NewsCred End User License Agreement

Last updated: April 2016

This agreement governs the use by you and your authorized employees, agents, affiliates and/or contractors (collectively, “you” or “your”) of the NewsCred Services (this “EULA”). If you have entered into an order form with NewsCred setting forth pricing and other terms (your “Order Form”), this EULA is incorporated therein by reference. This EULA, and your Order Form (if any), shall also be collectively referred to as this “Agreement.” Any references to your Order Form shall only apply to you so long as you have an Order Form with NewsCred. “NewsCred Services” or the “Services” means provision of the NewsCred Login Credentials to access and use the NewsCred Content Marketing Cloud, the build of a Custom CMS, and/or any other services set forth on your Order Form. “Login Credentials” means the unique username and password provided by NewsCred to you. “NewsCred Content Marketing Cloud” means NewsCred’s proprietary end-to-end content marketing software that allows you to plan, staff, and execute content marketing campaigns across multiple platforms by displaying content licensed from NewsCred, which NewsCred receives from third party licensors (the “Content Licensors”) and includes only such content the Content Licensors are able to sublicense, including the RF Images, the Shutterstock Images, as defined below, but excluding the NewsRoom Content (“NewsCred Content”) and/or content owned or licensed separately by you (“Client Content”) on a digital property(ies) of your choosing (the “Approved Client Property(ies)”). In the event of a conflict between the terms of your Order Form and this EULA, the terms of your Order Form shall control.

1. LICENSED SERVICES

1.1 NewsCred hereby grants to you and your affiliates, on the terms and conditions set forth herein, a limited, non-exclusive, non-assignable, non-sublicensable right and license to use the NewsCred Login Credentials in order to access and use the NewsCred Services and to display the NewsCred Content on the Approved Client Property(ies) for Editorial Purposes during the Term (as defined in Section 10 below) of your Agreement. “Editorial Purposes” shall mean purposes relating to events that are newsworthy or of public interest and expressly excluding any advertorial purposes. All NewsCred Content licensed under the terms of this Agreement must be published via the Content Marketing Cloud. All rights not expressly granted to you in this Agreement are reserved by NewsCred.

1.2 You agree that:

1.3 NewsCred shall provide you with a JavaScript tracker (the “Analytics Script”), which you must implement on the requisite Approved Client Property(ies). Each article and image provided to you as part of the NewsCred Content and NewsRoom Content will have an embedded tracking pixel (the “Analytics Pixel”), which you must not remove. NewsCred will use the Analytics Script, the Analytics Pixel, and cookies to track anonymized data on usage of NewsCred Content and NewsRoom Content, measure interest in certain topics, and capture information on page views, unique visitors, browser information, IP address, referrals from paid search, and engagement metrics, such as time on site. The foregoing data will be delivered to you via the CMC. For the avoidance of doubt, analytics data shall be tracked only during the term and for the limited purposes of this Agreement, and shall not be distributed to any third parties. Separately, NewsCred will also collect personally identifiable information (“PII”), including name, demographical information and social actions (i.e. likes, shares, and Tweets), from third party data providers in order to power the “Audience Insights” database, i.e. a CMC feature that allows you to view and analyze who is engaging with your content. Finally, NewsCred shall compile statistical information (i.e. page views and uniques) with respect to the NewsCred Content, and shall make such information available to your particular Content Licensors so that they may track their content’s performance on an aggregated basis (the “Licensor Performance Data”); provided, however, such Licensor Performance Data shall not be associated with you. NewsCred retains all intellectual property rights in the Licensor Performance Data.

Please see the NewsCred Privacy Policy, located at www.newscred.com/privacypolicy for more details on NewsCred’s collection, use, disclosure and other processing of end user data. NewsCred may update its Privacy Policy from time to time, in its sole discretion, and post an updated version. You are responsible for ensuring that your relevant privacy notices are consistent with the NewsCred Privacy Policy.

1.4 You agree that, to the extent NewsCred can no longer provide access to a portion of the NewsCred Content as defined in your Order Form, NewsCred may replace said NewsCred Content with substantially similar NewsCred Content within ninety (90) days.

