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GC SOCIAL MEDIA MARKETING, INC. (also known as "GGContent", and herein referred as "GGC") and the party identified as Producer ("Producer") in an Order Form for Advertising Content Creation (the "Order Form") entered into by and between the parties agree to these TERMS AND CONDITIONS FOR ADVERTISING CONTENT CREATION (these "T&Cs") in connection with the Order Form.  The Order Form and these T&Cs are collectively referred to as the "Agreement".

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Deliverables and Approval

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Producer shall:

• produce and deliver, or cause the Talent to produce and deliver, certain content that meet the requirements set forth in the Order Form (such content is hereinafter referred to as the "Videos"); and

• cause Talent to participate in, distribute, and promote such Videos, as well as fulfill any other obligations (e.g., attendance at marketing events, if applicable, etc.), as set forth in the Order Form (the Videos and any other obligations to be fulfilled are collectively referred to as the "Deliverables").

 

Each Video shall be subject to approval by GGC, as follows: 

 

Producer shall provide a rough cut of each Video to GGC, and GGC shall have the right to request one consolidated round of revisions (the "Revisions") to the Video.  Such revisions shall be limited to ensuring that Producer has incorporated all the elements as set forth in the Order Form (as may be duly amended from time to time). 

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Producer shall then provide a revised cut of the Video to GGC, and GGC shall review this cut to determine if the Revisions have been incorporated.  If yes, then this cut shall be the final cut of the Video.  If not, then GGC shall communicate the missing Revisions to Producer, and Producer shall address the shortcomings, until GGC approves the Video in full.

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Rights and Licenses

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Producer grants to GGC the following non-exclusive, worldwide rights:

• Limited Rights for Social Media Marketing (as defined below); and

• Linking Rights (as defined below); 

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The rights granted to GGC:

• shall expire six (6) months from the date on which all Deliverables are fully completed and delivered and all obligations of Producer and Talent(s) are fully performed. 
   

In all cases and under all circumstances, GGC may sublicense and/or transfer such rights to GGC's clients in connection with the Promoted Item, which clients may include, without limitation, the developer or publisher of the game if a game is the Promoted Item, or the manufacturer or seller of a gaming peripheral if the gaming peripheral is the Promoted Item, and/or their affiliates and marketing agencies, etc.  (the foregoing are referred to collectively as "GGC Clients", and GGC Clients and GGC are referred to collectively as "Advertiser").

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"Limited Rights for Social Media Marketing" mean the rights to incorporate the Videos, or portions thereof, into Advertiser's non-paid marketing properties (which may include, without limitation, Advertiser's websites and social media accounts, etc.), but not paid advertisements (e.g., paid banner ads).  Notwithstanding any other provisions, at any termination or expiration of the Order Form or any license term, all utilization of Limited Rights for Social Media Marketing as of or before such termination or expiration shall survive (for example, and without limitation, Advertiser shall not be required to remove posts from social media accounts).  

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"Linking Rights" mean the rights to place hyperlinks to the Videos from Advertiser's non-paid marketing properties (which may include, without limitation, Advertiser's websites and social media accounts, etc.), but not from paid advertisements (e.g., paid banner ads).  

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Term and Termination

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The term of the Agreement shall commence upon the Effective Date and terminate upon the delivery of all Deliverables to GGC and GGC's full payment of the Fee (the "Term"), unless terminated pursuant to the terms herein.  

Either party may terminate the Agreement upon written notice if the other party breaches any of the terms or conditions of the Agreement and fails to cure the breach within twenty-one (21) days' notice of the breach.  In the event of any termination due to Producer's breach, Producer shall immediately refund to GGC any portion of the Fee that may have been prepaid by GGC.  GGC may also terminate the Agreement without cause; provided, however, that if GGC terminates the Agreement without cause after Producer has either: (1) engaged Talent to perform any services necessary for Producer to deliver the Deliverables; or (2) otherwise commenced production, then GGC shall be responsible for the payment of the costs actually incurred by Producer up to the termination date, not to exceed the full amount of the Fee.

Producer also acknowledges and agrees that timing is of the essence with respect to its deliverables and services.  Notwithstanding any other provisions, if Producer fails to meet any due date or deadline, GGC may immediately terminate the Agreement, with no cure period for Producer for its breach.  In such event, any prepayment from GGC shall be refunded to GGC, and no further payment will be due to Producer.

