AMP Individual Deal Terms#
AMP PLATFORM INDIVIDUAL MARKETING USE TERMS OF USE AND CONDITIONS
The Athlete Marketing Platform (the “Platform”), built by Opendorse, Inc., for the exclusive use of the United States Olympic and Paralympic Committee (“USOPC”), provides USOPC-authorized entities (“AMP Participating Brands”) access to engage with the athletes who may compete for Team USA (“Team USA Athlete(s)”) to facilitate Individual Marketing Use promotional opportunities (each a “Proposed Opportunity”). Each of the AMP Participating Brands and Team USA Athlete may be referred to herein individually, as a “Party” and collectively, the “Parties.”
The Parties may negotiate a Proposed Opportunity agreement within the Platform (“AMP IMU Agreement”). Only in the event that the Parties do not enter into an Alternative Agreement (as described below) customized to their specific needs, will such AMP IMU Agreement will be governed by the terms contained herein.
NOTE: THERE IS NO OBLIGATION TO USE THE AMP IMU AGREEMENT. The Parties may and are encouraged to negotiate and memorialize the details of a Proposed Opportunity agreement after initiating conversations via the Deal Builder on the Platform and finalize a Proposed Opportunity agreement without using the AMP IMU Agreement (an “Alternative Agreement”). In the event that the Parties enter into an Alternative Agreement, then the terms of such Alternative Agreement control the relationship. In creation of an Alternative Agreement, the parties may choose to use certain pieces or clauses of the AMP IMU Agreement and modify it to fit their needs, or use none at all; however, such use will be considered an Alternative Agreement.
TEAM USA ATHLETES ARE ENCOURAGED TO SHARE THIS AMP IMU AGREEMENT OR AN ALTERNATIVE AGREEMENT WITH A LEGAL ADVISOR PRIOR TO SIGNING.
1. HOW TO INITIATE A PROPOSED OPPORTUNITY.
An AMP Participating Brand may make an offer for a Proposed Opportunity to a Team USA Athlete using the Deal Builder on the Platform. AMP Participating Brands will submit a form that includes the 1) Deal Activity(s); 2) Fulfillment Date(s) for each Deal Activity; and 3) Payment(s) in United States Dollars, for Team USA Athlete’s consideration. The Proposed Opportunity may additionally include a Deal Name, Brief, Expiration Date, and/or Campaign Name.
Upon creation of the Proposed Opportunity, the AMP Participating Brand will have the ability to:
- Contact the athlete to finalize an Alternative Agreement, OR
- Propose that the Parties abide by the AMP IMU Agreement detailed herein.
Team USA Athlete will receive a notification that they have received a Proposed Opportunity via the contact method they have specified within their account. The Team USA Athlete has the ability to review the Proposed Opportunity up to the Fulfillment Date and time, unless an earlier date and time are specified by the AMP Participating Brand in the Proposed Opportunity, to either accept or dismiss the Proposed Opportunity. A dismissed Proposed Opportunity is released and designated as a rejected opportunity in Team USA Athlete’s view.
The Parties understand that until the Parties either agree to abide by the terms of the AMP IMU Agreement OR execute an Alternative Agreement, neither party is legally bound. Once each party has executed an Alternative Agreement or agreed to abide by the terms of the AMP IMU Agreement, the Proposed Opportunity becomes a “Deal.”
If the USOPC enters into a Deal with a Team USA Athlete, then the USOPC is considered an AMP Participating Brand and a party to the AMP IMU Agreement or Alternative Agreement. Otherwise, the USOPC is NOT A PARTY to the AMP IMU Agreement or Alternative Agreement. Additionally, while Opendorse will process payments from AMP Participating Brands to Team USA Athletes, Opendorse is not a party to AMP IMU Agreements or Alternative Agreements. Neither the USOPC, nor Opendorse, will have the right or obligation to enforce an AMP IMU Agreement or any Alternative Agreement (except in the case the USOPC is acting as an AMP Participating Brand under such AMP IMU Agreement/Alternative Agreement).
2. COOPERATION
By engaging and entering into an AMP IMU Agreement or Alternative Agreement, each Party agrees to cooperate and honor their obligations in a professional and first-class manner and to the best of each Party’s ability.
