TERMS AND CONDITIONS - ADVERTISER

TERMS AND CONDITIONS

GameChanger has developed a web-based service (the “Platform”) that enables engagement with content creators (“Influencers”) and the distribution of content created by Influencers (“Posts”) through videos, social media and other online channels. Customer, or in the event that Customer represents or is acting on behalf of an end customer, that end-customer (in either case, “Advertiser”), desires to use the Platform to engage with and obtain content from Influencers for use in Advertiser’s advertising campaigns. This Agreement sets forth the terms under which GameChanger is willing to provide services related to the identification and management of Influencers and Posts (collectively, the “Services”) to Customer. All Services provided by GameChanger and access to the Platform will be governed solely by the terms of this Agreement.

All Services provided under this Agreement will be as set forth in Service orders placed by Customer with GameChanger seeking to access and use certain of the Services (whether placed through the Platform, by email, phone, or otherwise, each an “Order”). Customer may place multiple Orders for Services under this Agreement. No Order will be effective, and GameChanger will have no obligation to provide any Services under an Order, until mutually agreed to by GameChanger and Customer. All access to and use of the Services by Customer is subject to the terms of this Agreement. In addition to the terms of this Agreement and each accepted Order, access by Customer to and use of the Services is subject to GameChanger’s then-current policies relating to the Services, including, without limitation, the GameChanger Privacy Policy (“Privacy Policy”) as though such policies were set forth in this Agreement.

This Agreement supersedes any and all oral or written agreements or understandings between the parties, as to the subject matter of the Agreement. No modification or amendment of this Agreement will be effective unless made in writing and signed by both parties. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect. The parties are independent contractors and nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties. Neither party is an agent of the other and neither party is authorized to make any representation, contract, or commitment on behalf of the other party. No term of this Agreement will be construed to confer any rights upon any third party or to create any third-party beneficiary rights. All remedies under this Agreement are cumulative with all other rights and remedies herein or in any other agreement between the parties or under applicable law. This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

  1. DEFINITIONS. Terms used in this Agreement will have the definitions given in this Agreement or, if not defined in this Agreement, will have their plain English meaning as commonly interpreted in the United States.
  2. SUBSCRIPTION. Subject to the terms and conditions of this Agreement, including the payment by Customer of all applicable Fees (as defined below), during the term GameChanger will: (1) provide Customer with a subscription right to use the software platform solely for purposes of Customer’s own internal use; and (2) grant Customer a limited, non-exclusive, personal, non-transferable, non-sublicensable right to install and operate any applications and other software provided by GameChanger (the “Software”) on supported computers and supported mobile devices owned or operated by Customer or its Users (as defined below) as necessary for Customer and its Users to access the Services. The Software may contain or include software code owned or provided by third-party licensors of GameChanger (“Third-Party Code”). For any Third-Party Code clearly indicated to be subject to the terms of a third party license (a “Third-Party License”), the terms of the applicable Third-Party License will apply to the Third-Party Code independent of the terms of this Agreement. All other Third-Party Code provided to Customer by GameChanger may be used only under the terms of this Agreement. Nothing in this Agreement limits Customer’s rights under, or grants rights to Customer that supersede, the terms of any such applicable Third-Party License.
  3. ACCESS TO THE SERVICES. Customer will be provided with an account (an “Account”) through which Customer may enable employees and contractors of Customer (“Users”) to access the Services. Customer will be permitted to establish user identifications and passwords through which individual Users may access the Services through the Customer Account (each such User identification and password, a “User ID”). Each User ID is issued to a specific User and each User ID is personal in nature to that User and may be used only by that User. Customer is and will remain solely responsible for maintaining the accuracy of all User information provided to GameChanger, and for compliance by each User with the applicable terms of this Agreement and any other agreement to which the User agrees in connection with the Services. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of the Services and will notify GameChanger promptly of any such unauthorized access or use of the Services or if any User ID is lost, stolen, or otherwise compromised. Customer acknowledges that Customer is and will remain fully responsible for all costs, fees, liabilities, or damages incurred through any access to or use of the Services through the Account or under any User ID (whether lawful or unlawful) as though such use were by Customer. In no event will GameChanger be liable for the foregoing obligations or any failure by Customer to fulfill such obligations. Except for the Software, Customer will be solely responsible, at Customer’s own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for Customer and each User to connect to, access, and use the Services.
