The New Stack — Master Terms & Conditions

Last Updated: March 11th, 2024

This Master Terms & Conditions (“Agreement”), is entered into between The New Stack, LLC (“TNS”), and the companies that sponsor TNS (“Sponsor”).  This Agreement establishes the basis for a mutual relationship under which TNS will provide Sponsor the Benefits and Services described in separate Statements of Benefits (defined below) issued under this Agreement.  By executing a Statement of Benefits or other order form that references this Agreement, or by indicating your acceptance electronically, you signify that you have read, understood, and agree to be bound by this Agreement. We may modify this Agreement at any time by posting a revised form and updating the Last Updated date below.

1. Services.  

• a) Services.  TNS will provide Sponsor with the Benefits and Services described in the statement of benefits executed by the parties (“Statement of Benefits”).  Each Statement of Benefits is governed by the terms of this Agreement. As used in this Agreement, “Benefits” means all items that TNS prepares for or provides to Sponsor under a Statement of Benefits and “Services” means work TNS performs for Sponsor under a Statement of Benefits. TNS will begin work only after a Statement of Benefits is signed by both parties.  TNS may retain subcontractors to perform Services on TNS’s behalf.
• b) Cooperation.  Sponsor acknowledges that the successful and timely rendering of the Services will require the good faith cooperation of Sponsor. Sponsor shall fully cooperate with TNS by: (a) providing all information and materials as may be reasonably required by TNS; and (b) making available at least one employee or director of Sponsor available, such individual shall have relevant knowledge and experience to act as a project manager in connection with rendering the Services. All estimated dates specified in a Statement of Benefits shall be extended by delays caused by Sponsor, including Sponsor’s requested changes which impact TNS’s normal schedule.

2. Intellectual Property.  

• a) Sponsor Property.   Sponsor retains all rights in Sponsor’s proprietary material such as Sponsor copyrights, trademarks, trade secrets, patents, moral rights, rights of publicity, and all related intellectual property rights (“Sponsor Property”).  Sponsor grants TNS a non-exclusive, royalty free, sub-licensable, worldwide license to use Sponsor Property provided (or made available) by Sponsor to TNS to copy, reproduce, display, translate, distribute and otherwise use the Sponsor Property solely to fulfill its duties and obligations under this Agreement and any Statement of Benefits.  The above license shall remain in effect for the Term as defined by Section 4 of this Agreement.
• b) TNS Property.  TNS retains all rights in the Benefits (excluding Sponsor Property contained therein) and other proprietary material including TNS copyrights, trademarks, trade secrets, patents, moral rights, rights of publicity, and all related intellectual property rights (“TNS Property”).  Except for the limited rights granted in subsection c. below, Sponsor obtains no rights in TNS Property and TNS retains all right, title and interest therein. Sponsor shall not allow any non-party to use TNS Property.
• c) Syndication Rights.  Where a Statement of Benefits grants Sponsor “Syndication Rights” of a Benefit, TNS grants Sponsor a limited, non-exclusive, non-transferable, non-sublicensable license to use the Benefit for the term and use described in the Statement of Benefits.  Sponsor agrees to use the Benefit only for the purpose stated in the Statement of Benefit.  All rights TNS has in the Benefit remains the property of TNS.  Except as provided in the Statement of Benefit, Sponsor shall not copy, modify, alter, supplement or create derivative works of the Benefit.  Along with each use of a Benefit, Sponsor shall include all attributions and proprietary notices mandated by TNS.

3. Compensation. Sponsor shall pay TNS the fee and agreed expenses set forth in each Statement of Benefits.  TNS will invoice Sponsor upon execution of each Statement of Benefits.  Unless otherwise specified in the Statement of Benefits, Sponsor shall pay the invoiced amount within 30 days of its receipt of TNS’s invoice. Unless otherwise stated in the Statement of Benefits, all late payments may be subject to a late fee of 1.5%, per annum, of the invoice total.

4. Term and Termination.  

• a) Term.  This Agreement will take effect on execution of the Statement of Benefits  and will remain in effect until Terminated as set forth in this Section 4.
• b) Termination.  This Agreement shall terminate upon any of the following events:  (i) If no Statement of Benefits is active, either party may terminate this Agreement by written notice at any time, with or without cause, by providing the other party with written notice of the effective date of termination; or (ii) If any Statement of Benefits is active, either party may terminate this Agreement and any Statement of Benefits upon written notice, effective immediately, if the other party breaches a provision of this Agreement that is  not capable of being cured, or, if capable of being cured, remains uncured for 30 days after written notice of the breach. If TNS terminates this Agreement or any Statement of Benefits for cause under this Section, Sponsor shall pay for Services and Benefits completed on a prorated basis as of the termination date. If Sponsor terminates this Agreement or any Statement of Benefits for cause under this Section, TNS shall refund any prepaid fees less fees earned for Services and Benefits completed on a prorated basis as of the termination date.
• c) Effect of Termination. In the event of a termination of this Agreement or any Statement of Benefits for any reason: (i) TNS will promptly remove from its website and cease all use of Sponsor Property; and (ii) Sponsor will promptly remove from its website(s) and cease all use of a Syndicated Benefits.  Without limiting the generality of the foregoing, TNS may continue to display Sponsor Property contained within a Benefit provided during the Term if such Benefit is identified in a Statement of Benefits as a Contributed Post, Sponsored Post, Pancake Podcast, Sponsor Event Article, Sponsor Event Podcast, or eBook Sponsorship, as it was originally displayed or posted within a timeline, on the TNS website or TNS media channels, but TNS shall not make any further use or new use of same, after Termination.
• d) Survival. Sections 2 (“Intellectual Property”), 3 (“Compensation”), 4 (“Term and Termination”), 7 (”Indemnification”), and 8 (“Miscellaneous”) will survive and continue in full force and effect following the termination or expiration of this Agreement.

