BRAND PARTNERSHIP TERMS & CONDITIONS
Last Revised: March 9, 2020
These Terms & Conditions may be updated at any time. We encourage you to check back for updates. Your continued acceptance of the benefit of any Insertion Order indicates your agreement to be bound by these Terms & Conditions.
1. Definitions. All capitalized terms not otherwise defined in these Terms & Conditions have the meaning set forth in the IO.
- 1.1 “Activation” means each advertisement, advertorial, digital media ad unit, Licensed Goop IP, and sponsorship benefit provided by Goop to Client, including participation in any Goop Event specified in an IO.
- 1.2 “Agreement” means these Terms & Conditions, the IO, all attachments identified therein and attached thereto.
- 1.3 “Asset Packs” means content generated by Goop that Goop provides to the Client pursuant to an applicable IO.
- 1.4 “Client” means the client Party identified in the IO.
- 1.5 “Client Content” means all text, photographs, illustrations, artwork, designs, survey questions and other material created or provided by or on behalf of Client hereunder for use in the Activations or otherwise for use by Goop in connection with Goop’s provision of Services.
- 1.6 “Client Marks” means the trademarks, trade names, service marks, or logos provided by or on behalf of Client hereunder for use in the Activations and otherwise in connection with Goop’s performance under the Agreement.
- 1.7 “Client Media” means the Client-owned or Client-controlled media identified in the IO.
- 1.8 “Client Product” means each product or service promoted or offered by Client.
- 1.9 “GP” means Gwyneth Paltrow.
- 1.10 “GP Identification” means GP’s name, nickname, signature, image, likeness, voice, and all other attributes that serve to identify GP.
- 1.11 “Goop” means Goop, Inc. and its affiliates and subsidiaries, if applicable.
- 1.12 “Goop Content” means all content, including without limitation, editorial content, text, photographs, illustrations, artwork, designs, and other material created or provided by Goop hereunder, whether such Goop Content appears on Goop owned and operated channels or on any third party social platform of any kind.
- 1.13 “Goop Event” means a Goop offered experiential event specified in the IO.
- 1.14 “Goop IP” means the Goop Content, Goop Marks, Goop Properties.
- 1.15 “Goop Properties” are Goop-branded, owned, licensed, controlled or affiliated websites, mobile applications, social media channels, digital communications, Goop Events, and related digital products and services distributed by any means or media.
- 1.16 “Goop Marks” means the trademarks, trade names, service marks, logos, icons and/or brands of Goop.
- 1.17 “Goop User Data” means all data, including without limitation, names, addresses, e-mail addresses and other information, collected about a user, or a computer or device operated by a user, while visiting a Goop Property (including without limitation in the course of participating in a Goop Event), by any means.
- 1.18 “Impression” means a digital impression. Newsletter impressions reflect subscribers as of date of IO. Social media impressions reflect followers of the identified channel as of date of IO.
- 1.19 “IO” means an insertion order signed by both Parties that sets forth the Activations, delivery schedule and other terms of performance under the Agreement.
- 1.20 “Licensed Goop IP” means that certain Goop IP and licensed for Client’s use as set forth in the IO.
- 1.21 “Party” means each of Client and Goop.
- 1.22 “Services” means the services, including each Activation, provided by Goop to Client under the Agreement.
- 2.1 Services. Goop shall provide the Services as stated in the IO. Unless expressly stated in the IO, all IOs and all Activations are non-cancellable. All Activations are non-transferable and for use solely by Client.
- 2.2 Placements. Except as otherwise expressly provided in the IO, positioning of Activations within Goop Properties is at the sole discretion of Goop, and Goop shall have the right in its sole discretion to reformat or redesign any Goop Property in its sole discretion without notice. Unless otherwise specified, Goop makes no minimum guarantees as to performance, including without limitation number of Impressions. Client acknowledges that websites and social channels on which Activations may be displayed or delivered may be controlled by other parties, not Goop, and as a result Goop is not responsible for such websites or the content or services offered thereon.
- 2.3 Reach and Deliverability. For digital Activations, total Impressions are guaranteed as stated in an IO. If an IO includes reference to newsletter subscribers, social medial followers or podcast listens or downloads, the predictability forecasting and conversions for such deliverables may vary. Guaranteed delivery, even delivery and makegoods are not available for placements in a newsletter, social media channel or podcast.
