Terms of Service

b. Other Services. Stacker may provide Client with such consulting or other services as agreed by the parties, and the applicable Statement of Work shall be updated to reflect any such additional services (the “Additional Services”). Except as otherwise provided herein or in the applicable Statement of Work, any such Additional Services shall be included in the definition of the “Distribution Services”, and shall be subject to the provisions of this Agreement as if such Additional Services were the Distribution Services.

3. License.

1. Grant of License. Subject to the terms and conditions of this Agreement, Client grants Stacker a non-exclusive, revocable, during the term, worldwide, license to reproduce, promote, publicly perform, publicly display (including on social media and other promotional channels), sublicense and distribute the Licensed Articles (and any Derivatives) in order to implement the terms of this Agreement (the “License”). For the avoidance of doubt, Stacker may create and publicly display, and may sublicense to any Third-Party Partners any of the foregoing rights to publicly display, Final Articles and any Derivatives for the purpose of promoting and distributing the Final Articles or otherwise implementing the terms of this Agreement.

2. Marks License. Subject to the terms and conditions of this Agreement, Client grants to Stacker a nonexclusive, revocable, during the term, royalty-free right and license to use and display, and sublicense to Third-Party Partners the right to use and display, the Marks of Client for the purpose of implementing the terms of this Agreement; provided, that Stacker shall not be liable for any failure of a Third-Party Partner to stop using or displaying any such Marks.

3. Client Research Information License. Subject to the terms and conditions of this Agreement, Client grants Stacker a non-exclusive worldwide, perpetual license to reproduce, promote, publicly perform, publicly display (including on social media and other promotional channels), and distribute, the Client Research Information cited in Stacker- distributed stories, (including the right to sublicense any of the foregoing to Third-Party Partners) so long as Stacker uses commercially reasonable efforts to provide to Client attribution in the article in which the Client Research Information is displayed to the extent Client is the primary source of the applicable information.

4. Modifications. Notwithstanding any provision of this Agreement to the contrary, either Party may modify the Licensed Articles (including, for the avoidance of doubt, by making Derivatives therefrom), and Stacker may modify the Client Research Information, as necessary or desirable to make use of the licenses and rights granted herein; provided, however, that the parties shall not make material modifications to the Licensed Articles or Client Research Information that are reasonably likely to distort their meaning in a manner not originally intended, as reasonably determined by such Party. Permitted modifications include, without limitation, (i) formatting for navigational or promotional purposes; (ii) editing titles and summaries for length and clarity; (iii) translating into other languages, and (iv) correcting grammatical errors.

5. Updates. In the event that Client becomes aware of a material misstatement or material error in a Licensed Article, Client shall promptly, but in no event later than three (3) Business Days from the date that Client identifies such misstatement or error, (a) notify Stacker in writing of such misstatement or error, and (b) either provide Stacker with a corrected version of such Licensed Article or other manner of correcting the misstatement or error (including by completely removing a Final Article from distribution). Stacker will use commercially reasonable efforts to notify each of its Third-Party Partners of the corrections; provided, however, that Stacker shall not be required to update the Licensed Article or any Derivatives and shall not be liable to Client or any of its Affiliates for any failure of Stacker or any other Person (including any Third-Party Partner) to update a Final Article or any Derivative.

4. Fees, Payments and Invoices.

7. Term and Termination.

   1. Term. Except as otherwise provided herein, the term of this Agreement shall commence on the Effective Date and shall continue to be in effect with respect to a Final Article for the duration of the Term set forth in the applicable Statement of Work; provided, that with respect to any Final Article provided during a renewal period, the Term with respect to such Final Article shall begin on the date after the end of the immediately previous Term and shall continue until the end of such renewal period (the “Term”).

   2. Renewal. After the initial Term set forth in the Statement of Work, the Term of the Agreement will automatically renew for Terms equal to the initial Term unless either Party provides the other Party with written notice of its intention not to renew no less than one-month prior to the termination month. By way of example, if notice is given in January, the Agreement would terminate in March.

