CUSTOM CONTENT AND NATIVE ADVERTISING ADDENDUM

These terms and conditions for the production of custom content and distribution of such content via native advertising (the “Custom Content Addendum” or “CCA”) supplement the terms and conditions agreed to by CBS Interactive Inc. (“CBSi” or “Media Company”) and the Advertiser (and/or Agency on behalf of the Advertiser) in the signed insertion order referencing these terms (the “IO”), which details the display media campaign costs, start and end dates, as well as other specifications (the “Campaign”). Information related to the custom content deliverables and native advertising campaign plans (the “CCA Scope”) are as provided in the IO. Any capitalized terms not defined herein shall have the meaning set out in the IO. For the avoidance of doubt in the event of a conflict or inconsistency between the terms of the CCA and any other terms, conditions, or agreements governing the IO, the terms of the CCA shall control with respect to the subject matter herein.

  1. Definitions.
    1. Advertiser Assets” refers to the Advertising Materials and any other photographs, graphics, illustrations, copy, scripts, audio or audiovisual recordings, animation, talent, and/or other materials, assets, content, or individuals furnished by Advertiser or otherwise provided to CBSi for use as part of the Custom Content or for use in connection with any Native Advertising conducted by CBSi as part of the Campaign.
    2. CBSi Properties” shall mean the websites, applications, and/or other digital media properties, services, and/or platforms related to the brand(s) listed in the CCA Scope that are owned or controlled by CBSi. For the purposes of this Addendum, the CBSi Properties shall include the CBSi Social Media Properties.
    3. CBSi Social Media Properties” shall mean the official pages, profiles, portals, accounts, and/or channels on the third party digital media properties, services, and/or platforms related to the brand(s) listed in the CCA Scope that are controlled by and/or operated on behalf of CBSi.
    4. Custom Content” shall mean promotional and/or branded article(s), infographic(s), webinar(s), video(s), photograph(s), illustration(s), game(s), and/or other material (as specified in the CCA Scope) that is produced by CBSi specifically for the benefit of the Advertiser and for use as part of the Campaign.
    5. Talent” refers to a third party that may be engaged by CBSi to provide on-camera talent services and/or creative consulting services in connection with the Custom Content as well as participate and provide promotional support for any Native Advertising of the Custom Content that may run on the Talent Properties as part of the Campaign.
    6. Talent Properties” shall mean the websites, applications, and/or other digital media properties, services, and/or platforms listed in the CCA Scope that are owned or controlled by Talent. For the purposes of this Addendum, the Talent Properties shall include the Talent Social Media Properties.
    7. Talent Social Media Properties” shall mean the official pages, profiles, portals, accounts, and/or channels on the third party digital media properties, services, and/or platforms listed in the CCA Scope that are controlled by and/or operated on behalf of Talent.
    8. Native Advertising” shall mean the publication, distribution, and/or promotion of the Custom Content on the CBSi Properties and/or Talent Properties, in connection with the Campaign and as specified in the CCA Scope, in a manner that is consistent with the native style, tone, and format of the CBSi Properties and/or Talent Properties.
  2. Term and Termination.
    1. The term of this Addendum shall commence on the date the IO is fully executed and expire on the end date for the Campaign as provided in the IO (the “Term”).
    2. For the avoidance of doubt, in the event either party terminates the IO and/or Addendum in accordance with the relevant terms and conditions therein, for any reason, Advertiser shall remain liable to CBSi for amounts due in connection with Custom Content produced and/or Native Advertising already run as of the effective date of any such termination as well as any costs incurred by CBSi in connection with the planning, development and/or production of Custom Custom as of the effective date of any such termination.
  3. CCA Scope and Change Orders. The parties acknowledge agree that the fee set out in the IO includes costs related to the production of Custom Content and distribution of such Custom Content through Native Advertising (as applicable) in accordance with the specifications set out in the CCA Scope. As such, Advertiser acknowledges and agrees that modifications to and/or delays in providing feedback and/or approval for elements of the CCA Scope (including, without limitation, filming locations, engagement of Talent and/or other talent, storyboards, scripts, as well as publication schedule and/or Campaign flight times) may result in additional costs. In the event such modifications or delays result in additional costs, such additional costs shall be agreed to by the parties in advance and memorialized in writing as soon as reasonably possible (each a “Change Order”).
  4. Approval of Custom Content. Advertiser will have a right of written approval (email acceptable) over the Custom Content. If all or any portion of the Custom Content is not reasonably satisfactory to the Advertiser, then the Advertiser shall promptly notify CBSi of its rejection of such Custom Content and specify the nature of any deficiency (the “Deficiency Notification”). CBSi shall then correct the communicated deficiency and submit a revised version of the Custom Content to Advertiser as soon as reasonably possible following the receipt of the Deficiency Notice. The procedure set forth in this section shall be repeated with respect to each submission of the Custom Content to which Advertiser objects; provided, however, that CBSi will not be obligated to re-submit a revised version of the Custom Content more than twice. For the purposes of payment and the fulfillment of CBSi’s obligations hereunder, the Custom Content shall be deemed approved with respect to its material elements if Advertiser does not respond to CBSi’s request for approval within three (3) business days from such request or following two rounds of revisions for each piece of Custom Content initially submitted for approval under this Agreement. Notwithstanding the foregoing, CBSi agrees to continue to use commercially reasonable efforts to make non-material modifications to Advertiser’s satisfaction for Custom Content that has already been accepted and approved by Advertiser with respect to its material elements (or deemed accepted and approved for material elements).
