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SPJA Standard Terms & Conditions

RECITALS

This Schedule A: Contract Standard Terms and Conditions (“Schedule A” or “Standard Terms”) is attached to and/or incorporated by reference into your contract with the Society for Promotion of Japanese Animation (“SPJA”). For the purpose of these Standard Terms, “Customized Agreement” means the customized separate contract between you and SPJA to provide goods or services to SPJA. Together, the Customized Agreement and these Standard Terms are the “Agreement.” “You” means the individual, organization, agency, company, or business named in the Customized Agreement. Except as regards Section 2 (Copyrights), where the Customized Agreement conflicts with these Standard Terms, these Standard Terms shall control, unless the Customized Agreement expressly states that it is intended to and does modify the SPJA’s Standard Terms. You affirm that your performance under the Agreement shall be in accord with the mission of the SPJA. The SPJA is a 501(c)(6) registered nonprofit mutual benefit corporation. These Standard Terms are for the purpose of ensuring consistency and compliance with nonprofit law and the requirements of the SPJA’s Articles of Incorporation and Bylaws. The SPJA’s board, staff, volunteers, and members have invested thousands of hours over many years developing the techniques, procedures, and methods for producing events, including securing trademarks, permits, security, facilities, funding, sponsorship, participation, and support for the SPJA conferences and events (“SPJA Events”). The SPJA reasonably desires to protect the years of invested time, resources and goodwill for the SPJA. Further, the SPJA may be obligated to comply with public disclosure obligations under nonprofit law and desires to ensure that such public disclosures are accurate, complete, and authorized by the SPJA. To further the Agreement between the parties and the nonprofit purposes of the SPJA, the parties agree as follows:

 

AGREEMENTS:

