INFLUENCER AFFILIATION MASTER AGREEMENT TERMS OF SERVICE
THIS INFLUENCER AFFILIATION MASTER AGREEMENT TERMS OF SERVICE (“IAMA”) sets forth terms and conditions entered into by and between Stack Influence LLC, a Delaware limited liability company (“Agency”), and the party (“Influencer”) executing a statement of work also executed by Agency and referencing this IAMA (as applicable, the “Statement of Work” and together with this IAMA, the “Agreement”). Agency and Influencer may each be referred to herein as a “Party” and together as the “Parties”. This IAMA shall be effective as of the effective date of the Statement of Work.
Article I – Standard Services
1.1 Background. Agency’s standard services involve coordinating contract partners (Influencers) who order a particular product (“Product”) from a party (“Advertiser”) engaging Agency. Influencers may then complete one or more Qualifying Online Posts (as defined in Section 1.5 below) after trying, using, reviewing, and/or otherwise utilizing the Product (an “Assessment”).
1.2 Campaigns. The provision of Services whereby Agency coordinates one or more Influencers to conduct Assessments of a particular Advertiser’s Product(s) for a period of time may be known as a “Campaign”. Campaigns may be, but need not be, grouped and administered together as a “Program”.
1.3 Statements of Work. All work to be performed by Influencer must be specified in an applicable Statement of Work. A Statement of Work shall not be effective unless fully executed by duly authorized representatives of both Parties, and Agency shall not be obligated to perform any work until such time.
1.4 Influencer Services. Influencer may render those standard services specified in the Statement of Work, subject to this IAMA and upon the terms and conditions of the Agreement (“Services”). In general, Influencer’s standard Services are to: (i) purchase the Product from the Advertiser, (ii) conduct an Assessment on such Product in good faith; and (iii) in connection with the Assessment, make one or more Qualifying Online Posts at the discretion of Influencer. Statements of Work should specify the target start date, duration, and end date of Assessments and Campaigns/Programs inasmuch applicable to Influencer. The Statement of Work may detail the standard other services to be provided by Influencer, including the purview of an applicable media campaign, including the applicable Advertiser and social media channels, or other media channels, that will be subject to the Campaign, (b) any content to be created by Influencer and provided to Agency in connection with the performance of the applicable Service and Campaign, (c) a schedule and dates for performance of the applicable Services and Campaign, and (d) such other terms as may be mutually agreed to by the Parties. IN ALL EVENTS, THE ENGAGEMENT OF INFLUENCER IS CONDITIONED ON THE AGREEMENT AND PARTICIPATION OF THE ADVERTISER.
1.5 Qualifying Online Posts. A “Qualifying Online Post” is a post, review, message, statement, publication, image, text, video, or other communication made by Influencer on or through a generally known social media service, on Influencer’s website, on the applicable Advertiser’s website, or otherwise on a publicly available site (such as, without limitation, a third-party review website or a hobby or special interest magazine website), along with Influencer’s name, likeness, image, social media handles, profile, and other associated indicia about Influencer. Influencer grants to Agency and the applicable Advertiser(s) a non-exclusive, irrevocable, perpetual, worldwide, transferable, and royalty-free right and license to copy, republish, and otherwise utilize all Qualifying Online Posts. Agency asserts no exclusive rights or ownership to Qualifying Online Posts; provided, however, Influencer agrees that Agency may copy, republish, or otherwise utilize all Qualifying Online Posts in any fashion Agency wishes.
1.6 Brand Exclusivity. If requested by an Advertiser and set forth in a statement of Work, Influencer agrees and covenants that he or she will not, whether in a Qualifying Online Post or in any other communication or publication, post or publish (i) any reference to any brand or trademark other than the Product(s) unless authorized in writing by Agency, or (ii) any information, promotion, endorsement, or other content relating to any brands or products to the extent specified on an excluded list in a Statement of Work. Furthermore, Influencer agrees to “tag” only Advertiser’s pages on social media channels and/or reference only Advertiser’s social media handles in Influencer’s posts and publications.
1.7 Published Content.
- Whether in a Qualifying Online Post or in any other communication or publication, Influencer agrees and covenants that he or she will not (i) make any unsubstantiated claims about any Advertiser or other third party or its products or services; (ii) develop or post any content that is any way illegal or obscene; or (iii) develop or post any content that is harmful to the reputation, goodwill, or interests of Agency or the Advertisers or their respective products, services, associates, employees, or affiliates or that is otherwise reasonably objectionable to Agency or the Advertiser.