  5. Obligations and Restrictions.
    1. Clearances.
      1. Except in the case of Advertiser Assets used in connection with the Custom Content, CBSi shall be responsible for obtaining any third-party rights, licenses, and/or releases required to make the Custom Content available as part of any Native Advertising component of the Campaign. Notwithstanding the foregoing, in the event a third party refuses to grant the necessary rights, withdraws such rights, or is otherwise unauthorized or unable to grant such rights, the parties agree to work together in good faith to pursue alternative options (including, without limitation, engaging alternative Talent, securing alternative filming locations, revising copy, showcasing alternative products or services, and/or modifying the CCA Scope or Native Advertising in light of available rights).
      2. Advertiser shall be solely responsible for obtaining any third party rights, licenses, and/or releases required to incorporate the Advertiser Assets into the Custom Content and/or make the Advertiser Assets available as part of any Native Advertising component of the Campaign. For the avoidance of doubt and unless otherwise agreed to by the parties in writing, CBSi shall not be obligated to obtain any third-party rights, licenses, and/or releases for use or distribution of the Custom Content outside the scope of any Native Advertising component of the Campaign.
      3. Upon request, CBSi shall provide Advertiser with an overview of all third party material embodied in the Custom Content and associated clearances. Advertiser shall be solely responsible for obtaining any additional rights, licenses, and/or releases required in connection with Advertiser’s use of the Custom Content following the Term.
    2. Deceptive Advertising and Other Required Disclosures.
      1. CBSi Disclosure. CBSi shall disclose, as necessary and when applicable, that the Native Advertising on the CBSi Properties is advertising in a manner that is compliant with FTC guidelines (“Advertising Disclosure”). Any additional disclosures, branded hashtags, slogans, or other language requested by Advertiser to be included as part of the Native Advertising on the CBSi Properties shall be subject to prior editorial and legal approval by CBSi as further provided below.
      2. Advertiser Provided Disclosure. Advertiser shall be solely responsible for providing (i) any and all disclosures required in connection with promotion or distribution of the Custom Content by the Advertiser or at the request/direction of the Advertiser outside of the CCA Scope; and (ii) any and all additional disclosures or notices that may be specifically required for advertisements of the Advertiser’s goods and/or services (e.g. financial services, health services, dietary supplements, pharmaceuticals, and/or political messaging) (collectively referred to as “Advertiser Provided Disclosures”). As between the parties, CBSi shall have no liability for and shall be held harmless from any claims or allegations that the Advertiser Provided Disclosures violate any applicable laws, rules, or regulations. Further, to the extent CBSi reviews and/or approves such Advertiser Provided Disclosures, such review or approval shall not (i) be considered a determination on whether such Advertiser Provided Disclosures are compliant with any applicable laws, rules, or regulations; (ii) confer any obligation or liability on CBSi with respect to the Advertiser Provided Disclosures; nor (iii) be considered or deemed to be a waiver of any disclaimer made by CBSi herein.
    3. Promotion and Distribution of Custom Content by Advertiser. During the Term, Advertiser may not publish or distribute the Custom Content without the prior written consent of CBSi. Additionally, Advertiser may not pay to promote, amplify, or feature any posts by CBSi on the CBSi Social Media Properties as part of the Native Advertising component of the Campaign without the prior written approval of CBSi.
    4. No Modifications. Advertiser understands and agrees that once Custom Content has been accepted and approved by Advertiser (or deemed accepted and approved by Advertiser) for the particular use concerned, no further editing of the Custom Content during the Term may occur without CBSi’s prior written consent. Any and all edits to the Custom Content made without CBSi’s prior written approval shall void any representations and warranties made by CBSi with respect to the Custom Content and shall release CBSi from any obligations or liability with respect to the Custom Content.
  6. Ownership.
    1. Custom Content. As between the parties, all rights, title, and interest in and to the Custom Content (excluding any third party materials or CBSi Marks (defined below) embodied within the Custom Content) shall vest in the Advertiser immediately following the expiration of the Term. Following the Term, Advertiser hereby grants CBSi a worldwide, non-exclusive license to make the Custom Content available in any and all media now known or hereafter devised for the purpose of promoting and marketing CBSi’s custom content and native advertising services. Advertiser may request that CBSi cease use of the Custom Content following the Term at any time and for any reason by providing CBSi with written notice. CBSi shall cease use no later than ten (10) business days following receipt of such notice from Advertiser.
