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Creative Services Addendum 042226

Creative Services Addendum

This Addendum will apply to the extent that Engin8 provides any Creative Services. Capitalized terms used but not defined herein will have the meanings given to them in the Agreement.

  1. Definitions
    1. “Creative Services” means Engin8’s Services that are creative and production services, including creative concepting, strategy, marketing and brand design, resulting in the creation of certain Deliverables, as specified in a given Order or Change Order.
    2. “Deliverables” means any Initial Draft Deliverables and any other work product created by Engin8 specifically for certain Customers in connection with the provision of certain specified Services to such Customers, as expressly defined in, and subject to and in accordance with, the terms of the Agreement and any applicable Order(s).
    3. “Included Revisions” means two (2) rounds of revisions for each Deliverable.
    4. “Initial Draft Deliverables” means the first look drafts of any Deliverables or related submissions prepared by Engin8 for a Customer in accordance with this Addendum.
    5. “Pre-Existing IP” means any and all Intellectual Property Rights owned or controlled by Engin8 prior to the commencement of any Creative Services, or developed by Engin8 independently of any Creative Services, including without limitation any Raw Materials or any tools, templates, methodologies, processes, know-how, software, creative frameworks, proprietary techniques, and any other materials or technology that Engin8 uses in connection with the provision of the Creative Services.
    6. “Review Period” means the period beginning on the date of Customer’s receipt of a Deliverable and ending five (5) Business Days thereafter.
    7. “round of revisions” means a single consolidated set of written feedback with respect to a Deliverable, submitted by Customer within the Review Period.
  2. Creative Services and Associated Deliverables
    1. Purpose and Scope.
      1. Purpose. For any Customer obtaining any Creative Services, Engin8 will create and deliver to the applicable Customer certain Deliverables, as specified and agreed to between the Parties in the applicable Order(s) or Change Order(s), for the purposes of Customer’s use thereof including incorporating or otherwise using the Deliverables in their Amazon or other applicable product listings with any other Third-Party Services.
      2. Scope. The specific scope of the Creative Services and required Deliverables, including the format thereof, as well as all Fees related thereto and in respect of each given Deliverable, will be detailed in each Order or Change Order.
    2. Schedule of Deliverables.
      1. Initial Draft Deliverables. In connection with the creation of any Deliverables, Engin8 will submit all creative concepts, drafts, and images related to the creation of the Initial Draft Deliverables to Customer for review and approval in accordance with the approval processes set forth in the applicable Order or as otherwise advised by Engin8.
      2. Review Period.
        1. Customer will provide approval or detailed written feedback on each Deliverable within the applicable Review Period.
        2. Engin8 may conduct internal quality checks and may perform limited audience testing of Deliverables where applicable.
        3. Customer’s failure to respond within the Review Period will be deemed approval of such corresponding Deliverable.
        4. Customer’s approval or deemed approval of the Deliverable will constitute acceptance of the Deliverable in its then current form.
        5. Unless otherwise specified in the applicable Order, each Deliverable under Section 2.2 of this Addendum will include the Included Revisions, at no additional cost. Piecemeal, contradictory, or iterative feedback submitted across multiple communications within the same Review Period will be consolidated and treated as a single round of revisions, at Engin8’s sole discretion. Any revisions requested beyond the Included Revisions will be billed at Engin8’s then-current hourly rate or at a rate mutually agreed upon in writing, and will be subject to revised delivery timelines.
  3. Additional Customer Responsibilities

    Customer is solely responsible for and covenants and agrees that it will:

    1. Ensure that all approved Deliverables comply with Customer’s own brand guidelines, regulatory requirements, and applicable laws. Engin8 will not be liable for any claims arising from Customer’s approval and subsequent use of a Deliverable;
    2. Provide all brand assets, logos, product images, creative guidelines, and any other required Customer Inputs needed for production, in each case in accordance with and subject to Customer’s obligations under Section 1.4 of the MSA; and
    3. Secure any required licenses or releases for images, logos, trademarks, intellectual property, or any other Customer Inputs provided, supplied, or made available to, Engin8. Customer is solely responsible for obtaining, and for providing all business affairs and other resources necessary to obtain, from all appropriate third parties, all necessary rights and licenses for Engin8 to use and exploit all Customer Inputs incorporated into the Creative Services and Deliverables worldwide.
  4. Intellectual Property
    1. Deliverables. Subject to full payment of all applicable Fees, and subject to the terms of this Section, Engin8 hereby assigns to Customer all right, title, and interest, in and to the Deliverables created by Engin8 for such Customer under a given Order, effective as of the date of such full payment. For greater certainty, upon such assignment, Customer will have the right to use, display, reproduce, prepare derivative works of, publicly perform, distribute, sell, offer for sale, import, export any component of, and otherwise dispose of, such Deliverables in any manner Customer sees fit, without any further obligation to Engin8 (except as set out in the Agreement). Notwithstanding the foregoing assignment: (i) Engin8 retains all right, title, and interest in and to any Pre-Existing IP and Raw Materials, and nothing herein will be construed as an assignment or transfer of any Pre-Existing IP or Raw Materials to Customer; (ii) to the extent any Pre-Existing IP is incorporated in, or is necessary to use or exploit, any Deliverable, Engin8 grants to Customer a perpetual, non-exclusive, worldwide license (with the right to sublicense solely to the extent necessary to exploit the applicable Deliverable with Customer’s end clients in accordance with the purposes intended in the applicable Order) to reproduce, prepare derivative works of, distribute, publicly perform, publicly display, and exploit such Pre-Existing IP, solely to the extent necessary to use and exploit the applicable Deliverable in accordance with the purposes intended in the applicable Order; and (iii) Engin8 hereby retains a perpetual, irrevocable, non-exclusive, worldwide, royalty-free license to use, display, and reproduce the Deliverables for the purposes of Engin8’s business including its own portfolio, case studies, marketing materials, and promotional activities. With respect to any all raw, unedited images, photographs, video footage, source files, working files, layered design files, and other intermediate creative materials created by Engin8 (collectively, “Raw Materials”), such Raw Materials will at all times remain the sole and exclusive property of Engin8. Unless expressly agreed otherwise in writing, Raw Materials will not be delivered to Customer and are not included within the scope of any Deliverable or Customer’s rights in and to the Deliverables as provided under this Section.
    2. Amazon and Third-Party Service Policies. Engin8 will not be responsible for and will not provide any legal, regulatory or compliance review hereunder including in respect of any Deliverables. Without limiting any provision of the Agreement, the Parties expressly acknowledge and agree that Engin8 will not in any circumstance be responsible for any errors, losses, claims, or damages arising from or relating to: (i) changes to any Amazon systems or to any other Third-Party Services or systems; (ii) Customer modifications or instructions to modify any Deliverables; or (iii) Amazon or any other Third-Party Services platform processing or listing uploads. It is Customer’s sole responsibility to ensure that any product claims, certifications, and regulatory statements are lawful and properly substantiated. Notwithstanding the foregoing, Engin8 will, on the basis of commercially reasonable efforts, endeavour to ensure Deliverables provided to Customer hereunder comply with Amazon’s current policies and guidelines in effect at the time of delivery thereof to Customer.

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