- Influencer shall be solely responsible for obtaining, in a form acceptable to and approved in writing by Agency, any required licenses, permissions, or approvals from third parties, contributors, or other affected rightholders with regard to third-party content incorporated into Qualifying Online Posts, as necessary for Agency or Advertisers to make full and unrestricted use of such content. By way of example and without limitation, Influencer shall require all individuals appearing in any content to sign (and furnish to Agency) an authorization, consent, and release form and grant to Agency and Advertisers all license and publicity rights necessary for Agency or the applicable Advertisers to make use of the name, likeness, image, biography, statements, avatar, and/or social media name and handle and other indicia of such individual contained in said content.
1.8 Pass-Through License. In connection with the Services for the purposes of a Qualifying Online Post and for no other use or purpose, and for no additional consideration other than Influencer’s having entered into the Agreement, Agency hereby grants to Influencer, to the extent that Agency has secured same from the Advertiser, permission to use the names, likeness, logos, trademarks, slogans, images, social media links, tags and/or handles, and descriptions of Advertiser and its Products.
1.10 Advertisers; Products. Agency shall have and retain sole discretion as to which Advertisers and Influencers to work with at any time. Agency makes no representations, warranties, or covenants as to Advertisers, the general availability or success of any Campaign, or as to or relating to the functionality, quality, safety, appearance, features, or any other attribute of any Products.
1.11 Non-Exclusive Engagement. The retention of Influencer under the Agreement is not exclusive. Agency may in its absolute discretion engage or otherwise work with other Influencers, even as to the same Advertisers, Products, or Campaigns.
Article II – Supplemental or Special Services
2.1 Services. Agency may engage Influencer to render additional or non-standard Services as specified in the Statement of Work, subject to this IAMA and upon the terms and conditions of the Agreement.
2.2 Special Services. Any non-standard Services should be set forth in a Statement of Work including, at a minimum, the scope of Services and deliverables, the project/work schedule, and associated fees, and should also set out any estimates, assumptions, conditions, dependencies, phases/milestones, furnished products, third-party solutions, and accepting, testing, and completion criteria if and as applicable and material.
Article III – Fees and Invoicing
3.1 In General. Fees (if any) for Services payable by Agency must be set forth in the Statement of Work. Agency shall not be liable for any charges unless agreed to by Agency in a Statement of Work.
3.2 Fees for Standard Services. Subject to the completion of Services as set forth in an applicable Statement of Work, and delivery to Agency photographic of other written confirmation reasonably required by Agency to evidence same, and provided Influencer is not in breach of the Agreement, Agency shall pay Influencer the compensation (if any) set forth in the applicable Statement of Work.
3.3 Influencer Purchase Reimbursements. If and when Influencer purchases a Product directly from an Advertiser and then makes Qualifying Online Posts after conducting an Assessment in conformance with a Statement of Work, Agency shall reimburse Influencer for the purchase cost of the Product (“Qualifying Purchase Reimbursements”).
3.4 Expenses. Unless otherwise specified in the Statement of Work, Influencer shall be responsible for all of his or her costs and expenses in conducting the Assessment and providing Services.
(a) Whenever Influencer makes a Qualifying Online Post, he or she shall promptly notify Agency.
(b) If requested, then within thirty (30) days after the end of an Assessment (or Campaign or Program, if applicable) Influencer shall create a final report with respect to the Assessment, Campaign, or Program which indicates: the number of Qualifying Online Posts, requested Qualifying Purchase Reimbursements, and any other fees or charges in connection with the Services.
3.6 Invoicing. If fees are payable pursuant to a Statement of Work then unless otherwise specified in the Statement of Work, Influencer may invoice Agency monthly.
- Agency reserves the right to make payments (at Agency’s cost for standard transaction fees) through online vendor (e.g. PayPal), ACH, EFT, wire transfer, or other electronic means. Influencer is solely responsible for providing and maintaining payment instructions. Any failure by Influencer to provide accurate payment instructions may result in delayed payment. Furthermore, if Agency makes a payment to an incorrect account due to Influencer’s failure to provide and update accurate payment instructions, and Agency is unable to recover the amount of such payment, Agency shall be deemed to have made such payment in full to Influencer, and Agency shall have no further obligation to Influencer with respect to such payment or amount.
