Influencer Agreement Terms
These Influencer Agreement Terms govern the partnership between Point Up Inc. (“Company”) and the individual or entity named (“Influencer”) in the Influencer Agreement — Assignment Statement, or other document which references these terms (“Assignment Statement”) and is hereby therein incorporated (together, the “Agreement”). Specific business terms associated with the partnership activities are set forth in the Assignment Statement. All Assignment Statements shall be executed by Partner and Company. Together with the Assignment Statement, this Agreement is a legally binding contract between Influencer and Company.
1. Definitions. Capitalized terms used herein and not otherwise defined shall have the following meanings:
1.1. “Content” means the audio, video, text, copy, images, animations, illustrations, information, data (including any metadata) and content commissioned under the applicable Assignment Statement.
1.2 “Content IP” includes, without limitation, all patent rights, copyright rights, trademark rights, trade secret rights, moral rights, publicity rights, privacy rights and any other intellectual property rights or similar rights anywhere in the world covering or embodied in or relating to any Content or any modification, use, production or dissemination or other activity or exploitation relating to any Content.
1.3 “Derivatives” of any subject matter include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
2.1. General. During the Term, Influencer shall perform the services set forth in one or more Assignment Statements (“Services”). Each Assignment Statement shall set forth the terms for performing the specific Services, including the Content commissioned thereunder, deadlines, compensation, approved budget and/or expenses, and any other terms applicable to full performance of the services required thereunder. The terms of each Assignment Statement incorporate the terms of this Agreement. In the event of a conflict between the terms of this Agreement and any Assignment Statement, the terms of this Agreement shall prevail.
2.1. Acceptance. Company may, but is not required to, review the Content to ensure that it is in material compliance with the requirements set forth in an applicable Assignment Statement and Company’s standards in its own discretion (“Content Requirements”). If Company determines that the Content is in compliance with the Content Requirements, Company will notify Influencer in writing of its acceptance. If no such notification is provided by Company, the Content shall be deemed rejected. If Company determines that the Content is not in compliance with the Content Requirements, then (i) Company shall so notify Influencer, detailing the Content Requirements not met and (ii) Influencer shall use its reasonable efforts to resolve such failure promptly and resubmit such Content. Following any such resubmission, Company shall determine, in its sole discretion, whether such Content complies, in Company’s sole discretion, complies with the Content Requirements. If such revisions are not made in a timely manner, Influencer acknowledges and agrees that Company may reject the Content altogether.
3. Fees & Payment
3.1. Fees. Company shall pay Influencer the compensation set forth in the applicable Assignment Statement (the “Compensation”) following publication of the Content or as otherwise set forth in an applicable Assignment Statement. To be eligible for payment, Influencer must submit an invoice detailing the applicable Content. Company makes all payments on the 25th day of each month (or nearest business day thereafter). In order to receive payment in a particular month, Company must receive an invoice on or before the 10th day of the same month. Except as otherwise set forth herein, the Compensation shall represent full and complete payment for the services provided by Influencer and for the rights granted to Company.
3.2 . Taxes. The Compensation payable to Influencer is inclusive of, and Influencer shall be solely responsible for, all tax obligations due to all taxing authorities arising from or in connection with amounts paid to Influencer hereunder, including, without limitation, federal, state, and local withholding taxes, FICA, FUTA, Social Security, Medicare, SUI and other such taxes and deductions ("Taxes") with respect to any earnings or payments made hereunder whether or not Company legally is required to deduct said Taxes from the payments due to Influencer hereunder. Without limiting the foregoing, Influencer understands and agrees that Company may, in its sole discretion, withhold any applicable Taxes from any payments due to Influencer
4. Additional Rights and Restrictions.
4.1. Influencer Biography and Likeness. If the parties agree to use the biography and likeness of the Influencer as part of any promotion or campaign, Influencer shall provide a photograph, detailed biography and any additional relevant information with respect to Influencer or the Content. Solely for the purposes of promoting the Content, Influencer hereby grants to Company a worldwide, nonexclusive, assignable, perpetual right and license to use and disseminate Influencer’s name, signature, trademarks and other designations, as well as Influencer’s photograph, likeness, and biographical information.
