MASTER SERVICES AGREEMENT

between

MNTN, Inc. (“MNTN”)

and

 Client identified in the applicable Statement of Work (“Client”)

Together, the Parties, and individually, a Party.

1. DEFINITIONS

(a)    “Affiliate” means, with respect to a Party, any other entity which directly or indirectly, through one or more organization, individual person(s) or business concerns, Controls or is Controlled by or is under common Control by a third-party or each other. For purposes of this definition, the terms “Control” and “Controlled” include, without limitation, the possession, directly or indirectly, of the power to direct the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise.

(b)   “Creative” means the ideas, concepts, sketches, storyboards, and other materials developed by a MNTN Creator (defined below) for use in and for the Deliverables.

(c)    “Creator” means a third-party person or business entity engaged by MNTN, as an independent contractor, to provide the relevant Creative, video production, editing, and other actions required to fulfill the Deliverables described in an SOW.

(d)   “Deliverables” means the video assets and related and relevant material identified in a Statement of Work agreement (“SOW”). Unless otherwise specifically set forth in an SOW, Deliverables do not include Raw Files (defined below). 

(e)    “Intellectual Property Rights” means any and all copyright (including rights in computer software and databases), trademarks, service marks, trade dress, brand names, logos, good-will, trade, business or domain names, design rights, database rights, patents, rights in inventions, know-how, trade secrets and confidential information, rights in databases, moral rights, publicity rights, performance rights, synchronization rights, mechanical rights, publishing, rental, lending and transmission rights and other intellectual property and exploitation rights of a similar or corresponding character which may now or in the future subsist in any part of the world, in all cases whether or not registered or registrable including all granted applications and all applications for registration, division, continuation, reissuance, renewals, extensions, and reversions in respect of any of the same as provided in Creative or Deliverables.

(f)    “Order” means a mutually executed, non-cancellable ordering document for an Annual Minimum Spend package for Services and Deliverables.  

(g)   “Pay-As-You-Go” or “PAYG,” means, with respect to a Statement of Work (defined below), a non-cancellable agreement for the provision of Services and Deliverables for a single, standalone project defined in the applicable SOW.  PAYG Clients are subject to the annual Platform Fee. 

(h)   “Platform Fee” means the annual fee paid by Client for access to the MNTN Creator Collective Platform. 

(i)    “Raw Files” means, with respect to Deliverables, unedited and fully uncompressed footage with no transcoding and no color correction. 

(j)    “Services” are defined in a Statement of Work agreement agreed to from time to time between the Parties and will detail, among other items, the Creative, Deliverables, production techniques, talent requirements, and video technical specifications.  Services provided under this SOW are expressly limited to Services provided by QuickFrame, Inc., an Affiliate of MNTN, and shall not include or extend to any other services or products offered by MNTN and/or any other Affiliate of MNTN. 

(k)   “Statement of Work” or SOW” means a document executed between the Parties authorizing MNTN to proceed with the performance of the listed Services subject to the terms of this Agreement and the applicable SOW. 

2. SERVICES

(a)    MNTN will provide Services under the terms of this Agreement and each applicable Order and/or SOW shall incorporate and reference this Agreement. Each Order and/or SOW shall constitute an enforceable contract. 

(b)   Client acknowledges that Services performed under a SOW by a MNTN-selected Creator for the benefit of the Client is an integral component of MNTN’s business model. MNTN represents and warrants that MNTN and its Creators have the appropriate, competent, and professional industry skill and background to perform the Services. MNTN further represents that it has entered into a contractual relationship with the Creator wherein the Creator has agreed to be bound by the applicable terms in this MSA, including but not limited to, terms pertaining to Confidential Information (section 5) and Intellectual Property Rights and Third-Party Rights (section 6).  MNTN further warrants that it will remain responsible for the acts, omissions, and provision of the Deliverables from the Creator. 

PROJECT TIMETABLES, GREENLIGHT AGREEMENTS, AND OVERAGES.