- 2.4 Viewability. For digital Activations, Goop must be notified of viewability KPIs prior to signature on an IO, otherwise no viewability measurements can be honored. Goop reserves the right to upcharge rates in order to compensate for overdelivery of Impressions to adhere to viewability requirements. Goop will use commercially reasonable efforts to meet benchmarks for campaigns monitored for viewability. For campaigns executed on viewability requirements, Goop will optimize and serve Impressions needed to meet specified viewability thresholds with no Impression cap or liability for third party ad serving fees unless discussed and agreed in advance in writing with Client. Goop requires access to reporting through Media Rating Council (MRC) accredited third party vendors for all tracking, optimization, reporting and invoicing purposes. Goop reserves the right to dispute delivery of discrepant measurements if there is a difference between the controlling measurement and another measurement and first party data will supersede third party data if the difference is less than 10%. Goop reserves the right to freely optimize the campaign in order to meet Client viewability KPIs, including removal of underperforming sizes, underperforming placements or other modifications made in Goop’s sole and absolute discretion.
- 2.5 Tracking and Ad Verification. For digital Activations, Goop will accept third party verification from MRC accredited third party vendors (with a preference for MOAT, DV, IAS, Comscore or Google Ad Manager). If Client engages a vendor not accredited by MRC, Goop will not be responsible for any discrepancies. Client and Goop will agree, in advance, on whitelisting terms and categories before launching any ad blocking verification.
- 2.6 Reporting. For digital Activations, Goop will track delivery through its ad server and, provided that Goops has approved in writing a third party ad server to run on its properties, Goop will track delivery through such third party ad server. Goop may substitute the specified third party ad server data with first party data from Goop’s own ad server for any placements deemed site-served at signature of the IO. Goop reserves the right to dispute delivery of discrepant measurement if there is a difference between the first party ad server data and the third party ad server data and first party data will supersede third party data if the difference is less than 10%. If Client chooses to append more than three “tracking” pixels, Goop is not responsible for any data discrepancy for any measurement beyond the third tracking pixel. If there is an issue with verifying the accuracy of data obtained from a third party ad server, the first party ad server data will be used for reconciling optimization and performance metrics.
- 2.7 Editorial. Editorial sponsorships and/or integrations are not available for Client review prior to launch unless specifically agreed to in writing by Goop on a case-by-case basis. Goop editors shall have sole discretion to select Client Product(s) and format of product integration featured within editorial content
- 2.8 Goop Events. As an express condition of permitted attendance, including product integration of any kind, at any Goop Event, Client shall agree to Goop Event policies and restrictions, as applicable, including without limitation any identified prohibitions on recording, publicly speaking of or otherwise disclosing Goop Event agendas, discussions, activities or other attendees. At all times, Goop shall exclusively own all Goop Event materials and any tangible memorialization or recording of Goop Event. Further, if Client provides, sells, gifts, or makes available Client Products at or in connection with any Goop Event, Client shall be fully responsible for any use or access to such Client Products, including without limitation compliance with highest prevailing industry standards for end user safety, compliance with all applicable state and federal regulations including packaging, labeling, testing, and claims substantiation with respect to such Client Products, all on-site requirements for such Client Products (e.g., load in, load out), and, in Goop’s sole discretion, securing from each individual granted access to such Client Product a full written release of Goop and GP and waiver for any claims arising out of or related to any access or use thereof.
- 2.9 Unless expressly agreed in the IO, any Asset Packs or Goop Content provided to Client (including but not limited to Asset Packs following Events) shall include only photographs selected by Goop in its sole discretion, and such photos will not include images or video of GP. All additional forms of media (videos, audio, etc.) must be separately negotiated and agreed upon by both parties in the IO. Unless otherwise agreed in the applicable IO, the assets provided by Goop to Client after Events shall be only select Goop-approved image(s), limited to organic use on Client’s digital owned and operated channels for six (6) months, subject to Goop’s approval prior to Client’s use in each instance. Any IO including original photography will include select Goop-approved retouched images (inclusive of photographer and talent rights, as applicable) for organic use on Client’s digital owned and operated channels for twelve (12) months. Unless expressly agreed in the IO, no photo or video assets provided by Goop will entitle Client to use such assets in paid marketing efforts.
