QuickFrame Maker Terms and Conditions
Updated July 1, 2024
These terms and conditions (the “Maker Terms”) are entered into by and between MNTN, Inc. through its QuickFrame division (“QuickFrame”), and the counterparty identified as the Maker (as defined below) in the applicable Maker Greenlight Agreement (as defined below). These Maker Terms, together with all Maker Greenlight Agreements, constitute this “Agreement”. If you are accepting the Maker Terms or Maker Greenlight Agreement on behalf of your employer or another entity (which will be deemed to be the case if you sign up for the QuickFrame Maker Collective Platform (as defined below) using an email address from your employer or such entity), then the “Maker” under this Agreement will be such employer or other entity, and you represent and warrant that (a) you have read and understand this Agreement, (b) you have full legal authority to bind your employer or such entity to this Agreement and (c) you agree to this Agreement on behalf of your employer or such entity. QuickFrame and Maker may collectively be referred to as the “Parties” and each individual as 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 Maker (defined below) for use in and for the Deliverables.
(c) “Creative Brief” refers to the summary of the requirements, specifications, general ideas and other relevant details for a project contemplated under this Agreement and/or any Maker Greenlight Agreement, regarding the video content to be produced by Maker, as presented by QuickFrame to Maker.
(d) “Deliverables” means the video assets and related and relevant material identified in a Maker Greenlight Agreement or Creative Brief (as defined below). Unless otherwise specifically set forth in a Maker Greenlight Agreement, Deliverables do not include Raw Files (defined below).
(e) “Effective Date” means the date of the initial Maker Greenlight Agreement entered into between Maker and QuickFrame.
(f) “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.
(g) “QuickFrame Maker Collective Platform” means QuickFrame’s video marketplace platform driven by a diverse and global network of video creators, whereby Makers have the opportunity to apply to video projects posted by Clients (as defined below), made available at https://app.quickframe.com/login.
(h) “Maker” means a third-party person or business entity engaged by QuickFrame, as an independent contractor, to provide the relevant Creative, video production, editing, and other actions required to fulfill the Deliverables described in a Maker Greenlight Agreement.
(i) “Maker Greenlight Agreement” means a document executed between the Parties authorizing Maker to proceed with the performance of the listed Services subject to Client specifications and the terms of this Agreement.
(j) “Raw Files” means, with respect to Deliverables, unedited and fully uncompressed footage with no transcoding and no color correction.
(k) “Services” are defined in a Maker Greenlight 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 all Maker Greenlight Agreements are expressly limited to Services provided to QuickFrame.
2. SERVICES
Pursuant to these Maker Terms and each applicable Maker Greenlight Agreement, QuickFrame is engaging with Maker who will join the QuickFrame Maker Collective Platform and join QuickFrame’s network of Makers, to perform certain Services related to products and services offered by various brands and advertisers who engage QuickFrame for advertising opportunities and content (each, a “Client”), and Maker is willing to perform such Services for QuickFrame, in each case in accordance with the terms and subject to the conditions described below. Each Maker Greenlight Agreement will incorporate the terms and conditions of this Agreement and shall constitute a distinct contract enforceable according to its terms.
3. PROJECT TIMETABLES AND CREATIVE BRIEFS
(a) Approvals; Timelines. With respect to each engagement for Services, QuickFrame and Maker will determine various Services requirements (talent, location, Creative, etc.), the final due dates and other milestones for the applicable project, to be detailed in a Maker Greenlight Agreement and the Creative Brief. Each Creative Brief may memorialize production schedules, production necessities, and other required terms, including but not limited to, required Client approvals. Upon approval of the Creative Brief, Maker shall provide the Services and Deliverables as laid out in the Creative Brief in compliance with the terms of the Agreement and the Creative Brief, for use by Client as outlined thereunder.
(b) Revisions. “Revisions” are defined as a material change requested by Client to the Creative Brief and are limited to those changes that can be accomplished or accommodated via available post-production techniques. Unless otherwise expressly agreed upon in a Creative Brief, reshoots or capturing additional footage are expressly excluded as an acceptable Revision.
(c) 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 Creative Brief, 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 Creative Brief. Maker will use provide an estimate to QuickFrame of expenses and fees for Overages in a timely manner and prior to incurring such fees and expenses.
(d) Make Good. In the event that Maker neglects and/or fails to satisfy the requirements set forth in the applicable Creative Brief and Greenlight Agreement, Maker must add missing items or fix the issues at no additional charge. If the project is unsalvageable, Maker will either (at QuickFrame’s sole discretion): (i) re-perform the Services at no additional charge, or (ii) be removed from the project altogether. If removed altogether, Maker will forfeit payment and, to the extent applicable, shall return any payments received up to that point. For the avoidance of doubt, any Services and/or Deliverables that fail to meet all requirements specified in the applicable Creative Brief shall not be deemed Revisions, and will not be subject to Overages. Maker shall add any missing items or fix any issues at no additional charge.