- In the event Agency makes a deposit, advance, Qualifying Purchase Reimbursement, or any other payment in connection with a Statement of Work that is not fully or properly performed by Influencer, Agency may recover or recoup such amounts through payment channels and/or offset future payments (whether under the same or a different Statement of Work.
- The failure (for any reason) of Influencer to claim or demand payment within 180 days of completing Services shall result in Influencer automatically forfeiting any and all rights, title, and interests to any payment for such Services.
3.9 Disputes. If the Parties are unable to resolve disagreements, then the matter shall be further handled as a Dispute subject to Section 8.11 below. Nothing herein shall in any way limit or waive any remedies or relief (including, without limitation, injunctive relief) available under law to Agency.
3.10 Taxes. Influencer shall pay all taxes, assessments, and fees applicable in connection with the Services, whether national, federal, state, or local, including, without limitation, sales, use, value-add, excise, personal property, customs fees, import duties, stamp duties, and any other similar taxes and duties, however designated or levied; provided, however, Agency shall be responsible for its own taxes on net income. Agency shall invoice Influencer for any taxes properly payable by Influencer that are required to be collected by Agency pursuant to any applicable statute, rule, regulation, or other requirement of law.
Article IV – Certain Restrictive Covenants
4.1 Confidentiality. Each Party (as applicable, a “Recipient”) agrees to retain in strict confidence any information provided to it by the other Party (as applicable, a “Discloser”) that is marked, labeled, or otherwise designated as confidential or proprietary or that Recipient knew, or reasonably should have known, was confidential due to the circumstances surrounding the disclosure by Discloser (“Confidential Information”). Confidential Information shall not include any information that (i) is generally known to the public at the time of disclosure, (ii) is received by Recipient without restriction from a third party without any breach by such third party of any confidentiality, fiduciary, or other obligation to the Discloser, (iii) is published or otherwise made known to the public by Discloser, or (iv) is generated independently by the Recipient without use of or reference to Discloser’s confidential information. Furthermore, Influencer acknowledges and agrees that the Agreement itself and all information, materials, and content related to the Services and the types of services Agency offers and Agency’s methodologies and practices is Confidential Information except as pursuant to Section 4.3 below. Recipient shall use at least the same standard of care with Discloser’s Confidential Information as it does with its own Confidential Information, but in no event with less than reasonable care. Recipient may disclose Confidential Information in order to respond to a valid order of a court or other governmental body or any political subdivision thereof, or as otherwise required by law, provided that the Recipient (A) informs Discloser as soon as reasonably practicable of the required disclosure, (B) limits the disclosure to the required purpose, and (C) at Discloser’s request and expense, assists in an attempt to object to or limit the required disclosure. Upon termination or expiration of the Agreement, or upon Discloser’s request, Recipient shall return or destroy all Confidential Information provided under the Agreement. Each Party acknowledges that breach of this provision by it would result in irreparable harm to the other Party, for which money damages would be an insufficient remedy, and therefore that the other Party shall be entitled to seek injunctive relief to enforce the provisions of this Article IV. The Parties hereby agree and acknowledge that this Article IV supersedes any prior confidentiality agreements by and between the Parties with respect to Confidential Information disclosed after the effective date of this IAMA. Nothing in this Section 4.1, however, is intended to prevent Agency from sharing information with Advertisers. Influencer further acknowledges and agrees that the identity of Advertisers and Advertiser contact information is Confidential Information, as is any brand strategy, marketing plans, technical data, intellectual property, content or know-how relating to ideas, discoveries, concepts, software, equipment, designs, drawings, specifications, techniques, processes, models, data, documentation, diagrams, research, development, business plans, opportunities, strategies, future projects or products, products or projects under consideration, procedures, and any other information relating to finances, Influencers, costs, prices, contractors, and employees, that are provided to Influencer by Agency in connection with Services or otherwise in connection with the Agreement.
4.2 Non-Circumvention. Influencer agrees that during the term of this Agreement, and for a period of ninety (90) days thereafter, he or she will not directly or indirectly contact an Advertiser for the purpose of entering into, or attempting to enter into, any negotiations or contractual obligations with an Advertiser which could reasonably be constructed to circumvent the efforts of Agency under the Agreement without Agency’s prior written consent.
4.3 Agreement Confidentiality. The content, terms, and provisions of this IAMA and all Statements of Work shall remain strictly confidential; provided, however, that either Party may identify the existence of a business relationship between the Parties; and provided, further, that Agency may develop, utilize, and publish case studies and other information derived from or relating to Influencer, Programs, or Campaigns for internal or external marketing purposes.
Article V – Disclaimer and Limitations
5.1 Third-Party Compliance. Agency makes no representation, warranty, or covenant of any kind, type, or nature concerning either Party’s or an Advertiser’s compliance with contracts, agreements, terms of service, policies, guidelines, codes of conduct, standards, rules, prohibitions, restrictions, or other terms or conditions with or of any third party including, without limitation, involving an online platform or service of a social media service, a third-party seller’s website, seller service, reviewer, or other interest organization. It shall be Influencer’s sole responsibility to identify, analyze, interpret, and comply with all third-party contracts and other obligations and ensure compliance therewith, as may involve Influencer, Influencer’s Assessments, or the Services. Influencer hereby releases Agency and all Advertisers from, and Influencer waives any and all claims or rights therein which he or she may have or may have in the future with respect to, any contracts, agreements, terms of service, policies, guidelines, codes of conduct, standards, rules, prohibitions, restrictions, or other terms or conditions with or of any third party (including, for example and without limitation, those of Amazon.com, Inc. and its affiliates).
5.2 Influencer Conduct. Agency is not and shall not be liable for Influencer’s conduct or misconduct. Any and all content created by Influencer in connection with a Product or Advertiser, whether as part of Services or not, or in any other way, is Influencer’s sole responsibility, and the accuracy of such content is not endorsed or guaranteed by Agency. Neither Agency nor its directors, officers, employees, agents, affiliates, successors, or assigns shall be in any way responsible or liable for any claims or damages based on or arising from Influencer’s content, communications, or publications, including, but not limited to, claims for defamation, libel, slander, infringement, invasion of privacy and publicity rights, obscenity, pornography, profanity, fraud, or misrepresentation.
5.3 Limitation of Damages. NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT OTHERWISE TO THE CONTRARY, IN NO EVENT SHALL AGENCY BE LIABLE TO INFLUENCER OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ANY OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST INCOME OR PROFITS OR BUSINESS INTERRUPTION OR LOST DATA OR RECORDS) OF ANY KIND BASED ON, ARISING OUT OF, RELATING TO, OR OTHERWISE IN CONNECTION WITH THE AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, OR OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. To the extent a particular applicable jurisdiction to which the Agreement may be subject does not allow the exclusion or limitation of liability for consequential or incidental damages, Agency’s liability shall be limited to the maximum extended permitted by law.
5.4 Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT OTHERWISE TO THE CONTRARY, IN NO EVENT SHALL AGENCY’S CUMULATIVE LIABILITY WITH RESPECT ANY DISPUTE ARISING HEREUNDER OR OTHERWISE RELATING TO THE SUBJECT MATTER OF THE AGREEMENT EXCEED THE AGGREGATE OF AMOUNTS PAYABLE BY AGENCY TO INFLUENCER UNDER THE APPLICABLE STATEMENT OF WORK.
5.5 Agency Personnel and Affiliates. For the avoidance of doubt, Agency disclaimers and limitations of liability in this Article V also apply for the benefit and protection of Agency’s members, managers, officers, employees, agents, representatives, subcontractors, vendors, service providers, and affiliates.
Article VI – Indemnification
6.1 By Influencer. Influencer shall defend, indemnify, and hold harmless Agency (and its members, managers, officers, employees, agents, representatives, subcontractors, vendors, service providers, and affiliates) from and against any and all claims, suits, damages, losses, costs, and expenses (including expenses of investigation and reasonable attorneys’ fees) that Agency (or any of its members, managers, officers, employees, agents, representatives, subcontractors, vendors, service providers, or affiliates) incurs as a result of, arising from, based upon, or otherwise in connection with: (i) any intentional misconduct by Influencer (or any of its officers, employees, representatives, agents, subcontractors, assignees, or affiliates); (ii) a breach of this Agreement by Influencer; (iii) any claim, proceeding, or other action by a third party or a governmental authority involving an Assessment; (iv) any claim, proceeding, or other action by a third party or a governmental authority in connection with the Services (except to the extent of an intentional breach by Agency); (v) any post, review, message, statement, publication, or other communication by an Influencer, whether or not constituting a Qualifying Online Post; or (vi) any breach of an obligation owed by Influencer (or any of its officers, employees, representatives, agents, subcontractors, assignees, or affiliates) to any third party.
6.2 By Agency. Subject to Article V and Section 6.1 above, Agency shall defend, indemnify, and hold harmless Influencer from and against any and all claims, suits, damages, losses, costs, and expenses (including expenses of investigation and reasonable attorneys’ fees) that Influencer incurs as a result of, arising from, based upon, or otherwise in connection with: (i) any intentional misconduct by Agent (or any of its officers, employees, representatives, agents, subcontractors, assignees, or affiliates); or (ii) a breach of this Agreement by Influencer.
6.3 Procedures. A Party entitled to indemnification under Section 6.1 or Section 6.2 above (as applicable, the “Indemnified Party”) shall (A) give the other Party (as applicable, the “Indemnifying Party”) prompt written notice of the relevant claim, (B) cooperate with the Indemnifying Party, at the Indemnifying Party’s expense, in the defense of such claim, and (C) give the Indemnifying Party the right to control the defense and settlement of any such claim, except that the Indemnifying Party shall not enter into any settlement that materially affects the Indemnified Party’s rights or interest without the Indemnified Party’s prior written approval, which approval shall not be unreasonably withheld, conditioned, or delayed. If the Indemnifying Party duly and diligently defends a claim, then the Indemnified Party shall have the right to participate in the defense, such participation at the expense of the Indemnified Party (except as to expenses in connection with participation required by law or with cooperation requested by the Indemnifying Party, which shall be at the Indemnifying Party’s expense). If, however, the Indemnifying Party fails to duly and diligently defend or settle, as applicable, the claim, then the Indemnified Party may, upon written notice to the Indemnifying Party and at the Indemnifying Party’s expense, undertake the defense and/or settlement of the claim.
Article VII – Term and Termination
7.1 Term. The term of this IAMA shall commence on its effective date and shall continue until terminated as permitted herein.
7.2 Termination for Convenience. Agency may terminate the Agreement (including all outstanding Statements of Work) at any time for any or no reason upon prior written notice of at least ten (10) days.
7.3 Termination of Statement of Work. If a Statement of Work relates to a particular Advertiser, then Agency may terminate such Statement of Work immediately upon the expiration or termination of any services agreement between Agency and such Advertiser.
7.4 Termination for Cause. In the event that Influencer breaches any of his or her obligations under the Agreement and fails to cure such breach within twenty-four (24) hours, then Agency may immediately elect to terminate one or more outstanding Statement of Work or the Agreement entirely (including all outstanding Statements of Work).
7.5 Termination on Other Grounds. In the event that Influencer (or his or her affiliates, representatives, employer, or associates) acts in a way that causes him or her to become involved in any materially adverse publicity or scandal, or fall into disrepute, then Agency may immediately elect to terminate one or more outstanding Statement of Work or the Agreement entirely (including all outstanding Statements of Work).
7.6 Termination by Influencer. If Influencer alleges that Agency has materially breached the Agreement, then Influencer shall provide written notice setting forth the details of the alleged breach in reasonable detail (including, but not necessarily limited to, a description of the breach or default, a statement of the facts relating to the breach, the provisions of the Agreement that are in alleged breach, and the action proposed to cure the alleged breach). If Agency does not diligently commence curing a breach within thirty (30) days of delivery of notice, then Influencer may terminate the Agreement (including all outstanding Statements of Work) immediately effective upon subsequent written notice to Agency.
7.7 Termination for Bankruptcy. Either Party may terminate the Agreement by and upon giving the other Party written notice of termination if: (i) a receiver, trustee, administrator, or administrative receiver is appointed for the other Party or its property; (ii) the other Party makes a general assignment for the benefit of creditors; (iii) any proceedings are commenced against the other Party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings have not been vacated or set aside within sixty (60) days from the date of commencement thereof; or (iv) any proceeding, plan, or other action for the bankruptcy, insolvency, dissolution, or liquidation of the other Party is filed, adopted, or commenced.
7.8 Termination Fees.
- In the event that Influencer materially breaches the Agreement, in addition to termination rights in Section 7.4 above, Agency shall be entitled to recover all costs (including attorneys’ fees) in the enforcement of Agency’s rights and, if Influencer shall have been paid in advance, Agency shall be entitled to a refund of any monies advanced to Influencer. In addition, if Influencer fails or refuses to perform any of the Services as contemplated by a Statement of Work, then Influencer shall pay to Agency, as liquidated damages and not as a penalty, an amount equal to thirty percent (30%) of the compensation contemplated for Influencer under the applicable Statement(s) of Work.
(b) In the event that Agency terminates the Agreement or any applicable Statement of Work pursuant to Section 7.2 above, then Agency shall pay Influencer a termination fee, with respect to each outstanding Statement of Work, as follows: (i) if such termination occurs one month or more prior to the Services start date pursuant to an applicable Statement of Work (“Start Date”), an amount equal to the documented reasonable costs or expenses incurred by Influencer prior to the date of termination but in no case more than an amount equal to ten percent (10%) of the overall compensation to Influencer contemplated by the Statement of Work; (ii) if such termination occurs less than one (1) month prior to the Start Date but more than two (2) weeks prior to the Start Date, an amount equal to ten percent (10%) of the overall compensation to Influencer contemplated by the Statement of Work; (iii) if such termination occurs less than two (2) weeks prior to the Start Date, an amount equal to ten percent (10%) of the overall compensation to Influencer contemplated by the Statement of Work; or (iv) if such termination occurs after the Influencer has conducted an Assessment and rendered Qualifying Online Posts but prior to completing all Services under the Statement of Work, the amount of compensation payable in connection with the Qualifying Online Post incurred by Influencer in connection with any work performed by Influencer prior to the date of termination.
7.9 Survival. The defined terms and the rights and obligations set forth in the following sections of this IAMA shall survive any termination or expiration of the Agreement (other than as to obligations to provide Services after such termination/expiration or render payment therefor).
Article VIII – Miscellaneous
Notices. Any notices required or authorized to be given pursuant to the Agreement must be in writing and shall be delivered personally or sent to the other Party at its physical, mailing, or electronic mail address set forth in the Statement of Work or otherwise specified from time to time in writing, and shall be deemed given: (i) if delivered personally, then when actually delivered; (ii) if delivered by internationally recognized courier, then upon delivery as evidenced by ordinary course records of the courier; (iii) if delivered by certified or registered postal mail, return receipt requested to an address within the United States, then five (5) days after deposit, postage pre-paid, with the United States Postal Service; or (iv) if delivered by electronic mail, when transmitted.
Any notice to Agency must be delivered to:
Stack Influence LLC
Attention: William Gasner
P.O. Box 315
Block Island, Rhode Island 02807
Any notice to Influencer must be sent to a physical, mailing, or electronic mail address provided on a Statement of Work or other sign-up or written documentation. If no such address is provided, then Influencer may be notified at any address of Influencer or through any officer, representative, or apparent agent of Influencer.
A Party may update its notice address by delivering notice to the other Party in a manner consistent with this Section 9.1.
8.2 Force Majeure. Agency shall not be liable for any delays or other nonperformance resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire or other casualty, act of God, strike or labor dispute, war, insurrection, riot violence, or protest or disturbance, any law, order, or requirement of any governmental agency or authority, or any act or omission of employees or agents of Influencer. In this event and to the extent of any period of such delay, nonperformance shall not be deemed a breach of the Agreement by Agency and the project schedule and any milestone and due dates shall be adjusted and extended accordingly, and also subject to Section 1.3 above.
8.3 Relationship of Parties. The Parties are independent contractors and the Agreement shall not be construed to create or evidence a partnership, joint venture, or franchise relationship between them. Neither Party shall have the authority to bind the other Party by or to any representation, warranty, promise, obligation, or agreement.
8.4 Subcontractors. Agency shall have the option to subcontract to perform Services.
8.5 No Third-Party Beneficiaries. Except as to Influencers and except as to parties covered by indemnification in Article VI above, (i) nothing herein expressed or implied is intended or shall be construed to confer upon or to give any person any rights or remedies under or by reason of the Agreement other than the Parties and their permitted assigns, and (ii) no third-party beneficiaries are expected or intended. Furthermore, except as set forth in Section 1.8 above, it is expressly hereby stated that Influencer is not an intended third-party beneficiary of any agreement between Agency and an Influencer.
8.6 Assignment. Neither Party may assign the Agreement in whole or in part without the other Party’s prior written consent except in the case of the sale or other transfer (whether direct or indirect, or by merger, operation of law, change of control, or otherwise) of all or substantially all of the assets or voting equity interests of a Party so long as the assignee agrees in writing to be bound by the terms of the Agreement. Any assignment contrary to this provision shall be void and of no effect. The terms and conditions of the Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the Parties.
8.7 Waiver. No course of conduct shall constitute a waiver of any terms or conditions of the Agreement, unless such waiver is specified in writing by the waiving Party, and then only to the extent so specified. A waiver of any of the terms and conditions of the Agreement on one occasion shall not constitute a waiver of the other terms of the Agreement, or of such terms and conditions on any other occasion.
8.8 Interpretation. Each Party acknowledges that it is a sophisticated business with representation by or access to counsel and that this is a business-to-business contract. The language used in the Agreement shall be deemed to be the language chosen by the Parties to express their collective mutual intent, and no rule of strict construction shall be applied against either of them. Unless the context clearly suggests otherwise: (i) the singular includes the plural and the plural includes the singular; (ii) words shall include grammatically related forms; (iii) a reference to the masculine gender shall be deemed to be a reference to the feminine gender and the neuter form, and vice versa; (iv) the word “or” is not exclusive; (v) the words “include,” “includes,” and “including” are not limiting; and (vi) references to days mean calendar days. The titles, subtitles, and headings used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. In the event of conflicting terms between this IAMA and the Statement of Work, the terms of the Statement of Work shall control.
8.9 Severability. Any provision set forth in the Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. As to any provision which is held to be unenforceable because of the scope or duration of such provision or the area covered thereby, the Parties agree to modify such provision, and that any court or arbitrator making such determination shall have the power to modify such provision, to reduce the scope or duration or area of such provision, or both, or to delete specific words or phrases herefrom (“blue-penciling”), and, in its modified, reduced, or blue-penciled form, such provision shall then be enforceable by Agency.
8.10 Governing Law. All issues and questions concerning the construction, validity, enforcement and interpretation of the Agreement shall be governed by, and construed in accordance with, the laws of the state of Rhode Island without giving effect to any choice of law or conflict of law rules or provisions (whether of the state of Rhode Island or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the state of Rhode Island.
8.11 Dispute Resolution.
(a) In General. The Parties must resolve any dispute, controversy, or claim arising out of or relating to the Agreement, or the termination or alleged breach or invalidity hereof (each, a “Dispute”), pursuant to the provisions in this Section 8.11; provided, however, that the commencement of the Dispute resolution process set forth in this Section 8.11 shall not prohibit Agency from simultaneously seeking an injunction or similar equitable relief in accordance with Section 8.15 below.
(b) Informal. The Parties involved in a Dispute must first attempt in good faith to resolve the Dispute by informal consultation and negotiation. Any Dispute which is not resolved through this process after a period of five (5) business days from an initial written notice of attempting to resolve such Dispute by negotiation and consultation from a Party (or such shorter period designated by a Party due to time constraints relevant to the specific Dispute), shall be resolved as described hereinbelow.
(c) In-Person. If the Dispute is not resolved pursuant to Section 8.11(b) hereinabove, then any Party may provide written notice to the other Party or Parties to invoke additional Dispute resolution process and such Parties shall meet in person within ten (10) business days after receipt of a written notice to discuss the areas of disagreement and to negotiate in good faith regarding possible solutions.
(d) Mediation. If the Dispute is not resolved pursuant to Section 8.11(c) hereinabove, then the Dispute shall be submitted to non-binding mediation. Agency shall select the mediator, and the Parties shall engage in the mediation process in good faith. Each Party shall bear its or his or her own expenses to prepare for and attend mediation, except that the fees of the mediator shall be split evenly between the Parties.
(e) Arbitration. If the Dispute is not resolved pursuant to Section 8.11(d) hereinabove, then the Dispute shall be resolved by binding arbitration in accordance with the then-governing rules of the American Arbitration Association at a location within, unless otherwise agreed by the parties thereto, Rhode Island.
(f) Litigation. Except to enforce the binding decision of the arbitrator pursuant to Section 8.11(e) hereinabove, no Party may institute any litigation in a court of law with respect to a Dispute.
8.12 No Class Actions. EACH PARTY IRREVOCABLY AGREES that any Dispute shall be conducted only on an individual basis and not in aNY class, consolidated or representative action.
8.13 Consent to Jurisdiction and Service of Process. EACH PARTY IRREVOCABLY AGREES THAT ANY DISPUTE OR DISAGREEMENT BETWEEN OR AMONG ANY OF THE PARTIES, EXCEPT AS PURSUANT TO AND SUBJECT TO SECTION 8.11 ABOVE AND SECTION 8.15 BELOW, AS TO THE INTERPRETATION OF ANY PROVISION OF, OR THE PERFORMANCE OF OBLIGATIONS UNDER, THE AGREEMENT SHALL BE COMMENCED AND PROSECUTED IN ITS ENTIRETY SOLELY IN THE STATE COURTS OF THE STATE OF RHODE ISLAND OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND. EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, SUCH COURTS. EACH PARTY HERETO ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE COURTS AS AFORESAID AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED FIRST-CLASS POSTAL MAIL, POSTAGE PREPAID, TO SUCH PARTY AT THE ADDRESS SPECIFIED IN OR PURSUANT TO THE AGREEMENT, WITH SUCH SERVICE TO BECOME EFFECTIVE FIFTEEN (15) DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF EITHER PARTY TO SERVE ANY SUCH LEGAL PROCESS, SUMMONS, NOTICES, AND DOCUMENTS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. THE FOREGOING SHALL NOT LIMIT THE RIGHTS OF ANY PARTY TO OBTAIN EXECUTION OF JUDGMENT OR ENFORCEMENT OF THE RESULTS OF ARBITRATION IN ANY OTHER JURISDICTION. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY LAW, THAT FINAL AND UNAPPEALABLE JUDGMENT AGAINST ANY OF THEM IN ANY ACTION OR PROCEEDING CONTEMPLATED ABOVE SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION WITHIN OR OUTSIDE THE UNITED STATES BY SUIT ON THE JUDGMENT, A CERTIFIED OR EXEMPLIFIED COPY OF WHICH SHALL BE CONCLUSIVE EVIDENCE OF THE FACT AND AMOUNT OF SUCH JUDGMENT.
8.14 Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING DIRECTLY OR INDIRECTLY RELATING TO THIS AGREEMENT OR ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY AND FOR ANY COUNTERCLAIM RELATING THERETO. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVER, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (III) IT MAKES SUCH WAIVER VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.14.
8.15 Injunctive Relief. Influencer acknowledges and agrees that any violation by him or her of the provisions of Article IV will cause damage to Agency in a fashion or amount with may be irreparable and will be difficult to ascertain. Influencer therefore agrees that in the event that he or she breaches, threatens to breach, or fails or refuses to perform any of its obligations under Article IV, Agency shall be entitled to, in addition to any remedies at law under this Agreement for damages or other equitable relief, specific performance of such covenant or agreement hereunder, including injunctive relief in any jurisdiction without the necessity of posting a bond.
8.16 Costs and Fees. In the event of a Dispute, the prevailing Party shall be entitled to reimbursement of all of its or his or her costs and expenses, including reasonable attorneys’ fees, incurred in connection with the arbitration or litigation of such Dispute, including any appeals therefrom; provided, however, that no Party may receive reimbursement unless it or he or she complied with the dispute resolution process set forth in Section 8.11 above. For purposes of this Section 8.16 the determination of which Party is to be considered the prevailing Party and the allocation of costs shall be decided by the court of competent jurisdiction or independent party (i.e., arbitrator) that resolves such dispute, claim, or litigation.
9.17 Entire Agreement: Modifications. This IAMA and the Statement of Work represent the entire agreement between the Parties with respect to the subject matter hereof and thereof and supersedes any previous oral or written agreements or understandings regarding such subject matter. This IAMA may be amended or modified only by a written instrument signed by a duly authorized representative of each Party. A Statement of Work may only be modified by a duly executed Change Order as contemplated by this IAMA.
9.18 Manner of Execution. This IAMA shall be deemed agreed when a Statement of Work is fully executed by both Parties. Statements of Work may be executed in counterparts, each of which if so executed shall be deemed an original and both of which together shall constitute one and the same instrument. Scanned images of signatures transmitted electronically (or other evidence of consent transmitted electronically) shall have the force and effect of original signatures.
THE PARTIES HERETO AGREE TO THIS INFLUENCER AFFILIATION MASTER AGREEMENT BY VIRTUE OF ENTERING INTO A STATEMENT OF WORK.
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