- 2.10 Client is responsible for seeking Goop’s permission prior to using any Goop Content, including Asset Packs provided by Goop pursuant to the IO. Subject to first obtaining Goop’s permission for additional use, Client may seek additional intellectual property rights with respect to photographs or videos provided by Goop, but is solely responsible for all additional costs, and at Goop’s election, may be responsible for directly negotiating with photographers and other contractors to secure the necessary rights.
- 2.11 If Client intends to share Goop Content (including editorials, advertorials, images, or otherwise) on any of its social networking sites – including but not limited to Instagram, Facebook, Snapchat, Pinterest and Twitter – Client must first seek approval from Goop, which approval shall not be unreasonably withheld or delayed. Client may not share Goop Content in paid marketing without first seeking approval from Goop, and to the extent such sharing was not originally budgeted for in the IO, Client may be responsible for paying for additional costs (including but not limited to for additional photo rights), at Goop’s discretion.
- 2.12 Timelines. Goop shall notify Client of any schedule or timeline required for an Activation. All Client Content must be submitted at least fourteen (14) days prior to intended use for Goop approvals. Client’s failure to meet timelines may, at Goop’s discretion, result in forfeited placements and Goop shall have no obligation to provide any makegoods for such placements.
- 2.13 Reporting. Goop shall make available reporting of Activations delivered hereunder, and third party reporting shall be deemed determinative for purposes of delivery. If third party tracking is not provided by Client or is otherwise unavailable for a particular Activation, first party reporting shall be deemed determinative for purposes of delivery.
- 2.14 Substitution; Makegoods. In the event that an Activation becomes unavailable for any reason, Goop shall have the right to substitute such Activation with another activation of equal or greater value in Goop’s sole discretion upon notice to Client. Subject to the other provisions of this Section 2, in the event that Goop fails to publish a digital ad placement (“Ad”) in accordance with the schedule agreed upon pursuant to the IO (or in the event of any other failure, technical or otherwise, of such Ad to appear as provided in the IO), or to deliver the number of Impressions guaranteed (IF APPLICABLE) or otherwise specified on the IO, the sole liability of Goop to Client shall be limited to either a pro-rata refund to Client of the ad fee paid, if any, or placement of the Ad at a later time in a comparable position.
- 2.15 Podcast Ad-Reads. Goop shall appoint talent to voice podcast advertisements in its sole discretion. Goop is not responsible for guaranteeing any particular Talent for voicing podcast advertisements as set forth in the applicable IO. If particular Goop talent is specified in an IO, and that talent becomes unavailable, Goop shall have the option, in its sole discretion, of (a) substituting talent to voice the advertisement, with the replacement talent to be of the same stature in the beauty or wellness community (as applicable), (b) offering a makegood alternative to Client of at least equal value, or (c) terminating the IO, or portion thereof, regarding the podcast media.
3. Ownership; Licenses; GP Identification.
- 3.1 Client hereby grants Goop the non-exclusive, royalty free license and right to use, create derivative works of, and sublicense the Client Marks and Client Content solely in the performance of the Services. All goodwill arising from such use of the Client Marks shall inure to the benefit of Client. Client also grants Goop a license to use the Client Marks and Client Content on media players that Goop may use to publish content from time to time, including, but not limited to, YouTube and its affiliates. Client understands and agrees that such media players may, in their sole and absolute discretion, elect to promote Client Content to advertise the media player and the services it offers. Client shall retain all right, title, and interest, including all copyright, trademark, and other intellectual property rights, in and to the Client Content and Client Marks.
- 3.23.1 Goop hereby grants to Client a non-exclusive, non-sublicensable, royalty-free (unless otherwise so stated herein) license for Licensed Goop IP only for the uses and duration expressly specified in the IO, with use of Goop IP subject to Goop’s approval before Client’s use. If not specified in the IO, Goop grants the above-referenced license for Licensed Goop IP only for use on Client’s digital owned and operated channels (website and social media) and only for a period of six (6) months from the date of the IO. Subject to the foregoing license, Goop shall retain all right, title and interest, including all copyright, trademark, and other intellectual property rights, in and to the Goop IP. Goop shall have the right to demand withdrawal from use or display any Licensed Goop IP that in Goop’s sole reasonable opinion might subject Goop to unfavorable regulatory action, violate any law, infringe or misappropriate the rights of any third party, or otherwise subject Goop or Client to liability or disrepute for any reason. In such event, the Client shall cease using any such Licensed Goop IP upon written notice by Goop to Client to withdraw such Licensed Goop IP as soon as technically and commercially feasible and in any event no later than three (3) days thereafter.
