Master Agreement for Promotion and Marketing Services
Last updated July 1, 2022
This Master Agreement for Promotion and Marketing Services (the "Agreement"), as revised or amended from time to time is entered into between you (the "Service Provider" or “you”) and dYdX Trading Inc., a Delaware corporation ("Client", “dYdX”, or the “Company”, together with Service Provider, the “parties”), and is acknowledged and agreed to by the parties at the first to occur of the full execution of this Agreement or its Statement of Work, or your receipt and acceptance of any payment in exchange for performance of the Services (defined below) (“Effective Date”).
In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.Service Provider Services and Responsibilities.
1.1Services. Service Provider shall provide to Client the promotion and marketing services described generally in Exhibit A (the "Services") and set out more specifically in one or more statements of work to be issued by Client and accepted by Service Provider (each, a "Statement of Work" or "SOW"). In the event of any inconsistency between an SOW and this Agreement, the terms of this Agreement shall control.
(a)The parties shall set forth each agreed task in a Statement of Work in the form attached hereto as Exhibit B. Statements of Work shall be deemed accepted and incorporated into this Agreement upon the acceptance of this Agreement, shown by any performance by the Service Provider of the Services.
(b)Service Provider shall use best efforts to provide the Services: (a) in accordance with the terms and subject to the conditions set forth in the respective Statement of Work and this Agreement; (b) using personnel of required skill, experience, and qualifications; (c) in a workmanlike and professional manner; and (d) in accordance with the highest professional standards in the promotion and marketing field; and (d) according to any applicable laws and regulations.
(c)The Services shall not be deemed performed until finished and presented to Client, and submitted in writing to Client via invoice, whereupon Client shall review and accept or reject the Services in Client’s sole discretion, based upon a reasonable interpretation of the terms of the Agreement and the description of the Services; provided that if Client does not accept the Services then such Services shall be deemed unaccepted.
1.2Service Provider and Personnel. Subject to the prior written approval of Client, Service Provider shall:
(a)comply with all applicable laws and any collective bargaining agreements affecting any Service Provider Personnel.
(b)be responsible for the payment of all compensation owed to the Service Provider Personnel, including, if applicable, the payment and withholding of social security and other payroll taxes, withholding of income taxes, unemployment insurance, workers' compensation insurance payments, and disability benefits.
(c)obtain Client's prior written approval prior to entering into agreements with or otherwise engaging any person who is not a Service Provider employee, including any independent consultants, contractors, subcontractors, or affiliates of Service Provider (each such approved third party, a "Permitted Subcontractor"), to provide any Services to Client.
(d)All persons employed by Service Provider in connection with the Services shall either be employees of Service Provider or Permitted Subcontractors retained by Service Provider and Service Provider shall be solely responsible for complying with all laws and collective bargaining agreements affecting such persons.
1.3Influencer Campaign. In the event that Service Provider engages, or acts as, a blogger, personality, celebrity, or other individual to post on social media platforms ("Influencer") to promote Client's products and services, Service Provider shall manage the Influencer campaign as follows:
(a)Service Provider shall:
(i)disclose their material connection to Client clearly and conspicuously in their postings or statements;
(ii)ensure that statements reflect their honest opinions, beliefs, and experiences;
(iii)not make any false or misleading statements about Client's products or services;
(iv)review and abide by FTC's guidance on endorsements; and
(v)review and abide by Client's Social Media Endorsement Policy, attached hereto as Exhibit C;
1.4Compliance with Laws. Service Provider shall at all times comply with all applicable federal, state, and local laws, ordinances, regulations, and orders that are applicable to this Agreement and performance hereunder.
1.5Compliance with Industry Standards. Service Provider shall comply with promotion and marketing industry standards and self-regulatory guidelines and best practices in providing the Services.
