Last Updated: November 10, 2022
THESE TERMS OF SERVICE (“Agreement“) CONSTITUTE A BINDING CONTRACT BETWEEN LOGIE, INC. (“Logie“) AND THE USER (DEFINED BELOW) THAT SUBSCRIBES TO THE SERVICE (DEFINED BELOW).
BY SUBSCRIBING TO THE SERVICES, OR BY OTHERWISE ACCESSING OR USING THE SERVICES, USER ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THE FOLLOWING (THE DATE OF SUCH OCCURRENCE BEING THE “Effective Date“):
(a) THIS AGREEMENT, AND
(b) OTHER SUPPLEMENTAL TERMS AND POLICIES REFERENCED HEREIN, WHICH ARE STATED TO BE INCORPORATED INTO THIS AGREEMENT BY REFERENCE.
(c) IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR OTHER ENTITY, YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND SAID ENTITY TO THIS AGREEMENT.
The following capitalized terms have the meanings set forth below:
“Affiliate Link” means the unique tracking link provided by Logie.
“Brand” means a business entity whose product and/or service are the subject of a Campaign Order.
“Campaign” means a sales promotion campaign for Brand’s product or service, which campaign, when offered by Brand through the Platform and accepted by one or more Creators by publishing Creator Content on Creator Channels for that campaign, triggers the entry into of a Campaign Order and the launch of that campaign.
“Campaign Order” means the contract automatically entered into between Logie and Brand upon the start of a Campaign, according to the commercial terms and conditions set out, and accepted by Brand, on the Platform.
“Campaign Scope” means any Campaign limitations and parameters set forth in the Campaign Order.
“Content” means any content on the Platform, including without limitation: (i) the text, documents, articles, brochures, descriptions, products, software, graphics, images, sounds, videos, interactive features and services; and (ii) marks contained in or made available through the Platform.
“Creator” means a creator of Content who engages in the launch of a Campaign through the Platform.
“Creator Channel” means any communication channel of Creator from which Creator distributes Creator Content , including without limitation, on social media, Youtube, Instagram, Amazon, broadcast, other websites, newsletters, blogs, or other Content distribution channels, systems or mechanisms.
“Creator Content” means Content created by, or at the direction of, the Creator for a Campaign through the Platform.
“User Data” means any data or information inputted or uploaded to the Platform by or on behalf of User, or otherwise integrated with the Platform via an API. For clarity, User Data does not include Creator Content.
“Feature” means any module, tool, functionality, or feature of the Platform.
“Intellectual Property Rights” means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, and whether registered or unregistered) in and to any technology, invention, works of authorship, Content (including Creator Content), and know-how, , and includes but is not limited to patents, copyrights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information design rights, industrial property rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as all: (i) applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) goodwill associated with the foregoing.
“Law” means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction.
“Party” means, collectively, Logie, Brand, and/or Creator.
“Platform” means Logie’s proprietary software as a service, technology platform that enables Brands to initiate Campaigns with Creators who target the people most likely to buy the Brand’s products and/or services.
“Related Company” means, with respect to a Party, any person, organization or entity controlling, controlled by or under common control with, such Party. For purposes of this definition only, “control” of another person, organization or entity will mean the possession, directly or indirectly, of the power to direct or cause the direction of the activities, management or policies of such person, organization or entity, whether through the ownership of voting securities, by contract or otherwise. Without limiting the foregoing, “control” will be deemed to exist when a person, organization or entity (i) owns more than fifty percent (50%) of the outstanding voting stock or other ownership interest of the other organization or entity, or (ii) possesses, directly or indirectly the power to elect or appoint more than fifty percent (50%) of the members of the governing body of the other organization or entity.
“Seats” means an employee of User (or its Related Company, as permitted hereunder) authorized to access and use the Platform.
“Services” means the products and services provided by Logie or its Affiliates, as applicable, that (a) User uses, including, without limitation, products and services that are on a trial basis or otherwise free of charge; or (b) Brand orders under a Campaign Order.
“User” means a Brand and/or a Creator.
2.1 General. Subject to the terms and conditions of this Agreement and the Campaign Scope, Logie grants User a limited, worldwide, non-exclusive, non-assignable (except as provided in Section 12.2 (Assignment) below), non-sublicensable, non-transferable right and license, during the Term, to access and use the Platform solely for User’s business end use (collectively, the “Subscription”).