- 3.3 GP shall retain all rights of publicity, trademark, and intellectual property in and to the GP Identification. Client shall not use the GP Identification in any manner, except solely to the extent expressly authorized in writing by GP.
- 3.4 3.1 Client acknowledges Goop’s exclusive rights in the Goop IP, and further acknowledges that the Goop IP are unique and original to Goop and that Goop is the owner thereof. Client will not, at any time during or after the Term, dispute or contest, directly or indirectly, Goop’s exclusive right, title and interest in and to the Goop IP or the validity, enforceability, registration or use thereof. Goop, however, makes no representation or warranty with respect to the validity or enforceability of any trademark registration or copyright registration which may issue or be granted therefrom.
- 3.5 Non-disparagement. Client agrees that neither it nor any authorized representative thereof shall make any public statement (whether oral or written) which libels, slanders or otherwise disparages either Goop or GP or any then-current officers or directors of Goop, or its stores, websites, brands or products. Goop, and GP, as applicable, shall each be entitled to injunctive or other equitable relief to prevent breaches of the foregoing.
4. Representations and Warranties.
- 4.1 Each Party represents and warrants to the other Party that: (a) such Party has the full right, power and authority to enter into this Agreement and to perform the acts required hereunder; (b) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound; and (c) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
- 4.2 Client hereby represents and warrants that: (a) the Client Content and Client Marks will not, at the time of their use hereunder, infringe upon or misappropriate any copyrights, trademarks or other intellectual property, violate any other right of any third party, including rights to privacy or publicity, or contain any libelous or otherwise unlawful matter; (b) all offers in Client Content, and statements concerning Client’s and its competitors’ products contained in the Activations shall be truthful and accurate, and Client Content shall not violate applicable laws or regulations; (c) the Client Products, when offered for sale or other provision, including gifting or sampling, by Client, (i) will be free from material defects, and (ii) will be fit for the purpose for which they are designed; (iii) will be consistent with the Goop brand message as reflected at https://Goop.com/whats-Goop/; (iv) if provided or made available at or in connection with a Goop Event, will be offered or controlled at all times by Client personnel who have training and, if applicable, certifications or licenses, necessary for provision of such Client Products in accordance with highest prevailing industry standards; and (d) Client will comply with all applicable laws, rules, regulations and industry standards in connection with its marketing advertising, promotion, manufacture, distribution, and sale of the Client Products and any other products or services offered by Client, including without limitation, child labor, fair labor standards, and environmental laws.
- 4.3 Goop hereby represents and warrants that (a) Goop will render the Services required under this Agreement in a competent and professional manner; and (b) the Goop Content will not, at the time of publication, infringe upon or misappropriate any copyrights, trademarks or other intellectual property, violate any other right of any third party, including rights to privacy or publicity, or contain any libelous or otherwise unlawful matter.
- 4.4 EXCEPT AS SET FORTH HEREIN, THE PARTIES HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- 5.1 Goop shall indemnify and hold harmless Client from and against any loss, expense (including reasonable attorneys’ fees), claim, cost, judgment, liability, damages or settlement costs (“Claims”) incurred by or made against Client arising out of: (a) the use of Licensed Goop IP or Goop Content as contemplated under the Agreement, except to the extent altered or modified by Client or at Client’s direction, in which case any Claims arising from such alterations or modifications shall be subject to Client’s indemnification under Section 5.2; (b) any material breach of the Agreement by Goop; or (c) any representations and warranties of Goop under Section 4.