3. TYPES OF PROPOSED OPPORTUNITIES
At registration and at any time thereafter, Athlete will indicate the types of activities Team USA Athlete is interested in. These may include, but are not limited to (“Deal Activities”):
- Social media activities
- Digital press interview
- Photo/video/audio creation
- Appearance/Meet-and-greet
- Autograph signing
- Keynote speech
- Sports demonstration
- Production shoot (photo/video)
- Product testing & feedback
- In person interview
The available types of Deal Activities may be updated from time to time.
AMP Participating Brands will review Team USA Athlete’s available Deal Activities and indicate how the Deal Activity will be used by AMP Participating Brand in the Proposed Opportunity. Use of USOPC intellectual property is subject to USOPC guidelines and approval.
In return for each Deal Activity, AMP Participating Brand agrees to compensate Team USA Athlete the Payment, to be paid in United States Dollars (USD).
The Deal Activity must be completed by or at the Fulfillment Date as specified by the AMP Participating Brand in the Proposed Opportunity, unless otherwise agreed to by the Parties. If the Proposed Opportunity requires Team USA Athlete to complete any Deal Activity on any social media platform, so long as the social media platform allows for such, and unless otherwise agreed to by the Parties, Team USA Athlete shall leave the Deal Activity active and publicly accessible on such social media platform for no less than thirty (30) days following the Fulfillment Date of the Deal Activity (the “Activity Term”). In the event that the Deal Activity is a social post that automatically erases (i.e., a Story or Snap), then Team USA Athlete will leave the post active until deleted by the social platform’s normal activity.
For purposes of these Terms of Use and Conditions, unless otherwise agreed, the total amount of time the AMP Participating Brand may publicly use the materials created in connection with Proposed Opportunity through Deal Activities is thirty (30) days after fulfillment of the last Activity Term (the “Deal Term”). For clarity by way of example, if a Proposed Opportunity included 3 social posts for fulfillment on June 1, July 1, and September 1, the Deal Term begins upon execution of an Alternative Agreement or the AMP IMU Agreement and ends on October 1 which will coincide with the final Activity Term.
4. HOW PAYMENTS ARE PROCESSED AND PAID TO TEAM USA ATHLETE.
The Proposed Opportunity will include a payment amount per Deal Activity (“Payment”) to Team USA Athlete. Once Team USA Athlete has fulfilled a Deal Activity, submitted the agreed upon proof of fulfillment to the AMP Participating Brand, and the AMP Participating Brand has accepted the proof of performance (the “Proof”), which will not be unreasonably withheld, then the payment process will begin. In the event that a Deal Activity is not completed to the satisfaction of AMP Participating Brand, AMP Participating Brand agrees to notify Team USA Athlete no later than three (3) days from the submission of Proof for the Deal Activity (the “Incomplete Deal Activity”), and provide Team USA Athlete with detailed feedback on how to complete the Deal Activity to AMP Participating Brand’s satisfaction and an updated agreed upon Fulfillment Date. An AMP Participating Brand’s failure to notify Team USA Athlete of an Incomplete Deal Activity within three (3) days of submission of Proof is deemed acceptance of the Proof and will prompt Opendorse to begin the payment process.
As payment will be facilitated through the Platform, the Parties acknowledge and agree that Opendorse shall collect personal financial information (“PFI”) from each Party that will enable Opendorse to process payment. The PFI will only be used to facilitate payment. AMP Participating Brands will be responsible for a transaction fee for each Deal Activity that includes Payment. AMP Participating Brand is responsible for the payment of any applicable sales or use taxes as part of the transaction. Team USA Athlete expressly acknowledges that AMP Participating Brand must deliver payment to Opendorse before payment is released to the to the Team USA Athlete.
For Payments made via AMP Participating Brand credit cards: After Team USA Athlete’s acceptance of a Proposed Opportunity, Opendorse shall authorize the AMP Participating Brand’s credit card for all monies due for the Proposed Opportunity. Upon Team USA Athlete’s fulfillment of each Deal Activity in the Proposed Opportunity, and the AMP Participating Brand’s subsequent acceptance of Team USA Athlete’s Proof, which will not be unreasonably withheld, Opendorse will charge the Payment to the AMP Participating Brand.
For Payments made via invoice: Upon Athlete’s acceptance of a Proposed Opportunity, Opendorse will invoice the AMP Participating Brand all monies due for the Proposed Opportunity. Upon receipt of the monies from the AMP Participating Brand, and the AMP Participating Brand’s subsequent acceptance of Team USA Athlete’s Proof, which will not be unreasonably withheld, Opendorse will transfer the Payment to the Team USA Athlete’s AMP Account.
