Master Services Agreement

Last Updated: December 2022

This MASTER SERVICES AGREEMENT (“Agreement”) is made by and between Social Native, Inc., a Delaware corporation with offices at 9903 S. Santa Monica Blvd, Beverly Hills, CA 90212 (“Social Native”), and Customer (“Company”). In consideration of the mutual covenants and agreements set forth herein, and for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows:

1. Certain Definitions: In addition to capitalized, bolded and underlined terms defined elsewhere in this Agreement, the following terms will have the following meanings when used in this Agreement:

(a) “Advertiser” means, if applicable, the advertiser, company, brand or other entity or person for which Company acts as an advertising or marketing agent, or which is managed by or affiliated with the Company, and on behalf of which Company wishes for Social Native to provide User Generated Content in connection with this Agreement, in each case that is set forth in an applicable SOW.

(b) “Affiliate” means with respect to any party, any other entity, whether or not existing as of the Effective Date, controlling, controlled by or under common control with such party. The term “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”), as used with respect to any entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract or otherwise.

(c) “Campaign” means a content creation and targeted marketing campaign created and designed by Company, which Company initiates via the Platform, as set forth on an SOW.

(d) “Campaign Period” means the term of a Campaign, as set forth on an SOW.

(e) “Company Content” means any and all audio, video, text, images, photographs, data, services, advertisements, promotions, URLs, keywords, navigational elements, links, pointers, technology, software, creative designs, information, audiovisual works, sound recordings, musical works (including when embodied in sound recordings or audiovisual works) and/or any other works subject to protection under the Laws of the United States or any foreign jurisdiction, including, without limitation, Intellectual Property Rights Laws, provided by or on behalf of Company.

(f) “Company Properties” means the website(s) and all Company-branded pages of Social Media and other media channels created, operated, controlled or owned by or on behalf of Company or its Affiliates for which the Services are being used. This includes any software, application, tool, web page, or web service residing on a site, page or media channel.

(g) “Content Analytics” means the information, statistics, traffic patterns, and other non-personally identifiable aggregate data collected by Social Native about, relating to and arising from the User Generated Content, including but not limited to, summaries and aggregations of the performance metrics of the User Generated Content.

(h) “Creator” means any individual that creates or provides User Generated Content to Social Native (i) via the Platform or (ii) otherwise in connection with this Agreement, any SOW, or any Campaign.

(i) “Intellectual Property Rights” means all rights, title and interest (whether legal, equitable or otherwise) associated with any and all patents, copyrights, Marks, trade secrets, publicity rights, database rights, inventions, compilations, know-how and domain names and all other proprietary rights or property rights of any sort throughout the world.

(j) “Laws” means any applicable statutes, rules, regulations, treaties or laws, including, without limitation, all privacy, data security, spamming, pornography, obscenity, defamation, consumer and child-protection laws, rules and regulations throughout the world.

(k) “Losses” means any and all liabilities, damages, awards, settlements, losses, claims, suits, proceedings, assertions, and expenses including, without limitation, court costs, reasonable third-party legal and attorney fees, and third-party costs of investigation.

(l) “Marks” means the logos, trade names, trademarks, trade dress, service marks, images, graphics or other identifying words, symbols, slogans and indicia used, held for use, or otherwise adopted for commercial purposes by party.

(m) “Platform” means Social Native’s online platform, created, operated, controlled or owned by Social Native or its Affiliate (including any updates, upgrades or new versions released), that, among other things, enables Company to view and download User Generated Content, create new Campaigns, and access Content Analytics and other information related to Creators, Campaigns and User Generated Content, which the Company may access at https://my.socialnative.com/brand/login.

(n) “Services” means the services that are provided by Social Native to Company pursuant to this Agreement or any SOW.

(o) “Social Media” means Meta (formerly Facebook) and its Affiliates, Snapchat, TikTok, Twitter, YouTube, and other social media platforms.

(p) “Social Native Materials” means those components provided by Social Native under this Agreement, including the Platform, Services, User Generated Content, Content Analytics, and any source code and object code, software library or API as well as any related supporting content and documentation.

(q) “Statement of Work” or “SOW” means a statement of work for a Campaign and any addenda, exhibits or supplements thereto entered into by Social Native and Company pursuant to this Agreement. The first SOW is attached hereto as Exhibit A, and each subsequent SOW will be substantially in the format of such first SOW.

