Updated 4-23-21
This Agreement, Release, Hold Harmless, and Indemnity Agreement (hereinafter “Agreement”) is entered into between the below indicated Client (Tempesta Media, LLC) and Influencer (name of influencer or Influencer Company). Together the client and influencer may be referred to herein as (“parties” or “the parties”).
In exchange for certain compensation and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Client engages Influencer to perform, and Influencer agrees to perform, the services specified on one or more Insertion Order(s) entered into by Influencer and Client (the “Services”) for the fees and compensation set forth in the Insertion Order(s). Except as otherwise expressly provided herein, Influencer will perform the Services outlined in the Insertion Order(s) at its own expense, and using its own resources and equipment.
Influencer’s relationship with Client is that of an independent contractor, and nothing in these Terms is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Influencer is not authorized to make any representation, contract, or commitment on behalf of Client or its customers unless specifically requested or authorized in writing to do so by an authorized officer of Client, as applicable, or both. Influencer is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of the Services and receipt of fees under these Terms and will hold Client harmless from and against any tax liability associated with fees hereunder. No part of Influencer’s compensation will be subject to withholding by Client for the payment of any social security, federal, state, or any other employee payroll taxes.
Influencer shall perform the Services and develop any work product hereunder for Client as a “work made for hire” according to U.S. Copyright law. Such work product, including all copyrights, trademarks and other intellectual property rights embodied therein (collectively, the “Work Product”) shall be owned exclusively by Client or its Customers. In the event any portion of the Work Product is not considered “work made for hire”, or as otherwise necessary to ensure full ownership of the Work Product by Client, Influencer hereby assigns to Client all right, title, and interest in and to such Work Product. Influencer will sign any additional documents that may be reasonably necessary to effect such assignment.
For the Services which Influencer is providing under these Terms and without limiting Client’s ownership of the Work Product as specified above, Influencer gives Client the irrevocable, sublicense able, worldwide right and permission to use any Work Product or other video, photo or written content Influencer shares or provides related to the Services in any manner, in whole or in part, and for any purpose in any and in any and all media, including and without limitation, on Client and or Client’s owned or controlled websites and platforms, social media, any advertising materials, publications, marketing materials, and/or presentations, and in any and all other media, in perpetuity. Any statements, posts and or feedback that Influencer provides may be paraphrased, amplified, shortened and or put into conversational form. Influencer further agrees that Client or Client’s customers may contact Influencer about any Client-Related Content. Influencer acknowledges that participation in the Services means Client can use Influencer’s Client-Related Content and include Influencer’s name, likeness, social media handle or social network name and any other Influencer attributes in any manner that Client determines supports the purposes of these Terms, including use in any media that accepts advertising or promotional content or communications.
The Influencer represents and warrants that Influencer is at least 25 years of age, has the right to contract in Influence’s own name, has a legal right to work in the United States and has social media accounts that are in good standing. Further, such social media accounts have not been subject to previous ban, infraction or flagging by social networks.
As set forth in these Terms, when blogging or posting about Client or Client’s products or services, You must clearly disclose your “material connections” with Client, (i.e. the fact that your post is “sponsored by Client”) and include any hashtags requested by Client (such as #ad or #sponsored). “Material connections” may be defined as any connection between the Influencer and Client that could impact or affect the credibility consumers give to that Influencer’s statements. Consideration provided by Client to Influencer is a Material Connection. Note that while Client may provide required disclosures and recommended promotional verbiage, the Client will not be responsible for any failure by Influencer to comply with the FTC Guides or any failure by Influencer to obtain all third party clearances and permissions with respect to content Influencer posts.
The Influencer will not remove, alter or delete any social posts, tweets or updates made through this Agreement, without the expressed written consent of the Client.
The above disclosure should be made in close proximity to any statements that Influencer makes about Client or Client’s products or services. This disclosure should be clear and prominent enough for consumers to view it when they are reading your posts. Further, under no circumstances shall Influencer obscure, delete, modify or in any way alter the required FTC (Federal Trade Commission)-approved language indicating that such tweets updates or posts are paid advertisements. In addition, the consumer should not be required to click on, scroll down or mouse over a link in order to view the disclosure. Please note that this disclosure is required regardless of any space limitations of the medium (e.g., Twitter), where the disclosure can be made via hashtags, such as #sponsored, #paid or #ad (required at the beginning of the tweet).
Influencer’s statements should always reflect Influencer’s honest and truthful opinions and actual experiences. However, Client asks that all blog entries, social media posts, tweets, and or comments be in good taste and free of inappropriate language and or any content that promotes bigotry, racism or discrimination against an individual based on race, gender, religion, nationality, disability sexual orientation or age.
In order to accurately relay brand names, product attributes and program information, please refer to all Client-provided materials, if available, when developing content pertaining to Client or Client’s customer’s products or services. Most importantly, Influencer should only make factual statements about Client or Client’s customer’s product’s or service’s characteristics or quality which Influencer knows for certain are true and can be verified. Influencer should not make statements about the performance of a product or service, unless Influencer has support for such claims.
