TERMS & CONDITIONS
Objectionable Content. Influencer acknowledges and agrees that he/she will not: (a) make any unsubstantiated claims about any third party or its products or services in any Content related to any Campaign; or (b) develop or post any Content that is in any way illegal, obscene or harmful to the reputation, goodwill or interest of the Company or the Advertiser or their respective products, services, associates, employees or affiliates or that is otherwise reasonably objectionable to the Company or the Advertiser.
Influencer Representations and Warranties. Influencer represents, warrants and covenants that (a) Influencer shall provide all Services under each applicable SOW with commercially reasonable skill and care in a competent and professional manner and at a level of quality not less than that prevailing in the industry, (b) Influencer has the proper skills, ability, training and background to enable Influencer to perform such Services under the SOW in a competent and professional manner and to exercise the diligence ordinarily exercised by members of Influencer’s industry, (c) Influencer shall comply with all applicable laws and regulations in connection with the performance of the Services and each applicable Campaign, including, without limitation, laws and regulations concerning advertising and promotional campaigns, including, without limitation, the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, (d) Influencer shall comply with all terms of use, privacy policies, and other terms, rules or policies that are applicable to any Social Media Channel, (e) subject to the license grants pursuant to Section 8 and Section 9, Influencer has all consents, permissions or licenses necessary for Influencer to create the Content as contemplated hereunder, (f) the Content does not violate any copyright, trademark, or other intellectual property or proprietary right of any other party, (g) Influencer is at least 18 years of age and upon request by the Company at any time during the Term, will provide proper evidence of his or her age in the form of a valid driver’s license, passport or other acceptable government-issued identification as determined by the Company in its sole discretion, and (h) Influencer has not engaged in, and shall not engage in, any activity, whether fraudulent or otherwise, that could reasonably be expected to falsely, artificially or misleadingly increase or affect the number of Influencer’s followers, “likes”, views, or other indicators of Influencer’s audience or reach on any applicable Social Media Channel, including, without limitation, with regard to a particular Campaign
Additional Remedies of the Company. In the event Influencer materially breaches this Agreement, in addition to the termination rights hereunder, the Company shall be entitled to recover all costs (including attorney’s fees) in the enforcement of the Company’s rights hereunder and, if Influencer shall have been paid in advance pursuant to the terms of this Agreement, the Company shall be entitled to a refund of any monies advanced to Influencer under this Agreement. In addition, if Influencer refuses or fails as determined by Company in reasonable Professional good faith to perform any of the Services and/or Campaign(s) as required pursuant to the applicable SOW, Influencer shall pay to the Company as liquidated damages an amount equal the compensation payable to Influencer under the applicable SOW to which such Services and/or Campaign(s) relate. The parties agree that damages associated with Influencer’s failure to perform such services would be uncertain and difficult to ascertain, and that the liquidated damages amount specified herein constitutes a reasonable amount in light of the anticipated damages caused by such a breach.
Termination Fees. In the event that the Company terminates for convenience this Agreement or an applicable SOW pursuant to Termination Section, the Company shall pay Influencer the following termination fees (i) if such termination occurs one month or more from the Services or Campaign start date set forth in the applicable SOW (the “Start Date”), an amount equal to any documented costs or expenses incurred by Influencer in connection with any work completed by Influencer prior to the date of termination, (ii) if such termination occurs less than one month prior to the Start Date, but at least two weeks prior to the Start Date, an amount equal to ten percent (10%) of the overall compensation payable by the Company to Influencer in connection with the terminated Services and/or Campaign(s), (iii) if such termination occurs less than two weeks prior to the Start Date, an amount equal to twenty percent (20%) of the overall compensation payable by the Company to Influencer in connection with the terminated Services and/or Campaign(s), and (iv) if such termination occurs after Influencer has posted approved Content, but prior to the completion of all Services and/or Campaign(s) under the applicable SOW, the amount of any compensation payable in connection with the applicable post, as well as any documented costs or expenses incurred by Influencer in connection with any work performed by Influencer prior to the date of termination in connection with the uncompleted Services and/or Campaign(s).
License to Use Advertiser Trademarks and Content. The Company, on behalf of the Advertiser, hereby grants to Influencer, a non-exclusive, non-transferable, revocable, limited license to use and display Advertiser’s name, logo and trademarks, and any other content provided to Influencer by the Company or the applicable Advertiser in connection with an SOW, in the form and manner specifically described in the applicable SOW, or otherwise approved for use as part of the Content in accordance with Section 2 hereof (collectively, the “Advertiser Works”), solely as necessary to perform its obligations hereunder and only during the Term hereof, unless otherwise expressly authorized herein. For the avoidance of doubt, Influencer may only use the Advertiser Works in the form and format provided or approved by the Company or Advertiser, as applicable. Influencer acknowledges the Advertiser’s exclusive right, title and interest in and to the Advertiser Works and the goodwill pertaining thereto, that any use of the Advertiser Works by Influencer does not create any ownership, license or other right or interest in or to the Advertiser Works by Influencer except as specifically set forth in this Agreement, and that all use of the Advertiser Works by Influencer shall inure to the benefit of the Advertiser. Influencer agrees that it shall not, challenge, or assist in any challenge to, the validity or exclusivity of the Advertiser’s ownership of the applicable Advertiser Works.
Ownership Rights. The Parties shall elect one of the following two ownership options which shall be set forth in the applicable SOW. In the event that the SOW fails to expressly identify the Advertiser’s usage rights with regard to the Content, the Parties hereby agree that the Standard Digital as defined in “Option 1” below shall be the controlling form of use rights applicable to such SOW. Further, in the event that the SOW fails to expressly identify the duration of Advertiser’s right to use the Content, the Parties hereby agree that Advertiser shall have the right to use the Work Product for the specified purposes for a period of twelve (12) months.
Ownership of Standard Digital Content. Except with regard to any Advertiser Works incorporated therein, Influencer shall own, exclusively and in perpetuity, any and all intellectual property rights, including trademarks, trade secrets, trade dress, design, mask work, copyrights, and patent rights, and other rights of whatever kind and character, throughout the universe and in any and all languages, in and to the Content.
Licenses to Standard Digital Content. Influencer hereby grants to the Advertiser a worldwide, non-exclusive, royalty-free right and license, during the applicable posting periods and subject to any other limitations set forth in the applicable SOW, to (A) feature any and all Content generated by Influencer (including Influencer’s name and likeness) on all Social Media Channel accounts owned, controlled or licensed by the Advertiser, (B) repost any and all Content generated by Influencer (including Influencer’s name and likeness) in one or more sponsored posts distributed through Social Media Channels or other media channels mutually agreed to by the parties and set forth in the applicable SOW, (C) feature and use any and all Content generated by Influencer (including Influencer’s name and likeness) in connection with white labeled posts on all Social Media Channel accounts owned, controlled or licensed by Influencer, and (D) feature, use, distribute, highlight or promote in any way available to Advertiser any and all Content generated by Influencer (including Influencer’s name and likeness) through any digital media or digital assets (and any and all features thereof), whether in existence as of the date hereof or developed subsequently, as determined in Advertiser’s sole discretion; provided, for the avoidance of doubt, that such digital media or digital assets shall not be deemed to include television or billboards. In addition, Influencer hereby grants to the Advertiser a worldwide, non-exclusive, perpetual, irrevocable, royalty-free right and license to continue to use and display the applicable Content in the manner originally featured or used by the Advertiser during the permitted posting period specified in the applicable SOW, as well as for all internal uses of the Advertiser, and in any reviews of the Advertiser’s products or services to which such Content relates. Influencer hereby grants to the Company a limited, worldwide, non-exclusive, royalty free, perpetual and irrevocable right and license to use the Content (including Influencer’s name and likeness) for the purpose of marketing on the Social Media Channel accounts owned, controlled or licensed by the Company, as well as such third party digital and print platforms as the Company may elect in its sole discretion, which shall include but not be limited to internet rights, publication rights, white paper rights, newspapers, magazines, e-mail marketing, and brochures.
Ownership of Work for Hire Content. Influencer acknowledges and agrees that all Content and all copyrightable material, notes, records, drawings, designs, inventions, improvements, developments, discoveries and trade secrets which relate in any manner to the business of the Advertiser that are conceived, made or discovered by Influencer, solely or in collaboration with others, in performance of the Services or the implementation of the Campaign (collectively, “Work Product”), are the sole property of the Advertiser. To the extent allowable under applicable law all Work Product shall constitute a “work made for hire” as such term is defined in 17 U.S.C. Section 101, made solely for the benefit of the Advertiser. In the event that any right, title or interest to any Work Product, or part thereof, may not, by operation of law, vest in the Advertiser or is determined not to be a “work made for hire” for any reason, then Influencer hereby irrevocably conveys, transfers and assigns to the Advertiser all right, title and interest, in perpetuity and throughout the world and without further consideration, in and to such Work Product, and any and all related patents, copyrights, trademarks, trade names, and other industrial and intellectual property rights and applications therefor. The assignment of the Work Product under this Agreement includes all rights of paternity, integrity, attribution and withdrawal and any other rights known as, or substantially similar to, “moral rights.” To the extent such moral rights may not be assigned under applicable law, Influencer hereby waives such moral rights and consents to any action in connection therewith, including any violation of such moral rights, in the absence of such consent. Influencer shall provide to the Advertiser, or to the Company on the Advertiser’s behalf, all reasonable assistance to enable, and execute all documents necessary to assist with enabling, Advertiser to prosecute, perfect, register or record its rights in any Work Product. Influencer represents and warrants that it has secured all necessary assignments, from its personnel or otherwise, to convey ownership of the Work Product as contemplated hereunder.
License to Work Product. Subject in each case to the Advertiser’s prior review and written approval in each instance in accordance with Section 2, during the Term of this Agreement, on behalf of the Advertiser, the Company hereby grants to Influencer a limited, revocable, non-exclusive, royalty-free, license to use the Work Product only as required for Influencer to perform the Services and implement the Campaign to which such Work Product relates. Upon any expiration or termination of this Agreement, the rights and licenses granted to Influencer hereunder will automatically terminate and Influencer shall immediately cease any and all use of the Work Product; provided, that the Advertiser hereby grants to Influencer a worldwide, non-exclusive, perpetual, irrevocable, royalty-free right and license to continue to use and display the applicable Work Product in the manner originally featured or used by Influencer during the permitted posting period specified in the applicable SOW, as well as for all internal uses of Influencer. To the extent that any copyrighted materials of Influencer that were developed or created by Influencer prior to the Effective Date of the applicable SOW (collectively “Influencer Intellectual Property”), are incorporated into the Work Product, Influencer hereby grants to the Company, for the Company itself and to the Company for the Advertiser’s benefit, and each of the Company’s and the Advertiser’s respective agents, employees, licensees, vendors, and representatives a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, fully sub-licensable and transferable unrestricted right and license to use, reproduce, distribute, transmit, publicize, display, modify, adapt, translate, create derivative works from, and exploit, in whole or in part, edited or otherwise modified, alone or with other materials, in whatever form or medium, the Influencer Intellectual Property incorporated into the Work Product.
Third Party Licenses. Influencer shall be solely responsible for obtaining, in a form acceptable to and approved in writing by the Company, any required licenses, permissions or approvals from third parties, contributors, and/or other affected rights holders with regard to third party content incorporated into the Content by Influencer, as necessary for the Company and/or the Advertiser to make full and unrestricted use of the Content as set forth herein, including by way of example and without limitation, requiring all individuals appearing in the Content, to sign an authorization, consent and release form and granting to the Company and the Advertiser all license and publicity rights necessary for the Company or the Advertiser to make use of the name, likeness, image, biography, statements, avatar, and/or social media name and handle and other indicia of such individual contained in the Content. Influencer will provide the Company with copies of such consents upon its written request.
Indemnification by Influencer. Influencer agrees to indemnify, defend and hold harmless the Company and the Advertiser, and their respective parents, subsidiaries and affiliates, and each of their officers, directors, agents and employees, from and against any and all claims, causes of action, demands, liabilities, fees, costs or expenses (including reasonable attorneys’ fees) arising out of or related to, in whole or in part, (i) the Content (excluding any Advertiser Works incorporated therein if used as permitted hereunder) and/or any act or omission of Influencer or its employees, agents, trustees, partners, officers or directors, (ii) the content or operation of Influencer’s digital properties or any Influencer webpages or digital properties on Social Media Channels (e.g. YouTube channels or social media posts) on which Content appears, and (iii) Influencer’s performance of, or failure to perform, its obligations under this Agreement; including, without limitation, any claims, actions or proceedings for libel, slander, invasion of privacy, infringement of trademark, copyright, license, or other intellectual property rights, unfair or improper trade practices or other wrongful business conduct, including, without limitation, claims relating to Influencer’s fraudulent activity or other activity that would falsely or artificially increase or affect the number of Influencer’s followers, “likes” or other indicators of Influencer’s audience or reach, or claims for bodily injury, death or property damage, or loss or employment claims.
Indemnification by the Company. The Company agrees to indemnify, defend and hold harmless Influencer from and against any and all claims, causes of action, demands, liabilities, fees, costs or expenses (including reasonable attorneys’ fees) arising out of or related to, in whole or in part, (i) any act or omission of the Company or its employees, agents, trustees, partners, officers or directors and (ii) the Company’s performance of, or failure to perform, its obligations under this Agreement.
Limitation of Liability. Neither party shall be liable for the misconduct of the other party. Content created by Influencer(s) in connection with any Campaign is the sole responsibility of Influencer, and the accuracy of such Content is not endorsed or guaranteed by the Company. The Company and its affiliates, successors, assigns, employees, agents, directors, and officers assume no responsibility or liability which may arise from the Content, including, but not limited to, claims for defamation, libel, slander, infringement, invasion of privacy and publicity rights, obscenity, pornography, profanity, fraud, or misrepresentation.
IN ADDITION, Influencer ACKNOWLEDGES AND AGREES THAT THE COMPANY SHALL NOT BE LIABLE TO Influencer, ITS PARENTS, SUBSIDIARIES, OR AFFILIATES, AND/OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, UNDER THIS AGREEMENT OR IN ANY WAY RELATED TO THIS AGREEMENT, FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST WAGES AND SAVINGS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF THE COMPANY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL PAYMENT BY THE COMPANY TO Influencer FOR THE APPLICABLE CAMPAIGN OR SERVICES TO WHICH SUCH CLAIM RELATES.
Confidentiality. Influencer hereby acknowledges that the Company’s privacy, and that of the Advertiser, is highly valued and that all efforts are made to maintain confidentiality with respect to Confidential Information (as defined below). Influencer shall hold in confidence using commercially reasonable measures, and not directly or indirectly divulge to any third party, any Confidential Information. For purposes of this Agreement, “Confidential Information” means any financial information, the identity of the Advertiser and/or any Advertiser lists or Advertiser contact information, or any brand strategy, marketing plans, technical data, intellectual property, content or know how relating to ideas, discoveries, inventions, concepts, software, equipment, designs, drawings, specifications, techniques, processes, models, data, documentation, diagrams, research, development, business plans or opportunities, business strategies, future projects or products, projects or products under consideration, procedures, and information related to finances, influencers, costs, prices, contractors and employees that are provided to Influencer by the Company in connection with the applicable Campaign or Services or otherwise with regard to the relationship contemplated hereunder. All of the foregoing information is proprietary, and disclosure of such information to third parties or unauthorized use of such information would cause substantial and irreparable harm and injury to the Company’s and/or the Advertiser’s ongoing business for which there would be no adequate remedy at law. Accordingly, in the event of any breach or attempted or threatened breach of any of the terms of this Section, the Company shall be entitled to receive injunctive and other equitable relief without need of posting a bond, and without limiting the applicability of any other remedies.
Non-circumvention. Influencer agrees that during the Term of this Agreement and for ninety (90) days from the expiration or termination of this Agreement it will not, either directly or indirectly, contact the Advertiser for the purpose of entering into, or attempting to enter into, any negotiations or contractual obligations with the Advertiser which could reasonably be construed to circumvent the efforts of Company under this Agreement, without the Company’s prior written consent.
Severability. If any provision of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision shall be modified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be deemed excised from this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law, as if such provision had been originally incorporated herein as so modified or restricted or as if such provision had not been originally incorporated herein, as the case may be.
Independent Contractor. In providing services to the Company, Influencer will act as an independent contractor, and it is expressly understood and agreed that this Agreement is not intended to create, and does not create, any partnership, Company, joint venture or similar relationship.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements between the parties with respect to such matters.
Modification or Assignment. This Agreement may be modified or amended only with the written consent of both Parties. Influencer may not assign, transfer, or delegate any duty or obligation to perform such Services under the SOW or this Agreement. Any such attempted assignment shall be null and void.
Waiver. Neither the failure nor any delay on the part of either party to exercise any right, remedy, power, or privilege under this Agreement shall operate as a waiver thereof.
Notice. All notices required by this Agreement must be in writing and must be delivered by certified mail, return receipt requested.
Governing Law; Jurisdiction; Venue. The laws of the State of California applicable to contracts made or to be wholly performed there, without giving effect to choice of law or conflict of law principles, shall govern the validity, construction, performance, and effect of this Agreement. The Parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in the City and County of Los Angeles, California for any dispute arising out of this Agreement.
Publisher EULA. Influencer agrees to grant licenses held with publishers for commercial use of video games to Company for the duration of the Term for the purposes of executing the details of this Agreement contained herein. Influencer agrees that any creative produced or content featuring gameplay shared will not be in violation of the EULA.
Relationship between parties. Neither Influencer on the one hand, nor Client or Company on the other hand, is granted any right or authority to assume or to create any obligation or responsibility, expressed or implied, on behalf of or in the name of the other or to bind the other in any manner or thing whatsoever. Influencer will not represent itself as being a representative of or otherwise employed by Company or Client. Nothing in this agreement will be construed as creating the relationship of employer and employee, joint venture, partnership, distributorship, franchise, Company or consignment between the Influencer on the one hand, and Client or Company on the other hand. As an independent contractor, Influencer will have the entire responsibility to discharge all the obligations of employer with respect to its employees under laws or regulations, including those relating to taxes, unemployment insurance, social security and worker’s compensation.
No Usage Obligation. Neither Client nor Company shall have any obligation whatsoever to use any materials created by Influencer under this Agreement. Company’s sole obligation with respect to any materials is to make such payments as are required by this Agreement.