1.6Campaigns with Payment by Service Provider. Service Provider shall clearly disclose in connection with any marketing or promotional campaign that (i) such campaign is run and operated by Service Provider and not Client, (ii) that Service Provider is solely responsible for making payment related to such campaign, and (iii) that Service Provider is providing the Services as a Service Provider (and not as a partnership or joint venture).
1.7Nothing in this Agreement will be construed to create any partnership, joint venture, franchise, sales representation, or employment relationship between Service Provider and Client. Service Provider is not permitted to speak for Client or any of its affiliates or bind Client in any way and has no authority to do so. Service Provider must not make any claims, representations, or warranties in connection with Client
1.8If Service Provider is headquartered or located or has any offices in, or is a resident of, the United States, then, Service Provider will include in any public postings or published statements the following: “dYdX perpetual contracts are unavailable in the United States.” If Service Provider is not headquartered or located and does not have offices in, and is not a resident of, the United States, then, with any post or published statement on a medium targeted at the United States, Service Provider will post therewith the following: “dYdX perpetual contracts are unavailable in the United States.”
2.1Client shall provide, as needed, copies of or access to Client's information, documents, samples, products and services, or other materials (collectively, "Client Materials") as Service Provider may require in order to carry out the Services in a timely manner and ensure that they are complete and accurate in all material respects. Client and its licensors are, and shall remain, the sole and exclusive owner of all right, title, and interest in and to all Client Materials, including all copyrights, trademarks, service marks, trade dress, trade names, trade secrets, patents, mask works, and other intellectual and industrial property rights (collectively "Intellectual Property Rights") therein. Service Provider shall have no right or license to use any Client Materials other than during the Term to the extent necessary to provide the Services to Client, and all other rights in and to the Client Materials are expressly reserved by Client.
2.2Client owns all worldwide right, title, and interest in and to all written, graphic, coded, audio, and visual materials and other work product (whether finished or unfinished) that are delivered to or developed for Client’s use or benefit under this Agreement, or provided to Client under this Agreement, or data or information sent to or shared with Client pursuant to any Services described in this Agreement, including all Intellectual Property Rights therein, together with all of the goodwill associated therewith (collectively, the "deliverables"). The deliverables shall include, without limitation all copy, blogs, storyboards, concepts, ideas, inventions, discoveries, domain names, logos, taglines, slogans, website design, style, content, structure and look and feel, internet portals, videos, research, studies, reports, presentations and proposals, artwork, videos, music, lyrics, photographs, graphic materials, audiovisual works, and telephone numbers for use by Client's consumers.
2.3Any deliverables protectable under United States copyright law shall be owned by Client as "works made for hire" as defined in Section 101 of the United States Copyright Act. To the extent that any or all of such deliverables are not deemed a work made for hire, Service Provider assigns to Client all right, title, and interest in and to the worldwide copyrights in such deliverables. With respect to all other Intellectual Property Rights in the deliverables, Service Provider irrevocably assigns to Client all worldwide right, title, and interest in and to all Intellectual Property Rights in such deliverables.
2.4Upon the request of Client, Service Provider shall promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect, or record its rights in or to any deliverables and all Intellectual Property Rights therein.
2.5Service Provider acknowledges and agrees that:
(i)all deliverables that may qualify as "works made for hire" will be deemed "works made for hire" for Client and, to the extent that any of the deliverables does not constitute a "work made for hire," or is protected under other Intellectual Property Rights, to irrevocably assign, to Client, in each case without additional consideration, all worldwide right, title, and interest in and all the Intellectual Property Rights in such deliverables.
(ii)Service Provider irrevocably waives, to the extent permitted by applicable law, any and all claims such Service Provider may now or hereafter have in any jurisdiction to so-called "moral rights" concerning the deliverables.