(r) “Term” has the meaning set forth in Section 7.

(s) “Territory” means the world, unless otherwise specified in an SOW.

(t) “Under 18 Content” means any User Generated Content (i) provided by a Creator that was under 18 years old at the time such User Generated Content was provided to Social Native, or (ii) that features an individual that was under 18 years old at the time such User Generated Content was created.

(u) “Use” means to download, reproduce, publicly display, publicly perform, communicate to the public, distribute, transmit, modify, create derivative works of, and otherwise use User Generated Content in any and all media, whether now known or hereafter created.

(v) “User Generated Content” is all text, photographs, images, video, creative designs, information, audiovisual works, sound recordings, musical works (including when embodied in sound recordings or audiovisual works) and/or any other works subject to protection under the Laws of the United States or any foreign jurisdiction, including, without limitation, Intellectual Property Rights Laws, uploaded by end users directly to the Company Properties, posted on Social Media and collected for upload to the Company Properties by the Services, or contributed by Creators to Company through the Services.

2. Proprietary Rights and Licenses:

(a) License Grants to Company. Subject to the terms and conditions of this Agreement, Social Native hereby grants to Company: (i) a non-exclusive, non-sublicenseable (except as provided for in an SOW), non-transferable (subject to Section 12(b)) right and license in the Territory during the Term, to access and utilize the Platform, create Campaigns and receive and otherwise access the Services solely for the purposes of initiating Campaigns and accessing User Generated Content submitted in response to Campaigns; (ii) an exclusive, non-sublicensable (except as provided for in an SOW), non-transferable (subject to Section 12(b)) right and license in the Territory during the applicable Campaign Period, to Use User Generated Content solely for the purpose and subject to the limitations and restrictions set forth in the applicable SOW; and (iii) a non-exclusive, non-sublicenseable (except as provided for in an SOW), non-transferable (subject to Section 12(b)) right and license in the Territory during the Term, to Use Creators’ names, likenesses, images, voice, online identities (e.g., nicknames, user names, handles), biographical information, statements attributable to Creators, and any and all other indicia of personality utilized in connection with the applicable User Generated Content and to identify Creators as the source of the User Generated Content. Notwithstanding the Term limitations set forth above, Company shall have the right to display the User Generated Content published by Company during the Campaign Period in perpetuity and Company shall not be required to delete any historical posts displaying the User Generated Content after the end of the Campaign Period.

(b) License Grants to Social Native. Subject to the terms and conditions of this Agreement, Company hereby grants Social Native a non-exclusive, non-sublicenseable (except as set forth in Section 2(c)), royalty-free, non-transferable (subject to Section 12(b)), worldwide right and license to Use: (i) Company Content solely to provide the Services (including, without limitation, to link to and from the Social Native Materials displayed on the Company Properties on the Platform by means of attribution described in Section 4(a)); and (ii) Company Marks solely to the extent (1) necessary to grant the sublicense set forth in Section 2(c), (2) such Company Marks appear in or are otherwise incorporated in User Generated Content contained or displayed in the Platform as authorized pursuant to this Agreement, or (3) expressly authorized by Company pursuant to Section 4(d). Except as set forth in this Section 2(b), nothing contained in this Agreement will grant or will be deemed to grant to Social Native or any Creator any right, title, or interest in or to the Company Marks. All uses of the Company Marks and related goodwill will inure solely to Company, and Social Native will obtain no rights or goodwill with respect to any of the Company Marks, other than as expressly set forth in this Agreement, and Social Native irrevocably assigns to Company all such right, title, interest, and goodwill, if any, in any of the Company Marks.

(c) Creator Licenses. Notwithstanding anything contained elsewhere in this Agreement, Company acknowledges and agrees that Social Native may grant Creators a non-exclusive, non-sublicenseable, non-transferable, fully paid-up worldwide right and sublicense to (i) reproduce, incorporate, and otherwise use Company Marks solely in User Generated Content, (ii) use Company Marks at Company’s direction pursuant to a Campaign, (iii) use Company Marks in Creator posts on Social Media that include User Generated Content, and (iv) post User Generated Content on Social Media.