Once Payment is processed via either method above, the Payment for the Deal Activity will be made available in the Team USA Athlete’s AMP Account. Team USA Athlete may request a Cash Out (i.e. transfer funds to a bank account) at any time there is a balance in the Team USA Athlete’s AMP Account. Once a Cash Out request is made, the Payment will be transferred to Team USA Athlete’s designated account within three (3) business days.
5. ACTIVITY CONTENT
Activity Content means any content (copy/messaging and/or media such as images, videos, or GIFs) that is provided by an AMP Participating Brand to Team USA Athlete, or created by Team USA Athlete to fulfill any of the Deal Activities. The Platform may offer AMP Participating Brand the ability to permit Team USA Athlete to edit Activity Content prior to the Team USA Athlete’s delivery of the Deal Activity (“Editable Content”) when the Activity is being fulfilled on social media. If AMP Participating Brand elects to offer Editable Activity Content to Team USA Athlete, AMP Participating Brand acknowledges and agrees that the USOPC, nor Opendorse, cannot control and are not responsible for any such edits to the Editable Activity Content made by Team USA Athlete, and expressly waives all rights of action against the USOPC and Opendorse for any such edits to the Editable Deal Content. Likewise, Team USA Athlete accepts sole responsibility for any such edited content.
Any attempt to instruct, coerce or manipulate a Team USA Athlete into hiding the commercial relationship between an AMP Participating Brand and a Team USA Athlete may result in immediate removal of the AMP Participating Brand from the Platform and/or termination of the AMP Participating Brand’s Account.
6. LIMITATION OF LIABILITY
In no event shall Opendorse, the USOPC or any affiliates be liable Team USA Athlete or the AMP Participating Brand for any indirect, special, incidental, consequential, punitive, or exemplary damages arising out of or in connection with, any failure of performance, error, omission, interruption, defect, delay in operation or transmission, computer virus, or line or system failure. The foregoing limitations apply whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Opendorse, the USOPC or our affiliates have been advised of the possibility of such damages.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages; therefore, the above limitations may not apply. In such jurisdictions, liability is limited to the greatest extent permitted by law.
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AMP IMU AGREEMENT – DEFAULT TERMS
The Parties are free to and encouraged to negotiate the terms of an agreement for each Proposed Opportunity. However, in the event that the Parties fail to enter into an Alternative Agreement, the following terms will control the relationship between the Parties. For the avoidance of doubt, any conflict dispute and resolution will not be managed or enforced by the USOPC or Opendorse, unless the USOPC is acting as an AMP Participating Brand.
A. Grant of Rights.
During the Deal Term, the Parties grant to each other a limited, nonexclusive, royalty-free, worldwide, non-assignable, non-sublicensable license to use their name, image, likeness, logos, trademarks, service marks, or other intellectual property solely as expressly authorized herein and specifically in connection with the Proposed Opportunity.
During the Deal Term, Team USA Athlete grants AMP Participating Brand a limited, non-exclusive, royalty-free, worldwide, non-assignable, and non-sublicensable license to use, display, perform, reproduce, republish, promote and distribute the Deal Activity in their original form in the agreed forms of media and through agreed media channels (now known or hereafter developed).
If a request for whitelisting is included in the Brief of a Proposed Opportunity, the AMP Participating Brand shall be entitled to “whitelist” and/or “promote” any Deal Activity listed above for purposes of further engagement with their audience. All whitelisted Proposed Opportunity Activities may only be used in the exact form as posted by the Team USA Athlete, and may only be used during the Activity Term.
AMP Participating Brand grants to Team USA Athlete the right to use Activity Content provided hereunder in order to fulfill Team USA Athlete’s obligations pursuant to AMP IMU Agreement. At the termination of this AMP IMU Agreement, the foregoing licenses shall automatically terminate absent a separate agreement to the contrary between the Parties, and all rights granted to the Parties shall cease and revert to the other Party. AMP Participating Brand may, at any time and for any reason, require Team USA Athlete to delete or remove any Deal Activity delivered pursuant to this AMP IMU Agreement at no additional cost.
Nothing in this AMP IMU Agreement shall be construed as granting either Party any right to make use of the other Party’s name, image, likeness, logos, trademarks, service marks, or other intellectual property beyond the Activity Term, and for the avoidance of doubt, any use of either Party’s name, image, likeness, logos, trademarks, service marks, or other intellectual property shall be subject to the other Party’s approval.
Content Requirements.