Influencer should comply with all applicable laws, rules and regulations, as well as the terms, conditions, guidelines and policies of any social media platform or service that Influencer uses in connection with the services provided by Influencer. CLIENT RESERVES THE RIGHT TO MONITOR
INFLUENCER’S COMPLIANCE WITH THESE GUIDELINES AND TO TERMINATE INFLUENCER’S PARTICIPATION IN ANY APPLICABLE CAMPAIGN IN THE EVENT OF ANY NONCOMPLIANCE.
Client reserves the right to immediately terminate these Terms if Influencer fails to make social media or other disclosures in the manner set forth in the FTC Guides and or as instructed by Client, which failure shall be deemed a material breach of the Terms that is not capable of cure.
The Influencer understands that he/she must use the Tempesta Media platform for posting of social posts, tweets or updates on behalf of the Client. No compensation will be provided for either unapproved posts, tweets or updates, or for posts, tweets, or for updates made outside of the Tempesta Media platform.
During the term of this Agreement and for one (1) year immediately following termination of this Agreement, Influencer agrees to refrain from any disparagement, criticism, defamation, slander of the Client and its employees, directors, clients or principal stockholders or tortious interference with the contracts and relationships of the Client. The Client shall use its reasonable efforts to cause its officers, directors and principal stockholders, in each case which are acting with authority from the Client, to refrain from any disparagement, criticism, defamation, slander of Influencer. During the term of this Agreement and for the one (1) year period thereafter, Influencer shall not solicit for employment with any other business or entity any of the employees or officers of the Client or its affiliates, without Client’s expressed written approval.
Client and its licensors retain all ownership rights in their proprietary platforms, software, websites and technology, including any updates, enhancements, modifications thereto or any back-end technology associated therewith (“Client Platform”). Influencer agrees not to: (i) copy, rent, lease, sell, distribute, or create derivative works based on the Client Platform in whole or in part, by any means, except as expressly authorized in writing by Client; (ii) use any Client trademarks without prior written permission; (iii) use or launch any automated system, including, robots, spiders, or any other means to send messages to the Client Platform or systems; (ii) use the Client Platforms in any manner that damages, disables, overburdens, or impairs any of Client’s websites or interferes with any other party’s use of the Client Platform; (iii) attempt to gain unauthorized access (or exceed any authorized access) to Client Platform; (iv) access the Client Platform other than through the Client’s provided interface to the Influencer; or (v) use the Client Platform for any purpose or in any manner that is unlawful or prohibited by these Terms. Client hereby grants Influencer a limited, non-exclusive, non-transferable license to access and use the Client Platform solely as necessary in connection with the provision of Services hereunder.
EXCEPT AS OTHERWISE SET FORTH HEREIN, TO THE EXTENT PERMITTED BY LAW, THE CLIENT PLATFORM IS PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. EXCEPT AS OTHERWISE SET FORTH HEREIN, CLIENT DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE CLIENT PLATFORM INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
(a)Influencer represents and warrants that: (i) Influencer has the right to assign the Work Product to Client, as set forth in this Agreement, the Work Product and other Client-Related Content will be original and will not infringe upon any copyright, patent, trademark, right of publicity or privacy, or any other proprietary or other right of any person, whether contractual, statutory or common law; (iii) the Services rendered by Influencer shall be promptly rendered with due care and shall be of first rate quality; (iv) Influencer shall not, during the term of these Terms, render any services of any kind directly or indirectly for any company competitive with Client or conduct or participate in any program, promotion or other project that would detract from the Services Influencer is providing hereunder; (v) Influencer will not commit any act which brings Client or Client’s customers into public disrepute, contempt, scandal, or ridicule, or which insults or offends the general community to which Client’s or Client’s Customer’s advertising materials are directed, or which might tend to harm Client or any of Client’s products or services including, without limitation, disparaging Client, it’s Customers, their products or services, or their competitors; (vi) Influencer’s statements, posts and feedback are true and accurately reflect Influencer’s honest opinion and experience with Client, its customers, and their competitors’ products and/or services to the extent applicable, (vii) Influencer agrees that time is of the essence in connection with these Terms and all deadlines provided by Client, and (vii) Influencer will comply with all applicable federal, state and local laws, regulations, administrative guidelines, orders and ordinances, including without limitation, all privacy and data security laws and the terms and conditions of all applicable third party web sites, platforms or applications, including by making disclosures in accordance with the FTC Guides as further detailed in this Agreement, in rendering the Services herein.