(d) Intellectual Property Ownership. The parties acknowledge and agree that, as between the parties, subject to the licenses granted to Company under Section 2(a), Social Native is the exclusive owner of and retains all rights, including all proprietary and Intellectual Property Rights existing now or in the future, of the User Generated Content, the Platform and the Services, including any and all Intellectual Property Rights or work product created in connection with this Agreement (collectively “Social Native IP”). Notwithstanding the foregoing, the parties acknowledge and agree that, as between the parties, Company is the exclusive owner of the Company Marks, including any Company Marks incorporated into User Generated Content.

(e) Feedback. Company or its representatives may provide suggestions and feedback to Social Native in connection with the Platform (“Feedback”), and Social Native may use such Feedback without restriction, credit, payment to Company or any other restriction or limitation whatsoever.

(f) Platform Data. As between Company and Social Native, Social Native will own, subject to the terms and conditions of the Agreement, all data derived from the Company’s transactions and actions conducted pursuant to its use of the Platform or receipt of the Services (collectively, “Platform Data”). Social Native may use and disclose Platform Data in aggregated, de-identified form: (i) to provide, operate, manage, maintain and enhance the Platform and the Services; (ii) to Third Party Contractors (as defined below) who need to use such Platform Data and who are obligated to keep such data confidential; (iii) to enforce its rights under the Agreement; (iv) if and as required by court order, Laws, or governmental or regulatory agency; and (v) as otherwise directed or requested by Company.

(g) Marks. The Social Native Marks used and displayed on the Platform are Social Native’s registered and/or unregistered Marks. Any other product and service names located on the Platform that are not Company Marks may be trademarks or service marks owned by third parties. Except as otherwise permitted by Law, Company may not use the Social Native Marks to disparage Social Native or Social Native’s products or services in any manner (using commercially reasonable judgment) that may damage any goodwill in the Social Native Marks. Company may not use any Social Native Marks as part of a link to or from any website without Social Native’s prior express written consent. All goodwill generated from the use of any Social Native Marks will inure solely to Social Native’s benefit.

(h) No Implied Rights. This Agreement does not authorize or permit the Use of any User Generated Content, or use of the Platform or any Social Native IP or Company Intellectual Property Rights or technology not expressly set forth herein, and no implied licenses are granted herein. The parties reserve all rights not expressly granted to the other party hereunder. Any rights to Use User Generated Content not specified in this Agreement or an SOW are reserved to Social Native.

3. Company Rights and Obligations:

(a) Use of Social Native Materials. Company shall not: (i) modify, enhance or create derivative works of the Social Native Materials or Social Native IP; (ii) decompile, reverse engineer or disassemble the Social Native Materials or Social Native IP, or any component thereof; (iii) remove the attribution “powered by Social Native”, or a similar attribution, from the Platform; (iv) use any Social Native Marks or Social Native IP except as expressly provided in this Agreement; or (v) knowingly or willfully use the Platform in any manner that could damage, disable, overburden, impair or otherwise interfere with Social Native’s provision of the Services.

(b) Use of Platform. Company shall be responsible for maintaining the security of its equipment and Company’s account access passwords. Company and Social Native agree to make every reasonable effort to prevent unauthorized third parties from accessing the Platform. Company shall be liable for all acts and omissions of its authorized users.

(c) Advertisers and Company Affiliates. Company may elect on an SOW to have one or more Advertisers or Affiliates of the Company receive the rights and benefits of, and be subject to all terms and obligations under, this Agreement, provided that any such Advertiser or Company Affiliate executes an agreement acknowledging that they are bound by the provisions of this Agreement as if such Advertiser or Affiliate was Company for all purposes of this Agreement. Company will remain jointly and severally responsible to Social Native for its Advertisers’ and its Affiliates’ obligations and performance under this Agreement, including any liability arising out of its Advertisers’ or its Affiliates’ breach of this Agreement.

(d) Access to User Generated Content. Within 30 days of the expiration or termination of a Campaign Period, the Content of a Campaign will be removed from the Platform and Company will no longer have access to such User Generated Content for download (unless there is a User Generated Content Shortfall as set forth in Section 5(d)). Company is solely responsible for downloading all User Generated Content Company wishes to maintain prior to the expiration of such 30-day period. Social Native will use reasonable efforts to provide Company with electronic notice at least five (5) days prior to the removal of Campaign-specific User Generated Content from the Platform.