  4. SERVICES.
    1. GameChanger Provided Influencers. GameChanger has identified Influencers to create Posts on behalf of GameChanger Customers and assign all right, title and interest in and to such Posts to GameChanger. Through the Services, Customer may (a) identify Influencers from whom Customer desires to solicit creation of a Post pursuant to an Order for such Post, and (b) provide any additional requirements that Influencers must accept prior to providing a Post for Customer (“Customer Requirements”). GameChanger will use commercially reasonable efforts to (i) solicit a Post from each Influencer identified by Customer in accordance with the terms and conditions set forth in the applicable Order, (ii) exercise its rights to solicit and distribute Posts in a manner intended to entitle the parties to qualify for the limitations on liability for publication of user generated content set forth in Section 230 of the Communications Decency Act (47 USC § 230), and Section 512 of the Digital Millennium Copyright Act (17 USC § 512), and (iii) require Influencers to accept any Customer Requirements. GameChanger assumes no responsibility or liability for any Post or any text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content (“Content”) contained in any Post.
    2. Distribution. The Services will permit Customer to review and approve Posts created by Influencers pursuant to a Customer Order (each Customer approved Post, an “Approved Post”). Following Customer’s review and approval, Customer may utilize the Services to distribute Approved Posts through the then-available distribution channels, such as Customer’s website, YouTube, Facebook, Twitter and Pinterest. GameChanger will use commercially reasonable efforts to ensure that Influencers publish Approved Posts on the applicable Influencer’s website.
    3. Management. GameChanger will provide the measurement, reporting and payment services set forth in the applicable Order.
    4. Professional Services. As may be set forth in the Order under this Agreement or upon Client’s request and GameChanger’s agreement, GameChanger will provide Client with additional professional services relating to the Services. Unless set forth in the applicable Order or otherwise agreed to in writing by the parties, all such additional services will be charged to (and payable by) Client at GameChanger’s then-current rates or agreed upon rates for such services.
    5. Communications. The Platform may allow Customer and Users to communicate directly with Influencers (“Communications”). The transmission of Communications to Influencers constitutes Customer’s affirmative opt-in to the disclosure by GameChanger of Customer’s data and information (which may include personally identifiable information) to such Influencer under the terms of this Agreement and the Privacy Policy. Customer agree that no Communications will: (a) violate this Agreement, the Privacy Policy; (b) violate any applicable laws, rules, guidelines or regulations; (c) be libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (d) constitute an infringement or misappropriation of the IPR (as defined below) or other rights of any third party; (e) be illegal in any way or advocate illegal activity; (f) be false, misleading, or inaccurate; or (g) be considered, in the sole discretion of GameChanger, junk mail, spam, a part of a pyramid scheme, a disruptive commercial message or disruptive advertisement.
  5. BRANDING. Each Post may use the Advertiser Marks (as defined below) as set forth in each applicable Order. Customer grants GameChanger a license, with a limited right of sublicense to the Influencer identified to create the applicable Post, to use the trademarks, service marks, trade names and other identifiers set forth on each applicable Order or agreed to by Customer (“Advertiser Marks”) in connection with the performance of the Services and GameChanger’s obligations under this Agreement. GameChanger agrees that the Advertiser Marks are and will remain the sole property of Advertiser, and that all use of any of the Advertiser Marks and all goodwill developed therein and therefrom will inure solely to the benefit of Advertiser. All such use of the Advertiser Marks by GameChanger will comply with the terms of this Agreement and any trademark usage instructions provided by Customer to GameChanger in connection with this Agreement, provided that those limitations do not restrict GameChanger from performing its obligations under this Agreement. Customer will indemnify, defend and hold harmless GameChanger from any and all losses, costs, damages, liabilities or expenses (including without limitation reasonable attorney’s fees) incurred or arising from any claim relating to GameChanger’s (or any Influencer’s) permitted Use of the Advertiser Marks.