   3. Termination. Either party may terminate this Agreement prior to the expiration of the Term by written notice to the other party if such other party has materially breached any of its obligations hereunder, including but not limited to a failure to pay any Fees owed, and does not remedy such breach within thirty (30) days after receipt of written notice thereof (the “Cure Period”), except that the Cure Period for any failure to pay the Fees shall be limited to five (5) days after receipt of written notice thereof. In addition, this Agreement will terminate immediately if either party is dissolved or enters into liquidation (whether voluntary or compulsory), other than in connection with a merger, restructuring or acquisition, or becomes subject to or submits to any law for the relief of insolvent debtors or if a receiver is appointed in respect of any of its assets or in the case of bankruptcy, and Stacker may terminate this Agreement immediately upon written notice if it determines that Client or its representatives or agents has engaged or is engaging in an Immoral Act.

   4. Effect of Termination. Notwithstanding any provision of this Agreement to the contrary, the termination or expiration of this Agreement shall not relieve the Client’s obligation to pay Fees that have accrued up to the date of such expiration or termination, and Sections 6, 8, 9, 10, 12, 13(a), 13(e), 13(f), 13(i), 13(j) and this Section 7(d) will survive the termination of this Agreement.

8. Mutual Representations and Warranties.

   1. Client represents and warrants to Stacker that: (i) Client (and the undersigned on behalf of Client) has the power and authority to enter into this Agreement, (ii) Client has the power and authority to grant the licenses granted hereunder and to perform the acts required of it hereunder; (iii) the execution of this Agreement by Client, and the performance of Client’s obligations and duties under this Agreement, do not and will not violate any agreement to which Client is subject or by which it is otherwise bound or violate any applicable laws; (iv) when executed and delivered by Client, this Agreement will constitute the legal, valid and binding obligation of Client, enforceable against it in accordance with its terms; (v) material Client utilizes or provides to Stacker in connection with this Agreement, including Client Research Information and Licensed Articles, will not infringe, violate, or misappropriate the Intellectual Property Rights of any third party; and (vi) the Licensed Articles are free from any material misstatements that could result in a claim for damages or loss by any Person or adversely affect Stacker’s business or reputation.

   2. Stacker represents and warrants to Client that: (i) Stacker (and the undersigned on behalf of Stacker) has the power and authority to enter into this Agreement, (ii) Stacker has the power and authority to perform the acts required of it hereunder; (iii) the execution of this Agreement by Stacker, and the performance of Stacker’s obligations and duties under this Agreement, do not and will not violate any agreement to which Stacker is subject or by which it is otherwise bound or violate any applicable laws; and (iv) when executed and delivered by Stacker, this Agreement will constitute the legal, valid and binding obligation of Stacker, enforceable against it in accordance with its terms.

9. Confidentiality. Each party acknowledges that Confidential Information may be disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) during the course of this Agreement. The Receiving Party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, during the Term of this Agreement and for a period of two (2) years following expiration or termination of this Agreement, to prevent the disclosure of, and to not use, the Disclosing Party’s Confidential Information, other than to its employees, Affiliates, subsidiaries or other agents who must have access to such Confidential Information for the Receiving Party to perform its obligations or exercise its rights hereunder, who will each agree to comply with this section. For the avoidance of doubt, Stacker shall not have the right to use Client’s marks (or the marks of the Specified Domains) on its websites, in other marketing or promotional materials, or in discussions with external parties.

10. Indemnification and Remedies.

1. Generally. Each party (the “Indemnifying Party”) will defend, indemnify and hold the other party, including its officers, directors, employees, Affiliates and agents (collectively, the “Indemnified Parties”) harmless from all expenses, losses (including all judgments, settlements, attorneys’ fees, and costs and any third-party claims) and Fees related to or arising out of a breach by the Indemnifying Party of the representations, warranties or covenants in this Agreement. Client shall indemnify and Third Party Partners for any breaches by Client of the representations, warranties or covenants contained in Sections 3(e), 8(a)(v) and 8(a)(vi).