2.6Notwithstanding anything herein to the contrary, Client's ownership of the deliverables shall be subject to (i) the rights of third parties whose materials or services are contained in the deliverables with Client's prior knowledge and written approval (for example, stock footage, photos, music, and software) and used under a license or other permission granted to Service Provider or Client ("Third-Party Materials"), or (ii) all materials owned by Service Provider prior to, or independent from, the performance of Services under this Agreement, and all methodologies, software, applications, processes or procedures used, created, or developed by Service Provider in the general conduct of its business, excluding those developed specifically for Client or at Client's request or funded by Client (collectively, "Pre-Existing Materials"). [Service Provider shall identify all Pre-Existing Materials in the applicable SOW.] Service Provider hereby grants Client a royalty-free, perpetual, worldwide license to any Service Provider Materials to the extent incorporated in, combined with, or otherwise necessary for the use of the deliverables for all purposes. Service Provider shall disclose in writing to Client all usage limitations on Third-Party Materials prior to their use in or launch of any deliverables.
2.7Subject to and in accordance with the terms and conditions of this Agreement, Client grants Service Provider a limited, non-transferable, non-sublicensable non-exclusive license during the Term to use, solely in connection with its performance of the Services, Client's Intellectual Property Rights required to perform the Services.
2.8Client grants no other right or license to any of its Intellectual Property Rights to Service Provider by implication, estoppel, or otherwise. Service Provider acknowledges that Client owns all right, title, and interest in, to, and under all its Intellectual Property Rights and that Service Provider shall not acquire any proprietary rights therein. Any use by Service Provider or any affiliate, employee, officer, director, partner, shareholder, agent, attorney, third-party advisor, successor, or permitted assign (collectively, "Representatives") of Service Provider or Permitted Subcontractors of any of Client's Intellectual Property Rights and all goodwill associated therewith shall inure to the benefit of Client.
3.Fees and Expenses; Payment Obligations.
3.1Fees and Expenses.
(a)In consideration of the provision of the Services and the rights granted to Client under this Agreement, Client shall pay Service Provider the fees agreed to in each SOW (the "Fees").
(b)Client will not pay any travel or out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services, unless provided otherwise in any applicable SOW.
(c)Payment to Service Provider of the Fees shall constitute payment in full for the performance of the Services, and Client shall not be responsible for paying any other fees, costs, or expenses.
3.2Taxes. All fees payable by Client under this Agreement are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on such amounts. Service Provider shall be responsible for any taxes imposed on, or with respect to, Service Provider's income, revenues, gross receipts, personnel, or real or personal property, or other assets.
3.3Invoice Disputes. Client shall notify Service Provider in writing of any dispute regarding payment. The parties shall seek to resolve all such disputes expeditiously and in good faith.
4.Representations, Warranties, and Certain Covenants.
4.1Service Provider Representations, Warranties, and Covenants. Service Provider represents, warrants, and covenants to Client that:
(a)it has or shall obtain and shall maintain in full force and effect during the Term, at its own expense, all certifications, credentials, authorizations, licenses, and permits necessary to the exercise of its rights and the performance of its obligations under this Agreement.
(b)it shall comply in all material respects with, and ensure that all Service Provider Personnel and Permitted Subcontractors comply with, all specifications, rules, regulations, and policies of Client that are communicated to Service Provider in writing, including without limitation the following Client policies:
(i)The Policies (see Preamble above);
(ii)All applicable laws; and
(iii)Social Media and Promotion Endorsement Policy
(c)None of the Services, or any applicable deliverables, or client's use thereof infringe or violate or will infringe or violate the publicity rights, privacy rights or any other Intellectual Property Rights of any third party.
(d)If Service Provider is an entity, then Service Provider (a) is duly organized and validly existing in good standing under the laws of the jurisdiction of its formation or other jurisdiction in which it is qualified to do business; (b) has the power and authority to execute, deliver and carry out the terms and provisions of this Addendum and consummate the transactions contemplated hereby; (c) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby; and (d) has duly executed and delivered this Agreement. If Service Provider is an individual, then Service Provider (i) has the capacity to execute, deliver and carry out the terms and provisions of this Agreement and consummate the transactions contemplated hereby and (ii) has duly executed and delivered this Agreement. This Agreement constitutes Service Provider’s legal, valid and binding obligation, enforceable against Service Provider in accordance with its terms.