(a)    Approvals / Timelines / Reactivation Fee.  Client approvals (talent, location, Creative, etc.) must be received in accordance with mutually agreed upon production timelines as may be detailed in an SOW or other document setting forth the timetables and milestones for the applicable SOW (“Greenlight Agreement”). Greenlight Agreement may memorialize production schedules, production necessities, and other required timetables, including but not limited to, required Client approvals. 

                                               i.     When applicable, the Greenlight Agreement will state the timetable for each Client approval necessary to advance to the next milestone or deliverable in the SOW and/or Greenlight Agreement. Such timetable may include both an affirmative approval deadline (including, by way of example, “Client must approve or reject the Deliverable within five (5) business days of receipt”) and/or a deemed acceptance approval deadline (including, by way of example, “if no rejection or objection is received within five (5) business days of delivery, such Deliverable will be deemed accepted.”) Clients’ failure to provide timely approvals may result in extended project timelines, Creator unavailability, missed deadlines, Overages (defined below) and other actual expenses  

                                              ii.     Where there is no Greenlight Agreement due to the nature and/or timing of an SOW, Client agrees to provide all requested approvals, including final approval and acceptance of Deliverables, within three (3) business days of receipt of the written (including email) request for approval. Any such requested approval will be deemed approved if no response is received within five (5) business days of the request. 

                                            iii.     In the event Client’s failure to timely approve extends a project timeline absent written approval from MNTN and/or the Creator, the project may be suspended by MNTN, and the Client will be charged a Reactivation Fee in order to restart the SOW.  A Reactivation Fee is thirty percent (30%) of the project budget and does not include additional fees for extra talent time, studio or equipment fees, or any other costs required to provide the Services originally scoped and agreed upon. Suspension of a SOW under this section 3(a)(ii) shall not relieve Client of the obligation to pay any fees owing under the SOW. 

(b)   Revisions.  Revisions are defined as a material change requested by Client to the SOW project and are limited to those changes that can be accomplished or accommodated via available post-production techniques. Unless otherwise expressly agreed upon in an SOW, Client is limited to three (3) Revisions, provided (i) reshoots or capturing additional footage are expressly excluded as an acceptable Revision; and (ii) a single Revision may include multiple changes if included in the same request, but if not so included, each will be considered to count against the permissible limit of three (3) Revisions. Additional Revisions may be purchased in advance.

(c)    Product Delivery.  If applicable, when Deliverables require Client-supplied product(s), such product(s) must arrive in accordance with mutually agreed upon production timelines.  Failure to deliver product may result in extended timelines, cancelled or postponed shoots, or Client-incurred Overages.

(d)   Usage Rights.  Unless otherwise stated in the applicable SOW or otherwise agreed upon in writing by the Client, Client’s usage rights for the Deliverables shall be in perpetuity for use in all digital media in existence (“Digital Media”), which, for purpose of clarity, does not include broadcast). Notwithstanding the foregoing, Client’s use of the Deliverables may be subject to Third-Party Rights (defined herein). Client will be liable for any usage of the Deliverables that are used, shown, exhibited, or otherwise displayed that do not conform to any Third Party Rights.

(e)    Add-ons.  Add-ons are defined as additions made to a project that are materially outside of the agreed upon project scope.  Any Client requested add-ons will be duly considered by MNTN and/or the Creator and, if commercially reasonable to accommodate, will be set forth in an addendum to the SOW setting forth the fees for such approved Add-ons. 

(f)    Rush Fees. MNTN may charge a fee for expedited and/or “rush” projects requested by the Client that require an immediate allocation of resources. If applicable, rush fees will be stated in the SOW. 

(g)   Overages.  Overages are defined as the fees incurred by Client for excess Revisions and other modifications that exceed the scope set forth in the applicable SOW and/or the timeline stated in a Greenlight Agreement, and which result in extensions, revisions, delays, and/or otherwise cause additional expenses and fees to complete the project as agreed upon in the applicable SOW and/or Greenlight Agreement. Where applicable or commercially practical, MNTN will use provide an estimate of expenses and fees for Overages prior to incurring such fees and expenses, and if not applicable or commercially practical, MNTN will invoice fees for Overages with supporting documentation.