1.5 With respect to the subset of Getty Images’ royalty-free images that form a part of the NewsCred Content (the “RF Images”). You may only make one contextual use of each RF Image per download – for any new use, you must re-license the image. You may make modifications to the RF Images, but may not remove any metadata and, if technically feasible, you shall disable the “right-click” function in all RF Images. You may not use the RF Images:

1.6 With respect to Shutterstock images, in addition to the restrictions in Section 1.5 above, you shall not use Shutterstock images:

2. INTELLECTUAL PROPERTY

2.1 You acknowledge and agree that (i) as between NewsCred and you, NewsCred owns all right, title and interest in the NewsCred Services (excluding the NewsCred Content, which is owned or licensed by the Content Licensors, and the NewsRoom Content, which is owned by you), and NewsCred’s name and trademarks, whether now existing or which may subsequently come into existence (collectively, the “NewsCred Property”), (ii) nothing in this Agreement shall confer in you any right of ownership in the NewsCred Property and/or the NewsCred Content, and (iii) any goodwill generated through your use of the NewsCred name and trademarks will inure solely to NewsCred. All suggestions, feedback, enhancement requests, recommendations or other input provided by you or any other party relating to the Services shall be owned by NewsCred and you hereby do and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership.

2.2 All content owned or licensed separately by you (“Client Content”) posted on the Approved Client Property(ies) must comply with all laws, including, but not limited to, U.S. copyright law. You hereby grant NewsCred a limited, non-exclusive, non-assignable, non-sublicensable right and license to use and store the Client Content within the Content Marketing Cloud during the Term (as defined in Section 10 below) of your Agreement solely to enable your use of the Services. NewsCred claims no intellectual property rights in the Client Content. NewsCred does not pre-screen Client Content, but reserves the right in its sole discretion to refuse to display or remove any Client Content that you post.

2.3 Unless otherwise agreed by you in writing with a NewsRoom partner, you shall own any products created for you through the “NewsRoom,” defined as NewsCred’s freelance network which provides creative product to NewsCred’s customers including, but not limited to, writing, editing, custom video, and photography in furtherance of their content marketing efforts (“NewsRoom Content”). Such NewsRoom Content shall be deemed to be works made for hire under U.S. copyright law. To the extent NewsRoom Content may not be considered a work made for hire and consists of any materials protectable, in whole or in part, under intellectual property laws, the NewsRoom partner(s) shall assign exclusively to you all rights, title and interests in such materials, including copyright, patent, trademark and other intellectual property rights. The NewsRoom partner(s) shall execute any papers and perform such other proper acts, as you may deem necessary, to secure for you or your designee the rights herein assigned. You hereby agree to provide the proper attribution and byline on any NewsRoom Content as instructed by NewsCred. For the avoidance of doubt, neither NewsCred nor any NewsRoom partner provides any property or model releases for the NewsRoom Content, and such releases are your responsibility. We advise you to do a full legal review of the NewsRoom Content prior to publication as if it were written by one of your employees or staff.

3. NOTICE, CREDIT AND BRANDING

3.1 You agree to publish any copyright notice, footnote or disclaimer included with the NewsCred Content by the Content Licensor.

3.2 You shall maintain a link back to the original article if the Content Licensor has included such link.

3.3 You will attribute the original Content Licensor as the source and will not replace or alter any byline provided by the Content Licensor.

3.4 You will only use logos of the original Content Licensor by seeking written permission from NewsCred on a case-by-case basis.