In consideration of the payment received by Influencer from Client, the influencer hereby releases, acquits, discharges, holds harmless and agrees to indemnify client, and all client-related parties officers, directors and shareholders, heirs, executors, attorneys, insurance companies, insurance adjusters, administrators, successors and assigns, agents and employees (hereinafter “influencer”), from any and all claims, actions, causes of action, liabilities, debts, awards, judgments, sums of money, controversies, indebtedness, breaches of contract, breaches of duty of any relationships, acts, omissions, promises, agreements, representations, damages, and any demand of any type, nature, kind or description, whether in law or in equity or otherwise by reason of any matters, causes, or things, whatsoever, whether known or unknown, suspected or unsuspected, heretofore or now existing or which could, might or may be claimed to exist from the beginning of time until the date of the tasks relating to retention. It is understood and agreed that this agreement entered into to secure the services of Influencer and is applicable to all real or doubtful and disputed past, present and future claims, if any.
It is further understood and agreed that all rights under Section 1542 of the Civil Code of California and any similar law of any state or territory of the United States are hereby expressly waived. Said section reads as follows:
“Section 1542. General Release- – Claims Extinguished. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
The undersigned further acknowledges that this agreement and its reduction to final written form is the result of good faith negotiations between the parties, and involving their respective counsel.
The influencer agrees to be solely responsible for all claims, litigation and legal matters, if any, past, present or prospective, asserted by any person or entity not a party to this agreement. In the event of any legal action or proceeding of any nature instituted by any third party against the parties referenced in this agreement, the influencer agrees to defend, hold harmless, and indemnify client for all related matters including all said third party actions.
The parties to this agreement further declare and represents that no promise, inducement or agreement not herein expressed has been made, and that this agreement contains the entire agreement between the parties hereto, and that the terms of this agreement are contractual and not a mere recital.
All claims, disputes and rights under this agreement shall be determined, mediated, arbitrated and litigated in the County of LaPorte, State of Indiana.
If legal action is brought for the enforcement of this agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorney fees and other costs incurred in that action or proceeding, in addition to any other relief to which they may be entitled.
Unless authorized by Client, Influencer agrees to hold all Confidential Information in strict confidence, not to disclose Confidential Information to any third parties, and to use Confidential Information solely for the purpose of fulfilling its obligations under these Terms. “Confidential Information” shall mean all information, excluding information available from the public domain, disclosed by Client or its customers to Influencer related to these Terms or the current, future, and proposed business, products, and services of Client or its customers.
Influencer is not subject to, and will not accept, and within the 12 months prior to the Effective Date has not performed, any obligation that is inconsistent or incompatible with Influencer’s obligations under these Terms, including any obligation to perform services for any company whose goods and services compete with those of the Client. Further, Influencer acknowledges and agrees that Client’s relationships with its customers and other entities that use Client’s services (“Customers”) are of great value to Client. Accordingly, Influencer agrees that during the term of this Agreement and for one (1) year thereafter, Influencer will not directly or indirectly solicit or engage any Customer to purchase services similar to those provided by Client, other than through Client.
The initial term of these Terms shall commence on the Effective Date of the first Insertion Order executed between the parties and will continue in full force and effect until terminated as set forth herein or until completion of all Services specified in the Insertion Order(s), whichever is sooner.
Client may terminate these Terms, and or the Services under any Insertion Order(s): (i) immediately in the event of a material breach by Influencer or (ii) for convenience at any time. Influencer must return any materials supplied under these Terms upon termination.
The rights and obligations contained within the following sections: Intellectual Property, No Conflict of Interest, Non-Circumvention, Hold Harmless and Indemnification, Representations and Warranties, Confidential Information, Survival, and Miscellaneous will survive any termination or expiration of these Terms.
Influencer will not be entitled to, and hereby waives any right to seek, injunctive relief to enforce the provisions of these Terms, and Influencer’s sole remedy for any breach by Client shall be to recover monetary damages, if any, subject to the terms and conditions herein.
Influencer may not subcontract or otherwise delegate Influencer’s obligations under these Terms without Client’s prior written consent.
Subject to the foregoing, these Terms shall benefit and bind the parties’ successors and permitted assigns. Should any provisions of these Terms be held by a court of law to be illegal, invalid, or unenforceable, the legality, validity and enforceability of the remaining provisions of these Terms shall not be affected or impaired thereby.
The waiver by either party of a breach of any provision of these Terms by the other party shall not operate or be construed as a waiver of any other or subsequent breach by the other party.
Client may modify these terms or any additional terms that apply to an Influencer. It is Influencer’s responsibility to review these Terms regularly. Client will post notice of modifications to these terms on this page. Changes will not apply retroactively and will become effective no sooner than fourteen days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If Influencers does not agree to the modified Terms, Influencer may terminate its Service with Client.
If there is a conflict between these terms and the additional terms, the additional terms will control for that conflict.
The Parties understand and agree that the headings in this Agreement are included only as a matter of convenience and in no way define, limit or extend the scope of this Agreement or any of its provision.
Entire Agreement: This Agreement, and any corresponding Insertion Order(s), constitute the entire agreement between the parties in connection with the subject matter hereof and supersedes all agreements, proposals, representations and other understandings, oral or written, of the parties and any current or subsequent purchase order(s) provided by Client to Influencer.
Influencer acknowledges that it agrees to these terms and conditions, and that it waives any and all defenses with regards to physical signature of this Agreement.
