Deal Terms and Conditions
Modified June 23, 2021
This Deal Agreement (the “Agreement”) is executed by and between the Opendorse-authorized buyer (the “Buyer”) and the user (the “User”) to facilitate promotional opportunities (each a “Proposed Opportunity”), and is subject to the terms and conditions set forth below. Each of the Buyer and the User may be referred to herein individually as a “Party,” and collectively, the “Parties.” The Parties understand that until the Parties either agree to abide by the terms of the Agreement or execute an Alternative Agreement, neither Party is legally bound by the terms of the Agreement. Once each Party has either executed an Alternative Agreement, or agreed to abide by the terms of this Agreement, the Proposed Opportunity becomes a deal (the “Deal”).
By engaging and entering into the Agreement or an Alternative Agreement, each Party agrees to cooperate and honor their obligations in a professional and first-class manner, and to the best of each Party’s ability. While Opendorse will process payments from Buyers to Users, Opendorse is not a party to this Agreement or any Alternative Agreement, and will not have the right or obligation to enforce the Agreement or any Alternative Agreement.
1. PROPOSED OPPORTUNITY.
Buyer wishes to engage the User for the activity(s) detailed in the Proposed Opportunity, which minimally includes the 1) Deal Activity(s); 2) Fulfillment Date(s) for each Deal Activity; and 3) Payment(s) in United States Dollars, for User’s consideration. The Proposed Opportunity may additionally include a Deal Name, Brief, Expiration Date, and/or Campaign Name.
The User has the ability to review the Proposed Opportunity up until the Fulfillment Date and time, unless an earlier date and time are specified as an Expiration Date by the Buyer in the Proposed Opportunity, to either accept or dismiss the Proposed Opportunity.
2. DEAL TERM.
The Deal is effective as of the date the User accepts the offer for a Proposed Opportunity (the “Effective Date”). A Deal Activity must be completed by or at the Fulfillment Date as specified by the Buyer in the Proposed Opportunity, unless otherwise agreed to by the Parties. If the Proposed Opportunity requires User to complete any Deal Activity on any social media platform, so long as the relevant social media platform allows for such, and unless otherwise agreed to by the Parties, User shall leave the Deal Activity active and publicly accessible on such social media platform for no less than thirty (30) days following the Fulfillment Date of the Deal Activity (the “Activity Term”). In the event that the Deal Activity is a social post that automatically erases by the social media platform (i.e., a Story or Fleet), then User will leave the post active until erased by the social media platform’s normal activity.
For purposes of this Agreement, unless otherwise agreed, the total amount of time the Buyer may publicly use the materials created in connection with the Proposed Opportunity through Deal Activities is thirty (30) days after fulfillment of the last Activity Term (the “Deal Term”). For the avoidance of doubt, by way of example, if a Proposed Opportunity includes three (3) social posts for fulfillment on June 1, July 1, and September 1, the Deal Term begins upon execution of either an Alternative Agreement or the Agreement, and ends on October 1, which coincides with the final Activity Term.
The Proposed Opportunity will include a payment amount for each Deal Activity (“Payment”) which the Buyer agrees will be paid to the User, by the Buyer, to compensate the User for each Deal Activity, to be paid in United States Dollars (USD). Once User has fulfilled a Deal Activity, submitted the agreed upon proof of fulfillment to the Buyer (the “Proof”), and the Buyer has accepted such Proof, which will not be unreasonably withheld, then the Payment process will begin. In the event that a Deal Activity is not completed to the satisfaction of Buyer, Buyer agrees to notify User no later than three (3) days from the submission of Proof for the Deal Activity which Buyer deems incomplete (the “Incomplete Deal Activity”), and provide User with detailed feedback regarding how to complete the Deal Activity to Buyer’s satisfaction, and, if agreed upon by the Parties, an updated Fulfillment Date. Buyer’s failure to notify User of an Incomplete Deal Activity within three (3) days of submission of Proof is deemed acceptance of the Proof and will prompt Opendorse to begin the Payment process.
