MAVRCK MASTER INFLUENCER AGREEMENT
This Master Influencer Agreement (this “Agreement”) between Apifia, Inc. dba Mavrck, a Delaware corporation (“Mavrck”), and you, or, if you represent an entity or other organization, that entity or organization (in either case “Influencer”) and provides the terms and conditions under which Influencer may provide creation and distribution of content services (the “Services”). The effective date of this agreement shall be the date that an Influencer has accepted of the terms of this Agreement by signing below.
All Services will be provided subject to the terms of this Agreement, and if Influencer wishes to provide Services, Influencer may do so only in compliance with the terms of this Agreement.
1. DEFINITIONS. All capitalized terms used in this Agreement and defined in the context in which they are used will have the meanings given to them herein. All other terms used in this Agreement will have their plain English meaning as commonly interpreted in the United States.
1.1 “Advertiser” means any client, its affiliates, or customer as set forth in an applicable Program Details that has a contractual relationship with Mavrck to receive Influencer Content or Submissions, and which may sometimes be referred to as “Subscriber.”
1.2 “Content Platform” means all or any portion of a website containing written, video or photographic commentary, news or discussion on one or more particular topics (such as a “Blog”) and that includes any Influencer Content.
1.3 “Confidential Information” means all information, including but not limited to the material terms of this Agreement, relating to or disclosed in the course of performing under this Agreement which is or should be reasonably understood to be confidential or proprietary to Mavrck, its Advertisers, the subsidiaries and affiliated companies of both and/or their licensors, licensees, and business partners. “Confidential Information” does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure by the recipient or its representatives; (b) was known by the recipient prior to its disclosure; (c) was independently developed by recipient without use of the Confidential Information; or (d) becomes available to the recipient on a non-confidential basis
1.4 “Influencer Content” means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content created or provided by Influencer pursuant to Program Details.
1.5 “IPR” means all intellectual property and proprietary rights throughout the world, including, without limitation, all copyrights, trademarks, trade secrets, patents, moral rights, and other rights protecting data, information or intangible property throughout the world.
1.6 “Program Details” means the specific details provided to Influencer by Mavrck or the Advertiser, including, but not limited to, compensation, program dates, branding guidelines, general and specific Influencer responsibilities and the Advertiser. Influencer may engage in multiple Program Details, each governed by this Agreement.
1.7 “Mavrck Analytics Code” means computer code provided by Mavrck from time to time for inclusion in produced content; i.e. Tracking Links.
(a) Influencer shall be the sole and exclusive copyright owner of all content created as part of the Services, whether or not published, in perpetuity (but in any event for not less than the period of copyright and any renewals and extensions thereof), throughout the universe, from the moment of their creation, at every stage of their development, production, or completion, in all media now known or hereafter devised (“Influencer IPR”). Except as expressly provided in the Program Details, Influencer hereby grants Mavrck and Advertiser a limited license to use and distribute the Influencer IPR, as described in the Program Details for the duration contemplated therein..
(b) Except as permitted pursuant to this Agreement, Influencer may not, and will not permit any third party to display or otherwise use any Influencer Content or Submissions in any manner (including without limitation to generate revenue for Influencer) other than as set forth in the applicable Program Details. Influencer will defend, indemnify and hold harmless Mavrck and its Advertisers, and their respective affiliates, employees, agents, contractors, assigns, licensees, and successors in interest from and against any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) incurred or arising from any claim or action by a third party arising out of or relating to the Influencer Content or Submissions, or Mavrck’s or an Advertiser’s Use thereof.
2.3 Non-Exclusivity. Influencer has the right to provide content services to others during the Term of this Agreement provided that: (a) such other engagement or performance does not interfere in any way with the timely and professional performance of the Services to Mavrck; (b) such other engagement or performance does not require the disclosure or use of Confidential Information; and (c) such other engagement or performance does not conflict with any active Program Details or any other agreements between Mavrck and Influencer (i.e. an engagement for a competitive brand or product). Mavrck has no obligation to propose Program Details to Influencer and may receive content services from other influencers during the Term of this Agreement.
3. REPRESENTATIONS AND WARRANTIES.
3.1 By Each Party. Each party represents, warrants, and covenants to the other party that: (a) such party has full power and authority to enter into this Agreement and to perform its obligations under this Agreement; (b) this Agreement is a legal and valid obligation binding upon such party and enforceable in accordance with its terms; (c) this Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which such party is a party or by which such party is bound; and (d) such party will comply with all laws, rules, and regulations applicable to such party in its performance under this Agreement.
3.2 By Influencer. Influencer represents, warrants and covenants that: (a) Influencer is the original author and sole owner of the Influencer Content or otherwise has obtained any content from sources in conformity with the Mavrck Content Policy and that for all Influencer Content, Influencer has obtained all necessary rights, licenses, permissions, consents and the like, including but not limited to releases for voices, images and appearances, with regard to all video, audio, photograph, graphics, illustration or other multimedia content and will provide Mavrck with all such releases upon Mavrck’s request; (b) no Influencer Content created or obtained by Influencer and delivered to Mavrck or posted by Influencer or Mavrck hereunder shall infringe on or violate any IPR or applicable laws, including, but not limited to, the Federal Trade Commission Act and all rules and regulations promulgated by the Federal Trade Commission; (c) no Influencer Content delivered or posted by Influencer hereunder shall contain any profanity, scandalous, libelous, defamatory, obscene, pornographic or unlawful matter or material and (d) Influencer Content may not contain malicious code, counters, or other types of code that automatically attach cookies or other devices that track and collect user’s information.