Team USA Athlete and AMP Participating Brand agree that they are required to, at all times, ensure that any Activity Content complies with any applicable law or regulation governing advertisement, endorsement, or social media marketing, including, but not limited to any disclosure on the Activity Content that it is an advertisement as indicated by Section 5 of the Federal Trade Commission Act and the Federal Trade Commission’s Endorsement Guidelines (the “Guidelines”), as well as the guidelines set forth by all governing bodies with authority over Team USA Athletes.
Content Created by Team USA Athlete for a Deal
In the event that Team USA Athlete is asked to create a video or provide content for use in a Deal Activity, then such content becomes the sole property of the AMP Participating Brand solely for use in connection with the Proposed Opportunity during the Deal Term. Any other use requires the express consent of Team USA Athlete which may be withheld in their sole discretion.
Prohibited Content.
The following requirements apply to all Activity Content, including any edits made to Editable Activity Content: (i) All Deal Activities must be in the English language or such other language as is identified in the particular Proposed Opportunity; (ii) Activity Content must be original, unless otherwise specified in the particular Proposed Opportunity; (iii) Activity Content may not target children under the age of 13, infringe on the legal rights of third parties, or include or support: excessive profanity, violence, or racial intolerance, illicit drugs or drug paraphernalia, pornography or sexually explicit material, or any other content that promotes intolerance or illegal activity, (iv) will not include any third party intellectual property (branded clothing, copyrighted music, or third party logos). Any Activity Content in violation of the previous sentence shall constitute “Prohibited Content.”
B. Relationship of the Parties.
This AMP IMU Agreement shall not be construed to create an employer/employee, joint venture, partnership, or principal-agent relationship between AMP Participating Brand and Team USA Athlete. Team USA Athlete’s services provided to AMP Participating Brand with respect to the Activity are completed as an independent contractor. Team USA Athlete shall be responsible for the payment of all taxes on Payment received with respect to the Deal, and AMP Participating Brand shall make no deductions for tax purposes from any consideration transferred to Team USA Athlete. Neither Party shall have any power to bind the other in any manner whatsoever, other than as otherwise stated in these Terms. The terms of this section shall survive termination or expiration of this AMP IMU Agreement.
C. Termination.
AMP Participating Brand may terminate this AMP IMU Agreement (i) immediately in the event that, during the Activity Term, Team USA Athlete commits, or is publicly accused of committing (as reported, and not promptly retracted, by a reputable national media organization) any crime or other act involving moral turpitude that is likely to negatively affect AMP Participating Brand’s brand image or (ii) in the event Team USA Athlete materially breaches the terms of this AMP IMU Agreement and fails to cure said material breach within five (5) days of receipt of written notice from AMP Participating Brand specifying said material breach. If AMP Participating Brand terminates this AMP IMU Agreement under this Section once Team USA Athlete has fully performed but before the completion of the Deal Term, neither Team USA Athlete nor AMP Participating Brand shall have any further rights, obligations, or duties with respect to this AMP IMU Agreement, provided however, Team USA Athlete shall not be required to return their fee.
Team USA Athlete shall have the right to terminate this AMP IMU Agreement immediately upon written notice to AMP Participating Brand (i) in the event AMP Participating Brand files or has filed against it any petition for bankruptcy, reorganization, arrangement or other protection under any state, federal or other applicable jurisdictions bankruptcy, insolvency or similar laws; or (ii) AMP Participating Brand materially breaches the terms of this AMP IMU Agreement (and fails to cure said material breach within five (5) days of its receipt of written notice specifying said material breach). If Team USA Athlete terminates this AMP IMU Agreement under this Section, neither AMP Participating Brand nor Team USA Athlete shall have any further rights, obligations, or duties with respect to this AMP IMU Agreement, provided that any and all rights granted to AMP Participating Brand by Team USA Athlete under such AMP IMU Agreement shall automatically and irrevocably revert back to Team USA Athlete, and Team USA Athlete shall be entitled to the entire Payment.
D. Intellectual Property.
Unless otherwise agreed, neither Party grants to the other any rights or uses of any names, logos, trademarks, service marks, or other intellectual property owned or controlled by any third party (including, but not limited to, Team USA, any National Governing Body, or any other professional or amateur team) by virtue of entering into this AMP IMU Agreement, provided however, AMP Participating Brand shall be solely responsible for clearing any and all third-party rights associated with the Activity Content.
E. Confidentiality.
Neither AMP Participating Brand nor Team USA Athlete shall disclose (or permit any third party to disclose) the financial or other terms of the AMP IMU Agreement, with the exception of either party’s agents, attorneys, accountants, representatives, or employees, except as may be required by law.
