NOCAP SPORTS STANDARD TERMS AND CONDITIONS FOR SOCIAL MEDIA INFLUENCING

Last Updated October 24, 2022

NOCAP Sports, Inc. is a Delaware corporation (“NOCAP”) providing social media influencer and other services under the NOCAP platform.  These NOCAP Standard Terms and Conditions for Social Media Influencing (“Terms”) shall govern the provision of services to Client by NOCAP and its affiliates.  For purposes of these Terms, NOCAP and Client each may be referred to herein as a “Party” or collectively as “Parties”.

1. Services: NOCAP is a provider of athlete-generated content for social media and other digital marketing services (“Services”). NOCAP will provide Services in support of either (i) Client’s products or services or (ii) to the extent Client represents a third-party brand owner (“Brand Owner”), in support of Brand Owner’s products or services.

NOCAP will utilize “Athletes,” who are independent contractors and not NOCAP employees. The Parties understand and agree that, as independent contractors, these Athletes may express their opinions, including but not limited to their opinions regarding the products or services of Client and/or Brand Owner, in a number of different forums, for which NOCAP is unable to exercise control. Pursuant to the terms of an Insertion Order, Athletes will create original advertising content including without limitation text, photos, videos, and/or audio or publish advertising content provided by Client or Brand Owner (the “Content”). NOCAP maintains agreements with these Athletes that require Athletes to comply with applicable laws and regulations as well as the terms of any particular Insertion Order.  NOCAP will also provide the following Services:

a) Conduct an Athlete selection and approval process. If the Client wishes to participate in the Athlete selection and approval process in any way, the details of such participation, including any additional time periods involved, must be clearly outlined in the applicable Insertion Order. 

b) Notify Athletes that they should only be using original Content or Content for which they have all necessary permissions.

c) Notify Athletes that they should write about Client or Brand Owner’s products or services only in a truthful manner that represents the Athletes’ actual opinions about the Client or Brand Owner’s products or services, and that they should make no unapproved claims about the Client or Brand Owner’s products or services that require substantiation;

d) Notify Athletes that they must comply with Federal Trade Commission guidance regarding disclosures, including disclosing the material connections with Client or Brand Owner created by the Insertion Order;

e) Notify Athletes that they should not write specifically about any competitive products or services in connection with a particular Insertion Order;

f) Notify Athletes that they should not disparage any of Client or Brand Owner’s products or services reasonably connected in time with a particular Insertion Order;

g) To the extent that Client elects to review and approve Athlete Content prior to Content posting, NOCAP will assist Client in the coordination of one (1) round of Content revision which shall be limited to: (i) factual information regarding the Client, brand or product; (ii) inappropriate or disparaging mention of product, text or photographs; and (iii) mention of competitive products, text or photographs.  Client understands and agrees that it shall not have the right to edit or revise Athlete opinions, photographs, or other subjective information; and

h) To the extent any published Content includes material that Client wishes not to continue to use for any reason, use commercially reasonable efforts (i) to remove such Content from channels owned or controlled by NOCAP or its affiliates and (ii) to assist Client in ensuring that such Content is removed from channels owned or controlled by the Athlete. The Parties understand and agree that neither NOCAP nor Athlete shall have any duty to remove Content from channels not owned or controlled by NOCAP, its affiliates, or Athlete. 

i) To the extent that Client elects to have NOCAP utilize Athletes who are minors for the Services to be provided under an Insertion Order, Client understands and agrees to accept the additional risks associated with contracting with minors.  NOCAP will require that the parents/guardians of the minor Athletes provide consent for the minor’s participation.  

j) If requested as part of an Insertion Order, NOCAP can provide Client with access to and use of media buys, including targeted advertising, analytics, and attribution on Consumer Social Platforms.  “Consumer Social Platform” means the social platforms provided by each of the following: Meta, Inc.; LinkedIn Corporation; ByteDance Ltd.; Snap, Inc.; and Twitter, Inc.; as well as any other additional social platforms that may be indicated on an Insertion Order.  For all Consumer Social Platforms, Client understands and agrees that additional terms and conditions apply and that such Consumer Social Platforms are outside of NOCAP’s scope and responsibility.   Where Client requests NOCAP to purchase media on the Consumer Social Platform as part of an Insertion Order, NOCAP will perform such orders acting as agent for Client.  Client acknowledges and agrees that each Consumer Social Platform may modify, suspend, or terminate access to, or discontinue the availability of, its targeted advertising services, either in whole or in part, at any time.