  6. THIRD-PARTY SERVICES. The Services may include services developed, provided or maintained by third-party service providers (“Third Party Services”). In addition to the terms of this Agreement, Customer’s access to and use of any Third Party Services is also subject to any other agreement separate from this Agreement that Customer may be required by GameChanger to enter into (or may have already been required to entered into) relating to those Third Party Services, either through the Platform or in written form (each, a “Third Party Service Agreement”). The terms of any Third Party Service Agreement will apply to the applicable Third Party Services provided under that Third Party Service Agreement in addition to the terms of this Agreement. Except as set forth in this Agreement, the terms of any Third Party Service Agreement will control in the event of a conflict between the terms of this Agreement and that Third Party Service Agreement. All other Third Party Services will be subject to the terms of this Agreement. Third Party Services may be subject to additional fees as set forth on the Platform or in an applicable Order under this Agreement or an applicable Third Party Service Agreement. Notwithstanding the terms of any Third Party Services Agreement, GameChanger may modify or discontinue any Third Party Service at any time upon written notice to Customer if such services are modified or discontinued by the third-party provider of those services.
  7. SUPPORT SERVICES. As may be indicated in an applicable Order under this Agreement, and subject to compliance by Customer with the terms of this Agreement, including, without limitation, the payment by Customer of all applicable Fees, GameChanger will provide Customer with support for the Services in accordance with GameChanger’s then-current support policies (“Support Services”). Unless otherwise indicted in the applicable GameChanger support policy, GameChanger will provide the Support Services only to Customer and will have no obligation to provide any services directly to (or respond to any support or other requests from Customer relating to) Users, provided that GameChanger reserves the right to contact Users to facilitate the delivery of Support Services or other services relating to the Services as deemed necessary by GameChanger.
  8. ADDITIONAL SERVICES.
    1. Additional Services. Customer may from time to time request that GameChanger perform certain additional services relating to the Services, including, without limitation, modifications to the Services (such additional services, the “Additional Services”). The performance of all such Additional Services will be as mutually agreed by the parties and subject to the terms of this Agreement and formally specified in the Order mutually acceptable to, and executed by, Customer and GameChanger. GameChanger will perform all applicable Additional Services at GameChanger’s then-current service rates or (as applicable) such other rates as may be set forth in the applicable Order relating to those Additional Services and Customer agrees to pay GameChanger all such fees as set forth in this Agreement or any such Order. GameChanger may subcontract its obligations under any Order provided that GameChanger remains responsible for compliance with the applicable terms of the Order and this Agreement. Unless otherwise provided in an Order, any inventions, conceptions, developments, discoveries, works of authorship, or other deliverables or work product that arise from or relate to the Additional Services (collectively “Deliverables”), and all IPR therein or relating thereto, shall be solely owned by GameChanger. To the extent such Deliverables relate to the Services, such Deliverables will be included in the definition of “Services” for the purposes of this Agreement and provided to Customer under the terms of this Agreement as part of the Services. Any additional licenses or others rights of Customer in or to any Deliverables will be as set forth in the Order relating to those Deliverables.
    2. Contests. The Platform may enable (but not require) Customer to offer contests and sweepstakes to Influencers and reader’s of Influencers’ Approved Posts (collectively, “Contests”) and to award prizes to readers or Influencers participating in those Contests. Unless explicitly stated in the Order, contests are not administered by GameChanger and GameChanger is not liable for any contest rules, outcomes, or subsequent claims. Should the Order call for GameChanger providing Contests, each Contest will be administered by an Agent of GameChanger on behalf of the Customer.
  9. RESTRICTIONS. Unless otherwise specified in any Order under this Agreement, Customer acknowledges that the Services, Platform, Software, Platform Data (as defined below), and the other databases, software, hardware and other technology used by or on behalf of GameChanger to provide the Services and operate the Platform (collectively, the “Technology”) and their structure, organization, and underlying data, information and source code constitute valuable trade secrets of GameChanger and its providers and licensors. Customer will not, and will not permit any User or other third party to: (1) access or use the Technology, in whole or in part, except as expressly provided in this Agreement; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (3) use automated scripts to collect information from or otherwise interact with the Technology; (4) alter, modify, reproduce, create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Customer’s rights to access or use the Technology, including, without limitation, providing outsourcing, service bureau, hosting, application service provider or on-line services to third parties, or otherwise make the Technology, or access thereto, available to any third party; (6) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Technology; (7) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (8) use the Technology for purposes of monitoring their availability, performance or functionality, or for any other benchmarking, business intelligence, data mining, or competitive purposes; or (9) interfere in any manner with the operation or hosting of the Technology, or attempt to gain unauthorized access to the Technology. Customer will not allow any access to or use of the Technology by anyone other than Customer’s authorized Users, and any such use will be consistent with the terms, conditions and restrictions set forth in this Agreement.
