This Influencer Agreement (this “Agreement”) is entered into digitally by (the “Influencer”) and InfluenceLogic LLC (the “Agency”).
1. Engagement. The Agency engages the efforts of the Influencer on behalf of Agency’s client (the “Advertiser”) to promote the Advertiser’s products or services in the Influencer’s social media accounts or, where relevant to the products or services or the intended target audiences for them, on the social media accounts or platforms of others, for the particular products or services identified in the Statement of Work (the “Services”). Influencer will devote to the best of his/her ability such time, attention, experience and energy to the engagement as necessary to accomplish the Services to the Agency’s and Advertiser’s satisfaction.
2. Term. This Agreement will have an initial term of one (1) year from the date of execution, unless terminated by one of the parties according to Section 4 of this Agreement (the “Term”), or extended by mutual agreement of the parties to complete the services identified in a subsequent Statement of Work.
3. Quality of Influencer Services. The Influencer’s Services will conform to the specifications and instructions of the Agency as outlined in detail in the Statement(s) of Work, abide by the rules of the relevant social media platforms, and are subject to the Advertiser’s acceptance and approval. The Influencer will promptly comply with any instruction from the Agency to correct or remove any content generated in performance of the Services that is deemed to be noncompliant with Advertiser ‘s guidelines, or in violation of any social media platform policy, regulation or law, as determined at Advertiser’s or Agency’s sole discretion.
The Influencer also agrees that all materials (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party, and (iii) do not contain or link to any material which is harmful, threatening , defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that the Advertiser or Agency informs the Influencer that it considers objectionable (collectively, “Objectionable Content”).
The Influencer further agree that the Influencer will not make any representations, warranties or other statements concerning the Advertiser or Agency or any of their respective products or services, except as expressly authorized herein.
The Influencer will not place the Advertiser or Agency ads through any paid search mechanisms.
It will not make any representations, warranties or other statements concerning the Advertiser or Agency or any of their respective products or services, except as expressly authorized herein.
The Influencer is expressly prohibited from using any persons, means, devices, or arrangements to commit fraud, violate any applicable law, interfere with other partners, or falsify information in connection with referrals through the Links or the generation of commissions or exceed the Influencer’s permitted access to the Services. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing, and other deceptive acts or click-fraud. The Agency shall make all determinations about fraudulent activity at its sole discretion.
The Influencer must strictly comply with the federal CAN-SPAM Act of 2003 (the “Act”). All emails sent in connection with the Services must include the appropriate party’s opt-out link. From time to time, the Advertiser or Agency may request – prior to the Influencer’s sending emails containing linking or referencing the Services that the Influencer submits the final version of the Influencer’s email to the Agency for approval by sending it to the Influencer’s Agency representative and upon receiving written approval from the Agency of the Influencer’s email the email may be transmitted to third parties.
It is solely the Influencer’s obligation to ensure that the email complies with the Act. Influencer agrees not to rely upon the Agency or Advertiser’s approval of the Influencer’s email for compliance with the Act or assert any claim that the Influencer is in compliance with the Act based upon the Agency or Advertiser’s approval.
4. Termination. Each party will have the right, at their option, to terminate this Agreement subject to a one (1) day notice to the other party. Agency will have the right to immediate termination if Influencer commits any act or does anything that is or will be an offense involving moral turpitude under Federal, state or local laws, or which brings Agency, Advertiser, or Influencer into public disrepute, contempt, or scandal, or which insults or offends the community or any substantial organized group to the extent likely to injure the success of Agency, Advertiser, or any of Advertiser’s Products or Services.
In the event that the Influencer has breached this Agreement, the Agency may (i) immediately suspend, limit, or terminate the Influencer’s access to any Agency or Advertiser social media channel, platform, or account.
The Agency or Advertiser can request the Influencer to cease and/or remove all promotional activities or make clarifying statements on any relevant social media channels, platforms or accounts of the Influencer, Advertiser, or Agency, and the Influencer will immediately comply.
5. Influencer Content Guidelines. Influencer will read and adhere to the guidelines and prohibited conduct set forth in future statements of work signed on a deal by deal basis.