2. Term:  The Term of an applicable Insertion Order shall commence on the Kickoff date set forth, and shall end on the Wrap-Up Date set forth therein.  Any additional programs developed during the Term will be subject to a written addendum to an applicable Insertion Order or a separate Insertion Order, signed by both parties, and incorporated by reference, if applicable.  

3. Termination for Cause:  An Insertion Order may be terminated by a Party for cause immediately by written notice upon the occurrence of any of the following events: (a) if the other Party commits a material breach of its obligations under this Agreement and fails to cure that breach within thirty (30) days after receiving written notice of the breach;  (b) if Client fails to make any payment due and such nonpayment continues for a period of ten (10) days after receipt of written notice from NOCAP; or (c) if the other Party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding.

4. Fees and Invoicing:  Fees for Services shall be set forth in an Insertion Order and as otherwise indicated herein for the particular Services.  Unless otherwise set forth in an Insertion Order, Invoices are due and payable within fifteen (15) days from receipt of invoice and invoice will be sent to Client at campaign kickoff, in each case unless otherwise stated in the Insertion Order. Late payments shall be subject to a penalty of 1.5% interest per month. Any disputes regarding invoices must be communicated to NOCAP within thirty (30) days of the date of invoice, or such invoice shall be deemed accurate.

5. Content License:  Client understands and agrees that Athlete is the owner of the Content and that an Insertion Order does not grant Client any ownership rights in the Content or any rights in the Content beyond the license described herein and as further defined by an Insertion Order. Client or Brand Owner, as the case may be, will receive a perpetual, worldwide, non-exclusive, non-transferable, sub-licensable license in the Content to use, modify, reproduce, create derivative works from, transmit, or display on any webpages or social media channels owned or controlled by Client or Brand Owner, provided a proper attribution to the Athlete, or payment as specified in an Insertion Order, accompanies such usage. Client understands and agrees that the Services and rights granted hereunder are limited to digital Services and that, unless specified in an Insertion Order, the Content may not to be used by Client or Brand Owner in any print, packaging, out-of-home or other non-digital media or in any manner unless specifically addressed in an Insertion Order. If Client wishes to obtain additional rights with respect to the Content, including but not limited to receiving copies of high resolution images or the transfer of all ownership rights in the Content, then NOCAP, if requested by Client, will utilize commercially reasonable efforts to assist Client, to the extent appropriate in NOCAP’s determination, in acquiring such additional rights from the Athlete; it being understood, however, that NOCAP shall have no fiduciary duty or other duty to Client or Brand Owner regarding the acquisition of such additional rights from the Athlete.

6. Client/Brand Owner License Grant: Client, either for itself or on behalf of Brand Owner, grants to NOCAP and the Athletes, along with NOCAP’s Affiliates or any entity which NOCAP may use to complete the Services, a limited, non-exclusive, revocable, royalty-free right, to reproduce, incorporate into other materials, publish, publicly display and perform, transmit or otherwise use the contents of any and all advertisements or other promotional materials provided by Client and necessary to perform the Services, including but not limited to, all Client, Brand Owner or other trademarks appearing therein, solely in conjunction with performing the Services under an Insertion Order. For purposes of an Insertion Order, “Affiliate” shall mean any business that directly or indirectly, through intermediate controls, is controlled by, or is under common control, with an applicable Party.

7. Confidentiality. 

a) The Parties and Brand Owner shall each keep confidential any Confidential Information, except that the receiving Party may disclose Confidential Information to its professional advisors and those persons who need to know such Confidential Information in connection with providing the Services, provided such parties are instructed to maintain the confidentiality of the Confidential Information. For purposes of an Insertion Order, the term “Confidential Information” will mean proprietary and confidential information belonging to a Party, including, without limitation, all documentation, specifications, surveys, design concepts, trade secrets, internal reports and communications; sales information, marketing information and promotional plans; the fees for Services; marketing techniques, marketing plans, mailing lists, purchasing information, price lists, pricing policies, quoting procedures, financial information, customer names, customer data, pricing strategies, and other materials or information relating to the manner in which such Party does business; and any other materials or information related to the business or activities of such Party which are not generally known to others engaged in similar businesses or activities. “Confidential information” shall not include information which (a) was already known to the receiving Party prior to the time that it is disclosed to such Party; (b) is in or has entered the public domain through no breach of an Insertion Order or other wrongful act of the receiving Party; (c) has been rightfully received from a third party without breach of an Insertion Order and without other restriction; (d) has been approved for release in writing by the disclosing Party; or (e) is required to be disclosed pursuant to the final binding order of a governmental agency or court of competent jurisdiction, provided that the disclosing Party has been given reasonable notice of the pendency of such an order and the opportunity to contest it. Each Party shall promptly, as of the termination or expiration of an Insertion Order and upon request of the other Party, return to the other Party or destroy any such Confidential Information that is written or in tangible form (including, without limitation, all copies, summaries and notes of contents thereof).