(e) Privacy Policy. Company shall maintain a clear and conspicuous privacy policy on the Company Properties that is consistent with prevailing industry privacy and security standards and all applicable Law.

(f) Access to Accounts. Company shall grant Social Native and Social Native’s contractors access to its brands’ Instagram accounts in order to permit Social Native and its contractors to send rights request messages to Instagram end users on Company’s behalf.

4. Social Native Rights and Obligations:

(a) Platform Updates. Company acknowledges and agrees that: (i) the purchase of Services under any SOW is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Social Native regarding future functionality or features; and (ii) Social Native reserves the right to release updates, upgrades or new versions of the Services at any time. The parties shall use commercially reasonable efforts to assist each other to the extent that any Platform update, upgrade or new version affects the Company Properties or requires changes to the Company Properties in order to be compatible with the Platform.

(b) Platform Compatibility The publicly available Platform will be compatible with the current and one previous version of Microsoft Internet Explorer and Edge, Apple Safari, Google Chrome, and FireFox. The password-protected Social Native administrative dashboard is not compatible with any version of Microsoft Internet Explorer, but is compatible with the above-stated versions of the aforementioned browsers. Optimal browser support requirements are subject to change.

(c) Platform Maintenance. Social Native is responsible for maintaining the Platform, and Social Native will use commercially reasonable efforts to ensure that the Platform is operational during the Term so that Company may receive the benefit of the Services, download User Generated Content, and create new Campaigns. Social Native may, but has no obligation to, improve or update the Platform at its sole discretion.

(d) Case Study, Press Releases and Publicity. Upon the written consent of Company, Social Native may issue a press release regarding this Agreement and may identify Company as a customer of Social Native in Social Native advertising and marketing materials (“Marketing Materials”). Nothing in this Agreement will preclude Social Native from using information about Campaigns run by Company, provided such information is anonymized such that Company is not publicly affiliated with such Campaigns.

(e) Third-Party Contractors. Company acknowledges that Social Native may use third-party contractors, consultants or partners to perform the Services or exercise its rights and under this Agreement (collectively, “Third-Party Contractors”), provided, however, that, except as otherwise set forth in this Agreement, Social Native will remain solely responsible to Company for its obligations and performance under this Agreement and shall bear all liability associated with all such Third-Party Contractors.

5. Fees and Payment:

(a) Fees. In consideration for the Services, access to the Platform, and the licenses and rights granted by Social Native under the Agreement, Company agrees to pay the fees set forth in each SOW (the “Fees”).

(b) Payment. Unless otherwise set forth in an applicable SOW, the Company shall pay the total aggregate Fees under an SOW within 30 days after the date of execution of such SOW. Payments will be made to Social Native pursuant to the method indicated in the SOW.

(c) Late Payment. Any payments or portions thereof due hereunder that are not paid when due shall be subject to a late payment charge equal to three percent (3%) per month, or the maximum rate permitted by applicable Law, whichever is less, calculated on the number of days such payment is delinquent. In the event that Company is late on any payments due hereunder, Social Native shall be under no obligation to supply additional Services until such overdue amounts are paid in full. This Section 5(c) shall in no way limit any other remedies available to Social Native.

(d) User Generated Content Shortfall. The parties acknowledge and agree that it will not be deemed a material breach of the Agreement if Social Native does not provide all User Generated Content agreed upon in an SOW for a certain Campaign by the end of the Campaign Period (“User Generated Content Shortfall”). If there is a User Generated Content Shortfall, then Social Native will have 30 days from the end of the applicable Campaign Period to provide Company with all missing User Generated Content.

(e) Custom Work. Any out of scope work or custom solution requirements that surface during the onboard or post onboard will require a SOW and may be subject to additional fees. Feasibility, level of effort and timelines will be determined once scoping is completed.

6. Certain Representations, Warranties and Covenants:

(a) Mutual Representations and Warranties. As of the Effective Date and during the Term, each party hereto represents, warrants, and covenants that it has the full right, power, and authority to enter into and fully perform this Agreement, and to grant the rights granted herein, in accordance with its terms, and that the person executing this Agreement on behalf of such party is authorized to do so.

