Influencer Services Agreement
- Acceptance of Terms
- By clicking “I Agree” when you first sign up to become an Influencer with us, you agree to be bound by the provisions of this Influencer Services Agreement (“Agreement”).
- Your sign up is conditional on you being at least 18 years old and having the legal capability to entering into binding contracts.
- In this Influencer Services Agreement, the following capitalised terms have the following meaning:
Agreement means this Influencer Services Agreement, and includes any amendments to this Influencer Services Agreement from time to time;
Claim means a claim, action, proceeding, notice, litigation, investigation, judgment, liability or demand made against the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or deferred whether based in contract, tort or statute and whether involving a third party or party to this Agreement;
Commencement Date is the date when you sign up to become an Influencer with us;
Influencer means an individual who promotes goods or services on Social Media Platforms;
Influencer Content means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content created or provided by you pursuant to this Agreement;
Influencer Services means promoting Zitsticka or Zitsticka Products by posting any Influencer Content on your profile on a Social Media Platform;
Intellectual Property Rights means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
Loss means a damage, loss, cost, expense or liability incurred by the person concerned (including legal costs on a full indemnity basis) however it arises and whether it is present or future, fixed or unascertained, actual or contingent;
Moral Rights means the following rights in respect of any Intellectual Property Rights:
- the right of integrity of authorship (that is, not to have a work subjected to derogatory treatment);
- the right of attribution of authorship of a work; and
- the right not to have authorship of a work falsely attributed;
Social Media Platform means any social media platform, including without limitation Facebook, Twitter, Instagram, SnapChat, Pinterest;
State means the state of New York, United States of America; and
Zitsticka Products means products or goods offered for sale by us.
- Influencer Services
- We will provide you with certain Zitsticka Products free of cost for your use during the term of this Agreement. In consideration of this, you agree to provide Influencer Services in a professional manner and in accordance with the terms of this Agreement.
- You hereby grant us and our affiliates the right to publicise your association with us and Zitsticka Products and the right to include a link to your profile on a Social Media Platform on our website and any other web Social Media Platform we may have.
- Save to the extent expressly permitted by this Agreement or required by applicable law, any Influencer Services provided by you will be subject to the following prohibitions:
- you will not commit any act or omission which may subject us to contempt, scandal, public disrepute or ridicule or which offends or insults the general community to which Zitsticka Products are directed or which may tend to harm us or Zitsticka Products, including without limitation, disparaging our competitors or their products;
- you must not commit any act or omission which will result in you or us breaching any law, regulation, rule, code or other legal obligation;
- you must not include as part of any Influencer Content any text, file, image graphics, information, video or photograph etc. that you do not own or have a license to use;
- you must obtain written permission from any third party that you feature in the Influencer Content; and
- you must not include any personally identifiable information about any individual, that has not been made available to you by such individual voluntarily, in the Influencer Content.
- Term and Termination
- This Agreement comes into force upon the Commencement Date and will operate unless terminated in accordance with this clause 4 (the “Term”).
- Either party may terminate this Agreement immediately by giving written notice of termination to the other party, if the other party:
- commits a breach of this Agreement; or
- is insolvent, placed under internal or external administration, or suffers an insolvency or liquidity event as commonly interpreted.
- Notwithstanding anything else in this Agreement, either party may terminate this Agreement without cause upon 30 days’ written notice.
- Effects of Termination
- Upon the termination of this Agreement, all of the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 6, 7, 8 and 9.
- Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement will not affect the accrued rights of either party.
- Immediately upon termination of this Agreement, you must cease use of our trademarks and trade names.
- Intellectual Property
- IN CONSIDERATION OF RECEIVING THE ZITSTICKA PRODUCTS, YOU HEREBY GRANT US AND OUR AFFILIATES:
- A PERPETUAL, ROYALTY-FREE, NON-EXCLUSIVE, IRREVOCABLE, TRANSFERRABLE LICENSE TO USE, REPRODUCE, TRANSLATE, PUBLISH, CREATE DERIVATIVE WORKS FROM, DISPLAY AND DISTRIBUTE THE INFLUENCER CONTENT (IN WHOLE OR IN PART) WORLDWIDE AND, OR TO INCORPORATE IT IN OTHER WORKS IN ANY MEDIA, FORM, OR TECHNOLOGY NOW KNOWN OR LATER DEVELOPED WITH PROPER ATTRIBUTION, SUCH AS A LINK, BACK TO YOU; AND
- THE RIGHT TO USE AND EXHIBIT WORLDWIDE YOUR NAME, VOICE, LIKENESS, IMAGE AND SIGNATURE TO PROMOTE ZITSTICKA AND ZITSTICKA PRODUCTS.