2.2 Creator Content.
(a) Creators may choose which products and/or services of Brands to promote on the Platform by creating Creator Content and publishing it on Creator Channels, with the goal of generating sales of such products and/or services. Sales of products and/or services generated through Creator Content containing Creator’s Affiliate Link result in Creators getting paid Commissions (defined below) through the Platform, as further specified in Section 4.2 (Payment by Logie to Creators).
(b) Brand receives no right or license hereunder to, and shall not, use, reproduce or copy in whole or in part, modify, create derivative works of, distribute, display, or perform Creator Content, unless and to the extent that a Creator has enrolled in Logie’s licensing program with respect to Creator Content, in which case the Platform will permit Brand to license the use of such Creator Content, in accordance with the applicable terms and conditions of such license.
(c) Creators are entitled to develop Creator Content independently of the applicable Brand’s input or instructions (as further described in this paragraph), subject to Logie’s Acceptable Use Policy: https://logie.ai/acceptable-use-policy, which is incorporated into this Agreement by reference. Brand acknowledges and agrees that it shall have no right under a Campaign Order or otherwise through the Platform to preview, provide input or request modifications or edits with respect to, or influence or affect the style, substance or approach of Creator Content, including without limitation the Creator Channel(s) on which such Content is published.
2.4 Account Setup. In order to access the Platform, Users are required to set up an administrative account with Logie, by submitting the information requested in the applicable Platform interface (“Account”). User warrants that all information submitted during the registration process is, and will thereafter remain, complete and accurate. User shall be responsible and liable for all activities that occur under or in the Account. User will keep user ID and password information strictly confidential and not share such information with any unauthorized person.
2.5 Related Company Usage. Subject to the Campaign Scope, User may permit its Related Companies to participate in the Subscription, provided that: (i) User first informs Logie in writing of the identity of such Related Companies; and (ii) such Related Companies acknowledge in writing the terms and conditions of this Agreement and agree to comply with the Campaign Scope and the restrictions in Section 2.6 (Restrictions) below. User shall remain primarily liable for the acts and omissions of its Related Companies, as fully as if they were the acts and omissions of User hereunder.
2.6 Restrictions. As a condition to the Subscription, and except as expressly permitted otherwise under this Agreement, User shall not do (or permit or encourage to be done) any of the following license restrictions (in whole or in part): (a) copy, “frame” or “mirror” the Platform or Creator Content; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Platform or Creator Content to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Platform or Creator Content; (d) modify, alter, adapt, arrange, or translate the Platform or Creator Content; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Platform or Creator Content; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Platform or Creator Content; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Platform or Creator Content; (h) make a derivative work of the Platform or Creator Content, or use it to develop any service or product that is the same as (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Platform or Creator Content; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of licenses, servers, nodes, or Seats that directly access or use the Platform (sometimes referred to as ‘virtualization’, ‘multiplexing’ or ‘pooling’) in order to circumvent the Campaign Scope; (k) forge or manipulate identifiers in order to disguise the origin of any data or content inputted or uploaded to, or transmitted through, the Platform by User; or (l) take any action that imposes or may impose (as determined in Logie’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Platform, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure.
2.7 Reservation of Rights. For the avoidance of doubt, the Platform (including any software made available hereunder) is only licensed, and no title in or to the Platform (or such software) passes to User. Any rights not expressly granted herein are hereby reserved by Logie and its licensors, and, except for the License, User is granted no other right or license to the Platform, whether by implied license, estoppel, exhaustion, operation of Law, or otherwise.
3. SUPPORT SERVICES.
During the Term, and subject to User’s compliance with the terms of this Agreement, Logie shall provide its then current, standard Platform technical support and maintenance services (“Support Services“). The Support Services (in whole or in part) may be performed by Logie, and/or Logie-certified third party service providers, and Logie shall remain primarily responsible for such service providers’ performance of the Support Services.
4.1 Payment By Brands to Logie.
(a) Logie Fees. Brands shall pay Logie the fees and expenses specified on the Platform, payable for the Campaign Term (defined below) of each Campaign Order (“Logie Fees“). For clarity, Logie Fees include, but are not limited to, all amounts due and payable to Creators under a Campaign, commissions and fees payable for Logie’s services, any agreed promotional and advertising fees, and, if applicable, expense reimbursement for Logie’s shipment of product samples to Creators. Campaigns shall remain in effect for the duration set out on the Platform and for an additional forty-five (45) days after the Campaign’s termination (“Campaign Term“).