Upon Buyer sending the Proposed Opportunity, Opendorse shall authorize Buyer’s method of payment for all monies due for the Proposed Opportunity. Upon User’s fulfillment of each Deal Activity in the Proposed Opportunity, and the Buyer’s subsequent acceptance of User’s Proof, which will not be unreasonably withheld, Opendorse will charge the Buyer’s method of payment. Once Payment is processed, the Payment for the Deal Activity will be made available in the User’s Account. User may request a Cash Out (i.e. transfer funds to a bank account) at any time, provided that there is a balance in the User’s Account. Once a Cash Out request is made, the Payment will be transferred to User’s designated account, typically within three (3) business days.
As Payment will be facilitated through the Platform, the Parties acknowledge and agree that Opendorse shall collect personal financial information (“PFI”) from each Party that will enable Opendorse to process payment. The PFI will be used only to facilitate payment. Buyer will be responsible for a transaction fee for each Deal Activity that includes Payment. Buyer is responsible for the payment of any applicable sales or use taxes as part of the transaction. User expressly acknowledges that Buyer must deliver Payment to Opendorse before Payment is released to the User.
4. DEAL CONTENT.
Activity Content means any content (copy/messaging and/or media such as images, videos, or GIFs) that is provided by Buyer to User, or created by User to fulfill any of the Deal Activities. The Platform may offer Buyer the ability to permit User to edit Activity Content prior to the User’s delivery of the Deal Activity (“Editable Activity Content”) when the Activity is being fulfilled on social media. If Buyer elects to offer Editable Activity Content to User, Buyer acknowledges and agrees that neither Buyer, nor Opendorse, can control, nor are they responsible for, any such edits to the Editable Activity Content made by User, and expressly waives all rights of action against the User and Opendorse for any such edits to the Editable Activity Content. Likewise, User accepts sole responsibility for any such Editable Activity Content.
Any attempt by Buyer to instruct, coerce or manipulate User into hiding the commercial relationship between Buyer and User may result in the immediate removal of Buyer from the Platform and/or termination of Buyer’s Account.
The Parties agree that they are required to, at all times, ensure that any and all Activity Content complies with any applicable law or regulation governing advertisement, endorsement, or social media marketing, including, but not limited to, any disclosure on such Activity Content regarding the fact that it is an advertisement as indicated by Section 5 of the Federal Trade Commission Act and the Federal Trade Commission’s Endorsement Guidelines (the “Guidelines”), as well as the guidelines set forth by all governing bodies with authority over Users.
Content Created by User for a Deal
In the event that User is asked to create a video or photograph, or provide content for use in a Deal Activity, such content becomes the sole property of Buyer for the sole use in connection with the Proposed Opportunity during the Deal Term. Any other use by Buyer requires the express consent of User, which may be withheld at User’s sole discretion.
The following requirements apply to all Activity Content, including any edits made to Editable Activity Content: (i) All Deal Activities must be in the English language or such other language as is identified and agreed upon in the particular Proposed Opportunity; (ii) Activity Content must be original, unless otherwise specified and agreed upon in the particular Proposed Opportunity; (iii) Activity Content may not target children under the age of 13, infringe on the legal rights of third parties, or include or support any of the following: excessive profanity, violence, racial intolerance, illicit drugs, drug paraphernalia, pornography, sexually explicit material, or any other content that promotes intolerance or illegal activity, (iv) Activity Content will not include any third party intellectual property, including, but not limited to, branded clothing, copyrighted music, or third party logos, that has not been secured through a license from the third party. Any Activity Content in violation of the previous sentence shall constitute “Prohibited Content.”
5. GRANT OF RIGHTS.
During the Deal Term, the Parties grant to each other a limited, nonexclusive, royalty-free, worldwide, non-assignable, non-sublicensable license to use their name, image, likeness, logos, trademarks, service marks, or other intellectual property solely as expressly authorized herein and specifically in connection with the Proposed Opportunity.
During the Deal Term, User grants Buyer a limited, non-exclusive, royalty-free, worldwide, non-assignable, and non-sublicensable license to use, display, perform, reproduce, republish, promote, and distribute the Deal Activity in its original form in all forms of media and through any digital media channels (now known or hereafter developed), including but not limited to television, radio, print, Internet site, and other electronic communications, including any content or material added to any Editable Activity Content, subject to any restrictions set out in this Deal.