6. Content Origination and Approval. The Influencer will verify that all content generated in the performance of the Services meets Advertiser’s guidelines and requirements. All content must be reviewed by Agency or, at the Agency’s discretion, for accuracy and approval prior to publication.
7. Confidentiality. During the Influencer’s performance of services for the Advertiser, the Influencer will receive, have access to documents, records, and information and create content of a confidential and proprietary nature to the Agency and/or the Advertiser. The Influencer understands that “Confidential Information” means any proprietary information (including third-party information) provided by Agency or Advertiser, such as technical data, trade secrets, or know-how, including but not limited to: databases, reports, publications, illustrations, software, research, product plans, products, services, customer lists, and customers (including but not limited to: customers of Advertiser on whom the Influencer called or with whom the Influencer became acquainted during the Term), markets, and other business information disclosed to Influencer by Agency or Advertiser either directly or indirectly in writing or verbally. The Influencer acknowledges and agrees that such information is an asset of the Agency or its clients, is not generally known to the trade, is of a confidential nature and, to preserve the goodwill of the Agency and its clients must be kept strictly confidential and used only in the performance of the Influencer’s duties under this Agreement. The Influencer agrees that he/she will not use, disclose, communicate, copy or permit the use or disclosure of any such information to any third party in any manner whatsoever except to the existing employees of the Advertiser or as otherwise directed by the Agency during the Influencer’s performance of services under this Agreement, and thereafter only with the written permission of the Advertiser. Upon termination of this Agreement or upon the request of the Agency, the Influencer will return to the Agency all the confidential information, and all copies or reproductions thereof, which are in Influencer’s possession or control.
8. Compensation. In full consideration of the Influencer’s performance, his/ her obligations and the rights granted herein, the Influencer will be paid the amount agreed as described in the agreed upon Statement of Work. The Influencer will otherwise perform the services at his/her own expense and use his/her own resources and equipment.
9. Influencer Compliance with Disclosure Guidelines. Influencer will comply with all applicable social media disclosure guidelines, including without limitation any such guidelines set forth by a particular social media platform, by the U.S. Federal Trade Commission (“FTC”), or by any additional industry regulations or laws.
10. Payment Terms. Payment will be made on a deal-by-deal basis detailed in any future agreed upon Statements of Work.
11. Payment on Termination. If this Agreement is terminated by Agency under paragraph 4 above, Agency will only be obligated to pay Influencer for services rendered and expenses incurred prior to the date of termination.
12. Equitable Relief. Influencer agrees that a failure by Influencer to comply with federal or state laws or regulations, Agency’s or Advertiser’s instruction to cease or remove promotional activities or make clarifying statements, or comply with the confidentiality provisions contained herein shall cause Agency and Advertiser irreparable harm for which monetary damages would not be adequate compensation. Accordingly, Influencer agrees that should Influencer fail to perform such obligations, Agency or Advertiser will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, or any other relief that may be available from any court, in addition to any other remedy to which Agency or Advertiser may be entitled to at law or in equity, to prevent the continuance of such failure or to prevent Influencer from the continual breach of this Agreement.
13. Representations and Warranties. Influencer represents and warrants (i) that Influencer has no obligations, legal or otherwise, inconsistent with the terms of this Agreement or with Influencer’s undertaking this relationship with Agency on behalf of Advertiser, (ii) that the performance of the services called for by this Agreement do not and will not violate any applicable law, rule or regulation or any proprietary or other right of any third party, (iii) that Influencer will not use in the performance of his responsibilities under this Agreement any confidential information or trade secrets of any other person or entity, (iv) that Influencer will comply with all applicable laws, regulations, orders and ordinances in rendering the services provided for herein, including, but not limited to, all regulations and guidelines related to social media claims, endorsements and testimonials, (v) that Influencer has read and shall comply with all of the terms of the this agreement; (vi) that all content generated by the Services (save and except any materials, if any, supplied by the Agency or Advertiser) will be the original work and creation of Influencer and will not infringe the rights (including without limitation, any intellectual property rights) of any third party, (vii) that Influencer has the right and authority to enter into this Agreement without violating the rights of any third party and has not entered into or will enter into any agreement (whether oral or written) in conflict with this Agreement.
