PILOT PLATFORM AGREEMENT FOR BRANDS
This Pilot Platform Agreement for Brands (“Agreement”) is entered into on August 1, 2023, (the “Effective Date”) between RockyAds, LLC (“Rocky”) and the brand listed on the signature page (“Brand”). Brand and Rocky are referred to herein collectively as the “Parties” and each individually, as a “Party.” The Parties agree as follows:
1.SERVICES.
Services. Subject to Brand’s compliance with this Agreement, Rocky shall provide Brand with access to Rocky’s crowdsourcing advertising platform (the “Platform”) to enable Brand to use User Generated Content in accordance with the terms of this Agreement (the “Rocky Services”).
Rocky Obligations. During the Term, Rocky shall invite end users (“End Users”) to the Platform to create and submit content that advertises Brand’s goods and services (“User Generated Content”) for Brand’s use in accordance with this Agreement. All User Generated Content shall be watermarked with Rocky’s trademark and logo. Brand may request in writing that Rocky remove the watermark from certain User Generated Content, and Rocky shall determine in its sole discretion whether to remove such watermark.
Platform. During the Term, the Platform will enable Brand to: (i) create a Brand profile on the Platform (the “Brand Profile”), which shall include Brand’s trademark, logo, artwork, brand mantra, and information and imagery related to Brand’s products and services (“Brand Profile Materials”); (ii) include certain digital assets (including the Brand trademark, logo, imagery, audio, and video) (“Digital Assets,” and along with the Brand Profile Materials, the “Brand Content”) on the Brand Profile that Brand permits End Users to use in connection with creating User Generated Content; (iii) invite Brand customers and/or employees to be End Users on the Platform and to create and submit User Generated Content for Brand’s use in accordance with this Agreement; and (iv) review the User Generated Content submitted through the Platform and select up to six (6) pieces of User Generated Content that complies with Rocky’s Terms of Use to use in connection with Brand’s advertising campaigns outside of the Platform (the “Selected User Generated Content”).
2.INTELLECTUAL PROPERTY.
License Grant to the Platform. Subject to the terms and conditions of this Agreement, Rocky hereby grants to Brand during the Term a limited, non-exclusive, non-transferable license, without the right to grant sublicenses, to access and use the Platform solely for Brand’s internal use, and to permit Brand’s employees, contractors, or agents authorized by Brand (the “Authorized Users”) to access and use the Platform solely for Brand’s internal use.
Rocky Material. As between Brand and Rocky, Rocky owns all right, title, and interest (including all intellectual property rights) in and to the Platform (including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights therein) and all material, such as software, text, graphics, images, sound recordings, and other material provided by or on behalf of Rocky or its licensors on the Platform (collectively referred to as the “Rocky Material”). Brand has no right, license, or authorization with respect to the Platform except as expressly set forth herein.
Rocky Trademarks and Third-Party Trademarks. The trademarks, service marks, and logos of Rocky (the “Rocky Trademarks”) used and displayed on the Platform are owned by Rocky, and all goodwill generated from the use of Rocky Trademarks inures to Rocky’s benefit. Other company, product, and service names located on the Platform may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Rocky Trademarks, the “Trademarks”). Nothing on the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without Rocky’s prior written permission specific for each such use (except that the Rocky watermark shall be included on Selected User Content which may be used solely as set forth in this Agreement).
Ownership of Brand Content. Brand and Brand’s licensors are, and shall remain, the sole and exclusive owner of all right, title, and interest in and to all Brand Content. Rocky shall have no right or license to use any Brand Content other than during the Term to the extent necessary to provide the Rocky Services to Brand, and all other rights in and to the Brand Content are expressly reserved by Brand.
License to Brand Content. Subject to and in accordance with the terms and conditions of this Agreement, Brand grants to Rocky a limited, non-transferable, non-exclusive, royalty-free license: (i) to use the Brand Content during the Term to perform the Rocky Services; (ii) to allow End Users to use the Digital Assets, including Brand’s name and logo, during the Term solely to create and submit User Generated Content via the Platform; (iii) to use Brand’s name and logo in connection with identifying Brand as a user of the Platform and the Rocky Services in Rocky’s advertising materials; and (iv) to use the Selected User Generated Content to market the Rocky Services during and after the Term.
License of User Generated Content and Selected User Generated Content.
Rocky hereby grants to Brand, during the Term, a world-wide, royalty-free license to use, display, reproduce, and distribute the any User Generated Content solely within the Platform in connection with featuring the User Generated Content on the applicable Brand Profile.
Rocky hereby grants to Brand a perpetual, world-wide, royalty-free license to use, display, reproduce, and distribute the Selected User Generated Content in and outside of the Platform in connection with advertising Brand’s products and services.