(b) Social Native Representations and Warranties. Social Native represents, warrants and covenants that: (i) it has to its knowledge obtained as of the Effective Date, and will use commercially reasonable efforts to obtain throughout the Term, all authority and third-party rights, clearances, and consents necessary for Social Native to provide Company with access to the Platform and the Services; and (ii) its, and to its knowledge its Third-Party Contractors’, execution, delivery, and performance under or of this Agreement will not violate the provisions of any agreement to which it is a party, or any applicable Law. Notwithstanding anything to the contrary in this Agreement, the parties acknowledge and agree that Social Native makes no representations, warranties or covenants with respect to Under 18 Content. Upon written request by Company (or if so specified in the applicable SOW), Social Native shall use commercially reasonable efforts to exclude Under 18 Content from any User Generated Content or Campaigns that are part of the Services provided to Company. Company acknowledges that subject to the above requirement, the inadvertent inclusion of Under 18 Content in any User Generated Content shall not be considered a breach of this Agreement.

(c) Company Representations and Warranties. Company represents, warrants and covenants that: (i) it is not involved in litigation, arbitration, or any other claim and knows of no pending litigation, arbitration, other claim, or fact that may be the basis of any claim regarding any Campaign, the Company Content, the Company Properties, the Company Marks, the Platform or the User Generated Content; (ii) its execution, delivery and performance under or of this Agreement, its use of User Generated Content and the Platform, and its conducting of Campaigns will not violate the provisions of (1) any agreement to which it is a party, (2) applicable Social Media terms and conditions, or (3) any applicable Laws; (iii) the Company Content, the Company Properties, and the Company Marks do not and Social Native’s receipt and use thereof will not infringe, misappropriate, or otherwise violate any third party’s Intellectual Property Rights; and (iv) its Use of User Generated Content will be solely in accordance with the grant of rights set forth in this Agreement and for no other purpose without Social Native’s prior written consent, which may be withheld for any or no reason.

(d) Disclaimers.

(i) External Platforms. The Platform may contain links to other websites or other online properties that are not owned, operated, or controlled by Social Native, including, without limitation, Social Media (collectively, “External Platforms”). The content of External Platforms is not developed or provided by Social Native. Social Native is not responsible for the content of any External Platforms and does not make any representations regarding the content or accuracy of any materials on External Platforms. Company should contact the site administrator or webmaster of the External Platforms if Company has any concerns regarding content located on those External Platforms. Company should take precautions when downloading files from all websites to protect its devices from viruses and other destructive programs. If Company decides to access any External Platforms, then Company does so at its own risk. Further, Company will be solely responsible for compliance with any terms of service or similar terms imposed by any External Platform in connection with Company’s use of External Platforms.

(ii) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SOCIAL NATIVE PROVIDES THE SERVICES, SOCIAL NATIVE MARKS, SOCIAL NATIVE MATERIALS, SOCIAL NATIVE IP, USER GENERATED CONTENT, AND PLATFORM “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. SOCIAL NATIVE IS NOT RESPONSIBLE OR LIABLE FOR ANY HARM TO COMPANY RESULTING FROM COMPANY’S USE OF THE SERVICES, SOCIAL NATIVE MARKS, SOCIAL NATIVE MATERIALS, SOCIAL NATIVE IP, USER GENERATED CONTENT, OR PLATFORM NOT IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.

7. Term and Termination:

(a) Term: The term of the Agreement (“Term”) shall commence upon the Effective Date and continue for twelve (12) months after the Effective Date. Unless either party provides the other party with at least thirty (30) days’ written notice prior to the expiration of the Term, the Term will automatically renew for an additional twelve (12)-months, provided that the Term may only be extended once (i.e., the maximum total length of the Term is two years from the Effective Date). Notwithstanding the foregoing, if one or more Campaign Periods extend beyond the length of the Term, the Term will be extended to the end of the last applicable Campaign Period.

8. Termination:

(a) Without limiting any other remedy available at law or in equity, either party may terminate the Agreement in the event of any material breach of the Agreement by the other party that is not remedied within thirty (30) days after written notice is provided to the breaching party. To the extent permitted by applicable Law, and without limitation, the occurrence of any of the following events shall be considered a material breach of and default under the Agreement: (1) dissolution of and/or the liquidation of all of the assets of the other party; (2) the filing of a petition in bankruptcy or insolvency or for an arrangement or reorganization by, for or against the other party, which is not dismissed within ninety (90) days; (3) the appointment of a receiver or trustee for all or a portion of the assets of the other party, which is not dismissed or removed within ninety (90) days; or (4) the other party’s assignment of assets for the benefit of creditors, which are not returned or reversed within ninety (90) days. Company may not terminate the Agreement due to a User Generated Content Shortfall (as set forth in Section 5(d)). Any of the foregoing cure periods will not apply to material breaches that are incapable of being cured.

