These Hulu Marketing Partner Terms and Conditions (these "Marketing Partner Terms") govern each Campaign Deal Memo (as defined below) (collectively, this "Agreement") entered into by Hulu, LLC ("Hulu") and the party identified in the Campaign Deal Memo ("Partner"). By signing the Campaign Deal Memo, each party agrees to the terms of this Agreement. In the event of any conflict between the terms of the Campaign Deal Memo and these Marketing Partner Terms, these Marketing Partner Terms shall control.
1.1 License Grant. Hulu hereby grants to Partner a nonexclusive, non-transferable, non-assignable license to market Hulu’s online video service ("Hulu Service") under the terms set forth in this Agreement.
1.2 Campaign; Campaign Deal Memo. The marketing campaign(s) by which Partner shall promote the Hulu Service to Partner Customers (as defined below) (each, a "Campaign") shall be set forth in a campaign deal memo executed by the parties (the "Campaign Deal Memo"). The Campaign Deal Memo shall set forth the manner by which Partner shall market the Hulu Service to Partner’s existing and prospective customers (collectively, "Partner Customers"), all particulars regarding the intended Campaign, and all obligations and responsibilities of the parties not otherwise set forth in these Marketing Partner Terms.
Except as otherwise noted in the Campaign Deal Memo, Hulu may provide Partner with materials to be used by Partner for the purpose of promoting the Hulu Service ("Marketing Materials"). Partner shall have the right to incorporate the Marketing Materials in its own marketing materials, provided that in doing so, Partner shall not materially amend, edit or revise the Marketing Materials as provided by Hulu, and Partner will submit all such marketing materials referencing the Hulu Service to Hulu and will not distribute such materials unless and until Hulu has approved them in writing. From time to time, Partner may seek, and Hulu may provide, advice or assistance in revising the Marketing Materials, and in such case, notwithstanding any advice or assistance that Hulu may provide, Partner shall at all times be solely responsible for maintaining the integrity of the Marketing Materials. From time to time, Hulu may request samples of materials used by Partner to market the Hulu Service. In connection with each Campaign, Partner shall ensure that all marketing materials referencing the Hulu Service will include the material terms of the offer for such Campaign that have been previously approved by Hulu in writing (provided that such terms may change based on the type of marketing material as designated by Hulu in its sole discretion). If Partner uses any affiliates, sub-contractors, vendors or other third parties in connection with providing any of the services to be performed under this Agreement, Partner shall be liable for any such party’s acts or omissions in connection with this Agreement as if Partner performed such act or made such omission.
3.1 License Grants. During the Term and subject to the terms and conditions of this Agreement, each party hereby grants to the other party the limited, non-exclusive, non-transferable (other than to sublicense to the licensee party’s affiliates, subject to approval from the licensing party), royalty-free license to use, reproduce, transmit, display, perform and distribute the licensing party’s trademarks, trade names, brands, logos and other related materials ("Marks") as is reasonably necessary to perform the party’s obligations under this Agreement. Any and all goodwill arising in connection with the use of any Mark hereunder will inure to the sole benefit of the owner of such Mark. Each party reserves all right, title and interest in and to its respective Marks, and no title to or ownership of any of the Marks is transferred or otherwise granted herein, and except for the licenses granted herein, all other rights are reserved.
3.2 Approvals. Each party’s use of the other party’s Marks will conform to written guidelines, if any, that are provided by the owner of the applicable Marks to the other party. In the event written guidelines are not provided, use of the other party’s Marks will be subject to the applicable owner’s prior written approval.
3.3 Compliance with Laws; Trademark Notices. Each party agrees to use the other party’s Marks at all times in compliance with all applicable federal, state and local laws, rules and regulations, and each party will cause to appear on or with each use of any of the other’s Marks appropriate trademark notices as may be required by law or reasonably specified in writing by the Marks’ owner.
The fees payable under this Agreement shall be set forth in the Campaign Deal Memo. Each party will bear its own costs and expenses unless otherwise specified in these Marketing Partner Terms or the Campaign Deal Memo. Each party shall be responsible for paying its own federal, state, local, international or other taxes, duties, tariffs or other charges, however designated, arising from or based upon this Agreement, or the transactions contemplated by it.
This Agreement will be effective as of the Effective Date (as defined in the Campaign Deal Memo) and shall continue until the end of the term set forth in the Campaign Deal Memo, unless sooner terminated in accordance with the terms of this Agreement (the "Term"). Any party may terminate this Agreement for any reason (or no reason) with thirty (30) days’ prior written notice to the other party.