Rocky shall cause all End Users to agree to Terms and Conditions that: (x) require End Users to agree that all Selected User Generated Content that may qualify as "works made for hire" will be deemed "works made for hire" for Rocky and, to the extent that any of the Selected User Generated Content does not constitute a "work made for hire," or is protected under other Intellectual Property Rights, to irrevocably assign, to Rocky, in each case without additional consideration, all worldwide right, title, and interest in and all the Intellectual Property Rights in such Selected User Generated Content; (y) require End Users to irrevocably waive, to the extent permitted by applicable law, any and all claims such End Users may now or hereafter have in any jurisdiction to so-called "moral rights" concerning the Selected User Generated Content; and (z) prohibit End Users from using any User Generated Content that is not Selected User Generated Content for any purpose.
3.TERM. TERMINATION.
Term. The term of this Agreement shall begin on the Effective Date and shall continue until six-months after the Effective Date, unless earlier terminated in accordance with this Agreement (the “Term”).
Termination. Either Party may terminate this Agreement, effective upon written Notice, to the other Party (the "Defaulting Party") if the Defaulting Party: (i) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written Notice of such breach; or (ii) becomes insolvent or is generally unable to pay its debts as they become due; files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; makes or seeks to make a general assignment for the benefit of its creditors; applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or is dissolved or liquidated. Additionally, the Parties may terminate this Agreement at any time upon mutual written agreement.
This Section 3(c), and Sections 2(b), 2(c), 2(d), 2(f)(iii), and 6-15 shall survive the termination of this Agreement.
4.PAYMENT TERMS.
During the Term, the Rocky Services shall be provided to Brand free-of-charge.
Rocky may pay End Users that submit User Generated Content to Brand that complies with the Rocky Terms of Use a fee amount to be determined by Rocky in its sole discretion. In addition, Rocky and/or Brand may pay certain End Users that submits Selected User Generated Content a prize amount to be determined by Rocky.
5.COMMUNITY GUIDELINES.
By accessing the Platform, Brand agrees to comply with and to ensure that its Authorized Users comply with the following community guidelines (the “Community Guidelines”):
Brand will comply with all applicable laws in Brand’s use of the Platform and will not use the Platform for any unlawful purpose;
Brand will not access or use the Platform to collect any market research for a competing business;
Brand will not impersonate any person or entity or falsely state or otherwise misrepresent Brand’s affiliation with a person or entity;
Brand will not interfere with or attempt to interrupt the proper operation of the Platform through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any Rocky Material, data, files, or passwords related to the Platform through hacking, password or data mining, or any other means;
Brand will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Platform;
Brand will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Platform;
Brand will not circumvent, remove, alter, deactivate, degrade, or thwart any of the Rocky Material protections in the Platform;
Brand will not use any robot, spider, scraper, or other automated means to access the Platform for any purpose without Rocky’s express, written permission; provided, however, that Rocky may grant the operators of public search engines permission to use spiders to copy materials from the public portions of the Platform for the sole purpose of, and solely to the extent necessary for, creating publicly-available searchable indices of the materials, but not caches or archives of such materials;
Brand will not take any action that imposes or may impose (in Rocky’s sole discretion) an unreasonable or disproportionately large load on Rocky’s technical infrastructure;
Brand shall retain all copyright and other proprietary notices contained in the original Rocky Material; and
Brand shall not sell, transfer, assign, license, sublicense, or modify the Rocky Material or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Rocky Material in any way for any public or commercial purpose.
If Brand violates this Section 5 of the Agreement, Brand’s permission to access the Rocky Material and the Platform shall automatically terminate and Brand must immediately destroy any copies Brand has made of the Rocky Material.
6.CONFIDENTIALITY.
From time to time during the Term, either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party") information about its business affairs and services, confidential information, and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and, whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information").
Confidential Information does not include information that, at the time of disclosure and as established by documentary evidence: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 6 by the Receiving Party or any of its Representatives; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (iv) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information; or (v) is required to be disclosed pursuant to applicable law.
The Receiving Party shall, for two years from disclosure of such Confidential Information: (i) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person, except to the Receiving Party's Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section 6 caused by any of its representatives.
7.REPRESENTATIONS AND WARRANTIES.
Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:
it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization;
it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
this Agreement have been accepted by such Party’s representative that has been duly authorized by all necessary corporate or organizational action of such Party; and
when accepted by Brand, this Agreement will constitute the legal, valid, and binding obligation of the Parties, enforceable against the Parties in accordance with its terms.
Additional Brand Representations, Warranties, and Covenants. Brand represents, warrants, and covenants to Rocky that the Brand Content does not infringe or violate and will not infringe or violate the publicity and privacy rights or any other intellectual property rights of any third party.
