The following Momentum Platform Terms and Conditions (“Terms”) apply to Client’s purchase of Credits and use of Credits in activating Campaigns.
So long as Client maintains an active subscription to ProductWind’s Momentum Platform, pursuant to the terms and conditions of the applicable Subscription Agreement by and between Client and ProductWind, Client may purchase Credits, at a price of $1.00 per Credit, to be used towards the activation of Creators and scheduling of Campaigns. Credit purchases are non-refundable, and all Credits expire at the end of the Subscription Term (as set forth in the applicable Subscription Agreement).
Subject to ProductWind’s approval in each instance, Client may redeem Credits to activate Creators and schedule Campaigns through the Momentum Platform, at the rates set forth from time to time. Any redemption of Credits must occur no later than sixty (60) days prior to the end of the applicable Subscription Term to allow sufficient time for the Campaign to be completed prior to expiration of the Subscription Term. Campaigns will be conducted by such employees or contractors (including Creators) of ProductWind as designated by ProductWind in its sole discretion. Client brand guidelines must be communicated to ProductWind in advance of the Campaign.
ProductWind identifies and obtains the service of individuals (“Creator(s)”) who (i)deliver feedback on products (“Feedback”), (ii) create content relating to products, including, without limitation, copy, text, video, images, graphics, messages or other materials (“Creator Content”). ProductWind separates Creators into the following categories:
Individuals who receive a product, and deliver feedback on the product in the Momentum Platform. Brand Advocates do not share the feedback on social media.
Individuals who receive a product, deliver feedback on the product in the Momentum Platform, and generate and deliver Creator Content through the Momentum Platform. UGC Creators do not share the Creator Content on social media.
4.1 Client Content
Client retains all rights, title and interest in and to all data or other information made available to ProductWind by Client, including Client’s trademarks, trade names, trade dress, service marks and logos (“Client Marks”) any other content in any form or media (“Client Content”), subject to the license granted by Client herein.
4.2 ProductWind Use of Client Content and Client Marks
Client hereby grants to ProductWind a non-exclusive, royalty-free, perpetual, irrevocable, transferrable, worldwide rights and license to access, revise, reproduce, distribute, and otherwise use and display Client Content and Client Marks in connection with Campaigns scheduled by Client, including on the ProductWind Platform and in ProductWind’s marketing materials. All uses of Client Content and Client Marks and related goodwill will insure solely to Client, and ProductWind will obtain no rights or goodwill with respect to any Client Content or Client Marks, other than as expressly set forth herein.
4.3 Creator License to Client Content and Client Marks
Client hereby grants, and permits ProductWind to grant to Creators a non-exclusive, royalty-free, perpetual, irrevocable, non-sub-licensable, non-transferable, worldwide rights and license to reproduce, incorporate, post and otherwise use Client Content and Client Marks in Creator Content generated in connection with Campaigns scheduled by Client.
4.4 Client License to Feedback
Subject to the terms and conditions hereof, ProductWind hereby grants to Client a non-exclusive, royalty-free, perpetual, irrevocable, worldwide rights and license to copy, use, reproduce, modify, remove, publish, upload, distribute, transmit, publicly display and create derivative works of Feedback generated in connection with Campaigns scheduled by Client, solely in connection with Client’s internal business use and purpose.
4.5 Client License to Creator Content
Subject to the terms and conditions hereof, ProductWind hereby grants to Client, during the applicable Subscription Term, a non-exclusive, non-sub-licensable, non-transferable, revocable, worldwide license to copy, use, reproduce, modify, remove, publish, upload, distribute, transmit, publicly display and create derivative works of Creator Content generated in connection with Campaigns scheduled by Client, and solely in connection with such Campaigns. Client’s license to Creator Content will terminate at the end of the applicable Subscription Term.