14. Indemnification. Influencer hereby indemnifies and agrees to defend and hold harmless Agency and Advertiser from and against any from any third party or regulatory or governmental claims, demands and actions, and any liabilities, damages or expenses resulting therefrom, including court costs and attorneys’ fees, arising out of or relating to the services performed by Influencer under this Agreement or a breach of the representations and warranties made by Influencer pursuant to Section 13 hereof. Agency will promptly notify Influencer in writing of any claim to which the indemnity applies and Influencer will have the right to participate in the defense of such claim with counsel of lnfluencer’s choice. Influencer’s obligations under this Section 14 hereof will survive the termination, for any reason, of this Agreement.
15. Force Majeure. If either party is unable to perform any of its obligations by reason of fire or other casualty, strike, act or order of public authority, act of God, pandemic, local, state
or national government shutdown, or other cause beyond the control of such party, then such party will be excused from such performance during the pendency of such cause.
16. Independent Contractor. The Influencer is retained as an independent contractor of
the Agency. The Influencer acknowledges and agrees that (i) The Influencer is solely responsible for the manner and form by which the Influencer performs under this Agreement, and (ii)
The Influencer is a self-employed individual, who performs services as described in the Statement of Work for various entities and individuals other than the Agency. The Influencer is responsible for the withholding and payment of all taxes and other assessments arising out of the Influencer ‘s performance of services, and neither the Influencer nor any of the Influencer’s employees or independent clients will be entitled to participate in any employee benefit plans of the Agency.
17. Miscellaneous. This Agreement represents the entire agreement between the
parties concerning the subject matter herein and will be governed by and construed in accordance with the laws of the State of Arizona, without giving effect to its conflict of laws provisions.
This Agreement may only be modified or assigned by a written document signed by both parties.
In the event of any action, suit or proceeding arising from or based upon this Agreement brought by either party hereto against the other, the prevailing party will be entitled to recover from the other its reasonable attorneys’ fees in connection therewith in addition to the costs of such action, suit or proceeding. This agreement may be executed and distributed in one or more counterparts, including by facsimile or electronic transmission, all of which taken together will constitute a single agreement and will be deemed an original.
DATA SECURITY AND PROTECTION
(a) “Authorized Employees” means Influencer’s employees who have a need to know or otherwise access Personal Information or Highly Sensitive Personal Information to enable Influencer to perform its obligations under this Data Usage Agreement.
(b) “Authorized Persons” means (i) Authorized Employees; and (ii) Influencer’s contractors, agents, own service providers, who have a need to know or otherwise access Personal Information/ Highly Sensitive Personal Information to enable Influencer to perform its obligations under this Data Usage Agreement, and who are bound in writing by confidentiality and other obligations sufficient to protect Personal Information/ Highly Sensitive Personal Information in accordance with the terms and conditions of this Data Usage Agreement.
(c) “Highly Sensitive Personal Information” means an (i) individual’s government-issued identification number (including Social Security number, driver’s license number, or state-issued identification number); (ii) financial account number, credit card number, debit card number, or credit report information, with or without any required security code, access code, personal identification number, or password that would permit access to an individual’s financial account; or (iii) biometric, genetic, health, medical, or medical insurance data.
(d) “Personal Information” means information provided to Influencer by or at the direction of Advertiser, information which is created or obtained by Influencer on behalf of Advertiser, or information to which access was provided to Influencer by or at the direction of Advertiser that: (i) identifies or can be used to identify an individual (including, without limitation, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers that could identify an individual consumer, family, or device over time and across services, including but not limited to, IP addresses; cookies, beacons, pixel tags, mobile ad identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, health, genetic, medical, or medical insurance data, answers to security questions, and other personal identifiers), in case of both subclauses (i) and (ii), including, without limitation, all Highly Sensitive Personal Information. Advertiser’s business contact information is not by itself deemed to be Personal Information. For the avoidance of doubt, any personal information that is collected on or through Influencer’s servers or networks is fully owned by Influencer and does not include in the definition of Personal Information.
