This Terms of Service Agreement (the “Agreement”) is by and between Incast, LLC a Delaware limited liability company (“Provider”), and you, or the entity you represent (“you” or “Creator”). You and Provider are collectively referred to as the “Parties” and individually as “Party.”
Unless otherwise provided in this Agreement, all capitalized terms shall have the following meanings:
1.1 “Approved Creator Content” means Creator Content that is created by Creator and approved by Provider or Provider’s customer (as applicable) in writing, or by electronic communication in accordance with this Agreement and the applicable SOW.
1.2 “Campaign” means the planned marketing activities of Provider or Provider’s customer for which Provider will perform Services, including procuring the services of Creator, as set forth in the SOW and/or a Campaign Brief.
1.3 “Campaign Brief” means the marketing campaign criteria or specifications for each of Provider’s, or Provider’s customers’ Campaigns, as applicable, including a description of the brand, information about the products or services to be promoted during the Campaign, specifications for the creation of content and guidelines, number of Posts (defined below), content review guidelines, caption and posting instructions, timelines, and selection criteria for Creator. A Campaign Brief maybe included in the SOW or may be made available by Provider separately by email or otherwise.
1.4 “Creator Content” means, including but not limited to, creative materials, audio, written text in captions and blogs, photographs, video, or other deliverables provided by Creator to Provider pursuant to the SOW and/or Campaign Brief.
1.7 “Post” means the submission of Approved Creator Content by Creator to a social media platform, blog or personal website as set forth in a SOW and/or Campaign Brief.
1.8 “Services” has the meaning given in Section 2.1 below.
1.9 “SOW” means the statement of work entered into by Creator and Provider, which includes a description of the Campaign and Services to be performed, term, prices, payment terms and any additional terms, as applicable.
2. SERVICES AND RESPONSIBILITIES.
2.1. Provider Services and Responsibilities. Subject to the execution of a SOW by you and Provider, Provider will instruct you, on behalf of Provider’s customers, in the creation, development, publishing and display of Approved Creator Content in accordance with the SOW and/or Campaign Brief. In performing such Services, Provider will:
2.1.1. Connect you to participate in the Campaign, or Campaigns, of Provider’s customers;
2.1.2. Upon approval of Creator by Provider’s customer, Provider will instruct and direct you, on behalf of its customer, in the creation and development of Creator Content in accordance with the SOW and/or the Campaign Brief, and make such Creator Content available for its customers’ approval prior to any Post thereof; and
2.1.3. Upon the approval of the Creator Content as Approved Creator Content by Provider’s customer, Provider will instruct and direct, on behalf of its customer, you to Post the Approved Creator Content in accordance with the SOW and/or the Campaign Brief.
2.1.4. Under no circumstances will you be permitted to Post of any Creator Content, unless Provider, through its customer, has expressly approved such Creator Content as Approved Creator Content.
2.2. Creator Agreement. On or before approval of any Content you create under any SOW, you must accept this Agreement in connection with the creation, development and Post of any Approved Creator Content, including, without limitation the following representations, warranties and covenants:
2.2.1. You will at all times comply with all applicable laws and regulations in the United States and the country of its residence, including the FTC Guides Concerning the Use of Endorsement and Testimonials in Advertising, which as of the Effective Date, are located at http://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf and those specifically addressing paid endorsements and sponsored promotions;
2.2.2. You will clearly and conspicuously identify yourself as a paid endorser;
2.2.3. You will not falsely state, misrepresent or conceal your affiliation with any person or entity;
2.2.4. You will not make any claims about any of Provider’s customers or the products or services they provide that are not within reasonable written guidelines provided in advance by Provider (including the Campaign Brief);
2.2.5. You will ensure that any statements, claims, opinions, or comments concerning any of Provider’s customers or the products or services they offer, is based on your true and actual experiences and do not include any falsehoods or misrepresentations about Provider’s customers, or their products or services;
2.2.6. You will ensure that the Creator Content, including any Approved Creator Content, is appropriate for audiences 13 years of age or older;
2.2.7. You will ensure that the Creator Content, including any Approved Creator Content, and Provider’s use, the use by Provider’s customer, thereof, strictly complies with the trademark, copyright and other guidelines provided by Provider and Provider’s customer as well as all applicable laws and regulations;
2.2.8. You will ensure that any Creator Content, including any Approved Creator Content, is its original creation, and as such, does not include any material that is owned, trademarked, copyrighted, protected by trade secret, or proprietary to any third party;
2.2.9. You will ensure that the Creator Content, including any Approved Creator Content, does not include any material that (i) is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, (ii) encourages conduct that would be considered a criminal offense, give rise to civil liability, (iii) violates any local, state, provincial, national, or international law, (iv) promotes activities generally understood as Internet abuse, including, but not limited to, violations of the federal CAN-SPAM Act of 2003 (15 U.S.C. 7701 et seq.), or (v) is otherwise inappropriate as determined by Provider or Provider’s customer in their sole discretion;
2.2.10. You will represent Provider, Provider’s customers, and their products and services in a positive light in all Creator Content, including Approved Creator Content;
2.2.11. You will comply with any industry-specific rules and regulations as specified by Provider and Provider’s customer in the Campaign Brief relating to the advertising of any products or services;
2.2.12. You will maintain the confidentiality of all Confidential Information (defined below) disclosed to you by Provider directly, or by Provider on behalf of Provider’s customer and use such Confidential Information and solely as permitted pursuant to this Agreement or any applicable SOW;
2.2.13. You warrant that you have all rights to grant to Provider’s customer the license below to the Creator Content, including Approved Creator Content, and with respect thereto grant to Provider’s customer and its affiliates a worldwide, non-exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free license, with rights of sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, transfer, sell, import, offer for sale and exercise and any all such rights in and to the Approved Creator Content, including permitting Provider and Provider’s customer to use Approved Creator’s name, image, likeness; and will indemnify Provider and Provider’s customer in connection therewith;
2.2.14. You will perform services in a professional and workmanlike manner, consistent with industry standards; and
2.2.15. You will permit Provider and Provider’s customer to instruct you to remove Creator Content from their social media feed and will also permit Provider and Provider’s customer to act unilaterally and without additional consent to facilitate the removal of such Creator Content.
2.2.16. Provider’s customer (as identified in the applicable SOW or Campaign Brief) shall be a third-party beneficiary to this Agreement, and shall be entitled to enforce of its right hereunder.
2.2.17. In the event Provider discovers any Creator Content in violation of the above, Provider shall notify its customer and use its best efforts to have you remove the such Creator Content from your social media feed. Provider reserves the right to act unilaterally and without additional consent to facilitate the removal of such Creator Content.
2.2.18. Provider’s customer, in its discretion, may communicate directly with you in connection with any initial communications and providing feedback on any Creator Content that is provided to Provider’s customer for review and approval.
2.3. Relationship of Provider and Creator. Notwithstanding the above, the Parties agree that Creator is providing services as an independent contractor and no employment relationship of any kind is created by this Agreement, or any applicable SOW.
2.4. Provider’s Responsibilities. Upon execution of a SOW for a Campaign, Provider will: (i) use commercially reasonable efforts to approve any Creator Content as Approved Creator Content in the timeframe identified in the SOW or Campaign Brief or otherwise with a reasonable time period; and (ii) use commercially reasonable efforts to monitor its Campaign and notify Creator in the event that Provider discovers Creator Content in violation of Section 2.2.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS.
3.1. Confidential Information. Each Party understands that the other Party may disclose non-public business, technical or financial information relating to the disclosing Party or other information that is identified as confidential or that should reasonably be understood to be confidential (“Confidential Information”). For clarity, Confidential Information includes non-public data provided by Provider’s customers to Provider and Creator to enable the provision of the Services, including marketing plans, product information, and campaign information, including the Campaign Brief (“Customer Data”). The receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. Confidential Information shall not include information that the receiving Party can document (a) is or becomes generally available to the public due to no fault of receiving Party, (b) was in its possession or known by it without restriction prior to receipt from the disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Confidential Information received from the disclosing Party. Additionally, receiving Party may disclose Confidential Information received from disclosing Party if it is required to do so pursuant to applicable law or an order of a court with competent jurisdiction; provided, however, receiving Party gives disclosing Party prior written notice thereof (if allowed by the applicable law or court order), provides disclosing Party with reasonable assistance in contesting such disclosure requirement (at disclosing Party’s expense) and limits any disclosure to the minimum extent required by such law or court order, in the reasonable opinion of its counsel.
3.2. Customer Data and Materials; Customer Materials License. Provider’s customer shall own all right, title and interest in and to the Customer Data. For clarity, Customer Data may also include content directly supplied by Provider’s customer to Provider or to you for the sole purpose of providing the Services; provided however, “Customer Data” does not include Provider’s customer’s (as identified in the applicable SOW or Campaign Brief) name, its logo, or its other marks and these should not be used without Provider’s customer’s express prior consent. Except as set forth herein, no rights or licenses are being granted by Provider or Provider’s customer to Creator and Provider’s customer and its affiliates reserve all rights not expressly granted under this Agreement.
4. PAYMENT OF FEES.
Provider shall pay Creator the fees set forth in the SOW for the Services (“Fees”). Provider shall pay all such Fees within thirty (30) days after Provider’s receipt of fees from Provider’s customer. All payments shall be made in US dollars. All payments and prices due to Creator under this Agreement shall be inclusive of all taxes, duties, levies, tariffs and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”), and Creator shall be responsible for any and all Taxes (including any related interest and penalties) resulting from any payments made hereunder. If Provider is required to deduct or withhold Taxes from any payments made to Creator and remit such Taxes to the local taxing jurisdiction, then Provider shall have the right to withhold and remit such Taxes and pay to Creator the remaining net amount after the Taxes have been withheld.
5. TERM AND TERMINATION.
Unless earlier terminated, the term of this Agreement shall begin on the date this Agreement is accepted by you (the “Effective Date”) and continue for the term of the applicable SOW. Provider may terminate this Agreement immediately if Creator materially breaches any of the terms or conditions of this Agreement and such breach remains uncured. Except for a termination of this Agreement by Provider for a breach by Creator, Provider will pay fees for Services performed up until the termination date. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, indemnification, limitations of liability, arbitration, non-circumvention, and governing law.
Creator will defend, indemnify, and hold harmless Provider, and each of its affiliates and representatives from all losses, damages, claims, liabilities, fees, costs, and expenses (including reasonable attorneys’ fees) resulting from Creator’s breach of this Agreement. Provider may participate in any such defense. Creator shall not settle or otherwise dispose of any such action in any way that imposes fault or liability of any kind on Provider without Provider’s prior written consent.
7. DISCLAIMER; LIMITATION OF LIABILITY.
THE CUSTOMER DATA IS PROVIDED ON AN “AS IS” BASIS AND PROVIDER AND PROVIDER’S CUSTOMER EXCLUDES ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PROVIDER SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PROVIDER’S AGGREGATE LIABILITY FOR CLAIMS ARISING UNDER THIS AGREEMENT SHALL NOT EXCEED THE DOLLAR VALUE OF THE CONSIDERATION PAID OR PAYABLE TO PROVIDER UNDER A SOW.
8. GENERAL PROVISIONS.
8.1. Independent Contractor; No Employee Benefits. Notwithstanding any provision hereof, Creator is an independent contractor and not an employee, agent, partner or joint venturer of Provider or any affiliate and shall neither bind nor attempt to bind Provider or any affiliate to any contract. Creator shall be solely responsible for the manner and hours in which the Services are performed under this Agreement. Creator shall not be eligible to participate in any of Provider’s employee benefit plans, fringe benefit programs, group insurance arrangements or similar programs. Provider will not provide to Creator any workers’ compensation, disability insurance, Social Security or unemployment compensation coverage or any other statutory benefit.
8.2. Assignment. This Agreement and the Services contemplated hereunder are personal to Creator, and Creator shall not assign, transfer or subcontract any rights or obligations under this Agreement without the prior written consent of Provider. Any attempt to do so shall be void. Provider may fully assign and transfer this Agreement in whole or part.
8.3. Notice. All notices under this Agreement, except for those explicitly allowed by email above, shall be in writing and shall be deemed given when personally delivered, or three (3) days after being sent by prepaid certified or registered U.S. mail to the address of the Party to be noticed as set forth herein or to such other address as such Party last provided to the other by written notice.
8.4. Arbitration. Any controversy or claim (except those regarding Confidential Information or intellectual property) arising out of or relating to this Agreement, or the breach thereof, shall be settled exclusively by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof; provided however, that each Party will have a right to seek injunctive or other equitable relief in a court of law for any breach of Section 3 herein. The arbitration shall take place exclusively in Los Angeles County, California.
8.5. Non-Circumvention. During the Term of this Agreement, and for a period of twelve (12) months after the termination of this Agreement, you will not enter into any contract whatsoever with any of Provider’s customers without Provider’s express consent. You recognize that any breach of this Section 8.5 may give rise to irreparable injury to Provider. In addition to any other legal remedies that may be available to Provider, you hereby agree that Provider shall be entitled to seek and obtain injunctive relief against the breach or threatened breach of your obligations under this Section 8.5.
8.6. Miscellaneous. The failure of either Party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. 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. Headings herein are for convenience of reference only and shall in no way affect interpretation of this Agreement.