(b) Payment Terms. Unless expressly stated otherwise in writing between Brand and Logie: (i) all payments made by Brands under this Agreement are payable in in US dollars, non-refundable, and without any right of set-off or cancellation; and (ii) Logie Fees are payable in accordance with the following applicable payment method:
- (A) Payment Methods. If Brand elects to add funds to its Account, whether by credit card, ACH transfer, or other payment method accepted by the Platform, and use such funds to pay the Logie Fees due, Brand is responsible for ensuring such funds cover the Logie Fees due. If Brand’s Account does not have sufficient funds or Brand’s credit card or other payment method declines a charge for the Logie Fees due, Logie may suspend the provision of the Services to all of Brand’s Accounts until the Logie Fees due are paid in full. Brand is prohibited from creating new Accounts until the Logie Fees due are paid in full. More information on available payment methods and payment processing fees, where applicable, is available here https://logie.ai/payment-methods.
- (B) Invoicing. If Brand elects to receive invoices and Logie approves Brand for the same, then, except as otherwise set forth in the applicable Campaign Order, (i) invoices will be sent to Brand each month, via email to the email address(es) Brand designates in its Account and (ii) Brand will pay the Logie Fees due within thirty (30) days from the date of the invoice. Except as otherwise set forth in the applicable Campaign Order (or an invoice if Brand procures the Services without any applicable Campaign Order), the Logie Fees are payable in United States dollars. If Brand fails to pay the Logie Fees and remedy such failure within fifteen (15) days of the date Logie provides Brand with written notice of the same, then Logie may (i) assess, and Brand will pay, a late fee of the lesser of 1.5% per month or the maximum amount allowable by Law; and (ii) suspend the provision of the Services to all Brand accounts until the Logie Fees due are paid in full. Brand is prohibited from creating new accounts until the Logie Fees due are paid in full.
(c) Suspension. Logie reserves the right to temporarily suspend provision of the Platform: (a) if Brand’s payment of the Logie Fees is overdue, as more fully described in Section 4.1(b) (Payment Terms); (b) if Logie deems such suspension necessary as a result of User’s breach under Section 2.5 (Restrictions); (c) if Logie reasonably determines suspension is necessary to avoid material harm to Logie, to its other customers, or to the Platform, including if the Platform’s cloud infrastructure is experiencing denial of service attacks or other attacks or disruptions outside of Logie’s control, or (d) as required by Law or at the request of governmental entities.
(d) Purchase Orders. If a purchase order (or purchase order number) is required by Brand in order for an invoice to be paid, then Brand shall promptly provide such purchase order (or number) to Logie. Any terms or conditions (whether printed, hyperlinked, or otherwise) in a purchase order or related correspondence, which purport to modify or supplement this Agreement (or the corresponding Campaign Order), shall be void and of no effect.
(e) Payment Disputes. Brand will notify Logie in writing within sixty (60) days of the date Logie bills Brand for any Logie Fees that Brand wishes to dispute. Where Brand is disputing any Logie Fees, Brand must act reasonably and in good faith and will cooperate diligently with Logie to resolve the dispute. Logie will not charge Brand a late fee or suspend the provision of the Services for unpaid Logie Fees that are in dispute, unless Brand fails to cooperate diligently with Logie or Logie determines the dispute is not reasonable or brought in good faith by Brand.
4.2 Payment by Logie to Creators.
(a) Creator Commissions. Logie shall pay Creators the commissions and any applicable costs payable to them, as specified on the Platform for the Campaign Term of each Campaign Order, based on sales of the Brand’s products and/or services generated by Creator Content, after buyers click on the Creator’s Affiliate Link (“Commissions“). Creators shall not be eligible to receive Commissions if (i) the Commission has been obtained by fraudulent means, misuse of the Affiliate Link, or in violation of any Logie policies that we make available to Creators, or (ii) Creator has materially breached this Agreement.
(b) Reports. Logie will use commercially reasonable efforts to accurately and comprehensively track sales of a Brand’s products and/or services generated by Creator Content for the purposes of Logie’s internal tracking, and creating and distributing to Creator monthly reports itemizing the Commissions associated with each Brand payable to Creator for the previous month.