3. FEES, INVOICING, AND PAYMENT

Unless otherwise expressly stated in an Order and/or SOW, all fees for Services shall be invoiced upon execution of the applicable Order and/or SOW and shall be due and payable within thirty (30) days of receipt of invoice. Invoices may be transmitted in either hard copy via mail or electronically via email, and payment may be made by electronic funds transfer, credit card or paper check. MNTN shall be entitled to suspend Services to Client if any invoice is more than thirty (30) day past due, provided that MNTN gives Client five (5) business days’ notice prior to suspension of Services and/or delivery of Deliverables and Client does not cure the delinquency.

4. CONFIDENTIAL INFORMATION

(a)    Each Party acknowledges that it may receive Confidential Information from the other Party through the provision, receipt, and use of Services.  During the Term of this Agreement and/or any applicable SOW and for a period of three (3) years, neither Party will disclose, provide, or otherwise make available to any unapproved third-party any Confidential Information of the other and shall utilize such Confidential Information to the extent necessary to provide the Services under the terms of this Agreement, and for no other purpose. Within sixty (60) days of termination of this Agreement, each Party shall destroy (or return, if requested and commercially reasonable) all Confidential Information of the other Party. 

(b)   “Confidential Information” means all information disclosed by one Party to the other in the course of performing this Agreement including but not limited to any trade secret, information, process, technique, design, drawing, formula, test data, know-how, other works of authorship, unpublished financial information, strategy, business plans or similar information relating to any video project, research project, work in process, future development, marketing, servicing, financing or personnel matter relating to the disclosing Party, its present or future products, sales, suppliers, clients, customers, employees, contractors, investors or business, whether in oral, written, graphic, or electronic form.  The foregoing shall not prohibit or limit a Party’s use of any information, including but not limited to ideas, concepts, know-how, techniques and methodologies which (a) is now, or hereafter becomes, through no act or failure to act on the part of the receiving Party, generally known or available; (b) is known by the receiving Party at the time of receiving such information as evidenced by its records; (c) is hereafter furnished to the receiving Party by a third-party as a matter of right and without restriction on disclosure; (d) is independently developed by the receiving Party without any breach of this Agreement; (e) is the subject of a written permission to disclose provided by the disclosing Party, or (f) is required to be disclosed pursuant to a legal order.

5. INTELLECTUAL PROPERTY AND OWNERSHIP OF DELIVERABLES

(a)    Subject to this section 6 and except as may be otherwise expressly provided in an applicable SOW, MNTN and Creator assign, grant, and convey to Client, all right, title and interest in any intellectual property rights MNTN may have in any Deliverables created for Client pursuant to this Agreement.  MNTN agrees that all Deliverables are and remain the property of Client at the moment of creation of such Deliverables and MNTN and Creator agree to execute, at Client’s request, all documents, and other instruments necessary or requested by Client to confirm or perfect such assignment, grant, and/or conveyance.

(b)   Third-Party Rights. Client acknowledges and agrees that Client’s use and ownership of the Deliverables may be subject to the rights of third parties whose materials or services are contained in the Deliverables (“Third-Party Rights”). MNTN shall be responsible for securing all requisite Third-Party Rights in Deliverables created by MNTN and/or Creator, and Client shall be responsible for securing all requisite Third-Party Rights in materials provided by Client to MNTN and/or Creator for use in the Deliverables. Each Party shall disclose in writing to the other any and all limitations, restrictions, or other conditions imposed by Third-Party Rights. 

