This marketing and sales agreement is between Auviso Inc., a Delaware corporation (“Company”), and the person or entity accepting this agreement (each, “Influencer”), either by clicking a box indicating Influencer’s acceptance, by executing an order form or other writing that references this agreement, or by using the Services (defined below). If another party is accepting this agreement on behalf of Influencer, such party represents and warrants that such party has authority to do so.
Influencer’s acceptance of this agreement means that Influencer agrees with the terms and conditions of this agreement and the standard terms and conditions of all other websites, software applications, and systems and networks of the Company associated therewith (collectively, “Platform”), as such may be amended from time to time(“Standard Terms”). Capitalized terms used but not defined herein have the respective meanings ascribed to such terms in the Standard Terms.
This agreement governs Influencer’s engagement of the Company to provide the Services and Influencer’s participation in the Company’s marketing and advertising programs relating to the Services which are accessible through the Platform and the user account made available to Influencer in connection therewith.
1. Definitions. As used herein, the following terms have the following meanings:
“Advertisement” means text, graphics, audio, audio-visual, motion graphics, interactive, or rich media advertising materials; elements or specifications of either of the foregoing; or compensated placements, endorsements, or sponsorships relating to the products and services of others.
“Advertiser” means the person or entity providing an Advertisement (whether directly or indirectly through an advertising agency or other third party), purchasing Inventory, or both of the foregoing.
“Content” means digital media content created, produced, or licensed by Influencer which is linked to Influencer’s user account for the Platform, such content including websites, blog posts, social media posts, streaming video, and podcasts.
“Inventory” means, with respect to the Content, advertising space, sponsorship opportunities, or other features of the Content in or with which Advertisements may be placed or otherwise featured.
“Services” means marketing and selling Inventory and all other services of Company offered in connection therewith and provided through the Platform, including consulting and data aggregation and analytics services.
2. Engagement; Authorization. Influencer hereby engages the Company to provide the Services.Influencer hereby authorizes the Company to sell the Inventory; access, index, copy, and otherwise use the Content in any manner to provide the Services; and undertake all other actions required or appropriate to provide the Services.
3. Term. This agreement is effective as of the date Influencer accepts this agreement and will continue until terminated in accordance with the provisions hereof. Either party may terminate this agreement at any time, for any reason or no reason, by sending 30 days’ written notice of termination to the other party.
4. Revenue Share. The Company will collect all proceeds from each sale of Inventory by the Company (“Sale”). The Company shall pay to Influencer an amount equal to the Net Cost of the corresponding Sale (“Influencer Payment”) by electronic funds transfer to an account designated by Influencer. Except as otherwise stated in this agreement, the Company will use commercially reasonable efforts to pay Influencer Payments within 30 days of the date the Company receives payment from the Advertiser for the corresponding Sale. Influencer will not be entitled to any payment from the Company under this agreement other than the Influencer Payment. The Company will retain the remainder of any Sale proceeds relating to its performance hereunder. “Net Cost” means, with respect to any Inventory, the product of (x) the price of such Inventory established by Influencer, multiplied by (y) 80%, minus (z)minus the total amount of any Processing Expenses (defined below). “Processing Expenses” means theCompany’s payment processing expenses, vendor expenses, and other direct expenses incurred by the Company in connection with a Sale.
5. Order Notices; Approval. If the Company receives an order for a Sale (“Order Notice”), the Company will notify Influencer through the messaging features of the Platform. The Company will not effect a Sale unless Influencer accepts such Sale in accordance with the corresponding Order Notice. If Influencer elects to accept such Sale, Influencer must indicate such acceptance through the messaging features of the Platform not later than the acceptance date stated in the corresponding Order Notice.Notwithstanding anything in this agreement to the contrary, the Company reserves the right to deny or revoke any Sale at any time in its sole discretion, whether or not such Sale was approved by Influencer, and Influencer will not be entitled to any Influencer Payment in respect of such denied or revoked Sale.
STANDARD TERMS AND CONDITIONS
These standard terms and conditions of the Company were last updated November 21, 2017.
Capitalized terms used herein and not otherwise defined have the respective meanings ascribed to such terms in the exclusive marketing and sales agreement between the Company and Influencer.