(c) Payment Terms. Logie will pay Commissions in US dollars approximately sixty (60) days following the end of each calendar month in which the Commission was earned by the method that Creator has selected. Creator may be permitted to elect to receive payment in a currency other than our default currency. If Creator chooses to do so, Creator agrees that the conversion rate will be determined in accordance with Logie’s operating standards. If Creator resides outside of the USA and requests payment from Logie, all international transfer and wire fees will be paid by Creator.
- (A) Option 1: Payment by Direct Deposit. Logie will directly deposit the commission income Creator earns into the bank account Creator designates once Creator has provided Logie with the name of Creator’s bank, the account number, the name of the primary account holder as it appears on the account, and other requested identifying information (such as the ABA, IBAN or BIC number, if applicable).
- (B) Option 2: Payment by Check. Logie will send Creator a check in the amount of the Commission Creator earns once Creator has provided Logie with a physical address. If Creator selects this option, Logie reserves the right to deduct a processing fee for each check Logie sends to Creator.
- (C) If Creator does not select or maintain valid information for a payment option, Logie may in its discretion pay Creator through another payment option or hold earned Commissions until Creator makes its selection or provides such information.
(d) Payment Disputes. Creator will notify Logie in writing within sixty (60) days of the date Logie pays Commissions to Creator that Creator wishes to dispute. Where Creator is disputing any Commissions, Creator must act reasonably and in good faith and will cooperate diligently with Logie to resolve the dispute.
(e) Brand Taxes. Amounts payable by Brands under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon Logie’s net income (“Taxes“). In the event that Brand is required by any Law applicable to it to withhold or deduct Taxes for any payment under this Agreement, then the amounts due to Logie shall be increased by the amount necessary so that Logie receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Brand not made any such withholding or deduction.
(f) Creator Taxes. Creators are responsible for determining and fulfilling their obligations under applicable Laws to report, collect, remit, or include in their price any applicable Taxes.
(g) Collection and Remittance by Logie. In jurisdictions where Logie facilitates the collection and/or remittance of Taxes on behalf of Creators, you instruct and authorize Logie to collect Taxes on your behalf, and/or to remit such Taxes to the relevant Tax authority. Any Taxes that are collected and/or remitted by Logie are identified to Creators on their transaction records, as applicable. Logie may seek additional amounts from Creators (including by deducting such amounts from future payouts) in the event that the Taxes collected and/or remitted are insufficient to fully discharge that Creators’ tax obligations, and you agree that Creator’s sole remedy for Taxes collected by Logie is a refund from the applicable Tax authority. You acknowledge and agree that we retain the right, with prior notice to affected Creators, to cease the collection and remittance of Taxes in any jurisdiction for any reason.
(h) Tax Information. In certain jurisdictions, Tax regulations may require that Logie collect and/or report Tax information about Creators, or withhold Taxes from payouts to Creators, or both. If Creators fail to provide Logie with documentation that Logie determines to be sufficient to support any such obligation to withhold Taxes from payouts to Creators, Logie may withhold payouts up to the amount as required by Law, until sufficient documentation is provided. Creators agree that Logie may issue on behalf of Creators invoices or similar documentation for VAT, sales tax, consumption or other Taxes for Creator’s services to facilitate accurate tax reporting by Creators, Brands and/or their Related Companies.
5.1 Logie Materials. Logie (and/or its licensors, as applicable) is, and shall be, the sole and exclusive owner of all right, title and interest (including without limitation all Intellectual Property Rights) in and to:
(a) the Platform, Services and all related intellectual property (such as content appearing therein);
(b) its Confidential Information;
(c) any non-identifying User information, data, reporting, suggestions, analyses, and/or intelligence relating to the operation, support, and/or User’s use, of the Platform (such as metadata, aggregated data, analytics, security findings or discoveries, etc.) (collectively, “Output“);
(d) any feedback, suggestions, or ideas for or about the Platform (collectively, “Feedback“); and
(e) any and all improvements, derivative works, and/or modifications of/to any of the foregoing, regardless of inventorship or authorship.
User shall make, and hereby irrevocably makes, all assignments and/or waivers necessary or reasonably requested by Logie to ensure and/or provide Logie (and/or its designee(s)) the ownership rights set forth in this paragraph. Logie shall be entitled, from time to time, to modify and replace the Features (but not material functionalities, unless it improves the material functionality) and user interface of the Platform.