8.DISCLAIMER.
ROCKY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE PLATFORM, ROCKY MATERIALS, ROCKY SERVICES, THE END USERS, OR THE USER GENERATED CONTENT. ROCKY DISCLAIMS ALL LIABILITY RELATED TO USER GENERATED CONTENT, INCLUDING BUT NOT LIMITED TO ANY CLAIMS OF INTELLECUAL PROPERTY INFRINGEMENT. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY'S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON- INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT. THE PLATFORM, ROCKY MATERIALS, ROCKY SERVICES, AND USER GENERATED CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE PLATFORM, ROCKY MATERIALS OR USER GENERATED CONTENT WILL OPERATE ERROR-FREE OR THAT THE PLATFORM, ITS SERVERS, OR THE USER GENERATED CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. WE MAKE NO GUARANTEE THAT THE CONTENT OR ANY USER GENERATED CONTENT WILL MEET BRAND’S REQUIREMENTS. THE PLATFORM MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. UNLESS REQUIRED BY APPLICABLE LAWS, ROCKY IS NOT RESPONSIBLE FOR ANY TYPOGRAPHICAL OR TECHNICAL ERRORS LISTED ON THE PLATFORM. ROCKY RESERVES THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE PLATFORM AND/OR ADD OR REMOVE CONTENT AT ANY TIME WITHOUT NOTICE.
9.LIMITATION OF LIABILITY.
EXCEPT WITH RESPECT TO THE PARTIES' LIABILITY FOR INDEMNIFICATION, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO THE PARTIES' LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR ROCKY’S LIABILITY FOR THE ROCKY MATERIALS INFRINGING OR MISAPPROPRIATING INTELLECTUAL PROPERTY OR BRAND’S LIABILITY FOR THE BRAND CONTENT INFRINGING OR MISAPPROPRIATING INTELLECTUAL PROPERTY, EACH PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED $1,000.
10.INDEMNIFICATION.
Rocky Indemnification Obligations. Rocky shall defend, indemnify, and hold harmless Brand, and Brand’s affiliates and Brand’s officers, directors, employees, agents, affiliates, successors, and permitted successors and assigns (collectively, "Brand Indemnified Party"), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorney fees ("Losses") arising out of or resulting from any third-party claim, action or proceeding (each, a “Claim”) related to: (i) the gross negligence or willful misconduct of Rocky in connection with the performance of its obligations under this Agreement; and (ii) the Platform or Rocky Materials infringing or misappropriating any third-party intellectual property (except to the extent arising from the Brand Content or other Brand Intellectual Property or any User Generated Content).
Brand Indemnification Obligations. Brand shall defend, indemnify, and hold harmless Rocky, and its affiliates and their respective officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, "Rocky Indemnified Party"), from and against any and all Losses arising out of or resulting from third-party Claim relating to: (a) gross negligence or willful misconduct of Brand; and (b) any Brand Content that Rocky uses to perform the Services or is incorporated into the User Generated Content infringing, misappropriating or violating the publicity or privacy rights or any other Intellectual Property Rights of any third party.
Indemnification Procedures. A Party seeking indemnification under this Section 10 (the "Indemnified Party") shall give the Party from whom indemnification is sought (the "Indemnifying Party"): (a) prompt notice of the relevant claim; provided, however, that failure to provide such Notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (b) reasonable cooperation, at the Indemnifying Party's expense, in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party's rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
GOVERNING LAW: VENUE.
This Agreement and any action related thereto will be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively]in the federal courts of the United States or the courts of the State of Delaware in each case, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
EQUITABLE RELIEF.
Brand acknowledge and agree that in the event of a breach or threatened violation of Rocky’s intellectual property rights and confidential and proprietary information by Brand, Rocky will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect Rocky’s rights and property pending the outcome of the arbitration referenced above. All claims or 6 disputes arising out of or in connection with this Agreement shall be heard exclusively by any of the federal or state courts of competent jurisdiction located in the State of Delaware.
ASSIGNMENT.
Brand may not assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of Rocky. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
FORCE MAJEURE.
No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement or any SOWs, when and to the extent such Party's (the "Impacted Party") failure or delay is caused by or results from the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) telecommunication breakdowns, power outages or shortages, and (h) other similar events beyond the reasonable control of the Impacted Party.
MISCELLANEOUS.
Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Rocky is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third Party. Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against Rocky unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Rocky and Brand in writing, this Agreement constitutes the entire agreement between Brand and Rocky with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on their behalf by their duly authorized representatives.
ROCKYADS, LLC
BRAND
Funny Videos Brand Legal