Any provisions of the Agreement which either expressly or by their terms are intended to survive the termination or expiration of the Agreement, including, without limitation, those provisions relating to intellectual property rights, confidentiality, indemnification, and limitation of liabilities, will so survive any termination or expiration of the Agreement.

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Intellectual Property; Reservation of Rights

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As between GGC and Producer, except for the rights granted to GGC under the Agreement, Producer owns all rights, title and interest in and to all copyrights, trademarks, and other proprietary and intellectual property rights embodied in the Deliverables, excluding in all cases Advertiser Materials (as defined below).  

As between GGC and Producer, GGC (and/or GGC Clients) owns all rights, title and interest in and to all copyrights, trademarks, and other proprietary and intellectual property rights embodied in those elements or materials provided by GGC (and/or GGC Clients) to Producer for incorporation into, or in connection with, the Deliverables ("Advertiser Materials").  For example, but without limitation, Advertiser Materials may include graphics provided by GGC to Producer.  GGC agrees to grant Producer a non-exclusive license to utilize Advertiser Materials solely to fulfill Producer's obligations under the Agreement in connection with the Deliverables.    

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Representations and Warranties

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Producer represents, warrants, and covenants as follows:

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(a) The Deliverables, and any other items or materials delivered by Producer under the Agreement, shall be wholly original with Producer (or shall otherwise be properly licensed) and shall not infringe upon or violate the intellectual property rights, privacy rights, publicity rights, or any other rights of any third party.  Without limiting the foregoing, Producer represents and warrants that all requisite rights and consents with respect to Talent have been obtained.

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(b) Producer is under no obligation or disability, created by law or otherwise, which would in any manner or to any extent prevent or restrict Producer from entering into and freely performing the Agreement, and no approvals or consents of any persons are necessary in connection with it.

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(c) The execution and delivery of the Order Form by Producer, the compliance by Producer with the terms and conditions of the Agreement, and the consummation by Producer of the transactions contemplated hereby will not (i) conflict with any of the terms, conditions or provisions of any other agreement, (ii) violate any provision of, or require any consent, authorization or approval under, any law or administrative regulation or any judicial, administrative or arbitration order, award, judgment, writ, injunction or decree applicable to Producer, (iii) otherwise adversely affect the contractual or other legal rights or privileges of Advertiser, or (iv) violate any applicable laws.  

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(d) Producer shall ensure that Talent complies with the Federal Trade Commission's guidelines on social media usage and online endorsements, as well as all guidelines and policies that may be provided by GGC (collectively, "Legal Guidelines").

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Indemnification

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Producer agrees to defend and indemnify GGC, its parent, affiliates, subsidiaries, successors, assigns, clients, licensees, officers, directors and employees ("GGC Indemnitees"), and hold GGC Indemnitees harmless from and against any and all claims, liabilities, losses, damages, costs, expense (including reasonable outside attorneys' fees), judgments and penalties arising out of, resulting from, based upon or incurred because of (i) any allegation that the Deliverables, or any other items or materials delivered by Producer under the Agreement, infringe any intellectual property rights, privacy rights, publicity rights, or any other rights of any third party, (ii) any noncompliance or alleged noncompliance by Producer or Talent with applicable laws or regulations or Legal Guidelines, (iii) any breach by Producer of any agreements or representations and warranties made by Producer hereunder, (iv) any criminal misconduct or malicious or tortious acts by Producer, and (v) Producer's exploitation of the Videos.  

GGC agrees to defend and indemnify Producer and hold Producer harmless from and against any and all claims, liabilities, losses, damages, costs, expenses (including reasonable outside attorneys' fees), judgments and penalties to the extent arising out of, resulting from, based upon or incurred because of any allegation that Advertiser Materials infringe any intellectual property rights, privacy rights, publicity rights, or any other rights of any third party (other than those claims, liabilities, losses, damages, costs, expenses, judgments and penalties covered by Producer's indemnification obligations).

 

Confidentiality 

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Producer (the "Receiving Party") understands that GGC (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the business of GGC and/or its clients (hereinafter referred to as "Proprietary Information").  The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of services for the Disclosing Party or as otherwise permitted by the Agreement) or disclose to any third party any Proprietary Information.  The foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law, provided that the Receiving Party provides the Disclosing Party with prompt written notice of such requirement and reasonably cooperates with the Disclosing Party to limit or challenge such requirement.  These provisions regarding Proprietary Information shall apply in perpetuity and shall survive any termination of the Agreement.  Producer's breach of any of these obligations will cause irreparable and continuing damage to GGC for which money damages are insufficient, and GGC is entitled to injunctive relief, a decree for specific performance, and all other relief as may be proper (including money damages if appropriate), without the need to post a bond.

