Creative Services Addendum

Pursuant to the terms of an Order Form, Applecart may produce advertising content at Client’s direction and subject to Client’s sole approval. Such Creative Services may be provided for a fee and may produce Creative Deliverables. The specific terms and conditions governing such Creative Services, including ownership of Creative Deliverables, are set forth in the Creative Services Addendum

Last updated: June 1, 2024

This Creative Services Addendum sets forth the terms and conditions for the provision of Creative Services, as specified in one or more Order Forms mutually executed by Project Applecart LLC (“Provider”) and you (“Client”) (together, the “parties”). This Creative Services Addendum is subject to, and governed by, the Applecart Master Terms and Conditions set forth at applecart.co/master-terms (the “Master Terms”). Capitalized terms not defined in this Creative Services Addendum shall have the meanings set forth in the Master Terms, the Order Form, or elsewhere in the Agreement. Provider reserves the right to modify this Creative Services Addendum at any time pursuant to Section 13 of the Master Terms.

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1. Creative Services and Deliverables. To the extent that the Creative Services include Provider’s production of any advertising creative content (e.g., advertising display graphics, video, text) (all such content, collectively, “Creative Deliverables”), and except for any Pre-Existing Materials (as defined below) included or incorporated therein, (a) all such Creative Deliverables shall be exclusively owned by Client; and (b) the parties agree that the Creative Deliverables constitute “works made for hire” for purposes of the U.S. Copyright Act, and that to the extent the Creative Deliverables are not deemed to be “works made for hire” (and for all other purposes), Provider hereby irrevocably assigns to Client all right, title and interest in, to and under the Creative Deliverables, including, without limitation, all worldwide copyrights, patent rights, trademark and trade dress rights and other proprietary rights therein and all applications or registrations (including continuations thereof) relating thereto. However, notwithstanding anything to the contrary, as between Client and Provider, Provider shall retain ownership of and the right to reuse pre-existing and/or generic materials included in the Creative Deliverables, including, without limitation, pre-existing and/or generic graphics and text, as well as any other materials, information, or know-how that were not created specifically by Provider for Client, and all enhancements, updates and/or modifications to the foregoing which integrally and specifically relate to it (as opposed to being integrally and specifically related to the development of the Creative Deliverables for Client) (collectively, the “Pre-Existing  Materials”).  Provider hereby grants Client a royalty-free, irrevocable (except in the event of Client’s material breach of the Agreement), transferable, sub-licensable, worldwide, perpetual license to use, reproduce and modify the Pre-Existing Materials solely as incorporated into the Creative Deliverables. Creative Deliverables shall be deemed accepted by Client upon delivery to Client or Client’s service provider(s) (as applicable).  Notwithstanding anything to the contrary, Client hereby agrees that Provider may use copies of the Creative Deliverables for Provider’s internal business purposes and in Provider’s advertising material.  For the avoidance of doubt and notwithstanding anything to the contrary, nothing in this Addendum grants or conveys any rights or licenses to Client in or to any Deliverables and/or Provider Technology, as those terms are defined in the Agreement, and all rights in and to the Deliverables and/or Provider Technology shall solely be governed by the applicable provisions of the Agreement.  

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2. IP Search and Clearances. If, in the course of Provider’s performance of the Creative Services and/or creation of the Creative Deliverables, Provider creates or provides to Client, or Client creates or provides to Provider, logos, slogans, trademarks, designs, service marks or other trademarkable items (“Proposed Trademarks”), copyrights or any copyrightable original works of authorship (“Proposed Copyrights”), or patents or patentable items or processes (“Proposed Patents”), or provides Creative Services or Creative Deliverables that include Proposed Trademarks, Proposed Copyrights, or Proposed Patents (collectively, “Proposed Intellectual Property”), Provider will not be responsible for assessing the availability of any such Proposed Trademark, Proposed Copyright, or Proposed Patent for usage.  To the extent Client desires to assess the availability of any Proposed Trademark(s), Proposed Copyright(s), or Proposed Patent(s) for usage, Client understands and agrees that Client shall engage legal counsel to perform a trademark search or other due diligence, as the case may be, and to provide a legal opinion analyzing the availability of, and potential conflicts for use of, such Proposed Trademark(s), Proposed Copyright(s), and/or Proposed Patent(s) (“IP Legal Opinion”), and Client will solely be responsible for paying all related fees, charges, costs, and expenses, including but not limited to fees for trademark search services and legal counsel.  Notwithstanding anything set forth in the Agreement to the contrary, including, without limitation, Provider’s indemnification obligations as set forth therein, Provider shall neither be liable to, nor shall Provider be obligated to indemnify, defend, nor hold harmless Client or its Affiliates in connection with any third-party demand, claim or proceeding arising from the Proposed Trademarks, Proposed Copyrights, or Proposed Patents (including, without limitation, the results or outcomes of the searches related thereto, any related IP Legal Opinions, or Client’s reliance on such searches or IP Legal Opinions), or from Client’s use of any Proposed Trademarks, Proposed Copyrights, or Proposed Patents.  Should Client desire to register any Proposed Trademarks, Proposed Copyrights, or Proposed Patents, Client will engage its own legal counsel to do so, and Client shall be responsible for all fees, costs, expenses, and undertakings in connection with such registration with federal, state or foreign agencies.  

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3. Proposed Intellectual Property. Notwithstanding anything set forth in the Agreement to the contrary, as to any Proposed Intellectual Property that Client provides to Provider hereunder, Client represents and warrants that: (a) Client has the full right, power, and authority to provide all such Proposed Intellectual Property to Provider hereunder; (b) no such Proposed Intellectual Property infringes or shall infringe any third party’s intellectual property rights; and (c) no actions, liens, claims, or encumbrances are pending or have been asserted or threatened in connection with the use of any Proposed Intellectual Property hereunder.  Client agrees to indemnify, defend, and hold harmless Provider, its employees, officers, directors, shareholders, representatives, agents, attorneys, affiliates, subsidiaries, parent companies, and partners from any and all claims, causes of action, or damages arising from or relating to Client’s breach of any of the foregoing representations or warranties.

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4. Compensation and Expenses. As compensation for performance of the Creative Services and all rights granted hereunder in and to the Creative Deliverables, Client hereby agrees to pay Provider the fees for Creative Services set forth on the applicable Order Form.  Client shall also be responsible for any out-of-pocket costs and expenses incurred by Provider in connection with its performance of the Creative Services, and any out-of-pocket expenses incurred by Provider shall be identified by Provider on the applicable invoice.      

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5. Disclaimer. The Creative Services are limited to the design and production of Creative Deliverables, incorporating messaging, imagery, and other content (“Ad Content”) provided by Client. As between Provider and Client, Client shall remain solely responsible for all Ad Content, including the Creative Deliverables, which shall constitute Ad Content, and the use thereof on Advertising Destinations, as set forth in the Media Services Addendum located at applecart.co/advertising. Client agrees that (i) Client has all necessary rights for the creation of the Ad Content, to exhibit the Ad Content and, if Provider is providing Media Services, to provide the Ad Content to Provider and the Ad Network for the purposes contemplated by this Agreement; (ii) all Ad Content, and the use thereof by Provider in accordance with the Agreement, complies with all applicable laws, rules, and regulations, and does not violate the rights of any third party, including, without limitation, any copyright, patent, trademark, trade secret, or other intellectual property, privacy, or proprietary right; and (iii) the Ad Content will not contain any infringing, obscene, hateful, pornographic, libelous, slanderous, defamatory, disparaging, fraudulent, misleading, or otherwise indecent or inappropriate material ((i)-(iii) collectively, the “Ad Content Requirements”). 

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