(b) The termination or expiration of the Agreement shall not affect those provisions, representations, warranties and other obligations that by their nature survive the end of the Agreement.

(c) Upon termination or expiration of the Agreement, Company will pay Social Native any and all outstanding Fees within thirty (30) days of such termination or expiration.

(d) Upon termination or expiration of the Agreement, all licenses and rights granted to Company to access the Platform or download User Generated Content will immediately terminate; provided that, Company shall continue to have the right, pursuant to the grant in Section 2(a), to Use User Generated Content solely for the purpose set forth in the applicable SOW for the duration of the applicable Campaign Period, subject to the limitations and restrictions set forth in the applicable SOW.

(e) Upon termination or expiration of the Agreement, both parties will, return or destroy or return (at the other party’s option) all Confidential Information of the other party.

9. Indemnification and Insurance:

(a) Social Native’s Indemnity. Social Native agrees to defend, indemnify, and hold harmless Company, its Affiliates, successors, agents, attorneys and assigns, and the officers, directors, shareholders, contractors, members and employees of the foregoing (collectively, “Company Parties”), from and against any and all Losses arising out of any third-party claim, allegation, action, demand, proceeding or suit (collectively, “Claims”) against any of the Company Parties that arise directly or indirectly out of (i) infringement or violation of a third party’s U.S. Intellectual Property Rights by the Platform, User Generated Content or Services; and (ii) any facts that, if true, would constitute, a breach by Social Native of the Agreement, including any warranty or representation herein (but, in each case (i) and (ii), excluding Claims directly or indirectly related to Under 18 Content). This Section states the sole liability of Social Native, and the sole remedy of any Company Party, with respect to any third-party claim arising out of any Campaign, the User Generated Content, the Platform or the Services. Social Native’s obligations to indemnify will not apply to claims to the extent arising from (1) Company’s use of the Service, the User Generated Content or the Platform in violation of applicable Law or the Agreement; (2) the combination, operation or use of the Service, User Generated Content or Platform with any Intellectual Property Rights, technology product or service not provided or authorized in writing by Social Native; or (v) the result of a Company Party’s gross negligence or intentional misconduct. Content Indemnification Limitation: Company acknowledges and agrees that Social Native shall not be liable for any infringement claims brought forth by a third-party arising out of any video content moderated by Social Native that contains music. Company shall be solely liable for any such claims brought forth by any third party.

(b) Company’s Indemnity. Company agrees to defend, indemnify, and hold harmless Social Native, its Affiliates, successors, agents, attorneys and assigns, and the officers, directors, shareholders, contractors, members and employees of the foregoing (collectively, “Social Native Parties”), from and against any and all Losses arising out of any Claims against any of the Social Native Parties that arise directly or indirectly out of: (i) any facts that, if true, would constitute, a breach by Company of the Agreement; (ii) Company’s conducting a Campaign or otherwise using User Generated Content in a manner not permitted by this Agreement; and (iii) Social Native’s use of Company Content, Company Marks, and Company Properties, provided that Social Native’s use of such Company Content, Company Marks, and Company Properties was in compliance with the terms of the Agreement.

(c) Indemnification Procedures. The persons and entities entitled to be indemnified under Sections 9(a) and 9(b) (individually and collectively, the “Indemnitee”) shall: (i) promptly inform the party obligated to provide indemnification under such sections (the “Indemnifying Party”) of each Claim with respect to which it seeks indemnity; provided, however, that the failure of the Indemnitee to provide such prompt notice will not relieve the Indemnifying Party of its obligations under this Section 9 unless such failure of prompt notice has materially prejudiced the Indemnifying Party’s defense of such Claim; (ii) furnish to the Indemnifying Party a copy of each written communication, notice or other action related to such Claim, suit or proceeding; and (iii) give the Indemnifying Party the authority, information and reasonable assistance necessary to settle or litigate such Claim, using counsel selected by the Indemnifying Party (provided, however, that the Indemnitee shall have the opportunity to participate in the defense of such Claim with counsel of its choice, at the Indemnitee’s sole cost). Any settlement of any such Claim by the Indemnifying Party that imposes any requirements on the Indemnitee or which involves agreements other than the payment of money by the Indemnifying Party and receipt of a full release for the benefit of the Indemnifying Party and the lndemnitee shall be subject to the Indemnitee’s written consent, not to be unreasonably withheld, conditioned or delayed.