3.5 You agree to implement any canonical links from Content Licensors.

3.6 You hereby permit NewsCred to use your trademarks in the marketing and promotion of the NewsCred Services.

4. CONFIDENTIALITY

4.1 The parties acknowledge that each party may have access to confidential and proprietary information, in any form, whether written or oral, of a business, financial or technical nature, which is (i) marked or otherwise indicated as being, or (ii) is, or ought reasonably to be, known to be confidential (“Confidential Information”). Each receiving party agrees to preserve and protect the confidentiality of the Confidential Information of the disclosing party, and the receiving party will use Confidential Information of the disclosing party solely in connection with the performance of this Agreement. The receiving party agrees not to disclose the Confidential Information of the disclosing party without the prior written consent of the other party; provided, however, that the receiving party may disclose to any other party information which: (i) is or becomes publicly known through no fault of the receiving party; (ii) is discovered or developed independently of any involvement with the disclosing party; (iii) is learned through legitimate means other than from the disclosing party; or (iv) was known to the recipient before receipt from the disclosing party.

5. FEES

5.1 Fees shall be billed in accordance with the terms set forth in your Order Form. All Fees exclude travel & expenses incurred by NewsCred in the performance of the Services. (See Appendix A, NewsCred Reimbursable Expense Policy). Unless otherwise stated in your Order Form, all invoices shall be due within thirty (30) days of receipt, subject to a late charge of five percent (5%) of the balance due per month. In all cases, the amounts due under this Agreement shall be paid by Client to NewsCred in full without any withholding or right of set-off or deduction.

5.2 The parties shall be responsible for their own respective taxes including, but not limited to, their own income taxes and/or VAT.

5.3 The recurring fees in each Order Form hereunder shall be subject to an annual price increase on each term renewal of such Order Form, not to exceed five percent (5%), upon at least two (2) months’ written notice to the Client.

5.4 All fees are non-refundable, except as expressly provided herein.

5.5 All pricing and discounts are valid for the initial term of your Order Form only, unless otherwise noted.

6. MODIFICATIONS

6.1 NewsCred reserves the right at any time to make necessary modifications and/or improvements to the Services with or without notice. Unless NewsCred provides otherwise, the then-current EULA shall also apply to your use of any modified or new version of the Services, or your use of any updates, upgrades, changes, enhancements or new features added to the Services that may be made available by NewsCred from time to time.

6.2 This EULA may be modified from time to time, and shall be indicated by the “Date Updated” above (the “Modifications”). Continued use of the Services past the Modifications constitutes acceptance of the Modifications.

6.3 If you do not agree with any such Modifications, you may provide prompt notice in writing to legal@newscred.com. Should the parties be unable to reach a mutually acceptable compromise, you may terminate this Agreement on the effective date of the Modifications, and any unused fees shall be refunded to you.

7. WARRANTIES

7.1 Each party represents and warrants to the other party that it has the power and authority to enter into the Agreement. NewsCred warrants that it will provide the Services in a manner consistent with generally accepted industry standards.

7.2 NOTWITHSTANDING THE FOREGOING, NEWSCRED DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR ARE RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1, THE SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND. NEWSCRED EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND/OR TITLE. YOU ACKNOWLEDGE THAT NEWSCRED DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND ANY THIRD PARTY PLATFORMS OR SYSTEMS, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH SYSTEMS. NEWSCRED IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

8. LIMITATION OF LIABILITY

8.1 NEWSCRED SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING OUT OF ANY MODIFICATIONS MADE TO THE RF IMAGES OR THE CONTEXT IN WHICH YOU USE THE RF IMAGES, AND YOU SHALL INDEMNIFY NEWSCRED FOR ANY LOSSES RESULTING FROM THE FOREGOING. IN ADDITION, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE), OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFITS, LOSS OF SALES OR BUSINESS, LOSS OF CONTRACTS OR CUSTOMERS, OR LOSS OF GOODWILL. EXCEPT FOR LIABILITY (A) UNDER SECTION 9 BELOW AND/OR (B) DUE TO DEATH OR PERSONAL INJURY ARISING FROM EITHER PARTY’S NEGLIGENCE, NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES HEREUNDER SHALL EXCEED THE LESSER OF (i) THE TOTAL AMOUNT OF FEES DUE AND PAYABLE DURING THE TERM OF YOUR AGREEMENT OR (ii) $500,000.