5.2 User Data. User is, and shall be, the sole and exclusive owner of its User Data. User agrees and represents that it (a) will provide all appropriate notices, has obtained and will maintain all required informed consents and licenses and will maintain all ongoing legal bases (if applicable), necessary to provide, make available, and otherwise expose User Data to Logie and its Affiliates, and (b) will comply at all times with any and all applicable privacy and data protection Laws.
5.3 Creator Content Ownership and Licensing.
(a) Creator is, and shall be, the sole and exclusive owner of all right, title and interest (including without limitation all Intellectual Property Rights) in and to Creator Content.
(b) Creator may opt to (a) permit Brands through the Platform to license the use of Creator Content (“Creator Content Licensing”); or (b) disable licensing. If Creators wish to permit Creator Content Licensing, Creators may determine their own licensing rates or authorize the Platform to determine such licensing rates on behalf of Creator.
Each Party (the “Recipient”) may have access to certain non-public or proprietary information and materials of the other Party (the “Discloser”), whether in tangible or intangible form (“Confidential Information”). Confidential Information shall not include information and material which: (a) at the time of disclosure by Discloser to Recipient hereunder, is in the public domain; (b) after disclosure by Discloser to Recipient hereunder, becomes part of the public domain through no fault of the Recipient; (c) was rightfully in the Recipient’s possession at the time of disclosure by the Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality; (d) is rightfully disclosed to the Recipient by a third party having the lawful right to do so; or (e) independently developed by the Recipient without use of, or reliance upon, Confidential Information received from the Discloser. The Recipient shall not disclose or make available the Discloser’s Confidential Information to any third party (including without limitation by way of publishing), except to its employees, contractors, advisers, agents and investors, subject to substantially similar written confidentiality undertakings). Recipient shall take commercially reasonable measures, at a level at least as protective as those taken to protect its own Confidential Information of like nature (but in no event less than a reasonable level), to protect the Discloser’s Confidential Information within its possession or control, from disclosure to a third party. The Recipient shall use the Discloser’s Confidential Information solely for the purposes expressly permitted under this Agreement. In the event that Recipient is required to disclose Confidential Information of the Discloser pursuant to any Law, regulation, or governmental or judicial order, the Recipient will (a) promptly notify Discloser in writing of such Law, regulation or order, (b) reasonably cooperate with Discloser in opposing such disclosure, (c) only disclose to the extent required by such Law, regulation or order (as the case may be). Upon termination of this Agreement, or otherwise upon written request by the Discloser, the Recipient shall promptly return to Discloser its Confidential Information (or if embodied electronically, permanently erase it), and certify compliance writing.
Notwithstanding anything in this Agreement to the contrary, the pricing and payment terms under the Campaign Order are confidential to Logie, and User shall not disclose such Confidential Information to any third party (except its accountants and lawyers), without Logie’s prior express written consent.
THE PLATFORM, SERVICES, OUTPUT, CREATOR CONTENT, AS WELL AS ANY OTHER GOODS AND SERVICES PROVIDED OR MADE AVAILABLE BY LOGIE OR ITS RELATED COMPANIES HEREUNDER (COLLECTIVELY, THE “LOGIE MATERIALS“) ARE PROVIDED AND MADE AVAILABLE ON AN “ASIS” AND “AS AVAILABLE” BASIS, WITH ALL DEFECTS. ALL ACCESS TO, USE OF, AND RELIANCE UPON, LOGIE MATERIALS IS AT MUSER’S SOLE RISK (AND ACCORDINGLY USER AGREES NOT TO USE OR RELY UPON THE LOGIE MATERIALS AS A SUBSTITUTE FOR PROFESSIONAL ADVICE). LOGIE DOES NOT ENDORSE OR WARRANT THE EXISTENCE, CONDUCT, PERFORMANCE, SAFETY, QUALITY, LEGALITY OR SUITABILITY OF ANY CREATOR CONTENT, OR PRODUCT AND SERVICE OF ANY BRAND.
ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED BY LOGIE AND ITS LICENSORS. LOGIE DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, OR QUALITY OF LOGIE MATERIALS; (B) THAT USER’S USE OF LOGIE MATERIALS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; (C) REGARDING THE OPERATION OF ANY CELLULAR NETWORKS, THE PASSING OR TRANSMISSION OF DATA VIA ANY NETWORKS OR THE CLOUD, OR ANY OTHER CELLULAR OR DATA CONNECTIVITY PROBLEMS; OR (D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY LAWS, REGULATIONS, OR OTHER GOVERNMENT OR INDUSTRY RULES OR STANDARDS. LOGIE WILL NOT BE LIABLE OR OBLIGATED IN RESPECT OF DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO PUBLIC NETWORKS OR HOSTING PROVIDERS. LOGIE, ITS RELATED COMPANIES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS ARE NOT INVESTMENT, RISK, TAX OR FINANCIAL ADVISORS, AND THE LOGIE MATERIALS ARE NOT INTENDED TO PROVIDE, AND SHOULD NOT BE CONSTRUED AS PROVIDING, ANY INVESTMENT, RISK, TAX OR OTHER FINANCIAL OR LEGAL ADVICE, OF ANY KIND.
8. LIMITATION OF LIABILITY
8.1 LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES. IN NO EVENT SHALL A PARTY, ITS RELATED COMPANIES, SUPPLIERS, OR LICENSORS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
- (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
- (B) ANY LOSS OF PROFITS, BUSINESS, OPPORTUNITY, REVENUE, CONTRACTS, ANTICIPATED SAVINGS, OR WASTED EXPENDITURE;
- (C) ANY LOSS OF, OR DAMAGE TO, DATA, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL; AND/OR
- (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
8.2 CAP ON LIABILITY. THE COMBINED AGGREGATE LIABILITY OF EACH PARTY AND ALL OF ITS RELATED COMPANIES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY A PARTY UNDER THIS AGREEMENT IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
8.3 EXCEPTIONS TO LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 9.1 (LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES) AND SECTION 9.2 (CAP ON LIABILITY), THE LIMITATIONS IN SECTION 9.1 AND SECTION 9.2 SHALL NOT APPLY TO (a) A USER’S BREACH OF SECTION 2 (SUBSCRIPTION); (b) A BREACH OF SECTION 4 (PAYMENT BY BRANDS TO LOGIE) OR 5 (PAYMENT BY LOGIE TO CREATORS); OR (c) AMOUNTS PAYABLE PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION).
8.4 GENERAL. THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION, OR OTHERWISE.
9.1 Indemnification by Logie.
- (a) In the event a third party makes or institutes any claim, action, or proceeding against User alleging that User’s authorized access and use of the Platform infringes such third party’s copyright or patent (an “Infringement Claim“), Logie shall: (i) at its own expense, defend User against the Infringement Claim; and (ii) indemnify and hold harmless User for any amount finally awarded against or imposed upon User (or otherwise agreed in settlement) under the Infringement Claim. As a condition to the foregoing, User agrees: (A) to provide Logie with prompt written notice of the Infringement Claim; (B) to cede to Logie full control of the defense and settlement of the Infringement Claim (except that any non-monetary obligation imposed on User under a settlement shall require User’s prior written consent, not to be unreasonably withheld, conditioned or delayed); (C) to provide Logie with all information and assistance reasonably requested by Logie; and (D) not to admit any liability under (or otherwise compromise the defense of) the Infringement Claim. User may participate in the defense of the Infringement Claim at User’s own cost and expense.
- (b) Logie will have no liability under this Section (Indemnification) to the extent that the Infringement Claim is based on or results from: (i) a modification to the Platform not made by Logie; (ii) the combination of the Platform with any third party product or service; and/or (iii) any User instructions or specifications.
- (c) Should the Platform (in whole or in part) become, or in Logie’s opinion be likely to become, the subject of an Infringement Claim, then User permits Logie, at Logie’s option and expense, to either: (x) obtain for User the right to continue using the Platform (or part thereof); or (y) replace or modify the Platform (or part thereof) so that it’s use hereunder becomes non-infringing; provided, however, that if (x) and (y) are not, in Logie’s opinion, commercially feasible, Logie may terminate this Agreement upon written notice to User, and User shall be entitled to receive a pro-rated refund of any prepaid and unutilized Logie Fees hereunder based on the remainder of the then-current Campaign Term.
- (d) This Section represents Company’s sole liability, and User’s sole remedy, for any Infringement Claim.