5. Approval Rights. All Sponsor Property provided or made accessible to TNS by Sponsor is subject to approval by TNS prior to use by TNS on TNS’s websites or media channels. TNS has the right and option to refuse to use any Sponsor Property if in TNS’s reasonable determination, any Sponsor Property contains false, misleading or illegal information or creates a reasonable risk of materially and adversely affecting the image or goodwill of TNS.  TNS reserves onto its own discretion all decisions and matters concerning placement of Sponsor Property within TNS websites or media channels.  

6. Warranties.  

• a) By TNS.  TNS warrants that: (a) the Services and Benefits (excluding any Sponsor Property) will not violate the rights of any third party, including without limitation intellectual property rights; and (b) TNS has the full right, power and authority to enter into this Agreement and to grant the rights granted herein.
• b) By Sponsor.  Sponsor warrants that: (a) any Sponsor Property provided or made accessible to TNS by Sponsor will not violate the rights of any third party, including without limitation intellectual property rights; (b) Sponsor has the full right, power and authority to enter into this Agreement and to grant the rights granted herein; (c) Sponsor will not, without the prior consent of TNS in writing, utilize any generative artificial intelligence software, tools, or technologies, including, natural language processing, deep learning algorithms, or machine learning models (“Generative AI”) directly or indirectly in the creation of any Sponsor Property; and (d) all Sponsor Property will be the result of the Sponsor’s independent, original efforts, and will not incorporate or be based upon any output or contribution generated, in whole or in part, by Generative AI except as expressly authorized by TNS. Notwithstanding the foregoing, Sponsor may use Generative AI to summarize research materials or other content so long as Sponsor does not include any Generative AI output in Sponsor Property.
• c) Disclaimer of Warranties.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, CONDITIONS, CLAIMS OR REPRESENTATIONS MADE BY TNS, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES OR BENEFITS, INCLUDING, WITHOUT LIMITATION, IMPLIED CONDITIONS OR WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TNS FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR BENEFITS WILL MEET ANY REQUIREMENTS NOT SPECIFICALLY OUTLINED IN THE APPLICABLE STATEMENT OF WORK. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS.

7. Indemnification. Each party will indemnify the other (and its officers, directors, employees and agents and their successors and assigns) from any loss, liability, cost or expense (including legal fees and costs) directly or indirectly arising out of or in connection with any nonparty claim, suit, or proceeding, to the extent arising out of or related to any: (a) breach of indemnifying party’s warranties in this Agreement (Section 6); and (b) indemnifying party’s fraud, gross negligence, willful misconduct or violation of law.

8. Miscellaneous.

• a) Limitation of Liability. SUBJECT TO THE EXCEPTIONS DESCRIBED IN THIS PARAGRAPH, IN NO EVENT WILL EITHER PARTY’S LIABILITY FOR ANY DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF THE AGGREGATE AMOUNTS PAID OR PAYABLE TO TNS UNDER THIS AGREEMENT. These limitations do not apply to any claim, damages or other liabilities arising out of or related to either party’s indemnification obligations in this Agreement (Section 7).
• b) Disputes. The rights and liabilities of the parties arising out of or relating to this agreement will be governed by the laws of the State of Oregon, without regard to choice of law principles or statutes. Any litigation between the parties will be conducted exclusively in state or federal courts in Oregon. The prevailing party in any litigation arising out of or relating to this agreement will be entitled to recover all reasonable attorneys’ fees and other expenses (in addition to statutory “costs” of litigation), including attorneys’ fees and expenses in connection with any trial, appeal, or petition for review.
• c) Independent Contractor.  TNS will act as at all times as an independent contractor.  Nothing in this Agreement will be construed to place TNS and Sponsor in a relationship of partners, joint ventures, principal and agent, or employer and employee. Neither party will have the right to obligate or bind the other party in any manner whatsoever.
• d) Notices. Other than as set forth in (f) below, all notices under this Agreement will be in writing. Each notice will be deemed to have been received by the party to which it was addressed: (i) when delivered if delivered personally; (ii) when received by the addressee if sent by overnight courier; (iii) on the fifth business day after the date of mailing if sent by certified mail; or (iv) on the date sent by email if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient.
• e) Assignment; Binding Effect; Severability. This Agreement may not be assigned or otherwise transferred by either party without the prior written consent of the other, which will not be unreasonably withheld; provided, however, that either party may assign in connection with a merger or sale of all or substantially all of its assets or to a company controlling, controlled by, or under common control with it. If any term or provision of this Agreement is deemed invalid or unenforceable, the remainder of this Agreement will be valid and enforced to the fullest extent permitted by law.
• f) Entire Agreement; Amendment; Waiver. This Agreement including all schedules and exhibits, constitutes the entire understanding of the parties with respect to its subject matter and supersedes all prior agreements and understandings of the parties. No modification, change, amendment, or any waiver of rights with respect to this agreement will be binding unless in writing signed by both parties; provided that, TNS may update this Agreement by posting a revised version of this Agreement at the applicable URL link with a revised “Last Updated” date and such modification shall be applicable upon such date. No waiver of any violation or nonperformance of this Agreement in one instance will be deemed to be a waiver of any subsequent violation or nonperformance. In the case of any conflict between this Agreement and any Statement of Benefits, the terms of the Statement of Benefits will control, but only with respect to that particular Statement of Benefits and only if the Statement of Benefits references the provision of this Agreement that the Statement of Benefits intends to supersede.