(e)Service Provider will not make any false, deceptive, misleading, derogatory or defamatory statements with respect to the Client, its products or services, or its employees, Users, the Site or the Protocol.
(f)Service Provider will not use any ethnic slurs, personal insults, obscenity, or offensive statements or comments in connection with the Services, Client, or its employees, Users, the Site or the Protocol.
(g)Service Provider will not use content or material that (a) violates or infringes in any way upon the statutory, common law, or proprietary rights of others, including copyrights, trademark rights, patents, or any other third-party intellectual property, contract, privacy or publicity rights; or (b) violates any local, state, or national law, rule or regulation.
(h)Service Provider will not create websites or advertisements that copy, imitate, or resemble the Site or the look and feel of the Site. Service Provider will not copy the Site or any portions thereof, including any of Client’s trademarks (or licensed trademarks) or other intellectual property, or display them on Service Provider’s own site or subdomain or use them in any way without dYdX’s prior express written consent.
(i)Service Provider, and to its knowledge, its directors, officers, employees, agents, Service Providers or representatives, is not, and are not, owned or controlled by a person that (a) is the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“Sanctions”); (b) is located, organized or resident in a country or territory that is the subject of Sanctions; and (c) will, directly or indirectly, use the proceeds received under this Addendum or otherwise make available such proceeds to any subsidiary, joint venture partner or other person (i) to fund or facilitate any activities or business of or with any person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (ii) in any other manner that will result in a violation of Sanctions by any person.
(j)Service Provider must not (a) use cookie stuffing techniques that set the tracking cookie without the potential participant’s actively pursuing the products and services; (b) bid on or use dYdX’s trademarks (or licensed trademarks) or misspelled keywords for the purpose of pay-per-click on internet search engines; (c)engage in domain forwarding (i.e., purchasing a domain and setting it to forward directly to the Client’s products); (d) engage in any marketing activity that may harm the reputation or credibility of dYdX or the dYdX protocol, including using low-quality marketing materials, or advertising on any website that promotes violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or any illegal activities, or violates the intellectual property or other rights of a third party; (e) engage in spam, electronic messaging, or any marketing or promotional activities that violate applicable laws, rules, or regulations; or (f) use malware or spyware to market or promote Client and its products and services.
4.2Client Representations, Warranties, and Covenants. Client represents, warrants, and covenants to Service Provider that the Client's Intellectual Property and Client Materials provided to Service Provider for use as permitted in this Agreement does not infringe or violate or will infringe or violate the publicity and privacy rights or any other Intellectual Property Rights of any third party.
4.3NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE. 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, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, 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 SECTION 5 OF THIS AGREEMENT.
5.1Service Provider Indemnification Obligations. Service Provider shall defend, indemnify, and hold harmless Client, and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, "Client 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 reasonable attorney fees, the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers ("Losses") arising out of or resulting from any third-party claim or direct claim alleging:
(a)breach by Service Provider or any Service Provider Personnel of any representation, warranty, covenant, or other obligations set forth in this Agreement;
(b)negligence or more culpable act or omission of Service Provider or any Service Provider Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; and/or
(c)that any of the Services or deliverables or Client's receipt or use thereof infringes or violates the publicity or privacy rights or any other Intellectual Property Rights of a third party arising under the laws of the United States.
5.2Client Indemnification Obligations. Client shall defend, indemnify, and hold harmless Service Provider, and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, "Service Provider Indemnified Party"), from and against any and all Losses arising out of or resulting from any third-party claim or direct claim alleging:
(a)breach by Client of any material representation, warranty, covenant, or other obligations set forth in this Agreement;
(b)gross negligence or more culpable act or omission of Client (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; and
()that any Client Materials or Client's Intellectual Property Rights that Service Provider uses to perform the Services or incorporate into the deliverables in accordance with the terms of this Agreement infringes or violates the publicity or privacy rights or any other Intellectual Property Rights of a third party.