  10. FEES AND PAYMENT. Customer agrees to pay GameChanger all fees set forth in each Order, Software License Agreement, Third Party Services Agreement, or otherwise specified herein or on the Platform or through the Services (“Fees”). All Fees will be billed as indicated in the applicable Order or in the other applicable document in which those Fees are set forth. If the applicable Order or the other applicable document in which the Fees are set forth does not specify any applicable payment terms for any Fees, then Customer agrees to pay all such Fees as set forth on each invoice for such Fees issued by GameChanger under this Agreement in immediately available U.S. funds within 30 days of the date of Customer’s receipt of such invoice. If Customer has specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, Customer grants GameChanger the right to charge the credit card or debit the bank account provided to GameChanger for all Fees incurred under this Agreement. Customer is responsible for payment of all costs or fees associated with payment by wire transfer, or through third party invoicing or accounts payable service providers. Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law. Unless otherwise specified in an Order, GameChanger may change any portion of the Fees by notifying Customer of the change in writing at least 90 days prior to the expiration of the then-current period (or if the period is shorter than 90 days, at the start of the current period), such changes to take effect at the beginning of the next period of this Agreement. If GameChanger requires use of collection agencies, attorneys, or courts of law for collection on Customer’s account, Customer will be responsible for those expenses. Customer will be responsible for all use and sales, taxes, if any, (other than taxes resulting from GameChanger’s income or property) imposed on the Services provided under this Agreement.
  11. TERM. This Agreement will be effective upon the Effective Date. Unless otherwise stated in the applicable Order for the Services, this Agreement will continue for an initial period of 1 year and will thereafter automatically renew for successive additional 1-year periods. Unless terminated as set forth herein, the term of this Agreement will continue to renew until Customer notifies GameChanger that Customer does not wish to renew the Agreement at least 90 calendar days prior to the end of the then-current period. In all other cases, the term of this Agreement will continue until terminated as set forth herein.
  12. TERMINATION.
    1. By GameChanger. This Agreement may be terminated by GameChanger after GameChanger delivers a 30 day written notice to the Customer or upon any material breach by Customer of this Agreement that remains uncured for a period of 30 days (except for failure to pay any sums when due, which must be cured within 10 days) after GameChanger delivers written notice to Customer of such breach.
    2. By Customer. This Agreement may be terminated by Customer if GameChanger materially breaches the performance of any material covenant, term or provision of this Agreement to be performed by it and such material breach continues for a period of 30 days after written notice is delivered to GameChanger from Customer stating the specific default, then Customer may terminate this Agreement by giving notice thereof to GameChanger.
    3. Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and subscriptions granted to Customer under this Agreement will terminate; (b) Customer will immediately cease all use of and access to the Platform and Services; (c) all Fees then owed by Customer will become immediately due and payable; (d) Customer will immediately either return to GameChanger or, at GameChanger’s discretion, destroy the Customer IDs, GameChanger Confidential Information (as defined below), and other information related to this Agreement in Customer’s possession or control. Following any termination or expiration of this Agreement (other than resulting from a failure to pay any Fees when due), GameChanger will use commercially reasonable efforts to store Customer Content (as defined below) and provide Customer with limited access to the Services to download copies of the Customer Content for 30 days (or if longer, the post-termination period specified in an applicable Order). After the foregoing retention period, GameChanger may delete any of Customer Content held by GameChanger at any time. The following Sections will survive termination or expiration of this Agreement for any reason: 9 (Restrictions), 10 (Fees and Payment), 12 (Termination), 14 (Ownership), 16 (Warranties and Disclaimer), 17 (Indemnity), 18 (Limitation on Liability), 19 (Data Privacy), 20 (Confidentiality), 21 (Governing Law) and 23 (General).
