notices. Any notice or correspondence that is permitted or required under the terms of this Agreement shall be sent electronically through the BAT Program or delivered by email at the email addresses provided by each party for giving notices. Notices of termination from Advertiser to Talent or from Talent to Advertiser shall be sent to BAT and BAT shall relay to the other party.
16. Governing Law; Dispute Resolution. This Agreement shall be construed and governed in accordance with the laws of Delaware, except for its conflict of law principles. Any action brought to resolve a dispute arising from the interpretation or construction of or to enforce this Agreement shall be brought in a court of appropriate jurisdiction in Delaware, and the parties hereby consent to the personal jurisdiction of any such court. If any legal action is brought to enforce or interpret this Agreement, the prevailing party therein shall be entitled to recover its incurred and accrued expenses, including without limitation, its reasonable attorneys fees and costs from the other party.
17. Severability. The parties intend that the provisions of this Agreement be enforced to the fullest extent permitted by applicable law. In the event that any provision of this Agreement is found invalid or unenforceable by any court or other governmental authority having jurisdiction, such invalid provision will be severed from the remaining provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
18. Independent Contractors/Taxes. The relationship of the parties under this Agreement is that of independent contractors. Neither party will be deemed to be an employee, partner or agent of the other for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other, except for Advertiser’s right to make the Approved Brand Assets available for licensing for Approved Endorsement Opportunities. Talent represents and warrants that Talent (and not Advertiser) will be solely responsible for and will pay all income and other withholding taxes required by federal and state law in connection with all compensation payable hereunder, and in connection therewith, Talent shall file all appropriate state and federal income tax returns to the extent required by law for all compensation hereunder. Talent agrees to indemnify and hold BAT/Advertiser and their employees, officers, assigns and affiliates harmless from and against any and all taxes which BAT/Advertiser or any of the foregoing may have to pay and any and all liabilities (including judgments, penalties, interest, damages, costs and expenses including reasonable attorneys’ and accountants’ fees) which may be obtained against, imposed upon or suffered by BAT/Advertiser or any of the foregoing or which BAT/Advertiser or any of the foregoing may incur by reason of Advertiser’s failure to deduct and withhold from the compensation payable under the Agreement any amount required or permitted to be deducted and withheld from the compensation under the provisions of any current state or federal statute and/or any amendments thereof and/or any statutes hereafter enacted requiring the withholding of any amount from the compensation.
19. Further Assurances. The parties agree to electronically accept or execute such further instruments and to take such further actions as may be reasonably necessary to carry out the purposes and intent of this Agreement.
20. Miscellaneous. This Agreement shall not be effective until electronically accepted by both Talent and Advertiser. This Agreement shall constitute the entire understanding of the parties with respect to the subject matter, superseding all prior and contemporaneous promises, agreements and understandings. The terms of this Agreement shall not be modified except by an agreement in writing electronically accepted or signed by both parties hereto. No waiver by either party of a breach or default hereunder shall be deemed a waiver by such party of a subsequent breach or default of a like or similar nature. Sections 2, 7(f), 7(g), 7(h), 10, 11, 12, 13, 14, 16, 17 and 20 shall survive the termination of this Agreement.
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