2. Claims Period. Except for actions for non-payment of Fees and breaches of Sections 6, 8, 9, 12(c) and (d), and 13(e), (i) no action, regardless of form, arising from this Agreement may be brought by either party more than one (1) year after the cause of action has accrued and (ii) this Section 10 shall constitute the sole and exclusive remedy for breaches of this Agreement.

3. Limitations on Liability. The parties agree that both Parties’ aggregate liability for any breach of representations, warranties or covenants hereunder in respect of any Distribution Services or Additional Services, whether in contract, tort (including negligence and gross negligence) or otherwise shall not exceed the amount of Fees paid by Client to Stacker in respect of such Distribution Services or Additional Services, as applicable, for the 12-month period preceding the date of any such breach. For purposes of this Section 10(c), the “Distribution Services” shall exclude the Additional Services.

4. Specific Performance. The parties acknowledge and agree that in the event of a breach by either Party of any of the provisions of Sections 6, 8(a)(v) and (vi), 9, 12(c) and 13(e), of this Agreement, monetary damages shall not constitute a sufficient remedy. Consequently, in the event of any such breach and notwithstanding anything to the contrary contained herein, the parties and/or their respective successors or assigns may, in addition to other rights and remedies existing in their favor, apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any violations of the provisions hereof, in each case without the requirement of posting a bond or proving actual damages.

5. Loss of Use. In the event that Client breaches this Agreement by failing to pay any Fees associated with a Statement of Work, otherwise materially breaches this Agreement or engages in an Immoral Act, all rights to the Distribution Services shall cease as of the date Stacker provides written notice to Client; provided, that (i) Stacker may waive such cessation for nonpayment if Client remits payment of all amounts due under this Agreement; and (ii) Final Articles may continue to be available to Third Party Partners for the Distribution Period (which may be extended in the sole discretion of Stacker).

11. Definitions.

1. “Affiliates” means, with respect to a party, any other person directly or indirectly controlling, controlled by, or under common control with, that person; for purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities, by contract or otherwise.

2. “Backlink” means an incoming hyperlink from one web page to another website.

3. “Business Day” means any day (A) other than Saturday or Sunday and (B) on which commercial banks are open in

   New York, New York.

4. “Client Research Information” means any information or technical data collected or analyzed by Client that is supplied to Stacker under this Agreement.

5. “Confidential Information” means confidential and/or proprietary knowledge, data or information of an individual or entity and confidential and/or proprietary knowledge, data or information of a third party subject to a duty on the part of such individual or entity in question to maintain the confidentiality of such information and to use such information only for certain limited purposes, and includes, without limitation, trade secrets, inventions, ideas, processes, data, know-how, improvements, discoveries, developments, designs, techniques, programming code, design process, and information regarding plans for research, development, new products, licenses, prices and costs, suppliers and clients; provided, however, that (1) Confidential Information shall only include information that is specifically affixed with a legend that states that such information is “CONFIDENTIAL: DO NOT DISCLOSE”, (2) the parties agree that the fees and payment terms in this Agreement, including the definition of Fees, are Confidential Information, and (3) Confidential Information shall not include information that is (i) already lawfully known to or independently developed by the Receiving Party; (ii) disclosed in published materials; (iii) generally known to the public; or (iv) lawfully obtained by the Receiving Party from any third party.

6. “Distribution Period” means, with respect to a Final Article, the period that begins on the date such Final Article is distributed by Stacker to Third-Party Partners under Section 2(a)(ii) and ends 12 months thereafter.

7. “Domain Rating” means the quality measure for the domain posting the Backlink, which shall be determined as reported on Ahrefs.com.

8. “Fees” has the meaning set forth in Section 4(a).