  13. SUSPENSION. Without limiting GameChanger’s right to terminate this Agreement, GameChanger may also suspend Customer’s access to the Platform or Services, including, without limitation, all of Customer Content, upon written notice to Customer following any actual or reasonably suspected breach of this Agreement or applicable law or to prevent the occurrence of any other conduct deemed by GameChanger, in its reasonable discretion, to be harmful, inappropriate or detrimental to the Platform, Services, GameChanger, or any other GameChanger customer or user.
  14. GAMECHANGER OWNERSHIP. GameChanger retains all rights, title and interest, including, without limitation, all IPR, in and to the Platform, Services, Technology, Platform Data, any Software, and any additions, improvements, updates, and modifications thereto. Customer acknowledges that Customer is not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to Customer to use them apart from Customer’s right to access the Services under this Agreement. The GameChanger name, logo and the product and service names associated with the Services are trademarks of GameChanger (or its third party providers), and no right or license is granted to Customer to use them. For purposes of this Agreement, “IPR” means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
  15. RIGHTS IN POSTS AND DATA.
    1. Posts. The following section only applies when Customer uses the “GameChanger Master Influencer Agreement” when working with influencers in the Platform or if Customer has hired GameChanger to perform project management of influencers (see Professional Services). Using any other custom legal agreement with influencers will void this section. GameChanger hereby assigns to Customer all of GameChanger’s right, title and interest in and to all Posts created by Influencers for Customer, the Content contained therein (“Customer Content”), and all IPR therein or thereto. Customer agrees that it will provide attribution of each Approved Post, or portion thereof, to the applicable Influencer in a manner reasonably agreed to by GameChanger and Customer. Customer agrees that neither it, nor any Advertiser or other transferee or licensee of Customer, will Use any Post (a) for a purpose unrelated to the promotion of the brand (the “Brand”) identified in the Order applicable to such Post; (b) in such a manner as to alter or distort the original intent or message of the Post; (c) with any Content that is libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (d) with any Content that is an infringement or misappropriation of the rights of any third party; (e) in a manner that is illegal or unlawful in any way or that advocates illegal or unlawful activity; (f) in a manner that is false, misleading, or inaccurate; (g) in connection with junk mail, spam, a part of a pyramid scheme, a disruptive commercial message or disruptive advertisement; or (h) unless specified in an Order, as any part of a product that is made available for sale (including, without limitation, as part of a collection of content sold in physical form, or made available on a subscription basis or through other paid access).
    2. Influencer Data. As between Customer, Advertiser and GameChanger, all rights in the data and information collected by GameChanger through the Platform resulting from or relating to the use or operation of the Platform by Influencers, Customer, Users and readers of Posts (collectively “Platform Data”) will be owned by GameChanger, and may be used by GameChanger for any lawful business purpose. Platform Data does not include any Post. GameChanger hereby grants to Customer a license, with a limited right of sublicense to the Advertiser identified in the applicable Order, to Use the Platform Data that GameChanger, at its option, provides to Customer for its internal business purposes. Notwithstanding the foregoing, Customer and GameChanger each agree to comply with the terms of the Privacy Policy in the collection, analysis, and Use of any data or information from Influencers or any other third party.
  16. WARRANTIES AND DISCLAIMER.
    1. BY Each Party. Each party represents, warrants and covenants to the other party that: (a) such party has full power and authority to enter into this Agreement and to perform its obligations under this Agreement; (b) this Agreement is a legal and valid obligation binding upon such party and enforceable in accordance with its terms; (c) this Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which such party is a party or by which such party is bound; and (d) such party will comply, and in the case of Customer will ensure that all Advertisers comply, with all laws, rules, and regulations applicable to this Agreement, the Platform, Use of the Posts, and such party’s performance hereunder.
    2. Disclaimer. ALL SERVICES, PLATFORM, TECHNOLOGY AND PLATFORM DATA AND PLATFORM DATA, AND ALL USE OF AND ACCESS THERETO ARE PROVIDED BY GAMECHANGER “AS IS” AND “AS AVAILABLE.” GAMECHANGER MAKES NO GUARANTEE, REPRESENTATION OR WARRANTY REGARDING THE TIMELINESS, RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS OR USEFULNESS OF ANY PORTION OF THE SERVICES, PLATFORM OR ANY PLATFORM DATA. GAMECHANGER EXPRESSLY DISCLAIMS, AND CUSTOMER DISCLAIMS ANY RELIANCE ON, ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER RECOGNIZES THAT THE CURRENT STATE OF TECHNOLOGY DOES NOT ALLOW FOR ERROR-FREE ACCESS TO THE PLATFORM AND AGREES THAT GAMECHANGER WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY ERROR, DELAY, OR INTERRUPTION IN PROVIDING THE SERVICES.