b) Notwithstanding anything in the foregoing to the contrary and without violating any provisions of this Section, NOCAP shall have the right to use information, including performance metrics, sales lift information and results, regarding the services provided to a Client or Brand Owner to author and publish case studies, articles, white papers, and similar materials (collectively, “Industry Papers”) at its sole discretion, provided that such Industry Papers do not expressly link Confidential Information with Client and/or Brand Owner.

c) The obligations under this Section shall continue for two (2) years following expiration or termination of an Insertion Order.

8. Representations and Warranties:  Each Party hereby represents and warrants that:  (i) it is duly organized and validly existing under applicable law; (ii) it has the requisite power and authority to enter into, execute and deliver an Insertion Order, and to consummate the transactions contemplated by an Insertion Order in accordance with its terms (in particular, if Client represents a Brand Owner in connection with an Insertion Order, Client represents and warrants that it is authorized to act on behalf of Brand Owner with respect to all matters in connection with an Insertion Order and Client shall be liable for any action of Brand Owner which would constitute a breach of an Insertion Order. Upon execution, an Insertion Order will constitute a valid and binding obligation of such Party enforceable in accordance with its terms); (iii); neither the execution of an Insertion Order, the performance of its obligations, nor the grant or exercise of the rights and licenses herein will conflict with or result in a breach or violation of any of the terms or provisions of any Insertion Order it may have with any other party; (iv) it has the right and authority to grant the rights and licenses for the materials provided for, and that the use of such materials pursuant to the terms of such grant or license will not violate any other party’s intellectual property rights or other rights, including but not limited to rights of privacy or publicity; (v) all materials submitted by it to the other Party or distributed by it or its agent or assigns under an Insertion Order will be truthful and not misleading, and will comply and conform in all respects to all applicable federal, state and local laws, regulations and ordinances of any kind, including, without limitation laws prohibiting false, fraudulent, deceptive or misleading advertising and laws prohibiting obscenity, indecency, and child pornography. It shall notify the other Party immediately in the event it becomes aware of any facts or circumstances that might constitute a violation of this representation; and (vi) it will comply with all applicable federal, state and local laws in the performance of obligations under an Insertion Order.

9. Limitation of Liability: NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR NON-CONTRACTUAL LOSSES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES, ARISING OUT OF OR RELATED TO THESE TERMS OR ANY INSERTION ORDER, INCLUDING WITHOUT LIMITATION, THE PERFORMANCE OR BREACH THEREOF.  A PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED TWELVE (12) MONTHS’ FEES ACTUALLY PAID OR PAYABLE BY CLIENT TO NOCAP FOR THE PERFORMANCE OF SERVICES IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. NOTWITHSTANDING THE FOREGOING, THIS SECTION SHALL NOT APPLY TO LOSSES ACTUALLY AWARDED AND PAID TO A THIRD PARTY PURSUANT TO A THIRD-PARTY CLAIM FOR WHICH A PARTY HAS AN INDEMNIFICATION OBLIGATION UNDER THESE TERMS OR AN INSERTION ORDER.

10. Indemnification: 

a) NOCAP will defend, indemnify and hold Client and its parent, subsidiaries and affiliated entities, including their officers, directors, employees and agents, harmless from and against any lawsuits, claims, demands, actions, liabilities, losses, damages, costs and expenses (including reasonable attorney’s fees and court costs)(collectively, “Loss”) to the extent arising out of any claim, demand, action, or other proceeding brought or instituted by a third party (collectively, “Claim”) to the extent such Claim is based on (i) NOCAP’s grossly negligent or fraudulent performance of Services, (ii) the breach or falsity of any representation or warranty made by NOCAP under an Insertion Order, and/or (iii) any act and/or omission of NOCAP relating to the performance of NOCAP’s obligations to third parties arising in connection with the activities contemplated by an Insertion Order, all except to the extent such Loss arises from bad faith, willful misconduct, or gross negligence on the part of Client.  