4.2. Ownership. Influencer retains title to, and is entirely responsible for, all Content provided under this Agreement and Influencer shall comply with any requirements imposed by third parties on the use of Content, including payment of any money owed to those third parties (such as royalties). Except as set forth in an Assignment Statement, Influencer hereby grants to Company a worldwide, sole and exclusive, assignable, sub-licensable, royalty-free, fully paid-up, perpetual, irrevocable license (but no obligation) to publish, make, display, perform, use, reproduce, distribute, offer, sell, import, export, transmit, provide user access to, and otherwise commercialize and fully exploit, in any and every manner and medium now or hereafter known, the Content and any Content IP.
4.3. Influencer Responsibilities. Influencer shall be responsible for the accuracy and truth of all information contained in the Content. Influencer further agrees to fully cooperate otherwise with Company in answering any questions Company might have concerning the Content. If Influencer submits photographs or artwork created by third parties with the Content, Influencer shall provide written, signed releases from the photographer and/or artist at the time of submission and, where necessary, anyone who is portrayed or whose likeness appears in such photograph or artwork. If Influencers intend to use incentives to promote Company and procure clicks, leads or sales, Influencer is required to notify Company prior to executing an Assignment Statement with Company, and Influencer’s use of incentives must be in a bona fide way. Except as specified in the Assignment Statement, Influencer will not promote other credit or debit card products during the Term and for three (3) months after termination or expiration. Influencer shall comply with all federal, state and local laws, rules and regulations, including those concerning paid product endorsements, including, but not limited to, Federal Trade Commission Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 CFR Part 255 (the “FTC Endorsement Guides”). Influencer shall ensure that the Content contains the necessary disclosures regarding the sponsored nature of the content and the endorsement relationship between Influencer and the Company, sufficient to comply with the FTC Endorsement Guides. Influencer shall not promote Company or Company products and services using the following means:
4.3.1. provision of leads obtained other than through intended consumer action (e.g. through the use of phone books, or similar such compilations of personal data);
4.3.2. use of fake redirects, automated software, or other mechanisms to generate actions; or
4.3.3. Actions that are caused that are not in good faith, such as those using any device, robot, iframes or hidden frames.
4.4. Derivative Works. Subject to Section 4.2, Influencer’s ownership of the Content, and except as specified in the Assignment Statement, Influencer acknowledges and agrees that Company shall own all, and Influencer shall have no rights to any, right, title and interest in and to any Derivatives of the Content created by, for or on behalf of Company. Influencer hereby makes all assignments necessary to accomplish the foregoing.
4.5. No Obligation; Further Assurances. Notwithstanding anything to the contrary contained herein, nothing herein requires Company to use any Content and/or otherwise exploit any and/or all of the rights granted hereunder. Influencer shall assist Company, at Company's expense, to further evidence, record and defend any rights or licenses granted hereunder.
5. Term & Termination.
5.1. Term; Termination; Effects of Termination. This Agreement shall commence on the Effective Date and continue for the duration specified in the Assignment Statement unless terminated pursuant to the terms hereof (the “Term”). Company may terminate this Agreement or any Assignment Statement for any reason at any time upon written notice to Influencer. Influencer may terminate this Agreement on thirty (30) days prior written notice for any uncured material breach of this Agreement by Company. The parties’ rights and obligations as set forth in Sections 4 – 11 of this Agreement, plus all continuing rights pursuant to the ownership/licensing arrangement indicated on any Assignment Statement, will survive the termination of this Agreement.
6. Representations and Warranties. Influencer represents, warrants and covenants to Company that: (i) Influencer has all right, power and authority to enter into and properly perform under this Agreement; (ii) the Content shall be of the highest quality, and Influencer’s services shall be performed in a professional and workperson like manner; (iii) the Content is original to Influencer and shall not be based on any material from a third party, unless otherwise set forth in an Assignment Statement; (iv) the Content shall not infringe upon the rights of any third party, including but not limited to trademark, copyright, trade secret, the rights of publicity and privacy and the right against libel or defamation; (v) the Content is and shall be delivered to Company free and clear of any claims or encumbrances; (vi) Influencer shall not grant any third party the right to use or exploit the Content that violates the terms hereof; and (vii) the Content complies with all applicable federal, state and local laws, rules and regulations.