  17. INDEMNITY.
    1. By GameChanger. GameChanger will indemnify, defend, and hold harmless Customer and its officers, directors, employees, agents, Advertisers and licensors (each, a “Customer Party”) from and against all claims, actions, liabilities, losses, expenses, damages and costs (including, without limitation, reasonable attorney’s fees) that may at any time be incurred in whole or in part by reason of any allegations, claims, suits, or proceedings arising directly or indirectly from (a) the gross negligence or willful misconduct of GameChanger, or (b) any third-party claim relating to the breach by GameChanger of any representation, warranty or other provision of this Agreement. If a Customer Party is, or GameChanger reasonably believes that a Customer Party will become, subject to any third party claim or that Customer’s authorized use of any Post infringes any U.S. copyright, GameChanger will, at its option and expense: (i) procure for Customer the right to continue using the Post; or, if (i) is not commercially reasonable, (ii) terminate this Agreement and refund the Fees paid to GameChanger with respect to the applicable Order. GameChanger’s obligation under this Section 17.1 will not extend to any claim based on or arising from any: (1) additions, changes or modifications to the Post; or (2) use or incorporation of the Post with or into any other Content. Customer will give GameChanger prompt notice of any infringement or potential infringement covered by the obligations of GameChanger under this Section 17.1. THIS SECTION 17.1 STATES THE ENTIRE LIABILITY OF GAMECHANGER FOR INFRINGEMENT OR MISAPPROPRIATION CLAIMS RELATING TO THIS AGREEMENT THE SERVICES, PLATFORM OR ANY POST.
    2. By Customer. Customer will indemnify, defend, and hold harmless GameChanger and its officers, directors, employees, agents and licensors from and against all claims, actions, liabilities, losses, expenses, damages and costs (including, without limitation, reasonable attorney’s fees) that may at any time be incurred in whole or in part by reason of any allegations, claims, suits, or proceedings arising directly or indirectly from: (a) any additions, changes or modifications to the Post; (b) use or incorporation of the Post with or into any other Content; or (c) any third-party claim relating to the breach by Customer of any representation, warranty, or other provision of this Agreement.
    3. Each party seeking indemnification from the other party under this Section 17 will give the indemnifying party prompt notice of any claim subject to this Section 17, grant the indemnifying party sole control of the claim or action subject to indemnification, and provide the indemnifying party with reasonable cooperation and, at the request and expense of the indemnifying party, assistance in the defense or settlement of any claim or action subject to indemnification under this Section 17.
  18. LIMITATION ON LIABILITY. GAMECHANGER WILL NOT BE LIABLE TO CUSTOMER OR ANY CUSTOMER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY LOSS OF USE OR ACCESS, LOSS OF BUSINESS OR LOSS OF REVENUE OR PROFIT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PLATFORM, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF GAMECHANGER IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. GAMECHANGER’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM OR THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED ANY AMOUNTS ACTUALLY PAID TO GAMECHANGER BY CUSTOMER UNDER THE ORDER TO WHICH SUCH LIABILITY RELATES DURING THE 3 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.
  19. DATA PRIVACY. Customer expressly consents to, and GameChanger shall adhere to, the use and disclosure of personally identifiable User data and User information as described in GameChanger’s then-current Privacy Policy. Notwithstanding anything in the Privacy Policy, GameChanger will have the right to collect, extract, compile, synthesize, and analyze non-personally identifiable User data or User information (data or information that does not identify an entity or natural person as the source thereof) resulting from Customer’s access to the Platform and Customer’s use and operation of the Services. To the extent any such data or information is collected or generated by GameChanger, the data and information will be solely owned by GameChanger and may be used by GameChanger for any lawful business purpose without a duty of accounting to Customer, provided that the data and information is used only in an aggregated form, without directly identifying Customer, any User or Customer, or any other entity or natural person as the source thereof.