- 5.2 Client shall indemnify and hold harmless Goop and its contractors and agents, from and against all Claims incurred by or made against Goop arising out of or related to: (a) the use of Client Content or Client Marks as contemplated hereunder; (b) any material breach of the Agreement by Client; (c) any representations and warranties of Client under Section 4; (d) Client participation at any Goop Event, including without limitation provision of or making available any Client Products at or in connection with such Goop Events; or (e) the Client Products as well as any products or services manufactured, distributed, sold or provided by Client.
- 5.3 The Party seeking indemnification shall give the indemnifying Party prompt notice of any Claim subject to indemnification hereunder. If the indemnifying Party wishes to contest and defend the Claim, the indemnifying Party shall provide notice of its intention to contest and defend the Claim to the indemnified Party within twenty (20) business days after the indemnified Party’s notice of such Claim (unless a shorter response period is required under the circumstances). Such contest and defense shall be conducted by reputable attorneys employed by the indemnifying Party. The indemnified Party shall be entitled, at its own cost and expense, to participate in such contest and defense and to be represented by attorneys selected by the indemnified Party. If the indemnified Party elects to participate in such defense, the indemnified Party will cooperate with the indemnifying Party in the conduct of such defense. Neither the indemnified Party nor the indemnifying Party may concede, settle or compromise any Claim without the consent of the other Party, which consent shall not be unreasonably withheld.
6. Limitation on Liability.
- WITH THE EXCEPTION OF LIABILITY PURSUANT TO SECTIONS 3, 5, 7 AND 8 HEREOF, (i) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) RESULTING FROM SUCH PARTY’S PERFORMANCE OR ANY FAILURE TO PERFORM HEREUNDER, INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR BENEFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH. GOOP’S CUMULATIVE LIABILITY RELATED TO DIRECT DAMAGES WILL BE LIMITED TO THE FEES RECEIVED BY GOOP.
- 7.1 Ownership. Goop shall own and retain all right, title and interest in and to all Goop User Data. In the event consumers grant permission to share their Goop User Data with Client, Goop may provide Client with the pertinent data as provided in the IO, and Goop grants Client a non-exclusive, non-sublicensable, revocable, royalty-free license to use such Goop User Data solely for purposes for which the users have granted their consent, provided Goop shall have the right to revoke any license hereunder if Goop, in its sole discretion, determines continued use may subject Goop to liability.
- 7.3 Restrictions. Client is not authorized to collect, use, process or transfer, or direct, authorize or assist any entity that collects, uses, processes or transfers data collected from Goop Property users, or that engage other entities to collect, use or process such data (collectively “Data Collectors”) to collect, use, process or transfer, any Goop User Data without the prior express written permission of Goop. Without limiting the generality of the foregoing, Client is not authorized to collect, use, process or transfer Goop User Data, or authorize, direct or assist another Data Collector to collect, use, process or transfer such data, for purposes of retargeting, behavioral remarketing, segment categorization or any form of syndication that is related to Goop, its content, or its users without the prior express written permission of Goop in each instance.
- 8.1 For purposes of the Agreement, “Confidential Information” is any and all information identified by either Party as “confidential” and/or “proprietary”, or which, under the circumstances of its disclosure or by its nature, reasonably should be treated as confidential, including, but not limited to: (a) marketing, designs, layouts, or sales data, customer lists, registration rates, and other marketing or other unpublished information regarding users or vendor lists; (b) information pertaining to business operations, prospects and condition (financial, technical or otherwise), budgets, schedules, policies or practices, tactics and strategies, financial information, expansion plans, employee lists; and (c) information received from others that the disclosing Party is obligated to treat as confidential. Confidential Information of Goop shall include, but not be limited to, Goop User Data. Neither Party shall disclose the other Party’s Confidential Information to any person (other than any directors, officers, employees, agents, and advisors of the receiving Party who need to know for purposes related to the subject matter of the Agreement) without the express consent of the disclosing Party, and neither Party will make use of Confidential Information of the other Party except for purposes of the Agreement.
- 8.2 The confidentiality obligations set forth in Section 8.1 shall not apply to: (a) any information that: (i) is or subsequently becomes available to the general public other than through a breach by the receiving Party; (ii) is already known to the receiving Party before disclosure by the disclosing Party; (iii) is developed through the independent efforts of the receiving Party; or (iv) the receiving Party rightfully receives from a third party without restriction as to confidentiality or use; or (b) any information that in the reasonable opinion of receiving Party’s counsel is required to be disclosed by receiving Party pursuant to applicable law or order; provided, however, that in the case of any Confidential Information to be so disclosed, receiving Party agrees to timely advise and consult with disclosing Party prior to making such disclosure to allow disclosing Party to seek a protective order or other appropriate remedy.