  1. NON-DISCRIMINATION. You represent and warrant that You do not discriminate in hiring, employment, participation or services rendered on the basis of the fact or perception of a person’s race, color, creed, religion, national origin, ancestry, age, sex, sexual orientation, height, weight, gender identity, domestic partner status, marital status, disability or Acquired Immune Deficiency Syndrome or HIV status (AIDS/HIV status) or against any person seeking accommodations, advantages, facilities, privileges, services, or membership in all business, social, or other establishments or organizations operated by You.
  2. COPYRIGHTS. If the Customized Agreement includes any provisions about copyrights, the Customized Agreement shall control and supersede this Section.  Otherwise, You agree that all copyrights in works (including compilations of contact lists and databases) created within the scope of your services for the SPJA and under the Agreement, consideration for which is paid by the SPJA using nonprofit mutual benefit trade organization funds (“Works”), shall vest initially in and be the property of the SPJA as Works Made for Hire. To the extent it may be found that is not the case by operation of law, You hereby transfer all copyrights in and to all Works created under the Agreement to SPJA. SPJA may register all copyrights in and to the Works. You may retain samples of such works for reference and as documentation of Your experience and capabilities.
  3. PHOTOGRAPHS AND GRANT OF RIGHTS. Without prejudice to the rights transferred to SPJA in Section 2 of these Standard Terms, You give SPJA the permission to create still photographs and moving sound and audiovisual recordings of You in any manner or media now known or later discovered (the “SPJA Recordings”) while at SPJA Events. SPJA shall own the copyrights in the SPJA Recordings (including any extensions and renewals thereof) throughout the world, in perpetuity.
  4. SPJA’S REPORTING OBLIGATIONS. You understand and agree that SPJA may be required to disclose financial information, contracts, information about salaries and other employee information, and other information to government agencies, in SPJA’s public federal and state tax returns, and elsewhere in accord with local, state and federal “sunshine” or other disclosure laws and regulations that apply to SPJA, or pursuant to subpoena.
  5. RELIANCE ON DATA. SPJA shall be entitled to rely upon data, information, and representations provided by You. If any error results from incorrect data supplied by You, You shall be responsible for discovering and reporting such error and supplying the data necessary to correct such error to SPJA.
  6. RETURN OF RECORDS. Upon termination of the Agreement, or at any time upon the written request of SPJA for any reason, You shall deliver all notes, records, data, memoranda, models, equipment, or other materials of any nature that are in Your possession, custody, control that are SPJA’s property or relate to SPJA’s business (and all copies thereof).
  1. TRADEMARKS, TRADENAMES AND LOGOS. SPJA reserves all right, title, and interest in all SPJA trademarks and logos (the “Marks”), including but not limited to: THE SOCIETY FOR THE PROMOTION OF JAPANESE ANIMATION, SPJA, ANIME EXPO, AX, PROJECT ANIME, PA, ANIME CONJI, AC, and LOUNGE 21, as well as any other trademarks or logos, derivations thereof, and marks substantially similar thereto in which SPJA has or may obtain statutory or common law trademark rights. You understand and agree that the Marks are licensed to You for Your use only if and solely as set forth in the Customized Agreement, and only for the benefit of and on behalf of the SPJA; and are not licensed to You at all if not set out in the Customized Agreement. Any and all licensed rights terminate at the end of the Agreement’s Term. The Marks shall be used only in the form, style and type then prescribed by the SPJA. You shall neither directly or indirectly obtain nor attempt to obtain any right, title or interest in or to the SPJA’s Marks, and You hereby expressly waive any right which You may have to do so. You recognize the SPJA’s exclusive ownership of its Marks.
  2. INDEPENDENT CONTRACTORS. The parties are and shall be construed to be independent contractors, and not as agents, joint venturers, or legal partners, notwithstanding use of words like “collaborator” or “partner” in publicity or otherwise. Neither party shall participate in the other’s employee benefit or compensation plan. Each party shall be solely responsible for compensating its own employees and contractors and for their worker’s compensation and other benefits, if any. Neither party may enter into contracts or incur liabilities on behalf of the other. You shall control Your method of work while fulfilling Your obligations to the SPJA, although the SPJA may establish reasonable standards of performance and the quality of deliverables. Except for work that must be performed on site or using the SPJA’s tools and equipment, You will provide services away from the SPJA’s place of business using Your own tools and equipment. Each party shall be responsible for the conduct of its own business and comply fully with applicable laws.
  3. ANTI-CORRUPTION LAWS. You acknowledge and confirm understanding of the applicable Anti-Corruption Laws. “Anti-Corruption Laws” shall mean, collectively: (i) the United States Foreign Corrupt Practices Act (the “FCPA”); (ii) the Japanese Unfair Competition Prevention Act (“UCPA”); any applicable legislation or regulation implementing the Organization for Economic Cooperation and Development Convention Against Bribery of Foreign Public Officials in International Business Transactions; and (iii) all other applicable laws, regulations, orders, judicial decisions, conventions, and international financial institution rules regarding domestic or international corruption, bribery, ethical business conduct, money laundering, political contributions, gifts and gratuities, or lawful expenses to public officials and private persons, agency relationships, commissions, lobbying, books and records, and financial controls. Neither You nor Your officers, directors, employees, agents, affiliates, contractors, volunteers, managers, sponsors, funders, venues, attendees, public officials, successors, or assigns will, directly or indirectly, pay, promise or offer to pay, or authorize the payment of, any money or give any promise or offer to