The parties agree as follows:
6. Sale Proceeds. Influencer acknowledges that payment any Influencer Payment is at all times subject to Company’s receipt and processing of proceeds for the Sale corresponding to such Influencer Payment. The Company will not be obligated to pay Influencer Payments less than $100. Such Influencer Payments less than $100, if any, will be paid during the payment cycle when the aggregate amount of all unpaid Influencer Payments exceeds $100. All Influencer Payments are exclusive of taxes imposed by federal, state, and local taxing authorities. Influencer is solely responsible for payment of all taxes on any Influencer Payment. Influencer will not be entitled to any Influencer Payment or any other payment inrespect of any cancelled Sale. If the Company determines that any Influencer Payment was attributable to any cancelled Sale, or attributable to any fraudulent or illegal activities, the Company may deduct the amount of such Influencer Payment from future Influencer Payments.
7. Exclusivity; Non-Solicitation. During the term of this agreement, Influencer shall not, directly or indirectly, engage any other party to act on Influencer’s behalf in the capacity that the Company is engaged hereunder or to provide services to Influencer that are Directly Competitive (defined below) with the Services. “Directly Competitive” means, with respect to the Services, any activity involving the marketing or selling Inventory or placing or otherwise featuring Advertisements in or with any Content. During the term of this agreement and for 24 months after any termination of this agreement (“Restricted Period”), Influencer shall not, directly or indirectly, (1) hire any employee or consultant of the Company, or solicit, entice or recruit any such person to leave the Company or engage in any activity that would cause any employee or consultant of the Company to terminate or violate any agreement with Company; (2) solicit, entice, or divert any Advertiser, client, vendor, or supplier of the Company to cease doing business with the Company or reduce the amount of business such party has customarily done with the Company or has received an offer to do with the Company; or (3) solicit, entice, or divert any prospective Advertiser, client, vendor, or supplier of Company to not do business with Company or reduce the amount of business which any such prospective Advertiser, client, vendor, or supplier has contemplated doing or has received an offer to do with Company. Influencer shall not, directly or indirectly, assist any person or entity in taking any of the actions stated in the foregoing clauses (1), (2), and (3). If Influencer violates any of the provisions of this section 2, the running of the Restricted Period will be extended by the time during which Influencer engages in each such violation.
8. Non-Circumvention. During the term of this agreement, Influencer shall not, directly or indirectly, communicate with or attempt any communications with, at any time for any purpose, either directly or indirectly, any Advertiser (including any employee, consultant, representative, or affiliate of such Advertiser) known by Influencer to be an Advertiser doing business with the Company or that has contemplated doing business with the Company. During the term of this agreement, Influencer shall not, directly or indirectly, (1) enter into any agreement relating to the subject matter hereof, or undertake any transaction relating to the Content or Inventory, with any Advertiser of the kind described in the foregoing sentence, or (2) bypass, avoid, circumvent, or attempt to bypass, avoid, or circumvent the Company in any agreement, transaction, or other undertaking relating to the subject matter hereof, without the prior written consent of the Company in each instance, which the Company may withhold for any reason or no reason in its sole discretion.
9. Independent Contractor; Subcontractors. The Company will perform the Services as an independent contractor. Nothing contained in this agreement will be deemed to create an agency, joint venture, partnership, or franchise relationship between the parties. The Company is not entitled to any Influencer employment rights or benefits and is not authorized to act on behalf of Influencer except as contemplated by the Services. The Company will be solely responsible for any tax obligations of the Company relating to this agreement, and Influencer will not be responsible for withholding any taxes from any compensation paid to the Company under this agreement. The Company will perform the Services on a non-exclusive basis and may accept other engagements during the term of this agreement. If Company’s performance of the Services contemplates the subcontracting of any services to any third party, or the engagement by Company of any non-employee personnel, Company may subcontract to or engage such parties.
