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Breadwinner Terms of Service 2017-07-17T21:44:12+00:00

BREADWINNER” AGREEMENT

This “Breadwinner” Agreement (the “Agreement”) is by and between you (“You”, or “Your”) and FanBread, Inc., a Delaware corporation, with offices at 520 Broadway, Santa Monica, California 90401 (“FanBread”).  Capitalized terms shall have the meanings defined herein.

 

  1. Structure and Payment. In the event that You post links on Your website(s), applications, multi-channel networks, accounts with over-the-top content distribution networks such as YouTube, and social media accounts (including, but not limited to, Instagram, Twitter and Facebook) (collectively, the “Content Channels”) that actually direct Valid Traffic to one or more websites created, owned or operated by FanBread (each, a “FanBread Page” or collectively, “FanBread Pages”) then FanBread agrees to pay you an amount equal to eighty percent (80%) of the Net Revenue actually received by FanBread, if any, that is solely and directly attributable to such Valid Traffic (the “Revenue Share Payment”). Notwithstanding the foregoing, You shall not be entitled to any Revenue Share Payment in any given month, until your total earned, unpaid Revenue Share Payments, if any, exceed one hundred dollars ($100). “Valid Traffic” means, a single instance of a view of a FanBread Page by an actual, third party human, so long as such visitor arrived at the FanBread Page by clicking on a link from one of your Content Channels immediately prior to viewing the corresponding FanBread Page; provided, however, that in no event shall any Invalid Requests constitute Valid Traffic or be included in any calculation of Valid Traffic for purposes of determining the Revenue Share Payment payable to You, if any. “Invalid Requests” means, clicks of links posted on your Content Channels that FanBread determines in its sole discretion were generated by click-fraud, other types of fraudulent behavior, “bots”, automated systems, clicks by You or parties affiliated with You, or any other illegitimate traffic. During the Term, FanBread will pay You the Revenue Share Payment owing to you, if any, within thirty (30) days after the last day of the month during which such allocable portion of Net Revenue, if any, is actually received by FanBread. All Revenue Share Payments will be made in U.S. dollars.
  2. OWNERSHIP. You acknowledge and agree that (i) as between FanBread and You, FanBread owns and shall continue to own all right, title and interest (including, without limitation, all rights provided under copyright and trademark laws) in and to: (1) the FanBread marks, (2) the FanBread Pages and the content therein, (3) any end-user information (including, without limitation, e-mail addresses, demographic information, etc.) collected from the FanBread Pages, and (4) all of FanBread’s technology, materials, systems, software, applications, platforms, services (and the results and proceeds thereof), data, goods, products, information, programs, charts, graphs, marks, documentation, tools, utilities, processes, methodologies, specifications, techniques and any and all other materials, know how, and hardware (and, with respect to each of the above, all derivative works, updates, upgrades and/or enhancements thereof or thereto and all copies, partial copies, revisions, enhancement, updates or modifications thereto), together with the intellectual property rights therein throughout the world (collectively, the “FanBread IP”); and (ii) nothing in this Agreement shall confer in You any right of ownership in any FanBread IP.
  3. CERTAIN DEFINITIONS. “Net Revenue” means an amount equal to: (i) Gross Revenues, minus (ii) costs, fees and expenses attributable to the development, support and operation of the FanBread Pages, including, without limitation, hosting or platform related expenses, social media fees, marketing expenses, content costs, third party fees related thereto, and demand-side platform use, programmatic advertising or sales representation/agency, fees, costs or commissions. “Gross Revenue” means advertising revenues actually received by FanBread that are solely and directly attributable to Valid Traffic. For avoidance of doubt, all calculations of Gross Revenue, Net Revenue, Valid Traffic and Invalid Requests shall be based on FanBread’s data and FanBread’s determination of such amounts shall be final and binding on the parties hereto.
  4. CONFIDENTIAL INFORMATION.
    1. Definition. In the course of performance of this Agreement, each party may become privy to Confidential Information of the other.  As used herein, Confidential Information shall mean all oral or written information, of whatever kind and in whatever form, relating to past, present or future business, business prospects or business plans, products, research and development, inventions, processes, techniques, designs or other technical information and data, and marketing plans (including such information of third parties that a party hereto is obligated to hold as confidential). Confidential Information shall not include any information which is in the public domain or which was independently developed by the recipient without use of or reliance upon Confidential Information of the other as evidenced by its records.