5.1 Mutual Warranties
Each party represents and warrants to the other that; (i) it has the requisite power and authority to execute and deliver these Terms and perform its obligations hereunder: (ii) theseTerms have been duly authorized, executed, and delivered by each party, and are a legal, valid, and binding obligation of each party, enforceable against such party, subject to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance and other similar laws and principles of equity affecting creditors’ rights and remedies generally; and (iii) these Terms do not violate, conflict with, result in a breach of the terms, conditions, or provisions of, or constitutes a default or an event of default under any other agreement to which such party is a party.
5.2 Disclaimer
OTHER THAN THE WARRANTIES SPECIFICALLY MADE IN SECTION 5.1 HEREOF, THE SERVICES PROVIDED HEREUNDER ARE AVAILABLE “AS-IS” AND “AS-AVAILABLE.” ProductWind MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED OR ARISING OUT OF CUSTOM OR TRADE USAGE, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ITS SERVICES. FURTHER, PRODUCTWIND DOES NOT AND CANNOT GUARANTEE ANY SPECIFIC BUSINESS OUTCOME OR RESULT FROM PRODUCTWIND’S PROVISION OF THE SERVICES.
6.1 Client Indemnification
Client shall indemnify, defend and hold harmless ProductWind, its affiliates, and its and their respective employees, contractors (including Creators), principals, agents, licensors, successors and assigns, from and against any and all costs, damages or losses (including reasonable attorneys’ fees and expenses) (collectively “Losses”) arising out of or resulting from a third party claim, demand, suit or proceeding (each, a “Claim”) (i) that the Client Content, or any use of the Client Content in accordance with these Terms, infringes or misappropriates such third party’s intellectual property rights; or (ii) based on Client’s negligence, willful misconduct, violation of law or breach of these Terms.
6.2 ProductWind Indemnification
ProductWind shall indemnify, defend and hold harmless Client, its employees, principals and agents, from and against any Losses arising out of or resulting from anyClaim (i) that the Creator Content, when used in accordance with these Terms, infringes or misappropriates such third party’s intellectual property rights; or (ii) based on ProductWind’s negligence, willful misconduct, violation of law, or breach of these Terms.
6.3 Indemnification Procedure
The party seeking indemnification (the “Indemnified Party”), agrees to promptly notify the party against whom indemnification is sought (the “Indemnifying Party”) in writing following receipt of notice of any Claim, which notice shall assert such Claim and set forth in reasonable detail the basis for indemnification (such notice, the “Indemnification Notice”). The failure to so notify the Indemnified Party shall not relieve the Indemnifying party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party. The Indemnifying Party shall be entitled to control such defense. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall have the right to control such defense at the Indemnifying Party’s reasonable expense. The party not controlling such defense may participate therein at its own expense. Each party shall cooperate in the defense of any Claim. The Indemnifying Party shall obtain the prior written consent of the Indemnified Party before entering into any settlement of such Claim if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party or involves an admission of fault or wrongdoing by an Indemnified Party.
IN NO EVENT WILL PRODUCTWIND BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA,LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM CORRELATING TO PRODUCTWIND’S PERFORMANCE HEREUNDER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF PRODUCTWIND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PRODUCTWIND’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE SERVICES PROVIDED HEREUNDER, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR OWED BY CLIENT TO PRODUCTWIND FOR CREDITS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
8.1 Non-disclosure
Each party (“Receiving Party”) shall not disclose, publish, or disseminate the Confidential Information (as defined below) of the other party (“Disclosing Party”) to anyone other than such Receiving Party’s employees and contractors with a need to know such Confidential Information, and who are bound by a written agreement to protect the confidentiality of such Confidential Information no less protective than the provisions of this Section 8, or as required by applicable law in accordance with this Section 8. Each party agrees to take the same measures used to protect its own Confidential Information of a similar nature, but in no event less than a reasonable degree of care, to prevent any unauthorized use, disclosure, publication, or dissemination of the other party’s Confidential Information. Each Receiving Party agrees to use and disclose the Disclosing Party’s Confidential Information for the sole purpose of carrying out such Receiving Party’s rights and obligations hereunder and shall be responsible and liable for all such usage and/or disclosure. Receiving Party may disclose Confidential Information if and to the extent that such disclosure is required by applicable law, regulation, or court order, provided that, as permitted by applicable law, Receiving Party (i) uses reasonable efforts, at Disclosing Party’s expense, to limit the disclosure by means of a protective order or a request for confidential treatment and (ii) provides Disclosing Party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.