give, or authorize the giving of anything of value, to a public official or entity for purposes of obtaining or retaining business for or with, or directing business to, any person, including, without limitation, the SPJA, by (i) influencing any official act, decision or omission; (ii) inducing such public official or entity to do or omit to do any act in violation of their lawful duty (iii) securing any improper advantage; or (iv) inducing such public official or entity to affect or influence any act or decision of another public official or entity. You agree that the SPJA has the right to audit your books and records related to the Agreement. Notwithstanding any other provision contained herein, SPJA may immediately terminate the Agreement with no obligation to reimburse any expense incurred or pay for any service performed by You if, in the SPJA’s reasonable opinion, (i) You have failed to provide adequate documentation or information regarding an expense or service, or (ii) an expense reimbursement or service payment would cause a violation of any Anti-Corruption Law.
  4. EXPORT CONTROL LAWS. You shall not cause the SPJA to be in violation of any Export Control Law. “Export Control Laws” mean all U.S. or other laws and regulations relating to the export or re-export of commodities, technologies, or services, including, but not limited to, the Export Administration Act of 1979, 24 U.S.C. §§2401-2420, the International Emergency Economic Powers Act, 50 U.S.C. §§1701-1706, the Trading with the Enemy Act, 50 U.S.C. §§1 et. seq.; the Arms Export Control Act, 22 U.S.C. §§2778, 2779; the International Traffic in Arms Regulations (ITAR), 22 C.F.R. 120 et. seq.; and the International Boycott Provisions of I.R.C. §999. 11.CONFIDENTIALITY. This Section governs every Agreement between SPJA and a party who has not signed a separate written confidentiality or nondisclosure agreement with SPJA. Where the parties have entered into a separate written confidentiality or nondisclosure agreement, that agreement supersedes and replaces this
  5. During the term of the Agreement, You may be exposed to certain Confidential Information of SPJA. The term “Confidential Information” means any and all information that is disclosed to or received by You from SPJA, in any form, concerning SPJA’s techniques, procedures, and methods for producing and securing permits, security, facilities, funding, sponsorship, participation, and support for projects, business, products, contacts, contact lists, business plans, or its directors’, staff or volunteers’ personal lives unless that information is: i) already public information; ii) learned from a third party not bound by a confidentiality agreement; or iii) which becomes public through no breach of the Agreement. You agree that whether or not marked “confidential,” all information disclosed by SPJA is Confidential Information except for information that SPJA includes in materials developed and approved by SPJA for public distribution; or which information is already public information at or before the time it is disclosed to You. You agree that You will not disclose to any third party, except Your accountant or attorney or pursuant to a subpoena, any Confidential Information of SPJA without the prior written consent of SPJA and will only use such Confidential Information in furtherance of the object of the Agreement. This provision shall remain in full force and effect after the termination of the Agreement. You agree that You will not make any statements to the press or media for, on behalf of, or about the SPJA unless that is part of the services You are retained to provide for SPJA, and then only with the prior approval of SPJA.
  6. LIMITED NON-COMPETITION. You agree that You will not market, develop, or cause to be marketed SPJA’s Confidential Information, trade secrets, methods and techniques, designs, or intellectual property anywhere.  You agree that You will not produce, market, or cause to be produced or marketed any Japanese pop culture convention that is reasonably considered to be in competition with SPJA or SPJA Events within 200 miles of any SPJA Event within two years of any SPJA Event. If you are contracted to appear or perform (a “Performer”) in an SPJA Event, such as but not limited to a musical performance or as a guest of honor, Performer agrees to appear exclusively at the SPJA Event, and not to appear or perform personally (live or live streaming) at another convention, concert, or venue within 400 miles of the SPJA Event at which you will be performing, during the two weeks before, during, and for the two weeks after that SPJA Event (the “Limited Places and Times”). Because SPJA has invested so much in producing and publicizing its Events, SPJA would be irrevocably harmed if a Performer personally appears (live or live streaming) in the Limited Places and Times around the SPJA Event at which they are appearing or performing. Except for the limit on producing a competing Japanese pop culture convention above, nothing herein limits You from distributing or marketing Your own goods or services, or intellectual property, such as your songs, films, or other creative work on iTunes or in and through your normal and customary distribution and marketing channels. If the provisions contained herein are deemed to exceed the time or geographic limits or any other limits imposed by applicable law in any jurisdiction, then such provision shall be deemed reformed in such jurisdiction to the maximum extent permitted by applicable law.