(e) “Security Breach” means (i) any act or omission that compromises either the security, confidentiality, or integrity of Personal Information and Highly Sensitive Personal Information or the physical, technical, administrative, or organizational safeguards put in place by Influencer or any Authorized Persons, or by Advertiser should Influencer have access to Advertiser’s systems, that relate to the protection of the security, confidentiality, or integrity of Personal Information, or (ii) receipt of a complaint in relation to the privacy and data security practices of Influencer (or any Authorized Persons) or a breach or alleged breach of this Data Usage Agreement relating to such privacy and data security practices. Without limiting the foregoing, compromise shall include any unauthorized access to or disclosure, or acquisition of Personal Information or Highly Sensitive Personal Information.
1. Standard of Care.
(a) Influencer acknowledges and agrees that, in the course of its engagement by Advertiser, Influencer may create, receive, or have access to Personal Information and/or Highly Sensitive Personal Information. Influencer shall comply with the terms and conditions set forth in this Agreement in its creation, collection, receipt, transmission, storage, disposal, use, and disclosure of such Personal Information and Highly Sensitive Personal Information and be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information and Highly Sensitive Personal Information under its control or in its possession by all Authorized Employees/Authorized Persons. Influencer shall be responsible for, and remain liable to, Advertiser for the actions and omissions of all Authorized Persons that are not Authorized Employees concerning the treatment of Personal Information as if they were Influencer’s own actions and omissions.
(b) Personal Information is deemed to be Confidential Information of Advertiser and is not Confidential Information of Influencer. In the event of a conflict or inconsistency between this Section and the confidentiality/compliance with laws sections of the applicable Services Agreement, the terms and conditions set forth in this Section shall govern and control.
(c) In recognition of the foregoing, Influencer agrees and covenants that it shall:
(i) keep and maintain all Personal Information and Highly Sensitive Personal Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use, or disclosure;
(ii) not create, collect, receive, access, or use Personal Information and Highly Sensitive Personal Information in violation of law;
(iii) when requesting, using or disclosing Personal Information and/or Highly Sensitive Personal Information in accordance with this Agreement and/or Services Agreement, that such request, use or disclosure shall be to the minimum extent necessary to accomplish the intended purpose of such request, use or disclosure;
(iv) not, directly or indirectly, disclose Personal Information and Highly Sensitive Personal Information to any person other than its Authorized Employees/ Authorized Persons, including any, subcontractors, agents, its own service providers or auditors (an “Unauthorized Third Party”), without Advertiser’s prior written consent unless and to the extent required by Government Authorities or as otherwise, to the extent expressly required, by applicable law, in which case, Influencer shall (A) use best efforts and to the extent permitted by applicable law notify Advertiser before such disclosure or as soon thereafter as reasonably possible but no later than forty eight (48) hours after disclosure; (B) be responsible for and remain liable to Advertiser for the actions and omissions of such Unauthorized Third-Party concerning the treatment of such Personal Information as if they were Influencer’s own actions and omissions; and (C) require the Unauthorized Third Party that has access to Personal Information to execute a written agreement agreeing to comply with the terms and conditions of this Data Usage Agreement relating to the treatment of Personal Information.
2. Appropriate Safeguards.
(a) Influencer represents and warrants that its creation, collection, receipt, access, use, storage, disposal, and disclosure of Personal Information and Highly Sensitive Personal Information does and will comply with all applicable federal and, state, and foreign privacy and data protection laws, as well as all other applicable regulations and directives.
(b) Without limiting Influencer’s obligations under Section 3(a), Influencer shall implement administrative, physical, and technical safeguards to protect Personal Information and Highly Sensitive Personal Information from unauthorized access, acquisition, or disclosure, destruction, alteration, accidental loss, misuse, or damage that are no less rigorous than accepted industry practices and shall ensure that all such safeguards, including the manner in which Personal Information Highly Sensitive Personal Information, is created, collected, accessed, received, used, stored, processed, disposed of, and disclosed, comply with applicable data protection and privacy laws, as well as the terms and conditions of this Data Usage Agreement.