(c)    Pre-Existing Works. All Intellectual Property Rights owned by a Party or its Affiliates as of the Effective Date (“Pre-Existing Works”) will continue to be owned by such Party and its affiliates and, except as expressly provided in this Agreement and/or the applicable SOW, the other Party shall not acquire any right, title or interest in or to such rights. To the extent that any Deliverable includes Pre-Existing Works of MNTN, MNTN hereby grants to Client a perpetual, irrevocable, fully paid-up, royalty-free, worldwide, non-exclusive license for Client to use, copy, modify, enhance and create derivative works from the Pre-Existing Works included in or with the Deliverables.  To the extent that Client provides MNTN with any Client Pre-Existing Works for purposes of creating a Deliverable, Client hereby grants MNTN a perpetual, irrevocable, unconditional, fully paid-up, royalty-free, worldwide, non-exclusive license for MNTN to use, copy, modify, enhance and create derivative works from the Client Pre-Existing Works solely for the purpose of inclusion in or with the Deliverable(s). 

(d)   Raw Files or Footage:  Unless otherwise expressly stated in an applicable SOW, Deliverables do not include Raw Files.  For purposes of clarity and the avoidance of doubt, while in the possession of MNTN and/or the Creator, Raw Files shall be solely and exclusively owned by Client and Client shall own all Intellectual Property Rights therein. Client acknowledges that the delivery of Raw Files imposes additional costs not contemplated in the pricing for delivery of the Services or Deliverables, as Raw Files require additional resources to prepare and ready such files for transmission to Client   If Client desires to acquire the Raw Files as part of the Deliverables, MNTN shall work with the Creator to provide an estimate of the cost of delivery of such Raw Files in the applicable SOW or an addendum thereto. If, after execution of the SOW, Client desires to acquire the Raw Files, MNTN will obtain an estimate of the cost of preparation and delivery of such Raw Files, which shall by payable by Client, and MNTN will provide all necessary assistance to transfer such Raw Files to Client. If Client does not procure the Raw Files within six (6) months after delivery of the Deliverables, Creator shall destroy the Raw Files in its possession and MNTN and/Creator shall have no further obligation or liability to Client arising from such Raw Files. 

6. LIMITED LICENSE TO CLIENT MARKS AND DELIVERABLES.

(a)    Client grants to MNTN the limited, non-transferable, non-exclusive, non-assignable, non-sublicensable, and revocable right to use Client’s logo in accordance with Client’s logo or marks usage guidelines, solely for purposes of providing the Services during the Term of this Agreement. and to identify Client as a MNTN customer. 

(b)   Client further grants to MNTN the limited, non-transferable, non-exclusive, non-assignable, non-sublicensable, and revocable right to use the Deliverables provided to Client under an SOW solely for the purpose of including such Deliverables in MNTN’s portfolio of successful projects. 

7. INDEPENDENT CONTRACTOR

The parties are independent contractors and nothing in this Agreement shall be construed as constituting a joint venture, common undertaking, or other association between the parties.  Neither Party shall be deemed to be an employee, agent, partner, nor legal representative of the other Party for any purpose, and neither Party shall have any right, power, or authority to create an obligation or responsibility on behalf of the other Party, or to make any representation or warranty on behalf of such Party, except as set forth in this Agreement.

8. TERMINATION

(a)       This Agreement shall remain in effect and govern any active Orders and/or SOWs for Services between the Parties unless otherwise terminated under this section.

(b)       A Party may terminate this MSA upon thirty (30) days written notice of an alleged material breach by other Party, upon which the alleging breaching Party shall have thirty (30) days to cure such alleged material breach (“Cure Period”). If the material breach is not timely cured, this Agreement shall terminate five (5) business days after the expiration of the Cure Period. 

(c)       A Party may terminate this agreement within thirty (30) days written notice if either (i) becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files for bankruptcy or seeks reorganization because of a bankruptcy filing, or (iv) institutes liquidation or winding up procedures.