4. FEES AND PAYMENT
(a) Payment of Fees. Unless otherwise expressly stated in a Maker Greenlight Agreement, all fees for Services shall be due and payable to Maker within thirty (30) days of the applicable Client’s final approval of the Deliverables.
(b) Advanced Fees. Maker may request 0% – 50% of the total budget for Services under the applicable Maker Greenlight Agreement in advance (up to $50,000), subject to a fee of 5% of the total amount owed to Maker under the applicable Maker Greenlight Agreement. Such fee shall be debited from the final payment amount made to Maker by the Client. For additional information please see QuickFrame’s Payment Terms Page.
(c) Taxes. As between the parties, Maker will be liable for, and pay, all applicable federal and state taxes assessed on Maker as a result of payments paid to Maker under this Agreement.
5. CONFIDENTIAL INFORMATION
(a) Confidential Information. “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, pricing information, 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 (i) is now, or hereafter becomes, through no act or failure to act on the part of the receiving Party, generally known or available; (ii) is known by the receiving Party at the time of receiving such information as evidenced by its records; (iii) is hereafter furnished to the receiving Party by a third-party as a matter of right and without restriction on disclosure; (iv) is independently developed by the receiving Party without any breach of this Agreement; or (v) is the subject of a written permission to disclose provided by the disclosing Party. Furthermore, either party may disclose Confidential Information (1) to its employees and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (2) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law).
(b) Confidentiality. 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 Maker Greenlight Agreement and for a period of three (3) years thereafter, 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. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. Within sixty (60) days of the termination or expiration of this Agreement, each Party shall destroy (or return, if requested and commercially reasonable) all Confidential Information of the other Party. In the event of actual or threatened breach of the provisions of this Section 5, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
6. PROPRIETARY RIGHTS
(a) Ownership of Deliverables. Subject to this section 6 and except as may be otherwise expressly provided in an applicable Maker Greenlight Agreement, Maker hereby assigns, transfers, and conveys to QuickFrame, all right, title and interest in any intellectual property rights Maker may have in any Deliverables created for a Client pursuant to this Agreement. Maker agrees that all Deliverables are and remain the property of QuickFrame at the moment of creation of such Deliverables and Maker agrees to execute, at QuickFrame’s request, all documents, and other instruments necessary or requested by QuickFrame to confirm or perfect such assignment, grant, and/or conveyance.
(b) Third-Party Rights. To the extent that the applicable 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”), Maker shall be responsible for securing all requisite Third-Party Rights for use in the Deliverables created by Maker, including but not limited to, talent agreements, location releases, music licenses, and other authorizations to use third-party materials. Upon request by QuickFrame or the Client, Maker shall disclose in writing to QuickFrame any and all limitations, restrictions, or other conditions imposed by Third-Party Rights in any Deliverables.
(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 Maker Greenlight Agreement, 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 Maker, Maker hereby grants to QuickFrame a perpetual, irrevocable, fully paid-up, royalty-free, worldwide, sublicensable (to the applicable Client), non-exclusive license for QuickFrame to use, copy, modify, enhance and create derivative works from the Pre-Existing Works included in or with the Deliverables.
(d) Demonstration Works. Furthermore, Maker hereby grants to QuickFrame a non-transferable, nonexclusive, license under this Agreement to access and use the Pre-Existing Works provided by Maker to QuickFrame for the limited purpose of internal evaluation and for non-public demonstration purposes, used to expand the universe of Services that can be offered by the Maker network to potential Clients (each, a “Demonstration Work”). Demonstration Work(s) will remain at all times under QuickFrame’s possession and control, and any third-party who accesses or reviews such Demonstration Work(s) shall not obtain possession or control of any such Demonstration Works. For purposes of this section, Deliverables shall be considered Demonstration Works.
(e) Raw Files or Footage. Unless otherwise expressly stated in an applicable Maker Greenlight Agreement, Deliverables do not include Raw Files. For purposes of clarity and the avoidance of doubt, while in the possession of the Maker, Raw Files shall be solely and exclusively owned by QuickFrame and QuickFrame shall own all Intellectual Property Rights therein. If the Client desires to acquire the Raw Files as part of the Deliverables, QuickFrame shall work with the Maker to provide an estimate of the cost of delivery of such Raw Files in the applicable Maker Greenlight Agreement or an addendum thereto. If, after execution of the Maker Greenlight Agreement, Client desires to acquire the Raw Files, QuickFrame will obtain an estimate of the cost of preparation and delivery of such Raw Files, which shall by payable by Client, and Maker 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, Maker shall destroy the Raw Files in its possession.