- 8.3 Neither Party shall issue any press release regarding this Agreement or disclose to any third party the terms of this Agreement without the prior approval of the other Party.
- 8.4 These confidentiality provisions shall survive expiration or termination of the Agreement for a period of two (2) years.
- Goop shall invoice Client as specified in the IO. Unless otherwise specified in the IO, Client shall pay Goop within thirty (30) days of Client’s receipt of invoice. Accounts are in default if Goop does not receive any payment within forty-five (45) days after the date of the invoice. Interest shall be charged on all accounts in default at the less of 1.5% per month or the maximum rate permitted by law from and after the date of the invoice. Client agrees to pay Goop’s reasonable expenses, including attorneys’ fees and collection expenses, incurred in enforcing its rights under the Agreement.
- Client shall be responsible for all sales, use or excise taxes, if any, imposed by any state or government subdivision on Activations and Services. Client shall indemnify and hold harmless Goop against any claims, amounts, losses, expenses, and reasonable attorney’s fees incurred by Goop as a result of any claim by any state or other taxing authority respecting any sales, use or excise tax liability whatsoever.
11. Term; Termination
- 11.1 Term. The term of the Agreement shall commence upon the effective date of the IO and continue until all Services have been completed, unless earlier terminated as set forth herein.
- 11.2 Termination. By giving written notice thereof to the defaulting Party, the Party not in default may immediately terminate the Agreement upon any one of the following events:
- (a)The failure of Client to pay any invoice for Goop’s performance under the Agreement within forty-five (45) days after Client’s receipt of an invoice therefor;
- (b) Any material failure by a Party to comply with or to perform any material nonpayment provision or condition of the Agreement and the continuance of such failure for a period of thirty (30) days after written notice thereof to such Party; or
- (c) A Party becomes insolvent, is unable to pay its debts when such debts become due, or is the subject of a petition in bankruptcy, whether voluntary or involuntary, or of any other proceeding under bankruptcy, insolvency or similar laws; or makes an assignment for the benefit of creditors; or is named in, or its property is subject to a suit for appointment of a receiver; or is dissolved or liquidated.
- 11.3 Except as otherwise specifically provided herein, termination of the Agreement shall not relieve the Parties of any obligation accruing with respect to the Agreement prior to such termination.
- 11.4 Termination of the Agreement will be without prejudice to any accrued rights or remedies of either Party and will not affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination (e.g., confidentiality, payment and indemnification obligations).
- Client will obtain and maintain throughout the Term and for a period of two (2) years thereafter, at its own expense, the following insurance coverage: (a) Workers’ Compensation Insurance as prescribed by applicable law; and (b) Commercial General Liability Insurance to include contractual liability, products/completed operations liability, personal and advertising liability, bodily injury and property damage with minimum limits of $3,000,000 per occurrence and $5,000,000 general aggregate. If Client provides or makes available Client Products at or in connection with any Goop Event, Goop shall have the right to require additional coverage specific to the Goop Event. All insurance required hereof will be written by companies with an A.M. Best’s rating of A- VII or higher; and with the exception of Workers’ Compensation Insurance, if Client is participating in any Event, including without limitation providing or making available Client Products at or in connection with any Goop Event, Client will include Goop as an additional insured. Certificates of insurance shall be furnished to Goop at its request, provided that Goop’s failure to request, review or object to the terms of such certificates or insurance shall not be deemed a waiver of Client’s obligations or the rights of Goop.
13. Dispute Resolution; Injunctive Relief
- 13.1 The Agreement shall for all purposes be governed by and interpreted in accordance with the laws of the State of California.