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Limitation of Liabilities

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IN NO EVENT WILL GGC BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY DELIVERABLES OR SERVICES PROVIDED BY PRODUCER, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF GGC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  GGC'S AGGREGATE LIABILITY UNDER THE AGREEMENT FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY WILL NOT EXCEED ANY AMOUNT THAT EQUALS THE FEE PAYABLE TO PRODUCER.

 

Publicity

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Neither party shall issue a statement, information, advertising or press release describing the relationship between the parties under the Agreement or any other matter related to the Agreement without the written consent of the other party (e-mail shall be sufficient).

 

Miscellaneous

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If at any time during the Term: (a) Talent is incapacitated by reason of physical or mental disability from fully performing services necessary for Producer to perform its obligations ("Talent's Services") under the Agreement or becomes unavailable to perform hereunder for any other similar or dissimilar reason beyond Talent's control ("Incapacity"), or (b) Talent fails or refuses to perform hereunder for any reason other than Incapacity ("Default"), or (c) the preparation, production or broadcast of any portion of the marketing campaign for the Promoted Item is interrupted, prevented or materially interfered with by reason of a governmental regulation or order, strike, lockout, pandemic, war, fire, earthquake, hurricane, or similar Act of God, or by any other cause of a similar or dissimilar nature or any cause beyond the control of Producer ("Force Majeure") (an incident of Incapacity, Default and/or Force Majeure being sometimes referred to herein as an "Event of Interruption"), either party may select to suspend the Agreement.  Should any Event of Interruption period exceed two (2) weeks, either party may, by written notice to the other party, terminate the Agreement.  Under such termination, no fees shall be due from GGC to Producer, and Producer shall immediately refund to GGC any fees that have been prepaid by GGC.

Producer and Talent shall refrain from harming the reputation of any GGC Clients or their products or services in any way, such as, without limitation, by creating content that discriminates against or belittles any specific group, religion, race, gender, etc., or incites conflict and hatred, leading to social controversy (from the general public's perspective), or infringes on third-party intellectual property rights.  In the event that Producer or Talent engages in behaviors that damage the image of GGC Clients or their products or services as described above, Producer shall refund to GGC 100% of the amounts paid to Producer, as well as indemnify GGC for any related claims from GGC Clients.

Any notice required or permitted by the Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when actually delivered; (b) by overnight courier, upon written verification of receipt; (c) by facsimile transmission, upon acknowledgment of receipt of transmission; (d) by certified or registered mail, return receipt requested, upon verification of receipt; or (e) by email, upon being sent if sent during the recipient's normal business hours, or the next business day if sent outside of the recipient's normal business hours.  Notice shall be sent to the addresses set forth in the Agreement or to such other address as either party may provide in writing and, in the case of email to Producer, to any email address which Producer has generally used for communications with GGC.

The Agreement shall be governed by the laws of the State of California without regard to conflict of laws provisions.  Any dispute, claim or controversy arising out of or relating to the Agreement or the breach, termination, enforcement, interpretation or validity thereof shall be determined by arbitration in California before a single arbitrator.  The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures.  Judgment on the award may be entered in any court having jurisdiction.  Notwithstanding the foregoing, either party may seek injunctive relief in any court of competent jurisdiction in Santa Clara County, California.

No agency, partnership, joint venture, or employment is created as a result of the Agreement, and Producer does not have any authority of any kind to bind GGC in any respect whatsoever.

Neither the Agreement nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument referencing the Agreement and signed by both parties.

No waiver by a party of a breach of the Agreement shall be effective unless it is in writing and signed by such party.  No waiver shall constitute a waiver of any other or subsequent breach.

If a court of law holds any provision of the Agreement to be illegal, invalid or unenforceable, (a) that provision shall be deemed amended to achieve an economic effect that is as near as possible to that provided by the original provision and (b) the legality, validity and enforceability of the remaining provisions of the Agreement shall not be affected.

The Agreement is not assignable, transferable or sublicensable by Producer except with GGC's prior written consent.

The Agreement, including any and all schedules, exhibits or attachments hereto or incorporated by reference and made a part hereof, express the entire agreement between Producer and GGC and shall replace and supersede all prior arrangements and representations, either oral or written, as to the subject matter hereof.