ADDENDUM TO THE INSERTION ORDER
As of April 14, 2017
Refinery 29 Inc. (“Refinery29” or “Media Company”) and the agency indicated in the insertion order (“Agency”) on behalf of and as agent for the advertiser indicated on the insertion order (“Advertiser”) agree that each statement of work (a/k/a scope of work, letter of agreement or letter of intent), IO or any other similar document (collectively, “Insertion Order”) including the creation or production of video, custom content or experiential /sponsorship program, agreed to by Refinery29 and Agency, is governed by the GroupM Legal Addendum to the IAB/AAAA Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, version 3.0 (“GroupM Terms”), except that the following changes will apply:
Custom Content Usage Rights:
Custom content usage rights will be set forth in the applicable Insertion Order. If no custom content usage rights is stated, the following will apply. For the custom content usage term set forth in the applicable Insertion Order (or for 12-month from the date of the first publication of each custom content if there is no custom content usage term set forth in the applicable Insertion Order), Agency and Advertiser will have a limited right to distribute, stream, display and exploit any custom content created or produced by Refinery29 under the Insertion Order on (i) Refinery29’s website or Refinery29 social medial channels or Refinery29-distributed e-mails or (ii) Advertiser’s owned and operated website or Advertiser-branded social media channels so long as in a format and form approved by Refinery29 (if modified in any way from its original form). For co-branded custom content, Agency and Advertiser will provide attribution or link back to Refinery29 in all cases. All rights, title and interest in and to the custom content created by Refinery29 under the Insertion Order, excluding intellectual property provided by Agency or Advertiser, and any goodwill associated therewith will inure solely to the benefit of Refinery29. After the custom content usage term, as set forth in the applicable Insertion Order or as stated in this section, Agency and Advertiser may use the custom content for archival or historical use including presenting the custom content in a case study, submitting the custom content for consideration at an award show, or playing the custom content on Agency’s or Advertiser’s property via closed circuit distribution for internal use only (no ‘refresh’ of a social post is allowed). For the avoidance of doubt, the parties understand and agree that Agency and Advertiser shall not be responsible for the removal of any custom content from any channels of distribution or public display which are not in the complete control of Advertiser, including, without limitation, any social media platform, except after receiving a request to take-down any specific custom content. All rights not expressly granted are hereby reserved.
Custom Content Cancellation
All custom content cancellation terms will be set forth in the applicable Insertion Order. Notwithstanding anything in this Addendum or the Insertion Order to the contrary, all custom content fees and any sponsorship program fees may not be canceled by the Agency or Advertiser if Media Company has commenced the development of the custom content and committed to the program being sponsored. Notwithstanding anything in this Addendum or the Insertion Order to the contrary, without limiting any of its other rights, Advertiser reserves the right to terminate any custom content component of the Insertion Order for cause. For purposes hereof, “cause” shall mean a termination of a custom content component of the Insertion Order due to (a) Media Company’s failure to cure within seven (7) business days after having received a notice thereof informing Media Company of its failure to perform with respect to the custom content that Advertiser wishes to terminate for cause in accordance with the material terms of the Insertion Order, the Addendum or the GroupM Terms; or (b) with respect to a custom content not reviewed and approved by Advertiser, or with respect to issues that were not obviously based upon such review before their publication, Advertiser’s reasonable determination that the said custom content may give rise to legal liability or harm to Advertiser’s or its products’ reputation. Termination of the Insertion Order for any of the reasons provided herein shall not relieve either party from its obligation to perform up to the effective date of such termination or to perform such obligations as may survive termination and Media Company shall not be entitled to any compensation above the agreed upon cancellation terms set forth herein or in the Insertion Order. Notwithstanding anything to the contrary in the Insertion Order, any cancellation fees, charges or other costs payable upon cancellation of the advertising campaign shall not exceed that portion of the total budget of the campaign scheduled to be completed as of the date of cancellation.
Flat Fee Packages
Impressions are estimated and not guaranteed.
Custom Content Indemnification
Additionally, if the advertising campaign under the Insertion Order involves advertorials, native advertising, sponsorship of any content, or any other content provided to or with which the Advertiser is to be associated in any manner, but excluding any Advertiser Content (as defined below), all content that is provided by or through Media Company (“Media Company Content”) shall be deemed to be Media Company’s responsibility. Accordingly, notwithstanding any other provision or agreement to the contrary, and regardless of any Advertiser/Agency approval of, revisions to or other Advertiser/Agency contribution to any Media Company Content, Media Company shall indemnify, defend and hold harmless Agency and Advertiser and their respective directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, “Advertiser Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon the Advertiser Parties or any of them in connection with or relating to the Media Company Content provided however that such Media Company Content is used by Agency or Advertiser in accordance with usage rights provided under the Insertion Order (or this Addendum). Furthermore, any content provided by or through Agency or Advertiser (“Advertiser Content”) shall be deemed to be Advertiser’s responsibility. Accordingly, notwithstanding any other provision or agreement to the contrary, regardless of Media Company’s incorporation of such Advertiser Content in Media Company Content, Advertiser shall indemnify, defend and hold harmless Media Company and its directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, “Media Company Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon the Media Company Parties or any of them in connection with or relating to their use of the Advertiser Content as authorized and without modification.
Round of Review
Refinery29/Media Company will provide to Agency/Advertiser three (3) opportunities to review and comment on the custom content. Agency/Advertiser will provide its feedback and comments within the reasonable time frame requested by Refinery29/Media Company. Failure to timely respond may result in Overages.
Payment of Custom Content
If the Insertion Order includes any custom content (namely, videos, white label, photos, experiential and sponsorship program), the fees associated with any such custom content are payable in accordance with the terms of the Insertion Order, it being understood that any fees associated with any such custom content may be subject to a different payment schedule than the fees associated with media. If an IO includes any experiential element (such as an event), the fees associated with any such experiential elements is payable 50% upon signature of the applicable IO and 50% upon completion of the associated experiential element.
If the scope of the work set forth in the Insertion Order changes including additional custom deliverables, more extensive distribution rights, delay in Agency/Advertiser providing its approval, and requests for additional talent beyond what was originally contemplated, then Agency/Advertiser will be responsible for any additional costs and fees (“Overages”). All Overages must be pre-approved in writing by Agency/Advertiser (via email will be sufficient).
No Further Changes
All capitalized terms not defined herein shall have the same meaning given them in the GroupM Terms. The GroupM Terms, this Addendum and any Insertion Orders are governed by the laws of the state of New York and any claims, legal proceedings, or litigation arising in connection with these GroupM Terms, this Addendum and any Insertion Orders, will be brought solely in New York, New York, and the parties consent to the jurisdiction of such courts. The order of preference in the event of conflicting terms will be: this Addendum, the Insertion Order and the related GroupM Terms.