Additional Terms & Conditions set forth by Guinness Open Gate Brewery and Diageo US

DIAGEO CODES AND POLICIES

 

Company agrees that it and the Third Party Vendors and their respective personnel shall comply with and observe the Diageo Codes and Policies described below and any additions, revisions, changes, and amendments thereto that may be hereafter enacted by Diageo in Diageo’s sole discretion.  

 

Diageo Marketing Code of Marketing Practice for Alcoholic Beverages (https://horizonstagings3.s3.amazonaws.com/PR1102/media/29085/dia_1490_dmc_code_english.pdf)

           

In the event that the nature or scope of the Agreement and/or Promotion change, Diageo reserves the right to reasonably require compliance with other Diageo codes, rules, regulations and policies as applicable to the new product and/or services and as specified by Diageo from time to time, and Diageo shall have the right to modify this Exhibit  accordingly. 

           

Notwithstanding anything contained herein to the contrary, Company shall not be responsible and/or liable for compliance with any additions, revisions, changes and amendments to Diageo’s Codes and Policies, unless Diageo provides Company with written notice of any such additions, revisions, changes and amendments thereto.

 

 

POSTER OBLIGATIONS EXHIBIT

 

Company represents and warrants that it and any Poster it engages in connection with the Agreement shall adhere to the following policy for all content created in connection with Diageo, a Diageo brand (including Diageo Brand) and/or the Promotion:

 

Disclosures

Appropriate disclosure of affiliation with Diageo (as applicable) shall be clearly and conspicuously disclosed, in accordance with the Agreement, including the FTC Guides, Diageo instructions and the Diageo disclosure policy below:

 

“Clearly”:

  • For disclosure of material connection (which, for clarity, includes the connection between Poster and Diageo/the Promotion), disclosure wording in social media must be one or both of the following ONLY:

  • #ad; or

  • If the Poster is an individual - the following language as the opening (i.e. first) text of the post copy itself: “So [excited/happy/thrilled] to officially partner with [Brand]!” OR if the Poster is an entity, company, or corporation - #PaidPartnership or #[Diageo Brand]Partnership.

 

NO OTHER DISCLOSURE WORDING IS ACCEPTABLE.

 

“Conspicuously”:

 

  • For in-feed Instagram posts, within the first two lines of copy (when viewed on a desktop);

  • For in-feed posts on social media platforms other than Instagram, within the first three lines of copy (when viewed on a desktop).

 

All disclosures MUST:

 

  • Appear in each and every post/piece of content (not only in a “bio” or “about me” section); and

  • Be the first hashtag in any list of hashtags, and NOT buried in the middle of other text or hashtags.

 

Platform-specific transparency tools, such as the “Branded Content” tools on Facebook & Instagram, should be used in addition to the above disclosure options on social media, but may not be used as a substitute.

 

In the event Poster is posting on one social media platform (e.g. Twitter) and the post content links to another social media platform (e.g. links to an Instagram post), disclosures must appear clearly and conspicuously on both platforms, and before any link.

 

For frame formats, such as “Instagram Stories,” Poster must superimpose the disclosure, just as it is possible to superimpose any other words, over the images or video in each frame. The disclosure should be easy to notice and read in the time that followers have to look at the frame. In determining whether the disclosure passes muster, factors to consider include: how much time followers have to look at the frame, how much competing text there is to read, how large the disclosure is, and how well it contrasts against the frame. (It might make sense to have a solid background behind the disclosure.) Keep in mind that if the “Story” includes video, an audio-only disclosure is NOT sufficient, as many users of these platforms watch videos without sound, so they would not hear an audio-only disclosure.

 

Other

 

  • At least 71.6% of Poster’s followers on Poster’s owned/controlled social media channels must be of legal purchase age for beverage alcohol or older; the targeted viewing audience must be of legal purchase age.

  • Poster may only make statements that reflect Poster’s honest beliefs, opinions, or experiences.

  • Poster may not make deceptive or misleading claims about Diageo Parties’ products or services to consumers.

  • Poster may not make any claims about Diageo Parties’ products or services that are not substantiated (i.e., adequate proof must exist to back up the claim).

  • If Poster chooses to comment on Diageo Parties’ competitors or their product, it must be made clear such comment is not on behalf of or representative of Diageo or Brand, and such comment cannot be construed as malicious, misleading or deceptive, unfair or unsubstantiated.