5.3Indemnification Procedures. A party seeking indemnification under this 5 (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 in the defense of such claim. The Indemnified Party shall have the right to control the defense and settlement of any such claim; provided, and 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.
6.Limitation of Liability.
6.1NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. EXCEPT WITH RESPECT TO THE PARTIES' LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, 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.
6.2MAXIMUM LIABILITY. EXCEPT WITH RESPECT TO THE PARTIES' LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR BREACH OF APPLICABLE LAW, 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 2X THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
7.Insurance. During the Term and for 2 years thereafter, Service Provider shall, at its own expense, maintain and carry in full force and effect, subject to appropriate levels of self-insurance, at least the following types and amounts of insurance coverage:
7.1Commercial general liability with limits no less than $500,000 for each occurrence and $1 million in the aggregate, including but not limited to advertising liability and contractual liability coverage insuring activities relating to the Services contemplated in this Agreement; and
7.2Umbrella liability for the coverage referenced in Section 7.1 and Section 7.2, with limits no less than $1 million.
8.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 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: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this 8 by the Receiving Party or any of its Representatives; (b) 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; (c) 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; (d) 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 (e) is required to be disclosed pursuant to applicable law. The Receiving Party shall for the duration of this Agreement, and for 3 years from any termination or expiration of this Agreement: (x) 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; (y) 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 (z) 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 ion 8 caused by any of its Representatives. At any time during or after the Term, at the Disclosing Party's written request, the Receiving Party and its Representatives shall, destroy all Confidential Information and copies thereof that it has received under this Agreement.
9.1Term. Unless set forth separately in the SOW, the term of this Agreement and any SOW hereto commences on Effective Date and continues 12 months unless it is earlier terminated in accordance with the terms of this Agreement (the "Term"). Unless stated otherwise in the SOW, neither this Agreement nor any SOW shall auto-renew at the end of the Term.
9.2Termination for Cause.
(a)Either party may terminate this Agreement, effective upon written Notice, to the other party (the "Defaulting Party") if the Defaulting Party:
(i)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.
9.3Termination without Cause. Client may terminate this Agreement and/or any related SOW, effective immediately, at any time in its sole discretion.
9.4Effect of Expiration or Termination.
(a)Upon termination of this Agreement Client shall promptly make payment to Service Provider for any outstanding amounts due and payable for any Services performed in accordance with this Agreement prior to the date of such termination.
(b)Upon the expiration or termination of this Agreement for any reason each party shall promptly:
(i)destroy all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other party's Confidential Information;
(ii)permanently erase all of the other party's Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery or information technology backup systems, which it shall destroy upon the normal expiration of its backup files; and
(iii)certify in writing to the other party that it has complied with the requirements of this clause; provided, however, that Client may retain copies of any Confidential Information of Service Provider incorporated in the deliverables or to the extent necessary to allow it to make full use of the Services and any applicable deliverables.
(c)Upon expiration or termination of this Agreement for any reason Service Provider shall:
(i)promptly deliver to Client all deliverables (whether complete or incomplete) for which Client has paid and all Client Materials;
(ii)provide reasonable cooperation and assistance to Client upon Client's written request and at Client's expense in transitioning the Services to an alternate Service Provider; and
(iii)on a pro-rata basis, repay any fees and expenses paid in advance for any Services or deliverables that have not been provided.
(d)In no event shall Client be liable for any Service Provider personnel termination costs arising from the expiration or termination of this Agreement.
10.1Entire Agreement. This Agreement, including the related schedules attached hereto, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
10.2Survival. Subject to the limitations and other provisions of this Agreement, 5, 6, 7, 8, Section 9, and 10 this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement for the period specified therein, or if nothing is specified for a period of 24 months after such expiration or termination.