9.2 Indemnification by User. User will defend Logie, its Related Companies, and each of their directors, officers, and employees (collectively, “Logie Indemnified Parties”) from and against any claim, demand, action, or proceeding made or brought against a Logie Indemnified Party by a third party or another User, alleging or arising out of: (a) a User’s breach of this Agreement; (b) a User’s improper use of the Platform; (c) a User’s interaction with any other User; (d) a User’s acts or omissions with respect to (i) Creator Content, whether published on the Platform or on Creator Channels, such as (for example only) any claim that Creator Content infringes or misappropriates a third party’s (or another User’s) intellectual property rights; and (ii) a Brand’s product or service, whether or not promoted and/or sold on the Platform, Creator Channels, other websites and any other communication channel, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of the promotion and/or sale of such product or service; (d) a User’s failure, or our failure at your direction, to accurately report, collect or remit Taxes; or (e) a User’s breach of any Laws or third party rights such as intellectual property or privacy rights (collectively, “User Indemnifiable Claims”). You will indemnify Logie from any fines, penalties, damages, attorneys’ fees, and costs awarded against a Logie Indemnified Party or for settlement amounts that you approve for a User Indemnifiable Claim.
10. TERM AND TERMINATION
10.1 Term. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect (the “Term“).
10.2 Termination for Convenience. A Party may terminate this Agreement for convenience upon thirty (30) days prior written notice to the other Party. Notwithstanding the preceding sentence, if there are any Campaign Order(s) in effect, this Agreement will not terminate until all such Campaign Order(s) have expired or have been terminated in accordance with the terms therein.
10.3 Termination for Breach. Each Party may terminate this Agreement immediately upon written notice to the other Party if the other Party commits a material breach under this Agreement and, if curable, fails to cure that breach within thirty (30) days after receipt of written notice specifying the material breach (except that for payment defaults, such cure period will be seven (7) days).
10.4 Termination for Bankruptcy. Each Party may terminate this Agreement upon written notice to the other Party upon the occurrence of any of the following events in respect of such other Party: (a) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (b) the other Party makes a general assignment for the benefit of its creditors; (c) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (d) the other Party is liquidating, dissolving or ceasing normal business operations.
10.5 Effect of Termination; Survival. Upon termination of this Agreement for any reason: (a) the Subscription shall automatically terminate, (b) User shall cease all access and use of the Platform thereunder, and (c) User shall (as directed) permanently erase and/or return all Confidential Information of Logie in User’s possession or control. Following termination, all outstanding Logie Fees and other charges that accrued as of termination, which become immediately due and payable, and if necessary Logie shall issue a final invoice therefor. Sections 5 (Ownership) through 12 (Miscellaneous) shall survive termination of this Agreement and any Campaign Order, as shall any right, obligation or provision that is expressly stated to so survive or that ought by its nature to survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.
11.1 Entire Agreement and Amendments. This Agreement (and its annexes) represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. In entering into this Agreement, no Party is relying on any representation or statement not expressly specified in this Agreement. This Agreement may only be amended by a written instrument duly signed by each Party. The section and subsection headings used in this Agreement are for convenience only. This Agreement may be executed in counterparts each of which will be considered an original, but all of which together will constitute one and the same instrument.
11.2 Assignment. This Agreement may not be assigned, in whole or in part, by a Party without the prior express written consent of the other Party; except, however, that a Party may, upon written notice, assign this Agreement in whole to: (A) a Related Company; or (B) a successor in connection with a merger, consolidation, or acquisition of all or substantially all of the assigning Party’s assets or business relating to this Agreement. Any prohibited assignment will be null and void. Subject to the provisions of this Section (Assignment), this Agreement will bind and benefit each Party and its respective successors and assigns. Furthermore, any Logie obligation hereunder may be performed (in whole or in part), and any Logie right (including invoice and payment rights) or remedy may be exercised (in whole or in part), by an Affiliate of Logie.
11.3 Governing Law; Jurisdiction and Venue. This Agreement (including without limitation its validity and interpretation) shall be governed by, and construed in accordance with, the Laws of the State of New York, USA, without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. Any claim, dispute or controversy between the Parties will be subject to the exclusive jurisdiction and venue of the courts located in New York, New York, and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction. EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE BY JURY. EXCEPT TO SEEK EQUITABLE RELIEF, OR TO OTHERWISE PROTECT OR ENFORCE A PARTY’S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE.
11.4 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
- (a) User Marks. User hereby grants Logie the right to use User’s name and logo, including, in the case of Brands, the trademarks and trade names of Brand in connection with the products and services being promoted, subject to Brand’s standard trademark usage guidelines that are expressly provided to Logie, and in the case of Creators, their photograph, likeness, and biography, all on Logie’s websites, platforms and channels, including social media, and in its promotional materials (collectively, the “Logie Channels“) throughout the Term.