10. Influencer Obligations. (a) At all times during the term of this agreement Influencer shall:
(1) Make all Inventory available to the Company for the period stated in the Order Notice corresponding to such Inventory;
(2) Provide the Company with (A) any analytics and metrics data and information for the Content and any other information, data, or materials for any Content as the Company may request from time to time; (B) access to the Content and any information or data relating thereto; and (C) any promotional materials or other materials of Influencer relating to the Content, each in accordance with the Company’s instructions;
(3) Maintain the equipment, accounts, systems, and networks of Influencer necessary for producing, publishing, and hosting the Content;
(4) Produce the Content in accordance with the highest production, artistic, and programming standards applicable to the Content;
(5) Notify the Company of any changes to the production (including personnel changes), format, distribution, and availability of the Content;
(6) Notify the Company of any changes to the Inventory;
(7) Not access, or attempt or permit access to, the Platform in any unauthorized manner or bypass any measures the Company takes to restricted unauthorized access to the Platform;
(8) Not post any Content that violates the privacy, publicity, or intellectual property rights of any other party or that promotes violence, racial or cultural intolerance, or advocates against any individual, group, or organization;
(9) Comply with all applicable federal, state, and local laws, rules, and regulations, including those laws, rules, and regulations regarding social media marketing and advertising, endorsements, sponsored content, product placement, customer solicitation, intellectual property, data protection, and privacy; and
(10) Obtain any license to use any Third Party IP (defined below) that the Company may deem necessary or desirable for the Company’s performance of the Services (“Third Party License”) and pay all costs and any other expenses necessary to obtain any Third Party License, and not use any Third Party IP in any manner the would violate any applicable law.
(b) Influencer is solely responsible for ensuring the accuracy of all information, data, and all other materials provided to the Company hereunder (collectively, “Influencer Materials”). Influencer acknowledges that inaccurate Influencer Materials may have an adverse affect on the Company’s ability to provide the Services.
(c) Influencer acknowledges that a failure or delay by Influencer of its performance of the obligations stated in this agreement may delay the Company’s performance of the Services, and any such delay will not be deemed a breach of the Company of this agreement.
11. Other Services; Availability. (a) Influencer acknowledges that the Services may enable, and/or require access to or use of other services, software, and/or systems of the Company and/or one or more third parties (collectively, “Other Services”). Influencer acknowledges that Influencer’s performance and/or the Company’s performance hereunder may be subject to Influencer’s acceptance of additional and/or different agreements, including terms of service, licenses, end-user agreements, or similar agreements for such Other Services.
(a) Influencer acknowledges that (1) the Company may, from time to time, change, suspend, or discontinue the Services in whole or in part, at any time and for any reason, with or without notice; (2) one or more features of the Services may be temporarily unavailable from time to time, at any time, with or without notice, for maintenance or other reasons; and (3) the Company may terminate or suspend Influencer’s access to or use of all or part of the Services at any time as may be permitted under the applicable terms of service, license, end-user agreements, or similar agreements.
(b) Influencer acknowledges that the Services will be provided in a manner consistent with general industry standards, which includes reasonable service interruptions due to scheduled maintenance, unscheduled emergency maintenance, or other causes beyond the Company’s reasonable control. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond the Company’s reasonable control.
12. License. Influencer hereby grants to the Company, during the term of this agreement, a worldwide, exclusive, transferable, sublicensable, royalty-fee, fully paid-up, right and license to use, copy, transmit, distribute, create derivative works based on, sublicense, and otherwise exploit the Influencer Property (defined below) for the Company’s performance of the Services, including the Company’s marketing and sale of the Inventory (“Company License”). Influencer reserves all interests in and to the Influencer Property, including all related intellectual property rights, subject to the limited rights expressly granted to the Company under the Company License and as otherwise provided herein. “Influencer Property” means the Content, Inventory, and all data, information, inventions, trade secrets, trademarks, works of authorship, websites, domain names, social media accounts, and all other information and materials provided to or supplied by or on behalf of Influencer to the Company for use in the Company’s performance of the Services.
13. Responsibility for Content. Influencer is solely responsible for the production, screening, editing, and monitoring of all Content. Influencer acknowledges that the Company will not endorse or oppose any statements made by Influencer through any Content. Notwithstanding anything in this agreement to the contrary, the Company reserves the right to delete from the Platform and take any other action with respect to any Content, in whole or in part, that the Company reasonably determines in its sole discretions violates this agreement, any other agreement with the Company or any other party, or that violates any applicable law.