9. INDEMNITY

9.1 You agree to indemnify and hold harmless NewsCred against any loss, damages or cost, including reasonable attorney’s fees, incurred in connection with any claim or action brought against NewsCred to the extent that such claim or action is based on or arises from (i) your use of the Services outside the scope of this Agreement; (ii) any breach or alleged breach by you of your representations, warranties, or covenants provided herein; (iii) the Client Content; (iv) the NewsRoom Content; (v) Shutterstock Images that have been modified by you; and/or (vi) RF Images that have been modified by you, to the extent that the claim arises from the modification itself.

9.2 NewsCred agrees, at its own expense, to defend, or at its option to settle, any claim or action brought against you to the extent that such claim or action is based on or arises from (i) any claim that use of the NewsCred Services and/or the NewsCred Content as contemplated under this Agreement infringes any third party’s intellectual property rights; (ii) any claim that the NewsRoom Content as delivered to you infringes any third party’s intellectual property rights, only to the extent that such infringing material was not included by you or under your direction and/or (iii) NewsCred’s breach or alleged breach by NewsCred of its representations, warranties, or covenants provided herein, and to indemnify you against any and all damages and costs, including reasonable legal fees, that a court awards against you under any such claim or action.

9.3 NewsCred shall have no liability respecting any claim of infringement or breach as aforesaid to the extent such claim is based upon the combination, operation or use of the Services and/or NewsCred Content (i) with other equipment or software not supplied by NewsCred and/or the Client Content, or (ii) in a manner not consistent with NewsCred’s instructions and/or the terms of this Agreement. If NewsCred reasonably believes that your use of any portion of the Services is likely to be enjoined for the aforementioned reasons, then NewsCred may, at its expense: (i) procure for you the right to continue using the Services; (ii) replace the same with other services or other material of equivalent functions that is not subject to a legal action; (iii) modify the applicable Services so that there is no longer any infringement or breach; and/or (iv) terminate the Services and refund any unused fees paid in advance.

9.4 Each party seeking indemnification hereunder (the “Indemnified Party”) will provide the party providing indemnification hereunder (the “Indemnifying Party”) with (i) prompt written notice of any claim for indemnification under this Agreement (provided, however, that any failure to provide such notice shall not relieve the Indemnifying Party of its indemnification obligations hereunder unless the Indemnifying Party’s ability to defend such claim is actually prejudiced by such failure), and (ii) proper and full information and reasonable assistance to defend and/or settle any such claim. The Indemnified Party shall have the right to participate fully, at its own expense, in the defense of an indemnified claim. Any compromise or settlement by the Indemnifying Party of an indemnified claim shall require the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld or delayed. An Indemnifying Party, in settling an indemnified claim, shall not make any admission of wrongdoing on behalf of any Indemnified Party or impose any obligation on any Indemnified Party without the Indemnified Party’s prior written approval.

10. TERM AND TERMINATION

10.1 This Agreement becomes effective on the earlier of (i) the Effective Date in your Order Form or (ii) the date you use the NewsCred Services (the “Effective Date”), and shall remain in effect until the later of (i) the Expiration Date in your Order Form or (ii) the date you cease using the Services (the “Expiration Date”) (the duration of which is the “Term”). All Order Forms are bound to minimuum 12-month terms with no termination for convenience provisions. Your Order Form shall automatically renew for successive 12-month periods unless a party gives sixty (60) days’ written notice prior to the Expiration Date, or the expiration of any renewal term, as applicable. Any notice of non-renewal or early termination, if applicable to your Order Form, must be sent via e-mail to legal@newscred.com. No other form of notice of non-renewal or early termination shall be acceptable.

10.2 Either party may terminate your Order Form (i) upon the other party’s material breach without cure within thirty (30) days of written request; (ii) if the other party files for bankruptcy and/or enters into a composition with its creditors; (iii) if an order is made for the winding up of the other; or (iv) if the other has a receiver, manager, or administrator appointed in respect of it.

10.3 NewsCred may suspend or shut down your Services if (i) you are more than forty-five (45) days past due payment; or (ii) you violate Sections 1.1, 1.2, 1.5 or 4 of this EULA. NewsCred also reserves the right to charge you for all costs of collection, including collection agency and attorney’s fees and court costs.