    2. Non-Disclosure. Each party hereby covenants and agrees that, except (i) as set forth in section 4(f) below, (ii) as may be required by law or pursuant to subpoena or order of any judicial, legislative, executive, regulatory or administrative body, (iii) to enforce its rights under this Agreement or (iv) for disclosure made by a party to its affiliate(s) or to its or their financial, legal or other advisors or its or their governing board (and such party shall cause such recipient to keep such disclosed Confidential Information confidential) and as a part of its normal reporting procedure, neither it nor any of its officers, directors, employees or agents shall, directly or indirectly, disclose to any third party or make any public statement or announcement regarding the existence of this Agreement or the terms of this Agreement unless, with respect to public statements or announcements, (1) the substance and form of the announcement or statement are agreeable to both parties and (2) the parties agree that such announcement or statement shall be made.  In the event that a party is required to make a disclosure permitted pursuant to clauses (ii), (iii) or (iv) above, the disclosing party shall give written notice (in advance of making such disclosure, if possible) to the other party of the disclosing party’s applicable disclosure obligation and will use its good faith efforts (in light of the particular circumstances) to seek and obtain confidential treatment of such disclosure and/or to give the non-disclosing party the opportunity to review and comment upon the form of disclosure.
    3. Return of Confidential Information. All notes, data, reference manuals, sketches, drawings, memoranda, electronic media, and records in any way incorporating or reflecting any Confidential Information of the disclosing party hereunder and all proprietary rights in such Confidential Information of the disclosing party hereunder and all proprietary rights in such Confidential Information shall belong exclusively to such disclosing party. The party receiving such Confidential Information hereunder shall return all copies thereof to the disclosing party immediately upon request or upon termination or expiration of this Agreement.
    4. Injunctive Relief. The parties agree that any breach of this Section 4 may cause immediate and irreparable injury to the other party and that, in the event of such breach, the injured party will be entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.  Nothing in this Section 4 will be construed as prohibiting either party from pursuing any other remedies available to it for such breach or threatened breach.
    5. Use of FanBread Name. You may not make any public announcement regarding FanBread or the existence or substance of this Agreement, without FanBread’s prior written approval.
    6. Marketing and Promotional Materials. Notwithstanding anything to the contrary in this Agreement, You expressly agree that FanBread and its affiliates (i) may publicly disclose the existence of the “breadwinner” business relationship between You and FanBread contemplated by this Agreement, and (ii) are expressly permitted to use Your name, image or likeness in connection with any of FanBread and its affiliates’ promotional or marketing materials.
  5. REPRESENTATIONS & WARRANTIES.
    1. Your Representations and Warranties. You represent and warrant that: (i) You have the rights, licenses, releases, waivers and authority necessary to enter into this Agreements; (ii) links to FanBread Pages posted on Your Content Channels shall not be false or misleading; and (iii) no claims, actions or other proceedings are pending or, to the best of your knowledge, threatened in connection with the rights granted to FanBread by You hereunder.
    2. FanBread Representations and Warranties. FanBread represents and warrants that FanBread has the rights necessary to enter into this Agreement and to grant the express rights and licenses specified herein.
  6. Each party shall indemnify, defend and hold the other party harmless with respect to any third party claim (Claim), and any liability, damage, judgment or settlement, or expenses, including, without limitation, all reasonable outside legal expenses, incurred (collectively, Damages) arising from such Claim, to the extent such Claim alleges facts which, if true, should constitute a breach of the express representations, warranties and/or agreements made by the indemnifying party. Notwithstanding the foregoing, FanBread will not have any intellectual property-related liability of any kind with respect to the FanBread Pages.
  7. LIMITATION OF LIABILITY. To the fullest extent permitted by law, (a) You hereby waive all claims against FanBread, any FanBread affiliate or any of their directors, officers, licensees, assigns, employees, or representatives seeking any indirect, incidental, punitive and consequential damages; and (b) You hereby waive all claims against FanBread, any FanBread affiliate or any of their directors, officers, licensees, assigns, employees, or representatives based on the FanBread Pages. Damages of any kind arising from this Agreement, whether in contract or tort and under any theory of liability, shall not exceed One Thousand Dollars ($1,000). You acknowledge that FanBread would not enter into this Agreement without these limitations on liability.