  • Poster may not engage in any communication that is defamatory.

  • Poster may not use any content that is protected by intellectual property laws, rights of privacy or publicity, or any other applicable law unless Poster owns or controls all rights thereto or has received all necessary consents. For example, Poster may not post photos or video content without written permission from the person who owns the photo or video as well as any persons (other than Poster) depicted in the photo or video.

  • Poster may not offer for sale, or solicit, products or services on behalf of Diageo Parties without Diageo’s prior written approval.

  • Poster may not incite, advocate, or express hatred, ethnic slurs, bigotry, racism, or gratuitous violence.

  • Poster may not use personal insults, pornography, vulgarity, profanity, obscenity, or other offensive language or content, nor depict nudity or lewd content of any sort.

  • Poster may not make any comments or post any content that in any way promotes beverage alcohol along with unsafe activities that could lead to an unsafe situation involving Diageo Parties’ customers or other individuals.

  • Poster may not promote excessive consumption of alcohol beverages, irresponsible consumption of alcohol beverages such as drunk driving or drinking under legal purchase age, or promote any illegal drug use.

  • Poster does not have any recent or pending legal alcohol or illegal drug issues such as a pending DUI, DWI or OVI.

  • Poster may not misrepresent the source of anything in their posted content, including impersonation of another individual or entity.

  • Poster may not provide or create links to external sites that violate this Poster Obligations Exhibit.

  • Poster may not use content that contains advertising for Poster or third parties (including, without limitation, money making schemes, discount cards, credit counseling, online surveys, or online contests).

  • Poster shall comply with the provisions any applicable Diageo policy and Diageo instructions provided to Poster.

 

INGESTIBLE PRODUCT.  If Company is to provide a product comprised of or including ingestible consumer goods, including any food or beverage product, and such product is provided and/or marketed in or in connection with any Diageo brand or Diageo product, the following shall apply:    (a) Quality Standards:  The quality of Company’s products provided and/or marketed in connection with the Promotion (“Product”) shall comply with all Laws, including but not limited to FDA Food Safety Regulations, regulating the manufacturing, production and processing of the Product and conform to any quality standards set forth in this Agreement and the highest industry standards.  Company must have and provide evidence of one of the following current GFSI recognized food certifications:  FSSC2200, SQF and/or BRCGS.  These food certifications should be related to the food schema.  Without limiting the foregoing, Company will operate and maintain, and cause its suppliers to operate and maintain, the facilities used to prepare, formulate, package, source, store, sell and distribute the Products in compliance with all applicable health, food, safety, and labor laws and regulations (including applicable laws and regulations concerning child labor).  Company agrees it has a quality assurance program that meets the highest industry standards, and Diageo has the right to review and approve such program.  Company and its suppliers shall further comply with any handling and storage requirements mandated by Diageo with respect to Product.  Company represents that as of the date of execution and throughout the Term it shall maintain a status of “generally meets” or  higher with respect to a Good Manufacturing Practices and Food Safety Systems Audit as conducted by an independent, third-party food safety certification company. (b) Premises:  Diageo shall be entitled, at any time on reasonable notice to Company, to enter any premises used by Company or its suppliers for the production, sale, or storage of the Products, to inspect such premises, all plant, workforce and machinery used for production or storage of the Products and all other aspects of the production and storage of the Products.  Company shall, and shall ensure that its suppliers, make any changes or improvements to its premises, plant, workforce, machinery and other aspects of the production and storage of the Products as Diageo may reasonably request.  (c) Insurance:  Notwithstanding the provisions set forth in Section 8 of the Agreement, Company shall purchase and maintain in full force and effect, at Company’s sole expense, Commercial General Liability Insurance, including contractual liability insurance, products liability insurance and umbrella and excess liability insurance, on an “occurrence” and worldwide basis, including worldwide coverage for liability imposed by the indemnity set forth in this Agreement, covering claims for bodily injury or death, personal injuries and property damage, with limits not less than $25,000,000 combined single limit per occurrence.   The insurance shall be underwritten by reputable insurers that have a rating from A.M. Best Company of at least A-/VII, and that are authorized to do business in each country, state, province, or territory where the Products are to be sold and/or distributed.  Diageo and its affiliates shall be named as an additional insured on the general liability and umbrella policy. Certificates evidencing such insurance shall be delivered to Diageo in advance of Company’s commencement of the Promotion, and shall be subject to the approval of the Diageo.  (d) Labelling:  Without limiting any of the other provisions of this Agreement, Company shall ensure that the Products are properly labelled for use and/or distribution in connection with the Promotion, and any promotion thereof (if any), in full compliance with any and all applicable Laws, including without limitation FDA regulations. 