(d)       This Agreement may be terminated without cause and/or for the convenience of Client upon thirty (30) days written notice, subject to the following:

                         i.         any such termination for convenience under this section of a PAYG SOW will not (1) entitle Client to a refund of any fees paid; and/or (2) relieve Client from the contractual obligation to pay fees and expenses accrued through the effective date of such termination; and

                       ii.         any such termination for convenience by Client which results in a unilateral cancellation of a scheduled production shoot set forth in an SOW is also subject to the following fees: (i) all non-refundable expenses incurred on behalf of the Client prior to the effective date of such termination; (ii) 10% of the project budget if a shoot is cancelled more than 72 hours before shooting is scheduled; and (iii) 50% of the project budget if a shoot is cancelled within 72 hours of shooting.

9. NON-SOLICITATION

During the period commencing on the Effective Date and ending six (6) months after the effective date of termination of this Agreement and/or any SOWs entered into hereunder, Client shall not, without MNTN’s prior written consent, directly or indirectly; (i) solicit or encourage any person (including MNTN’s Creators)  to leave the employment or engagement of MNTN; or (ii) hire, or encourage to enter into any employment or contractor status relationship, any Creator, entity, or person who provided Services to Client under this Agreement and/or an SOW.  During the period commencing on the date hereof through and ending one year following the effective date of termination, neither Party will, whether for its own account or for the account of any other person or entity, intentionally interfere with the business or employment relationship(s) of the other Party or its Affiliates. 

10. INDEMNIFICATION

(a)    MNTN Indemnification. MNTN will indemnify, defend, and hold Client and its parent, subsidiaries and Affiliates and their respective directors, employees and agents (collectively, the “Client Indemnitees”) from and against any claim made or brought against any Client Indemnitee by a third-party alleging that the Services and/or Deliverables as provided by MNTN to Client under an SOW infringe any third-party Intellectual Property Rights, and MNTN shall pay the damages finally awarded by a court or agreed to by  MNTN  in a written settlement agreement with respect to such claims. 

                                  i.         MNTN shall have no obligation to defend or pay damages to Client for claims or losses arising from (x) Client Pre-Existing IP and/or any other material supplied by Client for inclusion into the Deliverables, including but not limited to, claims arising from Client’s failure to secure Third-Party IP rights as more fully set forth in Section 6(b); (y) any derivative works of the Deliverables made by Client to the extent that the alleged infringement arises from Client’s modifications of the Deliverables and/or combination of the Deliverables services or materials made by any entity other than MNTN; and/or (z) to the extent the claims arise from Client’s material breach of this Agreement.  

                                ii.         If the Services and/or Deliverables become or may become the subject of a claim of infringement,  MNTN may (x) obtain the right for Client to continue use of the Services and/or Deliverables; (y) replace or provide a work-around in order to allow for Client’s continued use of the Services and/or Deliverables; or (z)  if MNTN cannot effect (x) or (y) using commercially reasonable efforts, terminate this Agreement, in whole, or in part with respect to the infringing Service and/or Deliverable. The provisions set forth in this Section shall be MNTN’s sole obligation, and Client’s sole remedy, for any actual or alleged violation of third-party Intellectual Property Rights arising from Client’s use of the Services and/or Deliverables. 

(b)   Client Indemnification. Client will indemnify, defend, and hold harmless MNTN, its Affiliates, and its Creators (“MNTN Indemnitees”) from and against any third-party claim made or brought against any MNTN Indemnitees to the extent arising from the Client Pre-Existing IP and/or other material supplied by Client for inclusion into the Deliverables, including but not limited to, claims arising from Client’s failure to secure Third-Party IP Rights; and/or (ii) Client’s breach of this Agreement.

(c)    The indemnified Party will give the indemnifying Party written notice of any claim, action, suit, and proceeding for which the indemnified parties are seeking indemnity; grant control of the defense and settlement to the indemnifying Party; and provide, at the indemnifying Party’s expense, reasonable assistance in the defense or settlement thereof. In any event, the indemnified Party shall have the right to participate, at their own expense, in the defense or settlement of any claim, action, suit or proceeding that is the subject of an indemnification obligation. The indemnifying Party will not settle any claim that creates any ongoing liability to the indemnified Party or an admission of liability with respect to any claim without the indemnified Party’s written consent.