  8. NON-ASSIGNMENT/BINDING AGREEMENT. Neither party shall, without the written consent of the other party hereto, assign or transfer this Agreement or any of its rights or obligations hereunder, except that no such consent is needed for any assignment to a wholly-owned or majority-owned subsidiary of the party or a successor in interest to such party whether by merger, consolidation, sale of all or substantially all assets, stock, or otherwise, provided that You shall provide FanBread prior notice of any of the foregoing applicable events of assignment, and, provided further, that FanBread shall be permitted to assign this Agreement, in whole or in part, to any of its affiliates.  Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
  9. NOTICES. Any notice to be given hereunder shall be in writing and delivered personally or sent by facsimile transmission (provided a copy is contemporaneously sent by regular mail), registered or certified mail, postage prepaid, or overnight courier service, to the mailing address or email address set forth below the appropriate party’s signature, or such other address or facsimile number as either party may designate in accordance with this Section 9.  Notices shall be deemed received at the earlier of actual receipt, three business days following mailing, one business day after facsimile transmission (provided automatic confirmation of transmission is received by the sender) or one business day after deposit with an overnight courier service.
  10. FORCE MAJEURE. Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the party.  Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, failure of supply from third parties, riots, acts of war, fire, and explosions, but the inability to meet financial obligations is expressly excluded.
  11. WAIVERS AND REMEDIES. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective.  Any waiver in a particular instance shall not constitute a waiver of the same or different rights or breaches in any other instance.  Failure, neglect or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not prejudice such party’s right to take subsequent action.  Except as otherwise provided herein relating to exclusive remedies in certain situations, no exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
  12. TERM AND TERMINATION.
    1. Initial Term and Renewals. Unless earlier terminated or extended as provided herein, this Agreement will commence on the date You agree to these terms by clicking below and shall continue for a period of one (1) year therefrom (the “Initial Term).  Commencing upon expiration of the Initial Term, this Agreement will automatically renew for additional one (1) year periods unless either party gives notice of non-renewal at least sixty (60) days before the expiration of the then current term (each such one (1) year period, a “Renewal Period“).  “Term” means the Initial Term plus any Renewal Periods.
    2. Termination for Convenience. FanBread may terminate this Agreement, for any or no reason, upon fifteen (15) days’ prior written notice.
    3. Termination by You. You may terminate this Agreement with cause after providing FanBread with ninety (90) days advance written notice thereof.
    4. Termination for Cause. This Agreement may be terminated by either party immediately upon notice if the other party: (i) becomes insolvent; (ii) files a petition for bankruptcy; (iii) makes an assignment for the benefit of its creditors; or (iv) breaches its obligations under this Agreement in any material respect and fails to cure that breach within thirty (30) days following written notice of the breach.
    5. Cessation of Services; Interruption. FanBread reserves the right, to be exercised by FanBread in its sole discretion, to cease or interrupt any services provided by FanBread hereunder at any time during the Term and for any length of time.
  13. SEVERABILITY. If any term, condition or provision in this Agreement is found by a court of competent jurisdiction to be invalid, unlawful or unenforceable to any extent, then it is the intent of the parties that such court apply a rule of reasonableness and modify the provision in question so it will remain in effect to the greatest extent permitted by law.  In the event a court finds such procedure to be inappropriate, then such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
  14. ENTIRE AGREEMENT; AMENDMENTS. This Agreement sets forth the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter, except that any previously executed confidentiality or non-disclosure agreement shall remain in effect. No terms, provisions or conditions of any purchase order, acknowledgment or other business form that either party may use in connection with this Agreement will have any effect on the rights, duties, or obligations of the parties under, or otherwise modify, this Agreement, and each party hereby continuously objects to any such terms, provisions or conditions. This Agreement may be amended or revised periodically by FanBread and Your continued posting of links to FanBread Pages constitutes your agreement to be bound by any such future amendments or revisions. If FanBread materially amends or revises this Agreement, then FanBread will notify You through email, or by other means of notice prior to the change becoming effective.
  15. COUNTERPARTS. This Agreement may be executed in counterparts, each of which so executed will be deemed to be original and such counterparts together will constitute one and the same agreement.
  16. GOVERNING LAW; JURISDICTION. This Agreement will be interpreted and construed in accordance with the laws of the State of California and the United States of America, without regard to conflicts of law principles.  The parties hereby consent to the exclusive jurisdiction of Federal and state courts sitting in San Francisco County, California in any action or claim arising out of, under or in connection with this Agreement, or the relationship between the parties hereto.
  17. NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to, and shall not, create any rights in or confer any benefits upon any person other than the parties hereto.
  18. RELATIONSHIP OF THE PARTIES. Each party to this Agreement is an independent contractor and neither shall be considered the employee, agent, party or joint venturer of or with the other (regardless of how the parties are referred to in writing or orally) or have any express or implied authority to bind the other.