10.3Notices. All notices, requests, consents, claims, demands, waivers, and other similar communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All Notices shall be delivered by (i) email (with confirmation of transmission, and including the email in the signature block hereto) and (ii) personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
10.4Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
10.5Amendment and Modification. Client may, in its sole discretion, revise and amend this Agreement at any time with notice, including by updating the “Last Updated” date at the top of this Addendum. Your continued performance of the Services after the date of any such revisions indicate your acceptance of any amendment to this Agreement.
10.6Waiver. No waiver by either party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
10.7Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise.
10.8Equitable Remedies. Each party acknowledges and agrees that (a) a breach or threatened breach by it of any of its obligations under Section 8 (Confidentiality) would give rise to irreparable harm to the Client for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by of any such obligations, the Client shall, in addition to any and all other rights and remedies that may be available to Client at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each party agrees that it will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section.
10.9Assignment. Neither party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, that Client may assign this Agreement to an affiliate or successor-in-interest by consolidation, merger, or operation of law or to a purchaser of all or substantially all of the party's assets. 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.
10.10No Third-Party Beneficiaries.
(a)Subject to this Section 10 this Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
(b)The parties hereby designate the Client Indemnified Parties and Service Provider Indemnified Parties as third-party beneficiaries of this Agreement having the right to enforce this Agreement.
10.11Choice of Law. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Delaware, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware.
10.12Choice of Forum. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against any other party in any way arising from or relating to this Agreement and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than Delaware Court of Chancery, and if such court does not have subject matter jurisdiction, the courts of the State of Delaware, and any appellate court from any thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in Delaware Court of Chancery, and if such court does not have subject matter jurisdiction, the courts of the State of Delaware. Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
10.13Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
10.14Force 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; and (f) national or regional emergency; and (g) strikes, labor stoppages or slowdowns or other industrial disturbances; and (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials or (i) other similar events beyond the reasonable control of the Impacted Party.
10.15Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the parties. Service Provider 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.
10.16Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Description of Services
Service Provider will provide certain of the following Services as the Company may request from time to time, and otherwise as the Parties determine in writing:
Provide endorsement of the Company’s products and services.
Engage in promotional or marketing activities that support the Company’s products and services.
Design and produce creative materials to promote the Company.
Manage relationships with users of the Company’s protocol in connection with promotions and campaigns run by Company.
Assist with growth, marketing and community management as it relates to promotions and campaigns run by Company.
Develop, create, and produce materials and content related to the following:
loyalty and reward programs;
online promotional initiatives; and
direct response initiatives.
Statement of Work
[Exhibit B intentionally left blank]
Social Media and Promotion Endorsement Policy
Purpose and Scope
dYdX Trading Inc., a Delaware corporation (“dYdX” or the “Company” or “us”), is committed to transparency and honesty in all of its advertising messages and promotional communications with consumers. One of the most common ways to advertise and market products and services in social media is to use third party endorsements. Like other types of advertising, endorsements must be truthful and not misleading. Consumers must understand when a social media endorsement is sponsored by us.
This Policy applies to all agencies, independent contractors, speakers, writers, bloggers, talent, influencers, and any other individual or entity engaged in promotional communications on behalf of the Company on social media or other non-traditional media. This Policy also applies to our employees and agencies who manage these individuals and entities and employees who promote the company and its products and services on their personal social media accounts.
Defining an Endorser Covered by This Policy
An individual or entity communicating on social media or other non-traditional media is covered by this Policy if its promotional messages about the Company or our products and services are sponsored by us ("Sponsored Endorser"). If the individual or entity is acting independently, and has no material connection with us, and will not receive (and does not expect to receive) any compensation directly or indirectly from the Company, it may not be subject to this Policy.