10.4 If, due to any reason within NewsCred’s control, there is an interruption in the Services which continues for five (5) days following written notice to NewsCred of such interruption, you may terminate your Order Form immediately, in which case NewsCred’s only obligation to you will be to refund, pro rata, any unused fees paid in advance.

10.5 On the effective date of cancellation or termination for any reason under this Agreement, you must erase or destroy any NewsCred Content accessed or displayed by you. Your license to use the NewsCred Content is temporary and specific to the Term in your Order Form.

10.6 The following provisions shall survive termination or expiration of this Agreement: Sections 2, 4, 5, 7, 8, 9, 11, and this Section 10.6.

11. MISCELLANEOUS

11.1 This Agreement and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of New York, without giving effect to principles of conflicts of law. The parties hereby agree that any controversy, claim or dispute arising out of or relating to this Agreement, shall be settled by binding arbitration in New York County, New York. Such arbitration shall be conducted in accordance with the then prevailing commercial arbitration rules of JAMS Arbitration, Mediation and ADR Services (“JAMS”), with the following exceptions if in conflict: (a) one arbitrator shall be chosen by JAMS; and (b) each party to the arbitration will pay its pro rata share of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator. The award may be confirmed and enforced in any court of competent jurisdiction. The parties hereby agree that any federal or state court sitting in the County of New York in the State of New York is a court of competent jurisdiction. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity; provided however, that nothing in this section shall be construed as precluding the bringing of an action for injunctive relief or other equitable relief. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO. Neither party may assign the Agreement without the prior written approval of the other; provided that such approval shall not be required in connection with a merger or acquisition of all or substantially all of the assets of NewsCred. If one or more provisions of this Agreement are held to be unenforceable, then the balance of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable. The relationship between the parties shall be that of independent contractors, and neither you nor NewsCred nor any NewsRoom consultant or contractor shall be deemed an agent or employee of any other party hereunder. Any notices shall be sent to legal@newscred.com in writing, and shall be deemed to have been delivered the next business day after sending by confirmed facsimile or email and/or three (3) business days after being sent by first class mail. Both parties agree to accept electronic signatures for all agreements. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof.


Appendix A – NewsCred Reimbursable Expense Policy

You will reimburse NewsCred for reasonable, necessary, and actual travel and out-of-pocket expenses incurred in the performance of the Services. NewsCred shall obtain prior written approval from You for all expenses, and such approval may be given in the form of e-mail correspondence. You will reimburse NewsCred monthly upon receipt of documents supporting such expenses. Reimbursable expenses are subject to the following restrictions:


Appendix B – Publisher Restrictions

1. NewsCred Content from the Associated Press must not be displayed more than thirty (30) days from receipt.

2. NewsCred Content from the (i) U.S. Newspaper Package; (ii) Reuters; and (iii) Agence France Presse (AFP) must not be displayed more than ninety (90) days from receipt.

3. NewsCred Content from DPA must not be displayed more than one hundred twenty (120) days from receipt.

4. With respect to NewsCred Content from the New York Times, Chicago Tribune and LA Times, you shall insert the following HTML meta tag in the portion and must cause all NewsCred Users to use the tag for all web based distribution: <meta name="robots" content="noindex">

5. Any NewsCred Content from the New York Times posted to social media channels shall be charged additionally and subject to a five (5) day waiting restriction.

6. Any NewsCred Content from Advertising Age must contain a canonical tag in the source code pointing to AdAge as the original content source, so long as such tags are within NewsCred’s control.

7. Any NewsCred Content from Bonnier must be distributed using a cross-

domain canonical tag that signals to the search engines that the version of

the article that should be included in the engines’ indices lives on Bonnier’s

sites.

8. Any NewsCred Content from FutureNet should be indicated to search

engines by identifying the original article using the “rei=canonical” attribute.

9. Any NewsCred Content from SB Nation must maintain canonical tags

delivered with such content.

10. Any NewsCred Content from VentureBeat must maintain and display

as-is canonical links within such content.