THIS IS AN ESSENTIAL TERM OF THIS AGREEMENT.
- You agree that the title to, and Intellectual Property Rights, in our trade names and trademarks belong to us. We hereby grant you a limited, non-transferable, non-exclusive, non-assignable, royalty-free license to use our trade names and trademarks in connection with the Influencer Services, for the duration of the Term.
- You acknowledge that:
- in so far as you are able, waive your Moral Rights in respect of the Influencer Content; and
- voluntarily and unconditionally consent to all or any acts or omissions by us, or persons authorised by us, which would otherwise infringe your Moral Rights.
- You acknowledge that we will suffer real and substantial damage as a result of a breach of this clause 6 and may seek injunctive relief for any actual or perceived breach and damages alone are not an adequate remedy.
- If you provide us with comments or suggestions relating to the Zitsticka Content or any material that we provide to you, then all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modification or derivative works), are owned solely by us and we may use the feedback for any purpose.
- Confidentiality & Non Disparagement
- The parties agree to keep any information which can reasonably be thought of as such as strictly confidential, including without limitation, details of your engagement under this Agreement and not disclose it or allow it to be disclosed to a third-party except with prior approval of the other party or because of any law or authority. Any information which has become public domain is not captured by this clause. This clause survives the expiry or termination of this Agreement.
- You will not, either as yourself or under any pseudo name or assumed identity, post any negative comments regarding us or Zitsticka Products in any media at any time. You will not reveal any information regarding our association or the Influencer Services until the specified time.
- Limitation of Liability
- WE EXCLUDE ALL LIABILITY AND ALL WARRANTIES UNDER THIS AGREEMENT TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITH THE EXCEPTION OF MANDATORY WARRANTIES PURSUANT TO ANY APPLICABLE LAW. ANY ZITSTICKA PRODUCTS PROVIDED UNDER THIS AGREEMENT BY US ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
- OUR LIABILITY ARISING IN CONNECTION WITH THIS AGREEMENT IS LIMITED AS FOLLOWS:
- WE EXCLUDE ALL LIABILITY FOR CONSEQUENTIAL, SPECIAL, INDIRECT OR REMOTE LOSS, INCLUDING LOSS OF OPPORTUNITY OR BUSINESS;
- OUR TOTAL MAXIMUM LIABILITY ARISING IN CONNECTION WITH THIS AGREEMENT IS LIMITED TO VALUE OF ZITSTICKA PRODUCTS PROVIDED TO YOU IN THE 12 MONTHS PRECEDING THE EVENT; AND
- OUR LIABILITY IS SUBJECT TO YOUR DUTY TO MITIGATE YOUR LOSS.
- Release and Indemnity
- You agree to release and indemnify us from any Claim and Loss insofar and to the extent that the Claim and Loss arise because of a Relevant Matter.
- In this clause, Relevant Matter means:
- your use of the Zitsticka Products;
- any damage to person, property, personal injury or death; and
- breach of this Agreement by you; and
- your failure to observe any applicable law.
- Amendment of Agreement
- We may amend this Agreement from time to time by providing you with adequate notice. If you do not agree to the amendments, then we may at our sole discretion terminate the Agreement (in which case you will only be entitled to the Fees pro-rata) or abandon the proposed amendment.
- Notices are taken to be read on the day they are received, unless they are received after 5 PM or not on a business day in the State, in which case they are deemed to be received on the next business day in the State.
- You must not assign, sublicense or otherwise deal in any other way with any of your rights under this Agreement. We may assign our rights under this Agreement at our sole discretion.
- Nothing in this Agreement is intended to create, nor will anything in this Agreement be construed or interpreted as creating, an agency, a partnership, a joint venture, employment relationship or any other relationship between you and us. The relationship between you, on one hand, and us, on the other hand, is that of independent contractors.
- No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
- Any provision of this Agreement which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this Agreement enforceable, unless this would materially change the intended effect of the Agreement.
- This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
- This Agreement will constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and will supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
- This Agreement will be governed by and construed in accordance with the law of the State. The courts of the State will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.