  7. INSURANCE. You shall obtain and maintain at Your own expense the following minimum primary insurance covering your employees, agents, contractors, and assigns for the duration of the Agreement and as long as reasonably necessary thereafter to adequately cover the obligations set out in the Agreement: 1) general commercial or personal liability insurance in amounts not less than $1,000,000.00 per claim and $3,000,000.00 aggregate; 2) vehicle insurance in the same amounts to cover all vehicles used in connection with the Agreement; and 3) workers’ compensation insurance to cover all of Your employees, if any. Companies or individuals domiciled in Japan may provide insurance by a Japanese insurance company with policy limits in Yen equivalent to the amounts above, and such insurance shall cover Your contracted goods, services, and property in the United States, if any. Such insurance will expressly cover you and your group as performers and participants, if you are performing or participating in an SPJA event or program. If You are serving food, liquor, or providing security, You shall secure additional insurance coverage appropriate to such activities, including for example, but not limited to, liquor liability insurance. Nothing here limits your obligation to obtain necessary appropriate levels of insurance coverage for all Your services, goods, activities, and participation in relation to the SPJA, the amounts set forth above being minimums. Before starting to provide any goods or services, and again no later than thirty (30) days before you are scheduled to provide goods or services at any SPJA Event, you will deliver to SPJA a Certificate of Insurance as proof of such insurance naming the SPJA as an additional insured. If You receive payment by Your insurance company for a claim made against the SPJA, when the SPJA has incurred damages or costs in connection with such claim, You shall surrender the proceeds of that insurance payment to the SPJA to the full extent of its payment thereof.
  8. INJURIES/RELEASE. You agree to completely release and hold the SPJA and its officers, directors, employees, agents, affiliates, contractors, volunteers, managers, sponsors, funders, venues, attendees, public officials, successors, and assigns harmless from any and all demands, damages, losses, liabilities, causes of action, lawsuits, attorneys’ fees, and/or claims of every kind or nature, whether known or unknown, in law or equity, including employment claims and acts or omissions by third parties such as medical providers, arising from or related to Your engagement with the SPJA. This release does not apply to acts of gross negligence or intentional, willful, or wanton misconduct on the part of the SPJA. 15. INDEMNIFICATION. Each party shall indemnify, defend, and hold harmless the other party and each of its successors, assigns, employees, officers, directors, members, agents, representatives, or subsidiary companies (each an “Indemnified Party”) from any third party claim, suit, damage, loss, or expense (including reasonable attorneys’ fees) arising from the acts or omissions of the indemnifying party or any of its successors, assigns, employees, agents, or representatives (each an “Indemnifying Party”). This Section 15 applies to, but is not limited to, any third party defamation or intellectual property infringement claim arising from the Indemnifying Party’s acts or omissions. The party seeking indemnification shall give the Indemnifying Party prompt written notice of any claim, demand, or action for which indemnity is sought.
  9. EVENTS OF DEFAULT. It shall be an event of default hereunder by either party if that party (a) fails to pay any sums when due pursuant to the Agreement; or (b) otherwise materially breaches the Agreement; and such breach remains uncured for a period of fourteen (14) days after written notice thereof to the breaching party, (or, in the case of a breach relating to obligations set forth in Sections 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, or 15 herein, such breach is not cured in seven (7) days); or (c) is adjudicated as insolvent, declares bankruptcy, or files or has filed against it, any petition in bankruptcy; or (d) fails to continue its business.
  10. ASSIGNMENT. Your obligations under the Agreement may not be assigned or transferred to any other person, firm, corporation, or entity without the prior written consent of the SPJA.
  11. FORCE MAJEURE. The SPJA shall not be liable for a delay in SPJA Events or its performance of its obligations and responsibilities under the Agreement due to causes beyond its control, including, without limitation, weather, interruption or failure of telecommunication or digital transmission links, war, strikes, lockouts or work stoppages or other labor difficulties, supplier failures (including failure of performance of any carrier), energy failures, embargo, national, regional, or local emergency, insurrection or riot, acts of the public enemy, fire, flood, or other natural disaster, vandalism, explosion, any federal, state or municipal law, order, regulation, direction, action or request, breaches or delays, damage to or destruction in whole or in part of the streets, sidewalks, civic center, telephone, internet, or cable service or electrical energy systems, inability to obtain telephone or cable service or electricity, or damage to or destruction in whole or in part of any components essential to connection to the Internet or any other causes, contingencies, or circumstances within or without the United States not subject to the SPJA’s complete control which prevent or hinder SPJA Events or the SPJA’s performance under the terms of the Agreement or make the fulfillment of the Agreement impracticable (a “Force Majeure Event”). If performance or timely performance is made impracticable or impossible by the occurrence of Force Majeure Event, the SPJA shall not be deemed to have breached the Agreement. Further, in the event that the SPJA is unable to meet its obligations hereunder because of such Force Majeure Event and an SPJA Event is cancelled, the SPJA shall have no obligation to reschedule it or to refund any fees paid to it hereunder.
  12. DISPUTE RESOLUTION. The parties agree to meet and confer in good faith to attempt to resolve any dispute arising out of or related to the Agreement. Any dispute that is not resolved within forty-five (45) days and that exceeds the jurisdictional limits of small claims court, may be submitted to mediation upon mutual agreement of the parties to mediate, under a mutually agreeable mediator or, if none can be found, under JAMS. If the parties do not agree to mediate, or mediation is unsuccessful, the dispute shall be submitted to binding arbitration in Los Angeles, CA before JAMS under JAMS arbitration rules as quickly as an arbitrator is available. The arbitration shall be held with only one mutually agreeable arbitrator, or, if one cannot be found, under JAMS’ rules for choosing an arbitrator. The arbitrator may order limited discovery in accord with JAMS’ Recommended Arbitration Discovery Protocols and JAMS’ Comprehensive Arbitration Rule 17 (or any amendment thereof). The arbitrator may not revise or alter the terms of the Agreement. The arbitrator shall be empowered to grant preliminary and permanent equitable relief in addition to awarding damages. Each party shall have the right to be represented by counsel at arbitration, and the prevailing party in any arbitration or lawsuit shall be entitled to recover its reasonable attorneys’ fees and costs. The parties agree to abide by all decisions and awards rendered in the arbitration, and the arbitrator’s decisions and awards, including any decision about which party shall pay costs and/or attorneys’ fees, shall be final and conclusive and may be entered in any court having jurisdiction thereof as a basis of judgment and of the issuance of execution for its collection. Any small claims action must be brought in the Superior Court of Los Angeles, California. Notwithstanding the above, if either party determines in good faith that injunctive relief is needed, it may seek such injunctive relief in state or federal court.
  13. PERSONAL INFORMATION. a) Each party acknowledges and agrees that, in the course of providing and/or receiving the Services it may come into possession of Personal Information about buyers and prospective buyers of registrations, tickets, reservations, merchandise or other goods and services related to the Events. “Personal Information” means information that identifies or can be used, alone or in combination with other information, to identify an individual. If processing credit cards is part of the services You offer to SPJA, You agree that Cardholder Data is Personal Information. “Cardholder Data” shall have the meaning given to it by the Payment Card Industry Data Security Standard then applicable to You (“PCI DSS”). b)   You agree to treat Personal Information gathered by or provided to You in accordance with all applicable privacy and other laws. In addition, You shall treat Cardholder Data in accordance with PCI DSS.
  14. PCI COMPLIANCE & DATA SECURITY. a) You represent and warrant that You haves implemented and maintains an information security program that contains administrative, technical, and physical safeguards that are commercially reasonable in light of your company’s size and complexity, the nature and scope of your activities and the services You are providing to SPJA, and the sensitivity of any information at issue, including Cardholder Data.  b)   You represent and warrant that, as of the Effective Date, You have complied with all applicable requirements to be considered PCI DSS compliant, and have performed the necessary steps to validate its compliance with the PCI DSS. You agree to supply the current status of Your PCI DSS compliance and evidence of its most recent validation of compliance not more frequently than twice yearly upon request by SPJA and shall notify SPJA of any change in your compliance status. In the event that SPJA has Events on the Site that are actively selling tickets or registrations through EPP, Your notification to SPJA will be no later than 2 business days after You learns it is no longer PCI DSS compliant. In all other cases, You will notify SPJA within 5 business days. You agree that it is responsible for the security of all Cardholder Data relating to registrations/tickets to SPJA’s Events that are sold on the Site or through Your Point of Sale solutions, including but not limited to the functions relating to storing, processing, and/or transmitting such Cardholder Data. c)   In the event that there is a suspected or confirmed security incident that could reasonably be expected to lead to Your inadvertent disclosure of Sensitive Personal Data, You shall report such security incident within 2 business days to SPJA. You shall make such reports to (714) 937-2994 and by email to: finance@spja.org, and brooke@50Balmy.com. Upon request, You shall cooperate with SPJA in providing such additional information as SPJA may reasonably request about the incident, its causes, and its results. For purposes of this section, “Sensitive Personal Data” shall mean Personal Information or Cardholder Data for which applicable law requires notice of inadvertent disclosure or access to the applicable Buyer.  d)   In the event of a suspected or confirmed security incident described in subsection (c) above, You shall take all steps as it determines to be required by applicable laws, including with respect to notifying affected Buyers and will use commercially reasonable efforts to discuss the nature of its response, including the form and content of any such notices with SPJA prior to the sending thereof.  e)   In the event of a suspected or confirmed security incident not covered by subsection (c) above where You elect to provide notice (i.e., where not required by applicable law) to affected Cardholders, You shall first give SPJA notice of such action and shall use commercially reasonable efforts to discuss the form and content of such notices with SPJA prior to the sending thereof.
  1. AUDIT RIGHTS. a)   SPJA or its duly authorized representative shall have the right to examine Your records insofar as they relate to services or goods You provide to SPJA. For the avoidance of doubt, SPJA shall have no right to examine any records that relate to Your other events or other clients, or Your financial statements. Such audit inspection shall be made upon reasonable written notice, during normal business hours, and under such conditions as You may reasonably prescribe and not more than once per calendar year. If an error in the amount paid or payable to either party is discovered as a result of any such examination, the party in whose favor the error was made shall promptly pay to the other the amount of the error. Any such examination shall be at SPJA’s expense unless errors of accounting in SPJA’s favor amounting to 5% or more of the total sum paid to Client hereunder shall be found, and then Company shall contribute to the cost of the examination up to the amount of the error so determined. b)   In the event that in the course of a PCI compliance audit, Your PCI auditors flag concerns applicable specifically to Cardholder Data obtained by You in processing for SPJA’s Events (but not, for the avoidance of doubt, concerns applicable to Cardholder Data or Company’s Cardholder Data Environment generally), You shall notify SPJA of such issues as soon as reasonably practicable thereafter.
  2. SURVIVAL. The provisions of Sections 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 17, 19, 20, 21, 22, 23, and 24 of Schedule A shall survive termination of the Agreement.

 

 

Effective 12/15/2015

 

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