14. Company Property. The Company owns all interests in and to the Services, the Platform,and all other tangible and intangible property owned, licensed, or controlled by the Company for the operation of its business and providing the Services (collectively, “Company Property). The Company retains all interests in and to the Company Property, including all related intellectual property rights. Influencer acknowledges that all information or data resulting from information or data of Influencer aggregated with information or data of the Company will be deemed Company Property. Nothing in this agreement will be deemed to grant Influencer any interest in or to any Company Property. Influencer shall not use any Company Property for any purpose, or permit any other party to use or access any Company Property for any purpose without the Company’s prior written consent in each instance, except as may be contemplated by the Services. Without limiting the generality of the foregoing sentence, Influencer shall not (1) use, copy, transmit, distribute, create derivative works from, or reverse engineer any Company Property or any feature or function of any Company Property; (2) gain or attempt to gain unauthorized access to any Company Property or related systems or networks, or systematically access any Company Property or related systems or networks using “bots” or “spiders”; or (3) bypass or attempt to bypass any measures the Company takes to restrict unauthorized use of or access to any Company Property.
15. Suspension. In connection with any actual, attempted, threatened, or reasonably suspected breach of this agreement by Influencer, without limiting the Company’s other rights and remedies, the Company may immediately suspend the Services and Influencer’s access to the Platform.
16. Warranties. Each party hereby represents and warrants to the other party that it has the legal power and authority to enter into this agreement and that there is no outstanding agreement, commitment, obligation, or legal impediment which may limit, restrict, or impair such party’s ability to perform its obligations hereunder. Influencer hereby represents and warrants to the Company that (1) Influencer’s use of the Services does not and will not violate applicable federal, state, and local laws, rules, and regulations, including those laws, rules, and regulations regarding social media marketing and advertising, endorsements, sponsored content, product placement, customer solicitation, intellectual property, data protection, and privacy; (2) Influencer’s grant of the Company License to the Company does not and will not breach any license, work product assignment, confidentiality, or other agreement with, or infringe the intellectual property rights or privacy rights of, any other party; (3) Influencer is a valid licensee of any intellectual property of another party (“Third Party IP”) embodied in or used in connection with the production and distribution of the Content; and (4) the Content does include any message or material that(A) is defamatory, obscene, otherwise unlawful, or in violation of this agreement; (B) would give rise to civil liability or that constitutes or encourages conduct that could constitute a criminal offense under any applicable law; or (C) could reasonably be expected to bring the Company or its products or services, or the Company’s partners or the products or services of the Company’s partners, into public disrepute, scandal, or ridicule or derogate materially from the public image of the Company or its partners. If another party is accepting this agreement on behalf of Influencer, such party represents and warrants to the Company that such party has authority to do so.
17. Confidentiality. During the term of this agreement and thereafter neither party shall disclose or use Confidential Information (defined below) of the other party, other than in connection with the performance of the Services. A party receiving Confidential Information shall promptly return or destroy all Confidential Information, together with all copies (regardless of the form of reproduction) and all extracts therefrom, at the disclosing party’s request. “Confidential Information” means all information related to a party’s business, marketing, technology, products, services, customers, personnel, and operations (including third party information) not publicly available or generally known outside a party’s organization. “Confidential Information” does not mean information that became known by or available from a third party through no fault of the receiving party.
19. Disclaimer and Limitation of Liability. (a) EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. THE COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, COMPATIBILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICES. THE COMPANY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (1) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, NETWORK, SYSTEM, OR DATA, (2) THE SERVICES WILL MEET INFLUENCER’S REQUIREMENTS OR EXPECTATIONS, (3) THE SERVICES WILL RESULT IN SALES, (4) ERRORS OR DEFECTS WILL BE CORRECTED, OR (5) THE SERVICES OR THE NETWORKS AND SYSTEMS THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR FEATURES. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, UNITED STATES POSTAL SERVICE, OTHER DELIVERY SERVICES, AND THE SYSTEMS AND NETWORKS OF OTHER PARTIES. THE COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY THE COMPANY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
(a) IN NO EVENT WILL THE COMPANY’S AGGREGATE LIABILITY FOR CLAIMS ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNTS OF THE FEES PAID BY THE INFLUENCER TO THE COMPANY IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING THE USE OF OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR, DEFECT, OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
20. Availability. The Company will provide the Services in a manner consistent with generally acceptable standards in the Company’s industry, which includes reasonable service interruptions due to scheduled maintenance, unscheduled emergency maintenance, or other causes beyond the Company’s reasonable control. Influencer acknowledges that (1) the Company’s timely and satisfactory performance of the Services assumes certain dependencies which are beyond the reasonable control of the Company, including, software and hardware compatibility, internet connectivity, and data integrity (each, a “Dependency”); (2) the failure of any Dependency might delay or impair the Company’s performance of the Services; and (3) any such failure will not be deemed a breach by the Company of this agreement. The Company shall notify Influencer if the Company reasonably anticipates failure of any Dependency.