(f) Maker Publicity. Unless otherwise set forth in a Maker Greenlight Agreement, Maker may refer to Client’s name or logo, or display the Deliverables, in Maker’s marketing materials, website, or portfolio; however, Maker will not use Client’s name or trademarks in any other publicity (e.g., press releases, customer references, casting calls or case studies) without obtaining the Client’s prior written consent (which may be by email). Notwithstanding the foregoing, Maker will remove a Client’s name, logo, and/or Deliverables from Maker’s marketing materials, website, or portfolio upon Client’s request (which may be by email).
7. TERMINATION
(a) Term. This Agreement shall remain in effect and govern any active Maker Greenlight Agreements for Services between the Parties unless otherwise terminated under this section.
(b) Termination. Each Party may terminate this Agreement upon written notice to the other Party if there are no Maker Greenlight Agreements then in effect. A Party may also terminate this Agreement or any Maker Greenlight Agreement upon thirty (30) days written notice in the event: (i) 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, or (ii) subject to applicable law, if the other Party (A) becomes insolvent, (B) makes an assignment for the benefit of creditors, (C) files for bankruptcy or seeks reorganization because of a bankruptcy filing, or (D) institutes liquidation or winding up procedures. Upon termination of this Agreement pursuant to this Section 7(b) or 7(c) below, Maker shall be paid for all reasonable expenses incurred as of the date of such termination in accordance with the applicable Maker Greenlight Agreement and/or Creative Brief.
(c) QuickFrame Termination. QuickFrame, in its sole discretion, may suspend or terminate this Agreement and Maker’s account, or use of the QuickFrame Maker Collective Platform, for lack of use or if QuickFrame believes that Maker has violated or acted inconsistently with the letter or spirit of this Agreement. If QuickFrame exercises such right, QuickFrame will provide notice to the email address associated with Maker’s account.
(d) Maker Termination. This Agreement or a Maker Greenlight Agreement may be terminated without cause and/or for the convenience of Maker upon thirty (30) days written notice; provided, however, that if Maker terminates this Agreement or any Maker Greenlight Agreement for convenience, Maker shall forfeit payment and shall return any payments received up to the point of termination. If Maker terminates more than one (1) Maker Greenlight Agreement pursuant to this section in any six (6) month period, QuickFrame reserves the right to terminate this Agreement without any further liability to Maker.
8. NON-CIRCUMVENTION
Maker hereby expressly covenants and agrees not to engage in any discussions or negotiations or to execute any agreement, understanding or undertaking whatsoever with any Client introduced to Maker by QuickFrame via the Maker Collective Platform, for any reason other than to perform the Services facilitated through QuickFrame. Maker acknowledges and agrees that Clients are customers of QuickFrame and that such customer relationship between Client and QuickFrame is confidential. Maker acknowledges and agrees that QuickFrame’s relationships with Clients are a critical component of QuickFrame’s business, that the foregoing limitation is a fundamental part of the basis of QuickFrame’s bargain hereunder, and that QuickFrame would not enter into this Agreement without the limitations of this Section 8. In the event that Maker breaches this section, QuickFrame reserves the right to terminate this Agreement without any further liability to Maker.
9. INDEMNIFICATION
(a) Maker Indemnification. Maker will indemnify, defend, and hold QuickFrame and its parent, subsidiaries and Affiliates and their respective directors, employees and agents (collectively, the “QuickFrame Indemnitees”) from and against any claim made or brought against any QuickFrame Indemnitee by a third-party (i) alleging that the Services and/or Deliverables as provided by Maker under a Maker Greenlight Agreement infringe any third-party Intellectual Property Rights, and Maker shall pay the damages finally awarded by a court or agreed to by QuickFrame in a written settlement agreement with respect to such claims, or (ii) arising from the acts, errors, omissions or the gross negligence or willful misconduct of Maker or its employees, agents, of contractors.
(b) QuickFrame Indemnification. QuickFrame will indemnify, defend, and hold harmless Maker and its employees and contractors (“Maker Indemnitees”) from and against any third-party claim made or brought against Maker Indemnitees to the extent arising from the acts, errors, omissions or the gross negligence or willful misconduct of QuickFrame or its employees, agents, of contractors.
(c) Procedure. The indemnified Party will (i) give the indemnifying Party written notice of any claim, action, suit, and proceeding for which the indemnified parties are seeking indemnity, (ii) grant control of the defense and settlement to the indemnifying Party; and (iii) 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. If at any time QuickFrame, as the indemnified party, determines (in its sole discretion) that any claim brought under Section 9(a) might adversely affect any QuickFrame Indemnities, then without limiting Maker’s indemnification obligations, QuickFrame may take control of the defense of the claim. 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.
10. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
(a) Mutual Warranties. Each Party warrants that it has the legal power and authority to enter into this Agreement.
(b) Maker Warranties. Maker represents, warrants and covenants to QuickFrame that: (i) the Services and Deliverables provided hereunder shall be provided in a professional and workmanlike manner and in accordance with applicable laws and best industry standards; (ii) this Agreement has been duly and validly executed and delivered by Maker and constitutes the valid and binding agreement of Maker, enforceable against Maker in accordance with its terms; (iii) the Services and Deliverables will (A) be the original work of Maker (other than the approved Third-Party Rights) and (B) be free and clear of any encumbrances of any kind (other than restrictions on approved Third-Party Rights), (C) not infringe or misappropriate any third-party Intellectual Property Rights, (D) not contain any viruses, and (E) function in accordance with any and all mutually agreed upon specifications of any Maker Greenlight Agreements, Creative Brief, or any change orders; (iv) Maker will comply with all applicable policies or codes of conduct provided to Maker by QuickFrame; (v) Maker is customarily engaged in an independently established business of the same nature as the Services performed for Clients through the QuickFrame Maker Collective Platform; (vi) Maker has and will maintain all insurance required to operate Maker’s business and perform the Services; and (vii) to the extent applicable, all of its employees, subcontractors and other personnel are bound by written agreements requiring them, and permitting Maker, to comply with the terms of this Agreement, and Maker shall further provide to QuickFrame a copy of such signed written agreements promptly after execution thereof.
11. GENERAL
(a) Insurance. Makers are responsible for obtaining a general liability insurance policy with coverage amounts that are sufficient to cover all risks associated with the performance of Services.
(b) Export Controls. Maker agrees to comply with all applicable export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and Maker covenants that Maker will (directly or indirectly) not export, or allow the export or re-export of the Services or any Deliverables in violation of any such restrictions, laws or regulations. By signing up to be a Maker to provide Services, Maker agrees to the foregoing and represents and warrants that Maker is not located in, under the control of, or a national or resident of any restricted country.
(c) Relationship. 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.
(d) Assignment. 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.
(e) Waiver. 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.
(f) Governing Law. 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.
(g) Dispute Resolution. While QuickFrame may help facilitate the resolution of disputes between Makers and Clients, Maker is solely responsible for Maker’s interactions with Clients, and QuickFrame is not a party to any disputes that may arise between Maker and Client, nor does QuickFrame have any obligation to mediate or facilitate any resolution. QuickFrame reserves the right to monitor and mediate disputes if QuickFrame believes, in its sole discretion, that it is necessary to do so. If QuickFrame chooses to exercise this right, then Maker agrees to cooperate with and assist QuickFrame in good faith, and to provide QuickFrame with such information and take such actions as may be reasonably requested by QuickFrame, in connection with any disputes or other complaints or claims made by a Maker or Client relating to provision or receipt of Services.
(h) Entire Agreement. This Agreement and any Maker Greenlight Agreements, Creative Briefs, and/or amendments thereto constitute the entire agreement between QuickFrame and Maker, 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 a Maker Greenlight Agreement expressly incorporating the terms of this Agreement) shall be incorporated into this Agreement, and such terms shall be void and without any legal effect. This Agreement is for the sole and exclusive benefit of QuickFrame and Client. In the event of a conflict between these Maker Terms and a Creative Brief, the terms of these Maker Terms shall control unless the Maker Greenlight Agreement or Creative Brief contains provisions expressly stating that such provisions override these Maker Terms.
(i) Modification; Amendment. QuickFrame reserves the right in its sole discretion and at any time and for any reason to modify these Maker Terms. With respect to each Maker Greenlight Agreement, any modifications to these Maker Terms shall become effective upon the date of the next Maker Greenlight Agreement that Maker enters into with QuickFrame. It is Maker’s responsibility to review these Maker Terms from time to time for any changes or modifications. Except as set forth in this Section, no amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties.
(j) Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, electronic mail, return receipt requested, or by overnight delivery. Notices to Maker may be sent to the address listed on Maker’s Maker Greenlight Agreement, or email address provided by Maker. Notices to QuickFrame must be sent to the following:
MNTN, Inc.
Email: innes@mountain.com
Attention: Chris Innes, Chief Operating Officer
With copy to: legal@mountain.com
(k) Severability. 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.