A message is sponsored by us if we have a material connection with the individual or entity. A material connection is a tie to us which if known to consumers might make consumers question the credibility of the endorser or materially affect the weight consumers place on the endorsement. It puts the endorser's independence in question. For example, the Company or any brand creates a material connection if we do any of the following either directly or through an advertising agency, public relations firm, or other third party:
Hire an agency to blog, post, or serve as a community manager on our behalf (both the agency and its employees then become Sponsored Endorsers).
Enter into an agreement with an individual to blog or post.
Pay an individual to blog or post.
Provide free accommodations or travel to an individual for a company event or experience.
Provide discounts, sweepstakes entries, or other incentives to an individual.
Provide an individual with free prizes for giveaways or sweepstakes on social media platforms.
Provide an individual with free samples to review on social media platforms.
Provide an individual with free samples after that person has blogged or posted independently, especially if providing the free samples creates the expectation of additional free samples (which makes the individual a Sponsored Endorser going forward, not retroactively).
Engage affiliate marketers to advertise, blog, endorse, or sell on our behalf (making the affiliates and their employees Sponsored Endorsers).
The Company can turn our everyday consumers into Sponsored Endorsers by:
Establishing a consumer marketing program that gives members free products and services, coupons, discounts, or other benefits.
Providing incentives to consumers to review our products and services.
Requiring participants to post photos of our product or brand.
This list, though comprehensive, is not exhaustive. Note that the Company employees have a material connection to the Company so are also considered to be Sponsored Endorsers.
Sponsored Endorsers Must Comply with Our Standards of Conduct
With respect to promotional statements or other claims made on social media platforms and on other non-traditional media about the Company and our products and services, Sponsored Endorsers must adhere to the following principles:
They may only make statements that:
reflect their honest beliefs, opinions, or experiences; and
are transparent about their connection to us.
They may not:
make deceptive or misleading claims to consumers about our products or services, or our competitors' products or services;
make any claims about our products or services, or our competitors' products or services, that are not backed up by evidence;
disclose any of our confidential information;
engage in any communication that is defamatory or infringes upon the intellectual property, privacy, or publicity rights of others;
offer for sale or solicit products on behalf of the Company;
make offensive comments that have the purpose or effect of creating an intimidating or hostile environment;
use ethnic slurs, personal insults, obscenity, or other offensive language; and
make any comments or post any content that in any way promotes unsafe activities that could lead to an unsafe situation involving the Company's consumers or other individuals.
They must adhere to:
any additional guidelines provided by the Company.
Sponsored Endorsers must also refrain from creating fake followers or engagement on social media platforms, such as buying followers, or using bots to grow audience size by automating account creation, following, commenting, and liking.
Disclosing a Material Connection Clearly and Conspicuously
When posting about our products and services, the Company requires Sponsored Endorsers to disclose their material connection to us clearly and conspicuously. If a Sponsored Endorser has multiple material connections to us, the full extent should be disclosed.
This policy does not require specific language to disclose a material connection, but Sponsored Endorsers must communicate the material connection effectively so that consumers:
Can easily find it.
Can easily understand it.
Obtain sufficient information from it to make a judgment about the credibility of the endorsement.
Consult Appendix A to this Policy for examples of language that successfully communicate a material connection and language that does not do so.
To ensure a disclosure is clear and conspicuous, appropriate consideration should be given to the limitations and nature of the platform being used. Sponsored Endorsers must:
Ensure the disclosure is:
well-placed so it can be easily noticed; and
prominent so it can be easily read.
Avoid burying the disclosure:
in a bio;
below the fold;
in a hyperlink, like a "Legal" or "Disclosure" button; or
among a series of hashtags, other disclosures, or general copy.
Superimpose a material connection disclosure on images, including on Snapchat and Instagram Stories. The disclosure should be:
easy to notice and read in the time that followers have to look at the image; and
well-contrasted against the image.
In video posts, including podcasts:
place the disclosure both within the video itself, and in the description of the video; and
display the disclosure long enough for a consumer to be able to read and understand it.
In Instagram posts, disclose a material connection before the "More" button.
