Instabrand Influencer Terms and Conditions

These Instabrand Influencer Terms and Conditions (the “Terms and Conditions”) are entered into as of the Effective Date specified in the Scope of Work (as defined below) entered into by and between the influencer specified on the applicable Scope of Work (the “Influencer”) and INSTABRAND, INC., a Delaware corporation with its principal place of business at 11520 San Vicente Boulevard, Los Angeles, California 90049 (the “Company”). Influencer and the Company may be referred to hereinafter individually as a “Party” or collectively as the “Parties.”

BY ACCEPTING OR EXECUTING A SCOPE OF WORK, ORDER FORM OR ANY RELATED ADDENDUM THAT REFERENCES THIS AGREEMENT, YOU EXPRESSLY AGREE TO BE BOUND BY, AND STRICTLY ADHERE TO, ALL OF THE TERMS OF THIS AGREEMENT.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.


 

1. Scope(s) of Work.  Company wishes to engage Influencer to perform certain services set forth in one or more Scope(s) of Work and Influencer desires to perform the services set forth in such Scope(s) of Work (the “Services”), subject to the terms and conditions of the applicable Scope of Work and these Terms and Conditions (collectively, the “Agreement”). The Company and Influencer shall enter into one or more written scope(s) of work (each, a “Scope of Work” or “SOW”) detailing (a) the specific Services to be provided by Influencer, including the scope of each applicable media campaign (each a “Campaign”), including the applicable Advertiser and Social Media Channels, or other media channels, that will be subject to the Campaign, the duration of the Campaign, and the reach of the Campaign, (b) any Content (as defined below) to be created by Influencer and provided to the Company in connection with the performance of the applicable Services and Campaign, (c) a schedule and dates for performance by the Influencer of the applicable Services and Campaign, and (d) such other terms as may be mutually agreed to by the Parties.  Each Scope of Work shall only be deemed effective upon execution by an authorized representative of each Party, and, if required by the Company, the applicable advertiser that is sponsoring the applicable Campaign (the “Advertiser”). In the event of a conflict between a Scope of Work and these Terms and Conditions, this Scope of Work shall control, but only with regard to the Services described in the applicable Scope of Work. As used herein, “Social Media Channels” include but are not limited to: Facebook, Instagram, Twitter, Tumblr, YouTube, Pinterest, Google+, and website blogs.  

 

2. Development and Approval of Content.  

 

a. Initial Development and Approval. Influencer shall submit all elements of any and all content, materials, videos, photographs and/or works of a similar nature produced, developed, or created by Influencer, in whole or in part pursuant to this Agreement (collectively, the “Content”), including any captions relating to the Content or applicable post(s), to the Company for the Advertiser’s prior written approval prior to posting, which may be granted or withheld in the Advertiser’s and the Company’s sole discretion.  All Content must be submitted to the Company in accordance with the applicable schedule set forth in the Scope of Work.  If, following each submission of Content to the Company for approval by the applicable Advertiser, the Company or the Advertiser requests or requires any edits to the applicable Content, the Influencer shall make any and all edits as required or requested by the Company or the Advertiser. Following Influencer’s implementation of such edits, Influencer shall resubmit the applicable Content to the Company for review and approval by the Advertiser. In the event that Influencer incorporates applicable edits in a manner reasonably consistent with the applicable requirements provided to Influencer, but the Content is thereafter not approved by the Advertiser, the Company reserves the right to terminate this Agreement and/or the applicable SOW immediately upon notice to Influencer, subject to the payment to Influencer of a termination fee equal to twenty percent (20%) of the total compensation payable to Influencer by the Company in connection with the Services and/or Campaigns to which the applicable Content relates.  In addition, if Influencer makes any post without having received notice from the Company of the applicable Advertiser’s approval, such unauthorized post shall be deemed a material breach of Influencer’s obligations under this Agreement and the Company shall have the right to (a) terminate the Agreement and/or the applicable SOW immediately upon notice to Influencer, (b) require Influencer to post a makegood that has been approved by the applicable Advertiser, without additional compensation to Influencer, and/or (c) reduce the compensation payable to Influencer by the amount that was otherwise payable in connection with the applicable unauthorized post.  

 

b. Ongoing Revisions. In addition, following approval of any Content by the Advertiser, and posting of such Content by Influencer, the Advertiser shall have the right to (i) require Influencer to revise any Content to the extent that the information included in a post with regard to the Advertiser is no longer accurate, and (ii) require Influencer to remove any indicia of the Advertiser from the Content.  In the event of any such requirement by the Advertiser, upon request from the Company, Influencer shall revise the applicable Content which shall be subject to the approval process set forth in Section 2(a).  

 

c. Influencer Delays.  Time is of the essence with regard to Influencer’s performance under this Agreement.  In the event that Influencer fails to provide the Content for review and approval in accordance with the timing requirements set forth herein or in the applicable SOW or otherwise mutually agreed to by the parties in connection with an applicable SOW, or otherwise fails to perform the Services in accordance with the timelines set forth in the applicable SOW, in addition to any other rights and remedies that the Company or the Advertiser may have hereunder, the compensation owed to Influencer in connection with the applicable Services and Campaign shall be reduced for each day or instance of delay, as applicable under the circumstances, by ten percent (10%) of the total compensation owed to Influencer in connection with the applicable Services and/or Campaign.  

 

3. 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.

 

4. Exclusivity.  Influencer acknowledges and agrees not to include as part of any Content, or otherwise post to any Social Media Channel, or any other media channel set forth in an applicable SOW, in connection or combination with the Content, any reference to any other brand or trademark other than those authorized by the Company on behalf of the Advertiser and shall not post to any Social Media Channel, or any other media channel set forth in an applicable SOW, any information, promotion, endorsement or content that related to are provided by the brands specified in the applicable SOW for the period of time set forth in the applicable SOW. In addition, Influencer agrees to only tag Advertiser’s pages on Social Media Channels and/or Advertiser’s social media handles in Influencer’s post(s) that include the Content.

 

5. Influencer Representations and Warranties.  Influencer represents, warrants and covenants that (a) Influencer shall provide all Services under each applicable SOW with commercially reasonably 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, 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 25 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 shall not engage in any 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 on any applicable Social Media Channel, including, without limitation, with regard to a particular Campaign.

 

6. Compensation.  Subject to completion of the Services and applicable Campaign(s) set forth in the applicable SOW, and delivery to the Company of the photographic or other written confirmation reasonably required by the Company to evidence that the Services or Campaign(s) have been completed as required pursuant to the applicable SOW, and provided that Influencer is not in breach of the terms and conditions set forth herein, the Company shall pay Influencer the compensation set forth in the applicable SOW. Each such payment shall be made in accordance with the following terms: (a) if payment is via PayPal, on the first Friday following the 30 day period from the date Influencer fulfills all of its obligations pursuant to the applicable  SOW (Net30); provided, however, that for all international (non U.S.) Campaigns, payment will be paid to Influencer within sixty (60) to ninety (90) days of the date Influencer completes all applicable obligations, and (b) if payment is via ACH, within thirty (30) days following the Company’s receipt from Influencer of a valid invoice, following Influencer’s fulfillment of all of their obligations pursuant to the applicable SOW.  Any and all standard transfer fees payable to a financial institution in connection with payments made to Influencer shall be the responsibility of the Company. The Company shall submit payments to Influencer using the payment account information provided by Influencer on the applicable Scope of Work and Influencer shall be solely responsible for maintaining and/or updating his or her payment account information (including but not limited to financial institution and account number information) (“Influencer Payment Information”) by contacting the Company.   Any failure by Influencer to provide accurate Influencer Payment Information, or to timely submit an invoice, or update any changes to Influencer Payment Information may result in delays in payment of thirty (30) days or more. In addition, if the Company makes a payment to an incorrect account due to Influencer’s failure to provide accurate Influencer Payment Information, and the Company is unable to recover the amount of such incorrect payment, the Company shall be deemed to have made such payment in full to Influencer, and the Company shall have no further obligation to Influencer with regard to such payment. Further, if Influencer fails to provide photographic or other written evidence of Influencer’s successful completion of the Services and/or Campaign(s), the Company shall have the right to (a) require Influencer to post a makegood that has been approved the applicable Advertiser, and/or (b) withhold the compensation otherwise payable to Influencer in connection with the applicable Services and/or Campaign(s).  Further, any failure by Influencer to claim or request payment on or before 180 days from the date Influencer fulfills all of its obligations as set forth in the applicable SOW, whether as a result of Influencer’s failure to maintain and/or update his or her Influencer Payment Information or any other reason, shall result in Influencer forfeiting any and all right, title and interest to any payment due under the applicable SOW with regard to the applicable Campaign.