9. “Immoral Act” means any (i) charge of committing a misdemeanor of moral turpitude that is punishable by a prison term of at least 6 months or a felony (regardless of the length of prison term associated with such offense); (ii) commission or accusation of committing an act involving moral turpitude under federal, state or local law (regardless of whether or not such act involving moral turpitude is a misdemeanor or felony); (iii) commission of an act or omission of significant public disrepute or that becomes the subject of a scandal, or (iv) action that Stacker determines, in its sole discretion, is (A) immoral, offensive, deceptive, discriminatory, scandalous or obscene; or (B) would injure, tarnish, damage or otherwise negatively affect the community and/or the reputation and goodwill associated with Stacker.

10. “Intellectual Property Rights” means any rights, titles, and interests, whether foreign or domestic, in and to any trade secrets, patents, copyrights, service marks, trademarks, know-how, or similar intellectual property rights, as well as any moral rights, rights of privacy, publicity and similar rights of any type under the laws or regulations of any governmental, regulatory, or judicial authority, foreign or domestic.

11. “Marks” means, with respect to a Person, trade names, logos, trade dress, common law and registered trademarks and service marks, trademark and service mark registrations and applications therefore, and all goodwill associated therewith throughout the world, in each case, owned by such Person.

12. “Person” means any individual, sole proprietorship, enterprise, firm, partnership, limited liability company, joint venture, trust, unincorporated association, corporation, or entity.

13. “Specified Domains” means such websites and domains on which Client is pre-authorized by Stacker in writing to post any Final Articles, including those Specified Domains explicitly set forth in the applicable Statement of Work.

14. “Statement of Work” means the statement(s) of work to this Agreement entered into by Stacker and Client, any additional statements of work that reference this Agreement, and any amendments to any of the foregoing, in each case, executed by both Parties. For the avoidance of doubt, each Statement of Work is included as part of this Agreement and is incorporated herein by reference.

12. Independent Contractor Status.

a. Relationship of the Parties. Client and Stacker acknowledge and agree that Stacker shall serve as an independent contractor of Client. Client and Stacker hereby covenant with one another to treat the engagement of Stacker as that of an independent contractor for all purposes, including but not limited to (1) Federal, state, and local income and employment taxes, (2) workers’ compensation, health benefits, vacation pay, holiday pay, profit sharing, retirement, pension, disability benefits, or other health and welfare benefits, plans or programs sponsored by Client, and (3) insurance. The manner and means used by Stacker to modify, edit, distribute or publish any Licensed Articles and perform any of the work to be performed under this Agreement are in the sole discretion and control of Stacker.

b. Non-Exclusive Agreement. This Agreement and any of the services provided to Client are non-exclusive, and the parties acknowledge and agree that Stacker may engage in other business activities during the Term and may be employed or retained by others.

c. Non-Solicitation. Stacker shall manage any sub-contractors. During the Term, and for a period of one (1) year after the termination of this Agreement for whatever reason, Client shall not solicit, retain, hire or contract, directly or indirectly, with any Third-Party Partner whom Client became aware of solely through the Services or any employee, independent contractor, subcontractor, or other persons providing services or assistance to Stacker without Stacker’s written consent.

d. Taxes. Each party will be responsible for the payment of its own taxes in connection with the transactions under this Agreement, and all such taxes (including but not limited to net income or gross receipts taxes, and taxes arising from sales between a party and its clients) will be the financial responsibility of the party who is obligated by operation of law to pay such tax.

13. Miscellaneous.

a. Governing Law; Jurisdiction. This Agreement shall be governed by and be construed in accordance with the laws of the State of Delaware, without regard to the conflict of laws principles that would apply the laws of another jurisdiction. Except for an action by a party seeking injunctive relief in connection with a breach by the other party of Sections 6, 8(a)(iv) and (vi), 9, 12(c) and 13(e), of this Agreement, any controversy, claim or action arising out of or relating to this Agreement or any breach thereof, shall be settled exclusively by arbitration in New York, New York, in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction and shall be binding on the parties hereto. The arbitration shall be before a single independent arbitrator selected by Stacker. The arbitrator is not empowered to modify or change this Agreement. The prevailing party shall be awarded its reasonable attorneys’ fees and other costs, in addition to any other relief deemed appropriate, in any arbitration or judicial action under this Agreement. With respect to any matters not governed by arbitration, each party (a) submits to the jurisdiction of any state or federal court sitting in New York County, State of New York, in any action or proceeding arising out of or relating to this Agreement, (b) agrees that all claims in respect of such action or proceeding may be heard and determined in any such court, (c) waives any claim of inconvenient forum or other challenge to venue in such court, and (d) agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court.

a. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTION OR THE ACTIONS OF THE PARTIES IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT.

b. Modification and Integration. The terms and conditions of this Agreement, including the terms and conditions of any Statement of Work attached hereto, constitute the entire understanding of the parties and supersede all communications, negotiations and agreements, either oral or written, with respect to the subject matter hereof. No amendments to or modifications of this Agreement will be effective unless reduced to writing and executed by the parties hereto. Any reference to this Agreement contained herein shall include any Exhibits or Statement of Works associated with this Agreement, and the terms of such Exhibits or Statement of Works shall be incorporated by reference.

c. Waiver. The failure of either party to enforce any term hereof will not be deemed a waiver of any rights contained herein.

d. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original. A signed counterpart in pdf. or other format delivered electronically (including, e-signature) or facsimile transmission will be treated the same as a signed original.

e. Publicity. Neither party will make any media release or other public announcement relating or referring to this Agreement without the other party’s prior written consent; provided, however, that Stacker may refer to Client as a customer of Stacker for disclosure purposes to third parties (including distributors and readers) in connection with the Distribution Services, including, without limitation, in Stacker’s marketing and advertising materials (which may include social medial platforms, blogs, Stacker’s website and press releases) and Stacker reserves the right (on behalf of itself and, at its discretion, subcontractors) to include a design credit on the Final Articles or Derivative. Such credit will be typeset in small text and will be tastefully placed so as not to detract from the design of the piece, Final Article or Derivative or overtly draw attention.

f. Assignment. This Agreement may not be assigned by either party without the express written consent of the other party, and any such attempted assignment shall be void ab initio; provided, however, that the parties may assign this Agreement to a successor or assign in the event of any merger or acquisition with respect to such party, so long as the acquiror or surviving entity in such merger or acquisition is not a competitor of such other party. Other than the indemnification provision under Section 10(a) with respect to Third Party Partners, this Agreement is not intended for the benefit and shall not create any rights with respect to any third-party beneficiaries.

g. Force Majeure. Except for payment obligations hereunder, each party will be excused from performance for any period during which, and to the extent that, it or its subcontractor(s) is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failures, laws or regulations, and power failures, etc.

h. Severability. In the event that any of the provisions of this Agreement are held to be unenforceable by a court or arbitrator, the remaining portions of the Agreement will remain in full force and effect.

i. Notice. All notices hereunder shall be in writing and shall be addressed to each party at the contact information set forth on the applicable Statement of Work. Each such notice, request or other communication shall be effective (i) if given by e-mail, upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, return email, or other written acknowledgment) or if no such acknowledgment is given, the following Business Day, and (ii) if given by certified or registered mail, prepaid overnight courier or any other means, when received at the applicable address specified above; provided, however, that if any notice or other communication is received after normal business hours, such notice or communication shall be deemed to have been given on the next Business Day.

j. Interpretation. When a reference is made in this Agreement to Sections, Schedules, or Exhibits, such reference shall be to a Section, Schedule or Exhibit of or to this Agreement. Unless otherwise indicated the words “include,” “includes” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation.” The captions and other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. When reference is made herein to “the business of” an entity, such reference shall be deemed to include the business of all direct and indirect subsidiaries of such entity. A reference in this Agreement to $ or dollars is to U.S. dollars. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless the context of this Agreement otherwise requires (a) words of any gender include each other gender and neutral forms of such words, (b) words using the singular or plural number also include the plural or singular number, respectively, (c) references to clauses without a cross-reference to a Section or subsection are references to clauses within the same Section or, if more specific, subsection, (d) references to any person include the successors and permitted assigns of that person, or (e) references from or through any date shall mean, unless otherwise specified, from and including or through and including, respectively.