(d) Insurance: Throughout the Term, Social Native shall maintain in effect (i) Commercial General Liability insurance providing damage liability coverage, subject to a combined single limit of $2,000,000 per occurrence and $5,000,000 aggregate when combined with umbrella, (ii) Workman’s Compensation at statutory limits and Employer Liability, subject to a limit of $1,000,000 each accident, $1,000,000 policy limit and $1,000,000 each employee, (iii) Automobile Liability subject to a combined single limit of $2,000,000 and (iv) Errors and Omissions subject to a combined single limit of $5,000,000 which includes Media Liability coverage. Such insurance shall include Company as an additional insured. Within thirty (30) days of the Effective Date, Social Native shall furnish Company with certificates of insurance as evidence that the foregoing policy providing the required coverage and limits of insurance is in effect. The certificates shall provide not less than thirty (30) days advance notice to be given in writing to Company prior to cancellation of said insurance.

(e) Limitation of Liability. WITHOUT LIMITING THE INDEMNITY OBLIGATIONS OF THE PARTIES PURSUANT TO THE FOREGOING PROVISIONS OF THIS SECTION 9 AND OTHER THAN AS A RESULT OF A BREACH OF THE CONFIDENTIALITY OBLIGATIONS HEREUNDER, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL SOCIAL NATIVE’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF THE INSURANCE COVERAGE MAINTAINED BY SOCIAL NATIVE AS SET FORTH IN SECTION 8(d).

10. Confidentiality: For the purposes of the Agreement, “Confidential Information” shall mean the terms of the Agreement (including this Master Services Agreement and each SOW) and any non-public information, data, reports, or other materials provided by one party to the other under or in connection with the Agreement (other than information expressly intended for public dissemination), and any other information the receiving party should reasonably have understood under the circumstances should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used, such as royalty reports, and similar information. Notwithstanding any other provisions of this Agreement (including, without limitation, the exceptions to confidentiality described in this Section 9 below), Social Native’s Confidential Information shall include a Creator’s identity, contact information, and any other information related thereto, in each case, obtained in connection with this Agreement, any SOW or any Campaign (including without limitation via the Platform) (collectively, “Creator Information”). Except with the prior written consent of the disclosing party, neither party shall use or disclose any Confidential Information other than (a) to such party’s attorneys, accountants and financial representatives under a duty of confidentiality as may be reasonably necessary in order to receive their professional advice, (b) to such party’s employees and contractors who have a need to know for the purposes of the Agreement, and (c) in connection with any legal, governmental or administrative proceeding, provided that prior written notice of such disclosure is furnished to the non-disclosing party in order to afford such non-disclosing party a reasonable opportunity to seek a protective order (it being agreed that if the non-disclosing party is unable to obtain or does not seek a protective order, disclosure of such information in such proceeding may be made without liability). In addition, the Agreement may be disclosed in contemplation of any merger or sale of all or a substantial portion of a party’s assets or securities, subject to a nonuse and nondisclosure agreement consistent with the provisions of this Section 10. Except with respect to Creator Information, nothing in the Agreement shall prohibit or limit either party’s use or disclosure of information (i) previously known to it by lawful means without obligation of confidence, (ii) independently developed by or for it without use of or access to the other party’s Confidential Information, (iii) acquired by it from a third party which, to the reasonable knowledge of the receiving party, is not under an obligation of confidence with respect to such information, (iv) which is or becomes publicly available through no breach of the Agreement or (v) that is required to be disclosed by operation of law, court order or other governmental demand (subject to the notice requirement in clause (c) of this Section 10). The obligations of this Section 10 survive the termination or expiration of the Agreement.