    2. Ownership of Marks. As between the parties, Advertiser holds all rights, title and interest in and to the Advertiser Assets (as the case may be) and any brand names, logos, slogans, or other intellectual property and any trademarks, copyrights, service marks, and/or registrations related thereto (the “Advertiser Marks”). CBSi holds all rights, title and interest in and to any CBSi brand names, logos, slogans, or other intellectual property and any trademarks, copyrights, service marks, and/or registrations related thereto (the “CBSi Marks”). Any goodwill derived from the use of the CBSi Marks by Advertiser and/or the Advertiser Marks by CBSi shall inure to the benefit of CBSi and/or Advertiser respectively.
  7. Confidentiality.
    1. Except as contemplated by this Addendum during the Term and for three (3) years thereafter, each party to this Addendum acknowledges that it or its employees may be exposed to or acquire information in connection with this Addendum that is proprietary or confidential to the other party or a third-party to whom either party has a duty of confidentiality (“Confidential Information”). Except as otherwise provided herein, each party agrees to hold the Confidential Information of the other party in confidence and not to disclose such Confidential Information to any third-party, or to use such Confidential Information for any purpose whatsoever.
    2. Notwithstanding the foregoing, nothing contained in this Addendum will prohibit either party from: (i) using or disclosing Confidential Information to a third-party as required to perform its obligations under this Addendum so long as such third-party agrees holds such Confidential Information in accordance with the confidentiality obligations set out herein prior to any such disclosure; or (iii) using or disclosing Confidential Information externally in an aggregate or statistical composite form as long as such Confidential Information is combined with other similar information and does not specifically identify the Confidential Information as specific to a party. Further, notwithstanding the above, for purposes of this Addendum, Confidential Information shall not include information: (a) that is now or subsequently becomes publicly available without breach of this Addendum by the receiving party; (b) that is available to the receiving party from other sources without any obligation of confidentiality to the disclosing party; (c) that is already in the receiving party’s possession not subject to an obligation of confidentiality; (d) that is independently developed by the receiving party without reference to the disclosing party’s Confidential Information; or (e) that is required to be disclosed pursuant to any law, rule or regulation or any order of a court or governmental agency. In the event of disclosure under section (e), such disclosure shall be preceded by written notice from the receiving party to the disclosing party about the law, rule or regulation, or order requiring the disclosure with enough time to allow the disclosing party to seek appropriate injunctive relief, and shall be limited to the specific request made in such law, rule or regulation or any order.
    3. Upon the disclosing party’s written request, the receiving party will promptly return to the disclosing party or destroy, at the disclosing party’s option: (i) all Confidential Information that has been supplied by the disclosing party and is in the receiving party’s possession or control; and (ii) all analyses, studies, or other materials, or part thereof, that were created by the receiving party and that are based on or contain Confidential Information of the disclosing party. A senior officer of the receiving party shall certify in writing on behalf of the receiving party that all Confidential Information required to be returned or destroyed pursuant to this Addendum has been so returned or destroyed, as applicable.
  8. Representations and Warranties. In addition to and notwithstanding any representations or warranties agreed to by the parties under other terms and conditions governing the IO and the Campaign, each party represents and warrants that, in connection with the subject matter herein, (a) it has complied with the obligations and restrictions set out in Section 5.1.1 and 5.1.2 of this Addendum; and (b) any and all activities it undertakes in connection with this Addendum will be performed in compliance with all applicable laws, rules and regulations.
  9. Indemnification. In addition to and notwithstanding any indemnification obligations agreed to by the parties under other terms and conditions governing the IO and the Campaign, each party (the “Indemnifying Party”) will indemnify, defend and hold the other party (the “Indemnified Party”), its parents, subsidiaries, affiliates, sponsors, and advertising agencies, and all of their employees, directors, officers, and agents and their successors and assigns harmless from and against any and all third-party claims, damages, liabilities, costs and expenses (including legal expenses and reasonable counsel fees) (collectively, “Claims”) arising out of, caused by or in connection with (a) any breach of any representation or warranty made by the Indemnifying Party herein; (b) the Indemnifying Party’s failure to obtain a necessary third party right and/or clearance as required pursuant to Section 5.1.1 or 5.1.2 of this Addendum; and/or (c) the Indemnifying Party’s failure to provide any necessary disclosure required pursuant to Section 5.2 of this Addendum. The Indemnified Party will (i) promptly notify the Indemnifying Party of any Claims to which the foregoing indemnity applies, (ii) will cooperate with the Indemnifying Party, at the Indemnifying Party’s sole expense, in connection with the defense and/or settlement of the Claims, and (iii) will permit the Indemnifying Party to assume and control the defense of the Claims with counsel reasonably acceptable to the Indemnified Party, provided that any settlement that may affect any rights of the Indemnified Party shall be subject to the Indemnified Party’s prior written approval.
  10. Governing Law. This Addendum shall be governed and construed in accordance with the laws of the State of New York, without regard to its conflicts of laws principles.