6.1 Confidential Information. All Confidential Information disclosed by one party to the other will be owned by and remain, as between the parties, the sole property of the disclosing party. Other than as required by law, governmental authority or to enforce its rights hereunder, neither party will, without the express written consent of the other, reveal or otherwise use the other party’s Confidential Information, except to its shareholders, directors, officers, employees and representatives on a "need-to-know" basis. This does not apply to any information that: (a) the receiving party can demonstrate that it possessed prior to the date of this Agreement without obligation of confidentiality; (b) the receiving party develops independently without use of any Confidential Information; (c) the receiving party rightfully receives from a third party, lawfully in possession of such information, without any obligation of confidentiality to the other party; or (d) is or becomes publicly available without breach of this Agreement. For purposes hereof, "Confidential Information" means information which should be reasonably understood to be confidential when given, whether in written, oral, graphic, electronic or any other form, that is disclosed to or observed by a party in the course of performing its obligations hereunder, including, without limitation: the terms of this Agreement; product and pricing information; non-public financial information; marketing and advertising information; business strategies; information pertaining to customers, vendors or technology.
6.2 Public Announcements. Neither party will issue any press release or make any substantially similar public announcement relating to the transactions between Hulu and Partner pursuant to this Agreement without the express prior consent of the other party.
6.3 User Data. The information that a member (a "Member") of either of Partner or Hulu provides to such party ("User Data") remains the property of the party to whom it was provided. User Data shall not be shared by either Partner or Hulu with the other party and in no case will be used by the other party to contact a Member, notwithstanding the fact that a Member may be a member of both Partner and Hulu.
7.1 Mutual. Each party represents and warrants to the other that: (a) such party has full power and authority to enter into this Agreement; (b) this Agreement has been duly authorized, executed and delivered on behalf of such party and constitutes the valid, legal and binding agreement of such party, enforceable in accordance with its terms; (c) such party’s performance of its obligations hereunder does not constitute a breach of or otherwise violate any other agreement to which such party is a party; (d) it shall perform its obligations with all necessary care, skill and diligence and in compliance with all applicable laws, rules and regulations (including without limitation, the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 and the Telephone Consumer Protection Act); and (e) its marketing materials shall not infringe, misappropriate or violate the patent, copyright, trademark, trade secret, rights of privacy, rights of publicity or any other intellectual property rights of any third party.
7.2 Additional Partner Representations. Partner further represents and warrants that it: (a) shall only market the Hulu Service (i) using the Marketing Materials as provided (or otherwise approved) by Hulu, and (ii) to Partner Customers; and (b) shall not engage in deceptive, misleading, illegal, or unethical practices or other activities that may be detrimental to Hulu or its business.
7.3 DISCLAIMER OF WARRANTY. EXCEPT FOR THE COVENANTS, OBLIGATIONS, REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY, AND BOTH PARTIES EXPRESSLY DISCLAIM ALL, OTHER REPRESENTATIONS AND WARRANTIES (INCLUDING WITH RESPECT TO ALL GOODS OR SERVICES OF SUCH PARTY), INCLUDING ALL STATUTORY AND IMPLIED WARRANTIES, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, ALL WARRANTIES THAT ITS SYSTEMS SHALL BE UNINTERRUPTED OR ERROR FREE, AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, AND USAGE OF TRADE, OR THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION.
8.1 Retail Merchandising Companies. During the Term, Partner will not, and will instruct any Retail Merchandising Company (as defined below) not to, solicit any Partner Customer to subscribe to Hulu. For purposes of this Agreement, "Retail Merchandising Company" means a third party retail merchandising company engaged by Partner to interact directly with Partner Customers on the premises of such Retail Merchandising Company’s retail locations.
8.2 No Additional Solicitation Activities. Except as otherwise approved by Hulu, the entirety of any online offer for Hulu’s products (including without limitation the Hulu Service) that Partner displays on its website(s) shall appear within the Marketing Materials, which will be made available by Hulu to Partner. Except as set forth in the preceding sentence, in the Campaign Deal Memo, or otherwise as authorized in writing by Hulu (including by email), Partner will not engage, and is prohibited from engaging, in any promotional, marketing, solicitation or other advertising activities on behalf of Hulu.