7. Indemnification. Influencer shall indemnify, defend and hold harmless Company and its respective officers, directors, members, employees, agents and representatives against all damages, claims, liabilities, losses and other expenses, including without limitation reasonable attorneys’ fees and costs, that arise out of: (i) any claim that the Content or the Content IP infringes upon or violates any third party’s intellectual property rights, or (ii) the breach of any representation or warranty or other provision of this Agreement by Influencer.
8. Limitation of Liability. EXCEPT FOR INDEMNIFICATION OBLIGATIONS AND BREACHES OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY FOR: (I) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR (II) ANY AMOUNT IN EXCESS OF AMOUNTS PAID OR PAYABLE HEREUNDER DURING THE IMMEDIATELY PRECEDING THREE (3) MONTH PERIOD.
9. Confidentiality. Influencer acknowledges that, in the course of the provision of services hereunder, Influencer may conceive, create, review or receive information considered by Company to be confidential or proprietary, including without limitation information or material relating to drawings, designs, products, services, fees, budgets, contacts, business plans, marketing, intellectual property, ideas, analyses, and/or data (“Confidential Information”). During and after the Term, (i) Influencer shall maintain any and all Confidential Information in strict confidence, except if and to the extent such Confidential Information has been made publicly available through no fault of Influencer or must be disclosed by law, and (ii) Influencer shall not use any Confidential Information for the benefit of any person or entity other than Company or its respective affiliates, and only then with Company’s prior written consent, as applicable.
10. Independent Contractor. Notwithstanding any provision hereof, for all purposes of this Agreement each party shall be and act as an independent contractor and not as partner, joint venturer, employer, employee or agent of the other and shall not bind nor attempt to bind the other to any contract. Influencer is an independent contractor and is solely responsible for all taxes, withholdings, and other statutory or contractual obligations of any sort, including, but not limited to, Workers' Compensation Insurance. Influencer agrees to defend, indemnify and hold Company harmless from any and all claims, damages, liabilities, losses, attorneys' fees and expenses on account of an alleged failure by Influencer to satisfy any such obligations or any other obligation (under this Agreement or otherwise). If Influencer is a corporation or other entity, it will ensure that its employees and agents are bound in writing to Influencer’s obligations under this Agreement.
11. Miscellaneous. Any notices from Influencer permitted or required under this Agreement shall be deemed sufficient if sent via email to email@example.com and email receipt is acknowledged by Company. Company shall communicate with Influencer via the email address provided by Influencer. This Agreement and the rights, obligations and licenses herein, shall be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, successors and assigns. Influencer shall not assign or transfer this Agreement in whole or part without the prior written consent of Company. Company may freely assign or transfer this Agreement in whole or part. This Agreement contains the entire understanding of the parties regarding its subject matter and supersedes all other agreements and understandings, whether oral or written. No changes or modifications or waivers are to be made to this Agreement unless evidenced in writing and signed for and on behalf of both parties. If any portion of this Agreement is held to be illegal or unenforceable, that portion shall be restated, eliminated or limited to the minimum extent necessary so that this Agreement shall reflect as nearly as possible the original intention of the parties and the remainder of this Agreement shall remain in full force and effect. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions thereof. Without in any way limiting either party’s right to seek injunctive or other equitable relief in any court of competent jurisdiction, all disputes related to or arising out of this Agreement shall be resolved exclusively by binding arbitration in English and in accordance with the Streamlined Arbitration Rules and Procedures of JAMS then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. The award rendered shall be final and binding on both parties, and the judgment upon the award may be entered in any court having competent jurisdiction. The place of arbitration shall be San Francisco, California. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and reasonable attorneys’ fees. This Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. Execution of a facsimile/electronic copy shall have the same force and effect as execution of an original, and a facsimile/electronic signature shall be deemed an original and valid signature.