b) Client and/or Brand Owner, as the case may be, will defend, indemnify and hold NOCAP, its parent, subsidiaries and affiliated entities, including their officers, directors, employees and agents, and its independent contractors providing services to Client and/or Brand Owner harmless from and against any Loss to the extent arising out of any Claim to the extent such Claim is based on (i) any real or claimed defect in any of Client and/or Brand Owner’s products or services, (ii) the breach or falsity of any representation or warranty made by Client and/or Brand Owner under an Insertion Order, (iii) any material or information furnished by Client or Brand Owner, including information regarding Client or Brand Owner’s products or services, and/or (iv) any act and/or omission of Client and/or Brand Owner relating to the performance of Client and/or Brand Owner’s obligations to third parties arising in connection with the activities contemplated by an Insertion Order, all except to the extent such Loss arises from bad faith, willful misconduct, or gross negligence on the part of NOCAP.

11. Insurance: Each Party agrees throughout the term of an Insertion Order to maintain in full force and effect commercial general liability, commercial umbrella liability, and error and omissions liability insurance coverage in a reasonable amount, at its own expense .  Upon request, a Party shall furnish to the other a certificate of insurance evidencing the same upon execution of an Insertion Order.

12. Notices:   Any notice required or permitted by this Insertion Order shall be in writing and shall be sent by a recognized commercial overnight courier, or mailed by registered or certified mail, return receipt requested, addressed to the other Party as set forth below or to such other contact, address, as may be provided in writing by either Party hereunder. Additionally, as to NOCAP, a copy shall be sent to: 845 N Orianna St Unit 8, Philadelphia, PA 19123 Attn: CEO.

13. Dispute Resolution:  In the event of a dispute between the Parties relating to an Insertion Order, the Parties will attempt to resolve such matter by good faith negotiations within thirty (30) days or, if mutually agreed by the Parties, a longer period of time.  If the Parties cannot resolve the dispute during the 30-day time period, the Parties will participate in good faith in at least one mediation session with a licensed mediator during the subsequent 30-day period. If the Parties cannot resolve the dispute for any reason, including but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, either Party may submit that dispute to a court of competent jurisdiction sitting in the State of Delaware pursuant to Section 14(c) below.

14. Miscellaneous:

a) Entire Insertion Order/Amendment. These Terms, and an applicable Insertion Order, shall constitute the entire agreement between the Parties with respect to subject matter hereunder, and supersedes all prior agreements, purchase orders, service orders and understandings between the Parties with respect to the subject matter herein.  No amendment or modification hereof shall be valid unless in writing and signed by the duly authorized representative(s) of both Parties.

b) Force Majeure. A Party shall not be considered in default of an Insertion Order or liable for fees, costs and/or damages, for any failure to perform occasioned by an act of God, force of nature, physical casualty, accident, war or war-like activity, civil commotion, labor dispute, transportation delays, government action or other cause beyond the reasonable control of that Party. Each Party will promptly notify the other Party of the occurrence of any Force Majeure that may affect its performance under the Insertion Order.

c) Governing Law. These Terms, and an applicable Insertion Order, shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflict of law principles, and shall benefit and be binding upon the Parties hereto and their respective successors and assigns. The Parties hereto irrevocably agree that any legal action or proceeding with respect to this Agreement shall be brought exclusively in the courts in the State of Delaware, and further agree to submit to the jurisdiction and venue of such courts..

d) Severability. If any term or condition of these Terms or in an applicable Insertion Order are held to be invalid, void, or otherwise unenforceable by any court of competent jurisdiction, that holding shall in no way affect the validity or enforceability of any other term or condition of these Terms or an Insertion Order, unless enforcing the balance of the Insertion Order would deprive either Party of a fundamental benefit of its bargain.

e) Relationship of the Parties. NOCAP shall perform its obligations under these Terms or an Insertion Order as an independent contractor. Nothing contained herein shall place the Parties in the relationship of partners, joint venturers, principal-agent, or employer-employee nor shall either Party have any right to obligate or bind the other in any manner whatsoever.

f) Assignment. Except as specifically permitted herein, a Party’s obligations may not be assigned without the prior written consent of the other Party, such consent not to be unreasonably withheld. Any assignment without such consent shall be void upon written notice. Notwithstanding the foregoing, either Party may assign an Insertion Order to a purchaser of substantially all of the assets of such Party, and either Party may assign an Insertion Order to an Affiliate upon written notice to the other Party.

g) Survival. The Parties’ obligations under Fees and Invoicing, Content License, Client/Brand Owner License Grant, Confidentiality, Representations and Warranties, Limitation of Liability, Indemnification, Notices, Dispute Resolution and this Section, Miscellaneous, each shall survive the termination of an Insertion Order.