- (b) Creator Content. Creators hereby grant Logie the right to use, reproduce and publish Creator Content that is marked as “public” on the Creator’s storefront on the Platform in connection with the promotion of the Services on the Logie Channels throughout the Term. Logie will always identify the Creator as the creator of such Creator Content and will refer relevant traffic to Creator’s Logie storefront. If Creator changes the designation of Creator Content from “public” to “private” on its storefront, and wishes Logie to cease publication of such Creator Content, Creator must so notify Logie at email@example.com, in which case Logie will make reasonable efforts to remove such Content from the Logie Channels within seven (7) calendar days from its receipt of such notice.
11.6 Waiver and Remedies. No failure or delay on the part of a Party in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, duly signed by the waiving Party, and will be valid only in the specific instance in which given. Except as may be expressly provided otherwise in this Agreement, no right or remedy conferred upon or reserved by a Party under this Agreement is intended to be, or will be deemed, exclusive of any other right or remedy under this Agreement, at law, or in equity, but will be cumulative of such other rights and remedies.
11.7 Relationship. The relationship of the Parties is solely that of independent contractors, no Party nor its employees are the servants, agents, or employees of the other, and no exclusivities arise out of this Agreement. Nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, partnership, association, or otherwise between the Parties. No Party has any authority to enter into agreements of any kind on behalf of the other Party and no Party will create or attempt to create any obligation, express or implied, on behalf of the other Party.
11.8 Force Majeure. If any performance (excluding payment obligations) under this Agreement by a Party is prevented, hindered, or delayed by reason of an event of Force Majeure (defined below), the party so affected shall be excused from such performance to the extent that, and for so long as, performance is prevented, interrupted, or delayed thereby, provided that such party so affected shall promptly notify the other party of the occurrence of such event. If and when performance is resumed, all dates specified in this Agreement and/or in any purchase orders accepted pursuant to this Agreement shall be automatically adjusted to reflect the period of such prevention, interruption, or delay by reason of such event of Force Majeure. For purposes of this Agreement, an event of Force Majeure shall be defined as: (a) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or act of God; (b) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor or industrial disturbances, or shortages of materials or equipment, not the fault of a Party; (c) invasion, war (declared or undeclared), terrorism, riot, or civil commotion; (d) an act of governmental or quasi-governmental authorities; (e) failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities; and/or (f) any matter beyond the reasonable control of the affected party. Notwithstanding the foregoing, User shall not be entitled to use, or rely on, this Section (Force Majeure) in connection with any User breach of the Subscription and/or Logie’s Intellectual Property Rights. For the avoidance of doubt, any problems relating to hosting of the Platform by a third party is beyond the reasonable control of Logie.
11.9 Notices. All notices or other communications provided for in connection with this Agreement shall be in writing and shall be given in person, by courier, by facsimile, email, or by registered or certified mail, postage prepaid, addressed as set forth above. All notices and other communications delivered in person or by courier service shall be deemed to have been given as of one business day after sending thereof, those given by facsimile transmission with confirmation or receipt shall be deemed to have been given as of the date of transmission thereof (provided that such date is a business day in the country of receipt and if not, the next business day), and all notices and other communications sent by registered mail shall be deemed given three (3) days after posting. Notices sent by email shall be deemed received upon receipt of such email.
11.10 Export Compliance. User shall be solely responsible for obtaining all required authorizations and licenses from applicable government authorities under Export Control Laws, in connection with User’s use of the Platform and its related documentation. User represents and warrants that: (a) it is not a resident of (or will use the Platform or such documentation in) a country that the U.S. government has embargoed for use of the Platform or such documentation, nor is an entity named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to Logie. User shall not transfer, export, re-export, import, re-import or divert the Platform or such documentation in violation of any Export Control Laws (defined below), and shall not transfer, export, re-export, import, re-import or divert any the Platform or such documentation to Lebanon, Syria, Iran, Iraq, Sudan, Yemen, Cuba, or North Korea (or other countries specifically designated in writing by Logie from time to time). In the event of a breach under this Section (Export Compliance), User agrees to indemnify and hold harmless Logie and all Logie Related Companies (and their respective directors, officers, and employees) for any fines and/or penalties imposed upon Logie or a Logie Related Company (or such persons) as a result of such breach. “Export Control Laws” means all applicable export and re-export control Laws applicable to User and/or Logie or its Related Companies such as those of the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.