- 13.2 The Parties will attempt to settle any claim or controversy between the Parties arising out of or relating to the Agreement through consultation and good faith negotiation. However, after thirty (30) days of good faith negotiations, either Party may by written notice demand that any dispute between the Parties arising out of or relating to the Agreement be submitted to non-binding mediation to be conducted telephonically or in Los Angeles, California. If such referred dispute is not resolved by mediation after thirty (30) days of good faith negotiations, either Party may, by written notice, demand that any dispute between the Parties arising out of or relating to the Agreement, except disputes between the Parties that relate to the misuse or violation of either Party’s intellectual property rights which shall be subject to Section 13.3, be submitted to arbitration. Any such dispute shall be submitted to binding arbitration before a mutually acceptable arbitrator and conducted telephonically or in Los Angeles, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association and the judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
- 13.3 Notwithstanding the foregoing, either Party may seek relief in a court of competent jurisdiction solely to seek immediate injunctive relief where such Party stands to suffer irreparable harm absent such relief.
14. Force Majeure.
- Goop will not be liable for any delay or failure in performing its obligations hereunder to the extent that such delay or failure is caused, without Goop’s fault or negligence, by a Force Majeure Event. For purposes of this Agreement, a “Force Majeure Event” refers to the occurrence of unforeseeable and/or unavoidable circumstances beyond Goop’s reasonable control, including, but not limited to the following: a strike, lockout or other labor dispute, disease, war, act of God, natural disaster, terrorism, public health emergency of international concern as defined by the World Health Organization, quarantine or other event or circumstance outside of Goop’s reasonable control that could make Goop’s performance commercially impractical. Additionally, a “Force Majeure Event” may also include developments in foreseeable events that occur either before or after the applicable Insertion Order is signed (for instance, delay, worsening, or changes to foreseeable events) that make Goop’s performance commercially impractical or unreasonably burdensome. In light of a Force Majeure Event, Goop may either terminate the applicable Agreement and/or Insertion Orders, or propose a new schedule of delivery dates for outstanding media and events covered in the applicable Insertion Order.
- 15.1 All notices, reports, and receipts shall be in writing and shall be deemed duly given on: (a) the date of personal or courier delivery; (b) the date of transmission by electronic transmission service, provided a confirmation copy is also sent no later than the next business day by postage paid, return receipt requested, first-class mail; or (c) three (3) business days after the date of deposit in the United States mail, by postage paid, return receipt requested, first-class mail, addressed to the persons executing the Agreement at the addresses set forth above, with a copy to the General Counsel of the recipient Party, unless otherwise designated in writing to the other Party in accordance with this Section 15.1.
- 15.2 Descriptive headings appearing in the Agreement are inserted for convenience only, and shall not be utilized in interpreting the Agreement.
- 15.3 The Agreement has been drafted and negotiated by the Parties and shall be fairly interpreted in accordance with its terms without any presumption or strict construction in favor of or against either Party arising from the identity of the draftsperson.
- 15.4 It is expressly understood and agreed that each provision of the Agreement providing for a limitation of liability disclaimer or limitation of warranties or exclusion of damages is intended by the Parties to be severable and independent of any other provisions and to be enforced as such.
- 15.5 In the event that any provision of the Agreement is deemed or declared void, voidable, invalid or unenforceable by a court of competent jurisdiction, that portion of the Agreement will be deemed canceled and the remaining provisions hereof will continue in full force and affect.
- 15.6 The failure of either Party any time to require performance by the other Party of any provision hereof shall not affect in any way the full right to require such performance at any time thereafter; nor shall the waiver by either Party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
- 15.7 The Agreement shall be binding on the Parties and on their successors and assigns. Except as expressly provided herein, neither Party shall transfer, assign or subcontract any right or obligation hereunder without the prior written consent of the other Party, provided however, that Goop may assign this Agreement to a party acquiring all or substantially all of the stock or assets of Goop. Notwithstanding the foregoing, Goop may subcontract all or a portion of its obligations hereunder.
- 15.8. The Parties to the Agreement, their agents and employees, shall remain independent contractors, and shall not be held as an agent, employee, partner, or joint venturer of the other Party.
- 15.9 The IO together with these Terms & Conditions represent the entire agreement between Goop and Client, and will supersede all prior and contemporaneous agreements and communications of the parties, whether oral or written.
- 15.10 In the event of any inconsistency between the terms of an IO and these Terms & Conditions, these Terms & Conditions will prevail unless otherwise expressly amended or overridden in such IO with specific reference to the conflicting terms that are intended to be amended or overridden.