Rights of Approval. [Sponsor/Exhibitor] understands its participation in the Arts and Drafts Festival (the “Event”) is subject to the approval of [Diageo Beer Company USA].

Beverage Alcohol Laws.  The sale and promotion of beverage alcohol products is governed by numerous laws and regulations that vary from geographic location and by category of alcoholic beverage.  [Sponsor/Exhibitor] agree that the various components of this Event will be executed only to the extent that they are legal. [Sponsor or Exhibitor] represents that:

  1. it is not an alcohol beverage retail licensee, it does not have any ownership interest in any alcohol beverage retail licensee, and it is not owned or controlled, directly or indirectly, by any alcohol beverage retail licensee or any principal, owner, officer, employee or agent of any alcohol beverage retail licensee; and,

  2. no monies or other payments in connection with any agreement concerning the Event shall be paid, directly or indirectly, to any licensed retailer or concessionaire of alcohol beverages or to any person or Party employed by or otherwise affiliated with any alcohol beverage retail licensee; and,

  3. no monies or other payments in connection with any agreement related to the [insert name of Event] shall be used in exchange for the right or privilege to have Diageo products purchased, stocked, displayed, advertised or sold by any concessionaire or alcohol beverage retail licensee,

  4. It shall not sell or vend or promote any alcohol products or licensed retailer on Diageo premises.

 

Insurance Requirements.  For the duration of the Event and this Agreement, [Sponsor/Exhibitor] shall procure and maintain at its own expense policies of insurance of the types and in amounts no less than the minimum coverages specified below.  Certificates of the issuance of each and every such policy shall be available for each Party and [Diageo Beer Company USA] to review.  Each such insurance policy shall name the other Party and [Diageo Beer Company USA] as additional insured and shall not be cancelable, terminable or subject to material change without thirty (30) days’ prior written notice to the other Party, unless such policy is replaced with the same coverage.  A Party’s insurance obligations do not limit that Party’s potential liability to the other Party or otherwise limit that Party’s indemnification obligations hereunder.  All insurance policies required hereunder shall be maintained with insurance companies that are rated A- or better by AM Best.

 

Commercial General Liability insurance on an occurrence form (including personal injury, advertiser’s liability, products liability, completed operations, liquor liability (only if selling alcohol product contractual and independent contractors) with limits no less than $1,000,000 per occurrence and in the aggregate combined single limit bodily injury and property.        

 

Indemnification.  [Sponsor/Exhibitor] and Company, each party (the “Indemnitor”) shall indemnify, defend and hold harmless the other party [and Diageo Beer Company USA] including its parents, affiliates and subsidiaries, and all of their respective officers, directors, shareholders, employees, agents, legal representatives, contractors, guests and third parties, successors, and assigns (the “Indemnitee(s)”) from and against any and all damages, losses and all claims, counterclaims, suits, demands, actions, causes of action, setoffs, liens, attachments, debts, judgments, liabilities or expenses including, without limitation, reasonable outside attorneys’ fees and legal costs by reason of any claim, suit or judgment  (“Claims”) arising or alleged to arise from, or relating to:

(i) any material breach of an Agreement by an Indemnitor; or

(ii) any violation of intellectual property rights, right of publicity rights or any other equivalent rights under state or federal law, by an Indemnitor arising from the Event.

 

 [Sponsor/Exhibitor] shall indemnify, defend and hold [Diageo Beer Company USA] harmless from Claims arising or alleged to arise from, or relating to, any injury of any type (including but not limited to sickness, disease or loss of life) to any person or entity, or damage to any property, or any other Claim, which directly or indirectly results from an action or omission of [Company] in connection with the creation, coordination, operation, or management of the Event or breach of this Agreement.  The Indemnitor agrees that it may not, without the Indemnitee(s)’ prior written consent, enter into any settlement or compromise of any Claim that results in any admission of liability or wrongdoing on the part of the Indemnitee(s).  This indemnity shall survive the termination or expiration of this Agreement.