8.2 Confidential Information
"Confidential Information" means confidential and proprietary information of a party, whether in oral, written or other form, which is marked “confidential” or “proprietary,” or which should reasonably be deemed to be confidential. Confidential Information does not include information that: (1) is now or subsequently becomes generally available to the public through no fault or breach of the Receiving Party; (2) the Receiving Party can demonstrate to have had rightfully in its possession prior to disclosure by the Disclosing Party; (3) is independently developed by the Receiving Party without the use of any Confidential Information of the Disclosing Party; or (4) the Receiving Party rightfully obtains such information from a third party without a breach of confidentiality.
In addition to each party’s obligations, upon either party’s request, the other party shall return all of the requesting party’s Confidential Information in its possession or under its control in accordance with the requesting party’s directions and shall not thereafter retain any copies of the other party’s Confidential Information.
Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, dues and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, ProductWind’s income, revenues, gross receipts, personnel or real or personal property or other assets.
11.1 Independent Contractor
ProductWind and Client acknowledge that ProductWind is an independent contractor, and neither ProductWind nor Client is intended to or should be construed to be an agent, partner, joint venture or employee of the other. Neither party has any authority to bind or otherwise obligate the other party in any manner, and neither party may represent to anyone that it has a right to do so.
11.2 Publicity
ProductWind may publicly identify Client as a client of ProductWind and use ClientMarks in ProductWind advertising and marketing materials.
11.3 Assignment
Except as otherwise provided herein, neither party may assign or transfer, by operation of law or otherwise, any of its rights or obligations hereunder to any third party without the other party’s prior written consent, such consent shall not be unreasonably withheld or delayed; except that a party may assign its rights or obligations hereunder without consent from the other party by operation of law or otherwise to (a) an affiliate, or (b) any successor to its business or assets to which these Terms relate, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any attempted assignment or transfer in violation of the foregoing will be void. These Terms do not confer any rights or remedies upon any person or entity not a party hereto. The foregoing not withstanding, these Terms are binding on and inure to the benefit of the parties hereto and their respective permitted successors and permitted assigns.
11.4 Force Majeure
Except for payment obligations, neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder as a result of any cause which is beyond the reasonable control of such party.
11.5 Notices
To be effective, notices, consents, and approvals hereunder must be delivered in writing by electronic mail, courier, or certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address for each party as set forth on the applicable Credit Order Receipt or Campaign Receipt.
11.6 Governing Law
These Terms will be governed by and interpreted in accordance with the laws of the State of California without reference to its choice of law rules. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, state or federal courts sing in San Diego, California, in any litigation arising out of these Terms or the services provided by ProductWind hereunder.
11.7 Remedies
Except as otherwise expressly provided herein, the parties’ rights and remedies hereunder are cumulative. Each party acknowledges and agrees that any actual or threatened breach of confidentiality will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce these Terms, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other legal expenses, in addition to any other relief it may receive from the non-prevailing party.
11.8 Compliance with Laws
Each party shall comply with those laws and regulations in jurisdictions that are specifically applicable to such party.
11.9 Waivers
To be effective, any waivers must be in writing and signed by the party waiving such rights. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.10 Severability
If any provision of these Terms is, for any reason, held to be unenforceable, the other provisions of these Terms will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law (unless such modification is not permitted by law, in which case such provision will be disregarded).
11.11 Entire Agreement
These Terms, including any Credit Order Receipt or Campaign Receipt to which they apply, constitute the final and entire agreement between the parties regarding the subject hereof and supersedes all other agreements, whether written or oral, between the parties concerning such subject matter. No terms and conditions proposed by either party shall be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. No amendment to these Terms will be received unless in writing and signed by the party to be charged.