If a request for whitelisting is included in the Brief section of a Proposed Opportunity, the Buyer shall be entitled to “whitelist” and/or “promote” any Deal Activity listed above for purposes of further engagement with their audience. All whitelisted Proposed Opportunity Activities may only be used in the exact form as posted by the User, and may only be used during the Activity Term.
Buyer grants to User the right to use Activity Content provided hereunder in order to fulfill User’s obligations pursuant to the Agreement. At the termination of this Agreement, the foregoing licenses shall automatically terminate absent a separate agreement to the contrary between the Parties, and all rights granted to the Parties shall cease and revert to the other Party. Buyer may, at any time and for any reason, require User to delete or remove any Deal Activity delivered pursuant to this Agreement at no additional cost. Use of Buyer’s intellectual property is subject to Buyer’s guidelines and approval.
6. RELATIONSHIP OF THE PARTIES.
This Agreement shall not be construed to create an employer/employee, joint venture, partnership, or principal-agent relationship between Buyer and User. User’s services provided to Buyer with respect to the Deal Activity are completed as an independent contractor. User shall be responsible for the payment of all taxes on Payment received with respect to the Deal, and Buyer shall make no deductions for tax purposes from any consideration transferred to User. Notwithstanding the terms of this Agreement, neither Party shall have any power to bind the other in any manner whatsoever. The terms of this Section 6, Relationship Of The Parties shall survive termination or expiration of this Agreement.
Buyer may terminate this Agreement (i) immediately, in the event that, during the Activity Term, User commits, or is publicly accused of committing (as reported, and not promptly retracted, by a reputable national media organization) any crime or other act involving moral turpitude that is likely to negatively affect Buyer’s brand image, or (ii) in the event User materially breaches the terms of this Agreement and fails to cure such a material breach within five (5) days of receipt of written notice from Buyer specifying, in detail, such alleged material breach. If Buyer terminates this Agreement under this Section 7, Termination once User has fully performed the Deal Activity(s), but before the completion of the Deal Term, neither User nor Buyer shall have any further rights, obligations, or duties with respect to the Agreement, provided however, User shall not be required to return their Payment.
User shall have the right to terminate this Agreement immediately upon written notice to Buyer (i) in the event Buyer files or has filed against it any petition for bankruptcy, reorganization, arrangement, or other protection under any state, federal, or other applicable jurisdictions’ bankruptcy, insolvency, or similar laws; or (ii) Buyer materially breaches the terms of this Agreement (and fails to cure such a material breach within five (5) days of its receipt of written notice specifying, in detail, such alleged material breach). If User terminates this Agreement under this Section 7, Termination, neither Buyer nor User shall have any further rights, obligations, or duties with respect to this Agreement, provided that any and all rights granted to Buyer by User under such Agreement shall automatically and irrevocably revert back to User, and User shall be entitled to the entire Payment for any Deal Activity already completed.
8. INTELLECTUAL PROPERTY.
Nothing in this Agreement shall be construed as granting either Party any right to make use of the other Party’s name, image, likeness, logos, trademarks, service marks, or other intellectual property beyond the Activity Term or Deal Term. For the avoidance of doubt, any use of either Party’s name, image, likeness, logos, trademarks, service marks, or other intellectual property shall be subject to the other Party’s approval.
Unless otherwise agreed, neither Party grants to the other any rights or uses of any names, logos, trademarks, service marks, or other intellectual property owned or controlled by any third party (including, but not limited to, any National Governing Body, or any other professional or amateur team, club, or organization) by virtue of entering into this Agreement, provided however, Buyer shall be solely responsible for clearing any and all third-party rights associated with the Activity Content.
Neither Party shall disclose (or permit any third party to disclose) the financial or other terms of this Agreement, with the exception of either Party’s agents, attorneys, accountants, representatives, or employees, except as may be required by law.
10. FORCE MAJEURE.
If for any reason beyond either Party’s reasonable control, including but not limited to an act of nature, inevitable accident, fire, act of or immediate threat of terrorism, pandemic, epidemic, failure of technical facilities, power failure and internet disruption, lockout, boycott, war, act of God, labor troubles, riot or civil commotion, delays of commercial carriers, restraint of public authority, economic crisis or government action or similar occurrence (a “Force Majeure Event”), either Party’s obligations in this Agreement are hindered or prevented, in whole or in part, the Parties agree that they will reschedule the performance of these obligations for a mutually agreed upon date and time. In such case, either Party’s failure to perform shall not be a breach of this Agreement. If a Force Majeure Event continues (or can reasonably be expected to continue) for longer than eight (8) weeks, then either Party may terminate this Agreement, and User shall be entitled to all payments due prior to the commencement of the Force Majeure Event. No other Payment shall be due to User for the time period after the commencement date of the Force Majeure Event.