For a live stream, repeat the disclosure as needed to ensure that consumers see it or keep it posted throughout the live stream.
If the posts are part of an online chat or tweets, or a similar thread, make the disclosure clearly in the first entry into the conversation thread, and then add to subsequent entries.
Disclose the material connection even when just tagging a brand in a photo.
For a podcast appearance, disclose the material connection verbally when promoting our products and services.
If we ask consumers to promote our products and services on social media in exchange for the chance to win a prize, the official rules must require entrants to disclose the fact that the entrant's post is an entry into a contest. Whether the products and services are promoted in a text, a hashtag, a photo, or a video, the entry post must include some clear and conspicuous indicator that the consumer has received an entry in a promotion in exchange for the post. For example, the official rules could require entrants to use a specific hashtag disclosing that the post is a contest entry. Failure to make the disclosure is a breach of this policy.
General guidance on the FTC Endorsement Guides and encouragement to educate themselves on all FTC endorsement guidance. For example, inform Sponsored Endorsers that:
they should not assume their followers know about their connection to us;
opinions should be based on their own honest beliefs and experiences;
they should refrain from making statements about our products and services that are measurable, other than those on the fact sheets we have provided; and
any comparisons must be based on actual, personal experiences with all products being compared because they should not extrapolate beyond personal experiences.
Sponsored Endorsers posts will be monitored to ensure the accuracy of any measurable claims they make about our products and services and that they have adequately disclosed their material connection to us.
When a Sponsored Endorser Fails to Comply with This Policy
You must correct any failure to disclose a material connection or communication of any unsubstantiated claims by a Sponsored Endorser. The employee team responsible for the Sponsored Endorser will take the following steps:
If an agency or other third party manages or is otherwise involved with the Sponsored Endorser relationship, alert the third party to the issue.
Consult with the Company to determine whether a correction is needed, and how best to make it.
If needed, Sponsored Endorser should make the correction or post the correction on the Sponsored Endorser's post or page directly.
The parties will determine if it is necessary to, and the Client shall have the right to decide, in its sole discretion, whether to:
withhold payment from the Sponsored Endorser; or
terminate the relationship with the Sponsored Endorser.
Acknowledgment of Receipt and Review
Any person providing promotion or endorsement services for the Company agrees, indicated by such action, that such person has received and this policy and understands and agrees to comply with its terms. By providing promotional or endorsement services for the Company, you agree that you understand that the Company expressly reserves the right to change, modify, or delete the provisions of this policy at any time without notice.
Appendix A to Social Media and Promotion Endorsement Policy
Best Practices for Disclosure Language
As stated in the Policy, Sponsored Endorsers are required to disclose material connections to the Company. For certain campaigns, the Company may require Sponsored Endorsers to use specific disclosure language. For other campaigns, listed below is sample disclosure language. Alternative but substantively comparable language may also be used where appropriate. The Company prohibits certain hashtags and other disclosure practices specifically found by the FTC as insufficient. The goal for a material connection disclosure is to ensure it is readily seen and understood by consumers and accurately describes our relationship with the Sponsored Endorser.
Statements about the material connection should identify and disclose the nature of the connection, such as:
For receipt of free products:
I received consideration from dYdX Trading Inc.;
For paid Sponsored Endorsers:
I have partnered with dYdX to promote its products and services; or
I am a paid brand ambassador for dYdX.
For receipt of a prize to be given away in a contest:
dYdX is providing prize money for this program at no cost to me; or
This program is not administered or sponsored by dYdX or its affiliates, but solely by your company name.
For incentivized consumer reviews:
I received consideration in exchange for making this review.
For other material connections that should be disclosed in your communications:
"Paid ad"; or
"Ad:" (this would go at the beginning of the statement to indicate the statement is an ad).
If using a hashtag to identify a material connection, make it unambiguous, such as:
Avoid ambiguous hashtags to identify material connections, such as: