The services provided by Influencer are subject to these Influencer Terms and Conditions (the “Terms”). To the extent these Terms are inconsistent with any SOW or other document, agreement, purchase order or understanding between the parties, these Terms shall govern.
1. Definitions.
1.1 For the purposes of these Terms, the following terms have the meaning ascribed to them below:
1.1.1. “Advertiser” refers to the Agency client or customer for whom Agency is acting as agent.
1.1.2. “Agency” refers to Moroch Partners, Inc. and/or any of its affiliates, as shown in the SOW.
1.1.3. “Agreement” refers to the SOW, together with these Terms.
1.1.4. “Influencer” refers to the company, organization, or individual providing services to Agency under the SOW.
1.1.5. “Service(s)” refers to each of the services, individually and collectively, as set forth in the SOW.
1.1.6. “SOW” refers to the Statement of Work governing the provision of Influencer’s services to Agency on behalf of any Advertiser named therein.
1.2 Capitalized terms not defined in Section 1.1 have the meanings set forth in the section in which they are defined.
2. Services.
2.1 Work performed by the Influencer on behalf of Agency prior to the signing of the SOW shall be incorporated and become a part of these Terms.
2.2 Influencer will perform Services described the SOW. The Services include 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 these Terms (collectively, the “Content”). The SOW will be considered a separate agreement which incorporates these Terms.
2.3 Agency enters into all SOWs as agent for the Advertiser named therein and all rights conferred unto the Agency in these Terms shall extend to such Advertiser.
3. Compensation. Full compensation shall be as stated in the SOW. Influencer will not receive any royalties or residuals and Influencer is solely responsible for all personal costs incurred in connection with the Services. Influencer will prepare and submit invoices to Agency within thirty (30) days of completion of each campaign or project element. Invoices are to be billed in US dollars (USD) and are payable within thirty (30) days of receipt by Agency.
4. Independent Contractor. Influencer performs the Services as an independent contractor. Influencer is not an agent or employee of the Agency or any Advertiser(s), nor is Influencer entitled to any employee benefits. Influencer will pay, when and as due, any and all taxes incurred as a result of Influencer’s compensation, and Influencer indemnifies the Agency and any Advertiser(s) for any claims, losses, costs, fees, liabilities, damages, or injuries incurred by the Agency or Advertiser(s) arising out of Influencer’s breach of this Section.
5. Term and Termination. These Terms continue in force until the expiration, cancellation, or termination of the Service Term. The Service Term commences on the start date indicated on the SOW (or, if no start date is indicated, upon Agency’s receipt of the signed SOW) and remains in effect until the Services have been rendered and payment of all amounts due in respect of the Services is paid in full (“Service Term”). Agency may terminate any SOW with or without cause, effective immediately upon notice to Influencer. In the event of termination, Agency will pay Influencer for Services rendered to the date of termination as provided in the applicable SOW.
6. Representations and Indemnities.
6.1 Influencer agrees to comply with all applicable laws and regulations, as amended, including all FTC rules, regulations and disclosure requirements found at https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking#about. Influencer also agrees to comply with all rules and requirements for any social media sites used.
6.2 Influencer warrants that all content will be original works and will not infringe upon or violate any copyright, trademark or other intellectual property right of any third party. Influencer also warrants that all required releases, if applicable, have been obtained. Influencer will not submit duplicate work product to Advertiser or to other agencies or advertisers and may not submit work product to the Agency that has already been utilized in any form.
6.3 Influencer indemnifies Agency, including its parent company and any of its affiliates, subsidiaries, officers, employees, directors, managers, shareholders, members and the applicable Advertiser(s) (“Indemnified Parties”), from and against all allegations, claims, actions, suits, demands, damages, obligations, liabilities, losses, settlements, judgments, costs and expenses, (including, without limitation, attorneys’ fees and costs), arising out of or related to any breach of these Terms or other act or omission of Influencer.
7. Ownership/License.
7.1 Ownership and licensing of Influencer Content shall be as shown in the SOW.
7.2 The Agency, on behalf of the Advertiser, 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 Agency or the applicable Advertiser in connection with the SOW, in the form and manner specifically described in the SOW, or otherwise approved for use (collectively, the “Advertiser Works”), solely as necessary to perform its obligations hereunder and only during the term of each applicable SOW. For the avoidance of doubt, Influencer may only use the Advertiser Works in the form and format provided or approved by the Agency 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 these Terms, 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.
8. Confidentiality. Information concerning the Agency’s and/or any applicable Advertiser’s business affairs, vendors, finances, properties, methods of operation, computer programs, employees, documentation, and other such information whether written, oral, or otherwise, is confidential in nature (“Confidential Information”). All Confidential Information disclosed by the Agency to the Influencer shall be treated by the Influencer as confidential and shall be maintained by the Influencer in confidence and shall not be disclosed to anyone in any form without the prior written consent of the Agency. The Confidential Information shall not be used by the Influencer other than in connection with the terms of these Terms. The following shall not be deemed to constitute Confidential Information and shall not be subject to the restrictions set forth in these Terms: i) information that has entered or subsequently enters the public domain without Influencer’s breach of any obligation under these Terms; ii) information that was known to Influencer prior to the Agency’s disclosure of such information to Influencer; iii) information which is obtained from a third party without violation of an obligation of nondisclosure; and/or iv) information that is independently developed by Influencer without reference to the Confidential Information.
9. Non-Disparagement. During the Term of these Terms and for a period of two (2) years after termination for any reason, Influencer shall not, through any form of communication with the press, public, clients or media, disparage the Agency or any Advertiser(s) named in any SOW in any way. For purposes of this Section, “disparage” shall mean any negative statement, whether written or oral, critiques, derogatory statements, ridicule, slander, jokes, or insults at the expense of any of the aforementioned parties. Influencer understands that forms of communication include but are not limited to social media websites, blogs, vlogs, public forums, interviews, or recorded statements. The parties agree and acknowledge that this non-disparagement provision is a material term of these Terms, the absence of which would have resulted in the Agency refusing to enter into the SOW with Influencer. The Influencer agrees that Agency and Advertiser will be entitled to injunctive relief as provided in Section 14 below in addition to any actual damages.
10. Governing Law/Venue. These Terms shall be interpreted, enforced, and governed under the laws of the State of Texas excluding principles of conflicts of law. The parties agree that any action related to these Terms shall be brought in a court of competent jurisdiction located in Dallas, Texas.
11. Entire Agreement. These Terms contains the entire agreement between Influencer and the Agency concerning the matters covered in it, with the exception that these Terms shall be in addition to any SOWs and/or confidentiality agreements entered into between Influencer and the Agency relating to Influencer’s work on specific Advertiser accounts and/or Influencer’s access to Confidential Information of specific Advertisers. Where any provision of these Terms conflicts with the provisions of any other such Advertiser-specific agreements, the agreements shall be read together to offer the most protection to the Agency’s and the Advertiser’s Confidential Information. Any modification or amendment to these Terms must be in a writing signed by the parties. If any provision of these Terms is found to be unenforceable, the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximate to the intention of the parties as expressed herein.
12. Breach/Waiver. If any party to these Terms waives a breach of one of the provisions of these Terms by any other party, that waiver shall neither operate nor be construed as a waiver of any subsequent similar breach of any provision hereof.
13. Notices. Any notice given hereunder must be (i) given in writing and (ii) personally delivered or sent via a prepaid, recognized courier service, or transmitted by Email, to the intended recipient at its address specified below. Any such notice shall be deemed effective (i) upon receipt when personally delivered, (ii) three (3) business days after deposit to a reputable overnight delivery service, or (iii) the day such notice or communication is sent electronically, provided that the sender has received a confirmation of such electronic transmission. Either party may from time to time change its address by giving the other party notice of the change in accordance with this Section.
If to Agency:
Moroch Partners, Inc.
3625 N. Hall Street, #1100
Dallas, TX 75219
Attn: Chief Financial Officer
With a copy via Email to: legal@moroch.com
If to Influencer:
To the address shown on any Vendor Setup Form provided by Influencer.
14. Remedies. Each party acknowledges that the breach or threatened breach of Sections 6-9 above would likely cause immediate and irreparable harm to the non-breaching party, and therefore, in addition to any other remedies which may be available, the non-breaching party may seek and obtain injunctive relief against any breach or threatened breach without prejudice to any other remedies which may be available to the non-breaching party and without any requirement to post bond.
15. Survival. Sections 6 – 15 shall survive the termination of these Terms.
Terms Version: 08.01.2020
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