  20. CONFIDENTIALITY.
    1. Confidential Information. For purposes of this Agreement, “Confidential Information” means any data or information regarding the business, finances, services or technology of either party provided to or otherwise obtained by the other party, including, without limitation, technical, marketing, financial, pricing, employee, and planning information, and any other data or information received or otherwise obtained under this Agreement that a reasonable person should have known, under the circumstances, was confidential or proprietary. Any information about Influencers (including contact information) is the Confidential Information of GameChanger.
    2. Disclosure of Relationship. Customer agrees to be named as a GameChanger Customer, act as a reference on its use of GameChanger Software and Services
    3. Protection. Each party (the “Receiving Party”) may from time to time receive or otherwise obtain Confidential Information from the other party (the “Disclosing Party”). The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information in the same manner as the Receiving Party protects its own confidential information of a similar nature and with no less than reasonable care.
    4. Exceptions. The Receiving Party’s obligations with respect to any Confidential Information of the Disclosing Party will terminate if such information: (a) was already lawfully known to the Receiving Party as of the Effective Date; (b) is disclosed to the Receiving Party after the Effective Date by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party becomes, generally available to the public; or (d) is independently developed by the Receiving Party without access to, use of, or reference to, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) necessary for the Receiving Party to enforce its rights under this Agreement or any other agreement relating to the Platform; or (ii) required by law or by the order of a court of similar judicial, regulatory or administrative body, provided that the Receiving Party notifies the Disclosing Party in advance of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
  21. GOVERNING LAW. The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of California, U.S.A. as such laws apply to contracts between California residents performed entirely within California. Each party agrees that it will bring any action or proceeding arising from or relating to this Agreement exclusively in a federal court in the District of California, U.S.A. or in state court in San Jose, California U.S.A., and Customer irrevocably submits to the personal jurisdiction and venue of any such court in any such action or proceeding or in any action or proceeding brought in such courts by GameChanger.
  22. NOTICE. All notices, reports or consents permitted or required under this Agreement will be in writing, delivered by personal delivery, electronic mail, facsimile transmission or by certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, five (5) business days after deposit in the mail, first class postage prepaid, or upon acknowledgment of receipt of electronic transmission. Notices from GameChanger to Customer will be sent to the electronic mail address associated with Customer’s Account or to the attention of an officer of Customer at the addresses set forth at the beginning of this Agreement (or such other physical address as Customer may specify in writing). Notices from Customer to GameChanger will be sent through the Services, or to an officer of GameChanger at GameChanger’s mailing address as provided on the Platform (or such other physical address as GameChanger may specify in writing).
  23. GENERAL. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Nothing in this Agreement will limit either party’s right to seek immediate injunctive or other equitable relief in any court of competent jurisdiction. The parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of this Agreement, including, in particular, Sections 9, 15.1 and 20. Neither this Agreement nor rights or obligations hereunder may be assigned, transferred or delegated by either party in whole or in part, by operation of law or otherwise, without the prior written approval of the other party, except that either party may assign this Agreement without consent (a) to any affiliate of the assigning or transferring party, or (b) to any third party pursuant to any merger, consolidation, sale of the stock of, sale of all or substantially all of the business of, or reorganization involving the assigning or transferring party, provided that prior to such assignment or transfer all such assignees and transferees agree in writing to be bound by the terms and conditions of this Agreement. Any attempt to assign or otherwise transfer this Agreement or the rights or obligations under this Agreement in violation of this Section will be void. This Agreement will be binding upon, inure to the benefit of, and will be enforceable by and against, the successors, heirs, beneficiaries, personal representatives, and permitted assigns of each party. Any failure of GameChanger to perform or delay in the performance of GameChanger’ obligations under this Agreement due to any cause or event not reasonably within GameChanger’ control, including but not limited to casualty, labor dispute, failure of equipment or carriers or utilities, compliance with governmental authority or Act of God, shall not constitute a breach of this Agreement, and GameChanger’s performance shall be excused during such period of delay. GameChanger may reference Customer as a user of the Services and use Customer’s name and logo, as applicable, in listings of users of the Services appearing on the GameChanger web site and for other marketing and promotional purposes relating to the Services.

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