11. Notices: All notices under the Agreement must be in writing in order to be effective, and will be deemed to have been duly given or made (a) on the date delivered in person, (b) on the date indicated on the return receipt if mailed postage prepaid, by certified or registered U.S. Mail, with return receipt requested, (c) on the date indicated by the email return receipt if sent via return-receipt email, or (d) if sent by Federal Express, U.P.S. Next Day Air or other nationally recognized overnight courier service or overnight express U.S. Mail, with service charges or postage prepaid, on the next business day after delivery to the courier service or U.S. Mail (if sent in time for and specifying next-day delivery); provided that, and notwithstanding anything to the contrary herein, in the case of notices to Social Native, any such notice must also be sent via return-receipt email to the email address set forth below to be effective. Unless notices are sent by Social Native to Company via the Platform, in each case (except for personal delivery) such notices, as well as all requests, demands, and other communications will be sent to a party at the following addresses:

If to Company: Pursuant to the contact information set forth in an SOW.

If to Social Native: Pursuant to the contact information set forth in an SOW, with a copy to:

Social Native, Inc.

1800 Wazee Street #300

Denver, CO 80202

Attn: Social Native

finance@socialnative.com

Until such time as Social Native notifies Company otherwise, all payments and communications will be sent to Social Native as indicated in the applicable SOW, with a copy as indicated above in this Section.

12. Dispute Resolution: Any controversy or claim arising out of or relating to this Agreement or the breach thereof shall be settled by arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator shall be binding and may be entered in any court having jurisdiction thereof. Either party may, at any time by providing thirty (30) days’ advance written notice to the other, submit their dispute to arbitration. The arbitration shall be held in such location as both parties mutually agree, and if they cannot agree, then the arbitration shall be held in the home jurisdiction of the respondent party. The arbitration shall be conducted in English by one arbitrator mutually acceptable to the parties selected in accordance with AAA Rules. The arbitrator shall not have the power to award any punitive damages or any damages excluded by this Agreement. The parties agree that they shall share equally the cost of the arbitration filing and hearing fees, and the cost of the arbitrator. Each party shall bear its own attorneys’ fees and associated costs and expenses.

13. Miscellaneous: (a) This Agreement is made in accordance with and will be governed and construed under the Laws of the State of California, without reference its conflicts of laws principles. (b) Neither Party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, except to a successor in interest pursuant to a transfer, sale or divestiture of substantially all of its capital stock or assets to which this Agreement pertains or in the event of its spin-off, merger or consolidation with a third party. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and assigns. (c) A party’s failure to enforce the other party’s strict performance of any provision of this Agreement will not constitute a waiver of such party’s right to subsequently enforce that provision, or any other provisions of this Agreement. No waiver of any provision hereof will be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. (d) If any term or provision of this Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other term or provision hereof, and this Agreement shall be interpreted and construed to replace such invalid, illegal or unenforceable term or provision with a new term or provision that has effect as near as possible to the invalid, illegal or unenforceable term or provision without itself being invalid, illegal or unenforceable. (e) The captions and headings in this Agreement are intended only for convenience, and will in no event be construed to define, limit or describe the scope or intent of this Agreement, or of any provision of this Agreement, nor in any way affect the interpretation of this Agreement. (f) Except with respect to the obligation to pay Fees, neither party shall be held responsible for any delay or failure in performance hereunder caused in whole or in part by fire, strike, flood, embargo, labor dispute, delay or failure of any subcontract, act of sabotage, riot, accident, delay of carrier or supplier, internet outages, voluntary or mandatory compliance with any governmental act, regulation or request, act of God or by public enemy, or any act or omission or other cause beyond such party’s control. (g) The parties are independent contractors, and nothing in this Agreement creates any partnership, joint venture, agency, franchise, sales Company or employment relationship between Company and Social Native. (h) This Agreement, together with any SOWs, is fully integrated and represents the entire agreement between Company and Social Native with respect to the subject matter hereof. No modification of any of the terms of this Agreement, or any amendments thereto, shall be deemed to be valid unless in writing and signed by an authorized representative of both parties hereto. (i) Each party acknowledge that this Agreement was fully negotiated by the parties and, therefore, no provision of this Agreement shall be interpreted against any party because such party or its legal representative drafted such provision. (j) This Agreement and any SOW may be executed in one or more counterparts, each of which when taken together, will be deemed to constitute one and the same instrument. Signed PDF versions, digital certificate signatures and/or other electronic signatures on this Agreement or any SOW will be deemed originals for all purposes.