(c) At a minimum, Influencer’s safeguards for the protection of Personal Information and Highly Sensitive Personal Information shall be in accordance with any applicable law.
3. Security Breach Procedures.
(a) Influencer shall:
(i) provide Advertiser with the name and contact information for an employee/security operations or other service desks of Influencer who shall serve as Advertiser’s primary security contact and shall be reasonably available to assist Advertiser in resolving obligations associated with a Security Breach;
(ii) notify Advertiser of a Security Breach as soon as practicable, but no later than forty-eight (48) hours after Influencer becomes aware of it; and
(iii) notify Advertiser of any Security Breaches by emailing Advertiser at email@example.com with a copy by email to Influencer’s primary business contact within Advertiser.
(b) Immediately following Influencer’s notification to Advertiser of a Security Breach, the parties shall coordinate with each other to investigate the Security Breach. Influencer agrees to reasonably cooperate with Advertiser in Advertiser’s handling of the matter, including, without limitation making available all relevant records, logs, files, data reporting, and other materials required to comply with applicable law, regulation, industry standards, or as otherwise reasonably required by Advertiser.
(c) In the event of any Security Breach, Influencer shall promptly use its reasonable efforts to prevent a recurrence of any such Security Breach and mitigate, to the extent practicable, any harmful effect that is known to Influencer as a result of a use or disclosure in violation of this Data Usage Agreement’s requirements
4. Breach Reporting. Within fourteen (14) business days of reporting the potential Security Breach, provide a report that shall include the identification of each individual whose Highly Sensitive Personal Health Information has been, or is reasonably believed by Influencer, to have been, accessed, acquired, used or disclosed during any such potential Breach, together with such other information regarding the potential Breach as is known to Influencer at the time such report is made (such as the type of information involved in the event, the nature of the information accessed, acquired or disclosed, etc.) or as promptly thereafter as such other information becomes available.
5. Return or Destruction of Personal Information. At any time during the term of this Data Usage Agreement at Advertiser’s written request or upon the termination or expiration of the applicable Services Agreement for any reason, Influencer shall, and shall instruct all Authorized Employees/Authorized Persons to, promptly return to Advertiser all copies, whether in written, electronic, or other form or media, of Personal Information and Highly Sensitive Personal Information in its possession or the possession of such Authorized Employees/Authorized Persons, or securely dispose of all such copies, and certify in writing to Advertiser that such Personal Information has been returned to Advertiser or disposed of securely. Influencer shall comply with all directions provided by Advertiser with respect to the return or disposal of Personal Information. Influencer shall also provide an accounting of disclosures of Highly Sensitive Personal Information to Advertiser when it is requested. Notwithstanding the foregoing. Influencer may retain copies of Personal Information made as a matter of routine information technology backup in accordance with established record retention policies or in accordance with Influencer’s legal and compliance practices.
6. Assistance responding to individual Request (under the California Consumer Privacy Act “CCPA”). Influencer shall assist Advertiser in fulfilling its obligations under the CCPA to respond to individual client requests related to their Personal Information, including by promptly fulfill requests to access or delete relevant Personal Information.
7. Equitable Relief. Influencer acknowledges that any breach of its covenants or obligations set forth in Data Usage Agreement may cause Advertiser irreparable harm for which monetary damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, Advertiser is entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which Advertiser may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Data Usage Agreement to the contrary.
8. Material Breach. Influencer’s failure to comply with any of the provisions of this Agreement is a material breach of the applicable Services Agreement. In such event, Advertiser may terminate the Services Agreement effective immediately upon written notice to the Influencer without further liability or obligation to Influencer.
9. Indemnification. Influencer shall defend, indemnify, and hold harmless Advertiser and Advertiser’s parent company and their subsidiaries, affiliates, and their respective officers, directors, employees, agents, successors, and permitted assigns (each, a “Advertiser Indemnitee”) from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers, arising out of or resulting from any third-party claim against any Advertiser Indemnitee arising out of or resulting from Influencer’s failure to comply with any of its obligations under this Data Usage Agreement.