3.4 EXCEPT AS MAY OTHERWISE BE EXPRESSLY SET FORTH HEREIN, THE MAVRCK TECHNOLOGY IS PROVIDED “AS IS” AND MAVRCK DISCLAIMS, AND INFLUENCER DISCLAIMS ANY RELIANCE ON, ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, ORAL OR IN WRITING, ARISING UNDER ANY LAWS, INCLUDING WITH RESPECT TO TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
4. LIMITATION OF LIABILITY. EXCEPT IN CONNECTION WITH CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL NOT BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT OR ANY PROGRAM DETAILS, OR ARISING FROM ANY OTHER PROVISION OF THE AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
6. FEES; PAYMENT; TAXES.
6.1 Fees. Influencer agrees that the compensation described in the Program Details (the “Fees”) represent Influencer’s entire compensation for all Services and Influencer shall not be entitled to reimbursement for any expenses unless agreed upon in writing within the Program Details.
6.2 Payment. Provided that Influencer is in compliance with this Agreement, including any active Program Details, Mavrck will pay all Fees in accordance with the applicable payment terms and rates outlined in the Program Details upon receipt of an invoice from Influencer upon completion of Influencer’s work. Payments shall be made Net 30 from the receipt of invoicele. Influencer understands that payment is contingent upon: (a) providing their ACH Direct Deposit information or check information to Mavrck within their platform profile, including an IRS form W-9; (b) fulfilling and completing all of the obligations contained in the relevant Program Details; and (c) submitting an invoice for the work complete. Mavrck reserves the right to suspend any agreement with an Advertiser (an “Advertiser Suspension”). Mavrck shall not be obligated to pay Influencer any Fees following notice by Mavrck to Influencer of an Advertiser Suspension for any Services related to such Fees that have not been performed by Influencer as of the date of such notice. Influencer, however, will be paid on a pro-rata basis for work completed prior to Advertiser Suspension to the extent that Mavrck is paid by Advertiser for such work.
6.3 Taxes. Influencer shall be responsible for determining the applicability of any sales, use, excise, or similar transactional taxes that may be applicable to the performance of the Services, if any. Influencer shall be obligated to pay any applicable taxes for corresponding Services, including without limitation, any and all interest, penalties and attorneys’ fees. Mavrck will not be responsible to Influencer or any governing body for any taxes relating to amounts that Influencer receives hereunder including but not limited to federal or state income tax, social security tax, or unemployment tax. Influencer shall bear any and all costs, and shall indemnify Mavrck against the same, including, without limitation, penalties, interest and attorneys’ fees. Mavrck shall be entitled to contest, pursuant to applicable law and at its own expense, any taxes it is ultimately obligated to pay, and Influencer shall reasonably cooperate with any such contest.
7. TERM AND TERMINATION.
7.1 This Agreement shall commence on the Effective Date and shall continue until terminated by either party. Either Party may terminate this Agreement, effective upon notice, at any time by written notice to the other party.
7.2 Upon expiration or termination of this Agreement, all revocable licenses granted under this Agreement will immediately terminate. Sections 2.2, 3, 4, 6, 7.2, and 8 through 11 will survive any indemnification or termination of this Agreement.
8. INDEMNIFICATION. Each party (the “Indemnifying Party”) agrees to indemnify, defend, and hold harmless the other party and its affiliates, employees, agents, contractors, assigns, licensees, and successors in interest from and against any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any breach of the Indemnifying Party’s representations or warranties under this Agreement. Influencer further agrees to indemnify, defend, and hold harmless Mavrck and its Advertisers, and their respective affiliates, employees, agents, contractors, assigns, licensees, and successors in interest from and against any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) arising out of resulting from any breach by Influencer of the Mavrck Content Policy as attached hereto as Exhibit A. The total amount each party shall be liable for shall be capped at the total compensation fee(s) paid or payable to Influencer under this Agreement.
9. CONFIDENTIALITY. Influencer acknowledges that in the course of providing Services hereunder, Influencer may acquire certain Confidential Information. Influencer shall not: (a) disclose such Confidential Information to any third party without the prior written consent of Mavrck, (b) will notify Mavrck if Influencer becomes aware of any breach of confidentiality in any manner whether through (i) Influencer’s negligence, acts or omissions, or (ii) computer virus, or theft of Influencer’s computer or login information; or (c) use the Confidential Information for any purpose other than to carry out the Services contemplated hereunder. Influencer acknowledges that misuse or disclosure of any Confidential Information by Influencer will give rise to irreparable injury to Mavrck or the owner of such information, which is inadequately compensable in damages. Accordingly, Mavrck or such other party may seek and obtain injunctive relief against the breach or threatened breach of these Confidentiality Obligations, in addition to any other available legal remedies.
10. GOVERNING LAW. The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of New York, U.S.A.
MAVRCK CONTENT POLICY
The following Mavrck Content Policy applies to each Influencer who has entered into a Master Influencer Agreement with Mavrck. Terms used but not defined herein will have the definitions ascribed in the Master Influencer Agreement.
1. Influencers shall comply with the most recent Federal Trade Commission Guides Concerning the Use of Testimonials and Endorsements in Advertising (“FTC Guides”), including any updates, additions, modifications, or supplemental guidance to the FTC Guides, in connection with their performance hereunder.
2. Originality of Content. All portions of Influencer Content must be the original creative work of the Influencer or the Influencer must be the sole owner of the Influencer Content pursuant to the Master Influencer Agreement.
3. Use of Quotes. Influencers should adhere to the following steps if using quotes: (a) quotes should be short; (b) Influencers should credit the source; and (c) Influencers should use the quote in the same context as when the quote was originally made. If Influencer has a question about whether he/she can use a quote, Influencer must ask the writer for written permission to use the quote in an email and keep the email.
A. Influencer must use “no follow” links in Influencer Content.
B. Influencer may embed a hyperlink in the Influencer Content that links to the specific webpage where the third party content is located. Influencers are also responsible for not linking to sites containing content that would not be permitted under the Master Influencer Agreement.
5. Third Party Content. In order to avoid potential infringement of IPR, Influencers should not endorse, copy, or adopt third party content.
6. Statements About Third Parties. Influencer Content shall not contain any defamatory, libelous, or slanderous material. Influencer Content shall not be harassing, abusive, unlawful, tortious, threatening, harmful, pornographic, sexually explicit, obscene, patently offensive, or otherwise promote racism, bigotry, hatred, or physical harm of any kind.
7. Making Claims. Influencer Content shall be true and accurate to the best of the Influencer’s knowledge and shall not hold out opinion as fact. Influencer Content shall not be intentionally misleading, deceptive, untrue, or fraudulent. Influencer is responsible for checking his/her facts before he/she makes any claims about third parties or products.
8. Third Party Rights. Influencer Content shall not violate any third party privacy right, right of publicity, or any other IPR.
9. Cheating. Cheating is prohibited, and will result in immediate action and termination without compensation.
10. No Advertising. Influencers shall not, as a part of the Influencer Content produced for any Mavrck program advertise, market, or otherwise promote any other product or service in which Influencer or any Influencer affiliates have an ownership interest or other financial interest, directly or indirectly.
11. General. Influencer may only provide the types of Influencer Content authorized in the Program Details and such Influencer Content may only be used in the manner specified in the Master Influencer Agreement. Influencer may not use any music on any web property on which he/she is publishing content without express permission from the copyright or other rights owner(s) for Influencer’s specific intended use in each instance. Influencer must obtain any required permissions or releases where necessary. In accordance with the Digital Millennium Copyright Act and other applicable laws, Mavrck has adopted a policy of terminating, in appropriate circumstances and within Mavrck’s sole discretion, Influencers who infringe upon the IPR of Mavrck or any third party.
12. Embedded Video Players. Influencer is permitted to embed video players from third party sites in Influencer Content only through publicly available APIs that do not prohibit use by commercial entities in accordance with the API owner’s terms of service, as applicable. Influencer should not copy content and post it on a Content Platform such that Influencer hosts the content; instead, showing third party videos in video players using third party APIs ensures that the third party, and not Influencer, is hosting that content such that if the third party site removes that content from its site at the request of a copyright owner, that content will automatically be removed from the Content Platform as well, since the content is hosted on the third party’s server, and not Influencer’s server.
13. Use of Images or Other Media. An image or other multi-media element may involve layers of rights. The photographer/creator owns the copyrights in his/her photograph or other media (e.g., the artistic expression of his/her vision). A person depicted in the photograph, video, or other applicable media owns the right to control the use of his/her image (or, in the case of a minor, a parent or guardian may exercise control or grant permission on behalf of the minor). If a trademark or a product in its trade dress (e.g., a Coke® can) appears, the owner of the trademark may have rights in how its product or trademark is depicted. Influencers must analyze each image or other media element to be sure that he/she has the appropriate permission from all rights owners to use the image or media in accordance with this policy and the Master Influencer Agreement.
14. No Modifications to Third Party Images or Other Media. Influencer should not modify any third party images or other media in any way that would change its nature or context, unless Influencer is certain that he/she has the right from the copyright owner to create a derivative work. If Influencer has a question about whether he/she can create a derivative work, Influencer must ask the copyright owner for written permission to create the derivative work in an email and keep the email.
15. Credit and Attribution. Credit or attribution to the source of the image (e.g., Getty Images) is always necessary for a full size photograph. Credit should be used for thumbnail images where space allows. Similarly, attribution should be provided for other media according to its accompanying license terms.
16. Purchased Engagement. Influencer shall be fully responsible for the fulfilment of all promises and promotions offered by Influencer.
17. Password Protection. Influencer Content shall not be placed behind any login.