21. Notices. All notices hereunder must be delivered through the messaging features of the Platform or by email. Notices by email to the Company must be sent to [email address for notice]. Notices by email to Influencer must be sent to Influencer’s email address associated with Influencer’s user account for the Platform, as such may be changed from time to time. All notices will be deemed delivered on the first business day following the date such notice was sent; provided, however, that an automatic “read receipt” will not constitute an acknowledgment of receiving any notice by email for purposes of this section 16.
22. Dispute Resolution. Any and all disputes or claims between Influencer, the Company, and any Advertiser arising out of or relating in any way to the Services or this agreement will be resolved through arbitration subject to the Company’s arbitration policy located at www.auviso.co/arbitration-policy (“Arbitration Policy”). Influencer and the Company acknowledge that (1) each respective party is waiving its rights to jury trial and/or to participate in a class or representative action; (2) the Federal Arbitration Act governs the interpretation and enforcement of the Arbitration Policy; and (3) with respect to any and all disputes or claims arising out of or relating in any way to the Services or this agreement, the Arbitration Policy supersedes any contrary terms regarding dispute resolution in any other agreement between the parties.
23. General. (a) This agreement (consisting of the exclusive marketing and sales agreement, these Standard Terms, and all Order Notices corresponding hereto) contains the entire agreement between the Company and Influencer regarding the subject matter hereof and supersedes any prior written or oral agreements between the parties.
(a) This agreement, and all matters arising out of this agreement, including all tort and fraud claims, is governed by laws of the State of New York, without regard to its conflict of laws principles. Except as provided in section 17, the parties submit to the exclusive jurisdiction of the state courts of the State of New York and to the jurisdiction of the United States District Court for the Southern District of New York, and waive any jurisdictional, venue, or inconvenient forum objections to such courts.
(b) No failure or delay by any party to insist upon the strict performance of any term, condition, or covenant of this agreement, or to exercise any right, power, or remedy under this agreement will constitute a waiver of any term, condition, covenant, right, power, or remedy or of any breach, or preclude any party from exercising any right, power, or remedy at any later time. Any provision hereof may be waived only in a writing signed by both parties.
(c) The Company may make non-material changes to this agreement at any time without notice, and any such non-material change will become effective after posting such change at www.auviso.co/tos-emsa. The Company may make material changes to this agreement by providing Influencer with ten days’ notice of any such material change and posting such material changes at www.auviso.co/tos-emsa. Material changes to this agreement will become effective ten days after posting such change. Influencer’s continued use of the Services following the Company’s posting of any change to this agreement will be deemed Influencer’s acceptance of such change. If Influencer does agree with the terms of any such change, Influencer’s sole remedy is to cease using the Services.
(d) Influencer shall not assign this agreement or any rights or obligations under this agreement, by operation of law or otherwise, without the Company’s prior written consent. Any purported assignment in contravention of the foregoing will be void. The Company may assign this agreement, in whole or in part, and any rights or obligations under this agreement, without restriction, with or without notice to Influencer, including assignment to a successor entity, whether by merger, stock sale, asset sale, or otherwise.
(e) Except with regard to payment obligations, neither party will be liable to the other party arising out of delays or failures to perform under this agreement to the extent that any such delays or failures result from any cause beyond the reasonable control of the party affected (“Force Majeure Event”). If the Company is not able to provide Services during any Force Majeure Event, the Company may, in its sole discretion, but is not obligated to, suspend its performance of the Services during such period.