 

7. Term: Termination.   

 

a. Term.  This Agreement shall be effective as of the Effective Date set forth in the first SOW entered into between the Parties and shall continue in full force and effect through the end date of the last Campaign set forth in any outstanding SOW entered into hereunder, unless this Agreement is otherwise terminated as set forth herein (the “Term”).  Notwithstanding the foregoing, the Term of this Agreement shall be concurrent with the insertion order or other written agreement between Company and Advertiser (the “Advertiser Agreement”) to which each applicable Campaign pertains.  

 

b. Termination.  In addition to any termination rights otherwise set forth herein, the Company shall have the right to terminate this Agreement, including any and all outstanding SOW’s, (i) immediately upon written notice to Influencer if the applicable Advertiser Agreement is terminated for any reason, (ii) at any time upon five (5) business days prior notice to Influencer, and (iii) upon notice to Influencer if Influencer materially breaches any of its obligations hereunder and fails to cure any such breach within twenty-four (24) hours. A material breach by Influencer shall include any breach of Section 3 or Section 5. In the event that the Company reasonably suspects that Influencer is in breach of Subsection 5(h), the Company shall notify Influencer, and, unless Influencer is able to provide reasonable evidence to the Company that Influencer has not fraudulently or falsely increased or affected the applicable number(s) within twenty-four (24) hours of receipt of such notice, the Company shall have the right to terminate this Agreement and/or the applicable SOW, immediately upon notice to Influencer, without any compensation or liability to Influencer, and subject to Influencer’s indemnification obligations set forth in Section 11(a)(3).  

 

c. 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 fails 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 to thirty percent (30%) of the compensation payable to Influencer under the applicable SOW to which such Services and/or Campaign(s) relate.

 

d. Termination Fees. In the event that the Company terminates the Agreement or an applicable SOW pursuant to Section 7(b)(ii), 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).  

 

8. 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.

 

9. Ownership Rights.  The Parties shall elect one of the following ownership options which shall be set forth in the applicable SOW.  

Ownership Option 1 – Standard and Paid Social:

. Ownership of 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 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, and (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.  Advertiser agrees to use Influencer social media handles specified in the applicable SOW (e.g. @[Influencer] or #[Influencer] in connection with the use of applicable Content, or otherwise credit Influencer in the event Advertiser re-posts any Content. 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.

 

i. 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 Option 2 – White Listing and Digital:

a. Ownership of 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.

b. Licenses to Content.  

i. 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 and distribute any and all Content generated by Influencer (including Influencer’s name and likeness) through any digital media or digital assets, 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.  Advertiser agrees to use Influencer social media handles specified in the applicable SOW (e.g. @[Influencer] or #[Influencer] in connection with the use of applicable Content, or otherwise credit Influencer in the event Advertiser re-posts any Content.  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.

ii. 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 Option 3 – Work for Hire:

a. Ownership of 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 to convey ownership of the Work Product as contemplated hereunder.

 

b. License to Work Product.

 

i. 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.

 

ii. 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.  

 

10. 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.  

 

11. Indemnification; Limitation of Liability.  

 

a. Indemnification.  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, 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.

 

b. Limitation of Liability.  The Company shall not be liable for Influencer’s misconduct.  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.  

 

12. 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.

 

13. 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.

 

14. Miscellaneous.

 

a. 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.

 

b. 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, agency, joint venture or similar relationship.

 

c. 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.

 

d. 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.

 

e. 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.

 

f. Notice.  All notices required by this Agreement must be in writing and must be delivered by certified mail, return receipt requested.

 

g. 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.

 

Updated as of: May 18, 2017