9.1 Mutual Indemnification. Each party shall indemnify, defend and hold harmless the other party, and its respective parent companies, subsidiaries and affiliates, officers, stockholders, directors, agents and employees, from and against any and all third party liabilities, obligations, losses, damages, claims, demands, suits, actions, deficiencies, penalties, taxes, levies, fines, judgments, settlements, costs, expenses, legal fees (including litigation costs and reasonable attorney’s fees), disbursements and accountants’ fees arising out of or relating to (a) such party’s breach or alleged breach of any representations, warranties or covenants in this Agreement or (b) any claims or statements made by such party in its advertising or promotional activities that are in conflict, or inconsistent, with the terms of this Agreement or that fail to comply with applicable law.
9.2 LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO LIABILITY ARISING FROM OR RELATED TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (i) UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE OR THAT PARTY HAS BEEN ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT AND (ii) THE MAXIMUM AGGREGATE LIABILITY, IF ANY, OF EACH PARTY TO THE OTHER PARTY SHALL NOT EXCEED THE AMOUNT PAID BY ALL PARTIES UNDER THIS AGREEMENT. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
10.1 Choice of Law; Jurisdiction. This Agreement will be governed by the laws of the State of California without regard to any choice of law or conflict of law provisions or rules. Each of the parties irrevocably consents to exclusive personal jurisdiction and venue in the federal and state courts located in Los Angeles County, California for any action or proceeding arising out of or relating to this Agreement, and each party hereby irrevocably waives the defense of an inconvenient forum to the maintenance of any such action or proceeding.
10.2 Notices. Any notice will be in writing and delivered by email, or certified or registered mail with return receipt requested and postage/charges prepaid, or courier, at the addresses listed below or such other address that a party designates by written notice to the other:
If to Partner:
At the address for Partner set forth in the Campaign Deal Memo
If to Hulu:
2500 Broadway, 2nd Floor
Santa Monica, CA 90404
Attention: Senior Vice President, Distribution and Partnerships
Attention: General Counsel
10.3 Assignment; Successors. Neither party may assign (whether by merger, acquisition, consolidation, operation of law or otherwise) any of its rights or obligations under this Agreement without the prior written consent of the other party; provided, however, that Hulu may assign this Agreement: (a) to an affiliate; (b) to an acquirer in connection with any merger, consolidation, or sale of all or substantially all of Hulu’s assets; or (c) in connection with any transaction or series of transactions resulting in a change of control of Hulu. Subject to the foregoing, this Agreement will be binding on each party and its respective successors and assigns.
10.4 Entire Agreement. This Agreement, together with all exhibits referenced herein and attached hereto, embodies the entire understanding of the parties with respect to the subject matter hereof, constitutes a binding agreement of the parties upon the execution hereof, and supersedes all prior written or oral commitments, arrangements, or understandings with respect thereto.
10.5 Amendments. No change, amendment, or modification of any provision of this Agreement will be valid unless set forth in a written instrument signed by the party subject to enforcement thereof. Notwithstanding the foregoing, Partner acknowledges that (i) Hulu may change these Marketing Partner Terms from time to time in its sole discretion (and any such changes shall take effect thirty (30) days after such changes have been posted to this page), (ii) the most current version of these Marketing Partner Terms shall govern the Campaign Deal Memo and (iii) Partner can review the most current version of these Marketing Partner Terms by visiting this page. In the event that Hulu changes these Marketing Partner Terms during the Term, then Hulu will notify Partner, and Partner may within thirty (30) days of such changes being posted to this page terminate this Agreement effective immediately upon written notice to Hulu.
10.6 Cumulative; Construction. If any provision of this Agreement is found unenforceable, invalid, or otherwise contrary to law, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose, and all other provisions hereof will continue in full force.
10.7 Remedies. All remedies, rights, undertakings, obligations and agreements contained in this Agreement will be cumulative and none of them, nor the exercise or failure to exercise any of them, will be in limitation of any other remedy, right, undertaking, obligation, or agreement of either party.
10.8 Independent Contractors. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture. There are no third-party beneficiaries to this Agreement.
10.9 Headings. The headings and titles of the provisions of this Agreement are inserted for convenience of the parties only and will not affect the construction or interpretation of any provision hereof.
10.10 Survival. Upon the effective date of any termination or expiration of this Agreement, any provision that, by its terms, is intended to survive the expiration or termination of this Agreement, will remain in full force and effect.
10.11 Counterparts. This Agreement may be executed in several counterparts, each of which will be deemed an original and all of which together will constitute one and the same document. Signatures delivered via facsimile or other electronic delivery (e.g., PDF) will be deemed original signatures.
Last modified: January 12, 2017