(d)   Insurance Policy Types and Coverage.MNTN shall, at all times during the Term, maintain the following insurance policies: (i) One million dollar commercial general liability policy covering bodily injury, property damage, personal and advertising injury liability and contractual liability, (ii) workers’ compensation policy, at a minimum amount required by Law; (iii) One million dollar business auto liability policy covering all owned, hired and non-owned automobiles used in connection with this Agreement; (iv) “All Risk” property policy covering not less than one hundred percent (100%) of the replacement value of Client’s personal property; (v) Three million dollar Network/Cyber-Liability policy, and (vi) Three million dollar professional liability policy covering acts, errors or omissions arising out of Services performed under this Agreement.    

11. DISCLAIMER OF WARRANTIES, EXCLUSION OF CERTAIN DAMAGES, AND LIMITATIONS OF LIABILITY.

(a)    WITH THE EXCEPTION OF THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES AND DELIVERABLES, INCLUDING ANY VIDEO MATERIALS PROVIDED BY MNTN, ARE PROVIDED “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND. TO THE FULLEST EXTENT OF APPLICABLE LAW, MNTN DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

(b)   NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE OR INABILITY TO USE ANY OF THE SERVICES OR DELIVERABLES EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE REASONABLY FORESEEABLE. 

(c)    EXCEPT WITH REGARD TO A PARTY’S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS, THE LIABILITY OF EITHER PARTY, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHERWISE, SHALL NOT, IN THE AGGREGATE UNDER THIS AGREEMENT, EXCEED THE AMOUNTS ACTUALLY PAID BY CLIENT TO MNTN DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO LIABILITY UNDER THIS AGREEMENT.

12. GENERAL

(a)    The rights and obligations of each Party under this Agreement are not assignable without the prior written consent of the other Party, provided however, either Party may assign its rights and obligations of this Agreement to the surviving entity in any merger or consolidation to which it is a Party or to any Party that acquires all or substantially all its capital stock or assets.    

(b)   No waiver of any breach of any provision of this Agreement shall constitute a waiver of any other breach of the same or any other provision herein, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.

(c)    The laws of the State of Delaware and applicable federal law will govern all disputes arising out of or relating to this Agreement. The Parties agree that any dispute or litigation arising out of or relating to this Agreement shall be filed in and heard exclusively by the state or federal courts with jurisdiction to hear such disputes in New York, New York and the parties hereby submit to the personal jurisdiction of such courts. In any action between the parties that arises under this Agreement, the substantially prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs. 

(d)   This Agreement and any SOWs, Greenlight Agreements, and/or amendments thereto constitute the entire agreement between MNTN and Client, and supersede all prior and contemporaneous discussions, representations, and proposals, written or oral, with respect to the subject matter hereof. Notwithstanding any language to the contrary therein, any conflicting or additional terms stated in a purchase order or similar ordering document (other than an SOW expressly incorporating the terms of this Agreement) shall be incorporated into this Agreement, and such terms shall be void and without any legal effect. 

(e)    No modification of this Agreement will be effective unless in writing and signed by an authorized representative of each Party. 

(f)    If any provision of this Agreement is found invalid or unenforceable under any applicable law, then such provision shall be deemed modified to the extent necessary to render such provision valid and enforceable; if such provision may not be so saved, it shall be severed, and the remainder of this Agreement shall remain in full force and effect.    

(g)   This Agreement may be executed electronically in one or more counterparts, each of which shall be an original and all of which shall constitute together one and the same instrument.  

(h)   Neither Party shall be responsible for any failure to perform any obligations under this Agreement due to unforeseen circumstances or due to causes beyond such Party’s reasonable control, including but not limited to acts of God, war, terrorism, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, pandemics, and any other cause whatsoever, which is unavoidable or beyond such Party’s reasonable control. 

(i)    This Agreement is for the sole and exclusive benefit of MNTN and Client.  Whenever the context requires, any commitment or obligation provided for in this Agreement shall survive termination or expiration hereof.