GC SOCIAL MEDIA MARKETING, INC. and the party identified as Game Publisher / Advertiser / Customer (referred to hereinafter as "Advertiser") in an Insertion Order (the "Insertion Order" or "IO") entered into by and between the parties agree to these Advertiser Terms and Conditions in connection with the IO and the marketing campaign (the "Campaign") described therein:
Advertiser's Products and Services. Advertiser is solely responsible for any products or services advertised via the Campaign. Advertiser shall ensure that the Campaign is not false or misleading.
Advertiser Content. Advertiser is solely responsible for all content which Advertiser provides or makes available to GC SOCIAL MEDIA MARKETING, INC. and/or Influencers, including but not limited to any text, graphics or images, video, URLs, or any other materials ("Advertiser Content"). Advertiser grants GC SOCIAL MEDIA MARKETING, INC. and each Influencer associated with the Campaign a worldwide, non-exclusive, royalty-free, fully-paid, perpetual, irrevocable, sublicensable and transferrable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Advertiser Content in connection with the Campaign. Advertiser represents and warrants that (i) Advertiser has all rights, approvals, licenses, consents and permissions as are necessary to grant the licenses granted hereunder, and (ii) the Advertiser Content does not, and shall not, infringe, violate or misappropriate any copyright, trademark, patent or any other right of any third party.
Fees. Advertiser shall pay to GC SOCIAL MEDIA MARKETING, INC. the amounts set forth in the Insertion Order. Advertiser shall be responsible for any type of use or sales tax, duty or other governmental tax or similar fees due. Advertiser shall make all payments without deduction for withholding taxes. Late payments may be subject to fees at the rate of 1.0% per month or, if lower, the maximum rate allowed by law.
Warranty Disclaimer. GC SOCIAL MEDIA MARKETING, INC.'S SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND GC SOCIAL MEDIA MARKETING, INC. EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE FOREGOING DISCLAIMER OF WARRANTIES WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Indemnification. Advertiser shall defend, indemnify and hold harmless GC SOCIAL MEDIA MARKETING, INC. and its independent contractors and service providers, and each of their respective directors, officers, employees and agents (collectively, "GC SOCIAL MEDIA MARKETING, INC. Parties") from and against all third party claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) caused by, arising out of or related to (a) products or services advertised via the Campaign, (b) allegations that the Campaign contains false or misleading information, and (c) Advertiser Content.
Limitation of Liability. IN NO EVENT WILL GC SOCIAL MEDIA MARKETING, INC. PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR LOSS OF PROFITS, LOSS OF OPPORTUNITY, BUSINESS INTERRUPTION OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF GC SOCIAL MEDIA MARKETING, INC. PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE CAMPAIGN AND THE INSERTION ORDER EXCEED THE TOTAL FEES ADVERTISER PAID UNDER THE INSERTION ORDER IN THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY. THE FOREGOING DISCLAIMER OF CERTAIN DAMAGES AND LIMITATION OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
The term "Confidential Information" includes (i) all information marked as "Confidential," "Proprietary," or similar legend by the disclosing party ("Discloser") when given to the receiving party ("Recipient"); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, affiliate or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Recipient will not use Discloser's Confidential Information other than as required or appropriate for the Campaign under the Insertion Order.
Notwithstanding anything contained herein to the contrary, the term "Confidential Information" will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient's possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms and Conditions; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
Termination. Either party may terminate the Insertion Order upon twenty-one (21) days' written notice if the other party has materially breached the provisions set forth in the Insertion Order and these Terms and Conditions and has failed to cure such breach within such notice period. In the event of termination due to Advertiser's breach, Advertiser shall immediately pay any and all outstanding fees in relation to the Campaign. Any terms and conditions that by their nature are intended to survive termination (such as, without limitation, those under "Warranty Disclaimer", "Indemnification", "Limitation of Liability", "Confidentiality", "Governing Laws; Arbitration" and "Miscellaneous") shall survive.
Governing Laws; Arbitration. The Insertion Order and these Terms and Conditions shall be governed by the laws of the State of California without regard to conflict of laws provisions. Any dispute, claim or controversy arising out of or relating thereto or the breach, termination, enforcement, interpretation or validity thereof shall be determined by arbitration in California before a single arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction.
Neither the Insertion Order nor any terms or conditions hereof may be amended, waived, discharged or terminated other than by a written instrument referencing the Insertion Order and signed by both parties. No waiver by a party of any breach shall be effective unless it is in writing and signed by such party. No waiver shall constitute a waiver of any other or subsequent breach.
If a court of law holds any provision to be illegal, invalid or unenforceable, (a) that provision shall be deemed amended to achieve an economic effect that is as near as possible to that provided by the original provision and (b) the legality, validity and enforceability of the remaining provisions shall not be affected.
GC SOCIAL MEDIA MARKETING, INC. shall not be liable for delay or default in the performance of its obligations if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes.
The Insertion Order and these Terms and Conditions express the entire agreement between GC SOCIAL MEDIA MARKETING, INC. and Advertiser and shall replace and supersede all prior arrangements and representations, either oral or written, as to the subject matter hereof.
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