11. CHOICE OF LAW AND DISPUTE RESOLUTION.
If a dispute arises under this Agreement, the Parties agree that they will first enter into good-faith negotiations to resolve such a dispute. If such a dispute cannot be resolved first through good-faith negotiations, the Parties agree that any disputes or claims under this Agreement will be resolved by binding arbitration. Each Party expressly waives the right to litigate (or participate in as a party or class member) all disputes in a court of law before a judge or jury. Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Federal Arbitration Act. Any court with jurisdiction over the parties may enforce the arbitrator’s award. Any arbitration will be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules. The Parties agree to commence arbitration only in their respective county of residence. For the avoidance of doubt, any conflict dispute and/or resolution of such dispute will not be managed or enforced by Opendorse.
Except in connection with Dispute Resolution proceedings, both Parties hereby agree that, during the Activity Term, and for one (1) year thereafter, neither Party, including its respective employees, officers and/or spokesperson(s), will make any statement or take any action that disparages, is derogatory or is otherwise damaging to the other Party, including its respective employees, officers and/or spokesperson(s). Violation of this provision is hereby deemed an incurable, material breach, allowing for immediate termination of this Agreement by the other Party. The provisions of this Section 12, Non-Disparagement shall survive termination or expiration of this Agreement.
Neither Party shall transfer or assign any right in this Agreement to any other party. However, nothing herein shall prevent User from assigning the monetary benefits of this Agreement as User may so desire.
The failure of any Party to enforce its rights under this Agreement shall not be construed as a continuing waiver or relinquishment thereof.
Each Party (in such capacity, “Indemnitor”), agrees to indemnify and hold the other Party and its Affiliates (in such capacity, “Indemnitee”) harmless from and against all losses, damages, claims, costs, expenses, fines, and penalties (including reasonable attorney’s fees) of any name or nature arising out of any claims, suits, or disputes against Indemnitee arising out of, or in any way connected with, this Agreement, “Affiliates” shall mean any entity which either controls or is controlled by a Party. For the avoidance of doubt, the Indemnitor will have no obligation to indemnify the indemnitee for any claim, suit, or dispute that alleges negligence or willful misconduct on the part of the indemnitee or any of the Indemnitees’ Affiliates.
16. REPRESENTATIONS AND WARRANTIES.
Each of the Parties represents and warrants that it has the full right and power to enter into this Agreement, to perform all obligations hereunder, and to grant all rights hereunder without violating the legal or equitable rights of any other person or entity.
17. LIMITATION OF LIABILITY.
Notwithstanding anything to the contrary contained herein, if Buyer (or any entity claiming through Buyer) incurs any expenses, damages, or other liabilities (including without limitation, reasonable attorneys’ fees) in connection herewith, User’s liability shall be limited to proven, direct, actual damages incurred by Buyer, and User’s maximum liability to Buyer will not exceed the monies actually received by User herein, excluding reimbursement of expenses. In no event will any Party hereto be liable herein for any consequential, punitive, indirect, reliance or incidental damages.
In no event shall Opendorse, the Buyer, or any Affiliates be liable to the User for any indirect, special, incidental, consequential, punitive, or exemplary damages arising out of or in connection with, any failure of performance, error, omission, interruption, defect, delay in operation or transmission, computer virus, or line or system failure. The foregoing limitations apply whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Opendorse, the Buyer, or any Affiliates have been advised of the possibility of such damages.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages; therefore, the above limitations may not apply. In such jurisdictions, liability is limited to the greatest extent permitted by law.
18. MODIFICATION & ENTIRE AGREEMENT.
The Terms of this Agreement constitute the entire agreement between Buyer and User with respect to such Agreement and may not be modified except in an agreement in writing agreed upon and executed by both User and Buyer.