F. Force Majeure
If for any reason beyond either Party’s reasonable control, including but not limited to an act of nature, inevitable accident, fire, act or immediate threat of terrorism, pandemic, epidemic, failure of technical facilities, power failure and internet disruption, lockout, boycott, war, act of God, labor troubles, riot or civil commotion, delays of commercial carriers, restraint of public authority, economic crisis or government action or similar occurrence (a “Force Majeure Event”), either Party’s obligations in this Deal are hindered or prevented, in whole or in part, the Parties agree that they will reschedule the performance of these obligations for a mutually agreed upon date and time. In such case, either Party’s failure to perform shall not be a breach of this AMP IMU Agreement. If a Force Majeure Event continues (or can reasonably be expected to continue) for longer than eight (8) weeks, then either Party may terminate this AMP IMU Agreement, and Team USA Athlete shall be entitled to all payments due prior to the commencement of the Force Majeure. No other Payment shall be due to Team USA Athlete for the time period after the commencement date of the Force Majeure Event.
G. Choice of Law and Dispute Resolution.
If a dispute arises under this AMP IMU Agreement, the parties will first enter into good-faith negotiations to resolve any dispute. If such dispute cannot be resolved first through good-faith negotiations, the Parties agree that any disputes or claims under these Terms will be resolved by binding arbitration. Each Party expressly waives the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Federal Arbitration Act. Any court with jurisdiction over the parties may enforce the arbitrator’s award. Any arbitration will be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules. The Parties agree to commence arbitration only in their county of residence of the AMP Participating Brand or Team USA Athlete, or in El Paso County, Colorado.
H. Non-disparagement
Except in connection with Dispute Resolution proceedings, both Parties hereby agree that, during the Activity Term, and for one (1) year thereafter, neither Party, including its respective employees, officers and/or spokesperson(s), will make any statement or take any action that disparages, is derogatory or is otherwise damaging to the other Party, including its respective employees, officers and/or spokesperson(s). Violation of this provision is hereby deemed an incurable, material breach allowing for immediate termination of this AMP IMU Agreement. The provisions of this section shall survive termination or expiration of this AMP IMU Agreement.
I. Assignment.
Neither Team USA Athlete nor AMP Participating Brand shall transfer or assign any right in this AMP IMU Agreement to any other party. However, nothing herein shall prevent Team USA Athlete from assigning the monetary benefits of this AMP IMU Agreement as it may so desire.
J. Waiver.
The failure of any Party to enforce its rights under this AMP IMU Agreement shall not be construed as a continuing waiver or relinquishment thereof.
K. Indemnification.
Each Party (in such capacity, “Indemnitor”), agrees to indemnify and hold the other Party and its Affiliates (in such capacity, “Indemnitee”) harmless from and against all losses, damages, claims, costs, expenses, fines, and penalties (including reasonable attorney’s fees) of any name or nature arising out of any claims, suits, or disputes against Indemnitee arising out of, or in any way connected with a AMP IMU Agreement, to the extent such claims allege negligence or willful misconduct on the part of Indemnitor or any of Indemnitor’s Affiliates. “Affiliates” shall mean any entity which either controls or is controlled by a Party.
L. Representations and Warranties
Each of the Parties represents and warrants that it has the full right and power to enter into this AMP IMU Agreement, to perform all obligations hereunder and to grant all rights hereunder without violating the legal or equitable rights of any other person or entity.
M. Limitation of Liability.
Notwithstanding anything to the contrary contained herein, if AMP Participating Brand (or any entity claiming through AMP Participating Brand) incurs any expenses, damages or other liabilities (including without limitation, reasonable attorneys’ fees) in connection herewith, Team USA Athlete’s liability shall be limited to proven, direct, actual damages incurred by AMP Participating Brand, and Team USA Athlete’s maximum liability to AMP Participating Brand will not exceed the monies actually received by Team USA Athlete herein, excluding reimbursement of expenses. In no event will any Party hereto be liable herein for any consequential, punitive, indirect, reliance or incidental damages.
N. Modification & Entire Agreement.
The Terms of this AMP IMU Agreement, with the Terms of Use and Privacy Policy constitute the entire agreement between AMP Participating Brand and Team USA Athlete with respect to such AMP IMU Agreement and may not be modified except in an agreement in writing executed by both Team USA Athlete and AMP Participating Brand.