Introduction
Find Your Influence connects business entities that seek to expand their brand, product, and/or service awareness online (“Advertisers”) with digital
Influencers (as defined below) through the Find Your Influence cloud-based platform (“Platform”). Digital influencers (“Influencers”) encompass business
entities, including individuals, that own a blog, have a presence on social media assets (such as a Facebook, Twitter, Youtube and Pinterest), use their
social assets to post regular content, and work with Advertisers to promote their brand and/or products or services. In addition to connecting Advertisers
to Influencers, the Platform assists in managing the relationship between Advertisers and Influencers, aids in content distribution, and manages payments.
These standard terms and conditions (this “Agreement”) is entered into by and between FYI, an Arizona limited liability corporation, (“FYI”) and you, or if you represent a company or other business entity, such company or entity, or if you are an agency representing a company or other business entity, the agency (in any case “Company”).
1. Definitions.
Capitalized terms used in this Agreement have the definitions assigned herein.
2. Platform.
a. Registration. Prior to FYI’s grant of Platform access to Company, Company shall accept the terms and conditions of this Agreement and submit standard business information requested by FYI, including payment information. Once accepted by FYI, Company shall be provided with a Platform account which will allow Company to access and use the Platform (“Account”). FYI, in its sole discretion, may decline Company’s use of the Platform.
b. Use. Company’s Account is for Company’s sole use. Company may not (i) distribute, transfer or allow any third party access to Company’s Account; or (ii) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any rights to access or use Company’s Account or the Platform or otherwise make Company’s Account or the Platform available to any third party. Company may access and use the Platform solely for lawful purposes, and in accordance with the terms and conditions of this Agreement.
c. Modifications. FYI reserves the right, at any time, for any reason, to modify (i) the Platform or the Rate Card (as defined in Section 4(a) (Fees) by making those modifications available on the Platform, or (ii) this Agreement, by providing notice as provided in this Agreement. Modifications shall be effective immediately upon their posting on the Platform, or in accordance with the notice terms. Company shall be deemed to agree to and accept any such modifications by Company’s continued use of the Platform or Account following such notice.
d. Solicitation of Influencers. During the Term of this Agreement and for six (6) months thereafter, Company shall not (I) knowingly solicit any Influencer or website that is obtained through the services provided by FYI under this Agreement or the Platform; (ii) transfer any Influencer obtained through the services provided by FYI under this Agreement to any third party provider or any in-house program substantially similar to the services provided by FYI hereunder; or encourage any Influencer to so transfer. In the event Company does directly solicit or cause any Influencer to transfer, Company shall pay to FYI what FYI would have otherwise earned had Company not violated this provision. Except as expressly set forth above, nothing herein shall be deemed to restrict Company from entering into independent strategic partnerships or other agreements with Influencers or to prohibit Company from advertising, merchandising or promoting its products or services.
e. Ownership. FYI and its licensors own all rights, title and interest in all intellectual property rights in and to the Platform, the technology used to the Platform and all components thereof, including any and all modifications, upgrades, updates, developments, changes, edits, improvements and the like made to the Platform, the technology, and any of the components thereof (“Technology”). Company agrees it will not, nor will it allow a third party to (i) use the Technology, except as expressly provided in this Agreement; (ii) alter, modify, reproduce, or create derivative works of the Technology; (iii) use the Technology in any manner that could damage, disable, overburden or impair the Platform; (iv) use automated scripts to collect information from or otherwise interact with the Platform; (v) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Platform; (vi) attempt to circumvent or overcome any protection measures intended to restrict access to any portion of the Platform; (vii) monitor the availability, performance or functionality of the Platform; or (viii) interfere with the operation or hosting of the Platform. Company receives no ownership interest in or to the Technology. Company is granted no right or license to use the Technology, other than Company’s right to access and use the Platform under the terms of this Agreement. The FYI name, logo and all product and service names associated with the Platform are trademarks of FYI and its licensors and providers and Company is granted no right or license to use them without express written consent of FYI.
f. Suspension. Without limiting FYI’s rights under Section 5(b) (Termination), FYI, in its sole discretion, has the right to suspend Company’s Account and/or access to the Platform for Company’s actual, threatened, or suspected breach of this Agreement or upon conduct FYI deems inappropriate or detrimental to FYI or the Platform.
3. Content.
Company represents and warrants that all marketing materials, brand information, logos, press releases, documents or other items or information regarding Company or its products and/or services provided by Company or its designees (“Content”) (a) complies with all applicable laws, rules, regulations and orders; (b) Company owns or has license to use and distribute all such Content; (c) Company has the right to use all trademarks, service marks, trade dress and other marks and similar items used in its Content. Company agrees that (I) it is completely responsible for all Content supplied through the Platform; and (ii) if Company has any additional requirements of Influencers that may participate with Company, Company is responsible for Influencer’s compliance with any additional Advertiser terms and conditions.
4. Payment Schedule and Terms.
a. Fees. Company shall pay to FYI the fees as invoiced by FYI in accordance with Section 4(b) (Invoicing). The fees shall be as stated on the “Rate Card” a schedule detailing the fees for FYI services, as hosted on the Platform, and is specific to Company. The fees shall include: (i) the “Platform Fee”, which is defined as the monthly access charge Company shall pay to FYI to access the Platform, prepaid on a month-to-month basis; plus (ii) the “Influencer Fee”, defined as the number of Influencers participating with Advertiser for the previous month times the fee for each Influencer, based on the applicable tier for each such Influencer (“Influencer Rate”); plus (iii) any applicable incentive fees for the previous month times the number of Influencers participating with Advertiser (“Influencer Incentive Fees”).
b. Invoicing. FYI shall send monthly statements to Company by the fifth (5th) calendar day of the current month to the email address provided by Company. Company shall have four (4) calendar days to notify FYI of any disputes on the statement. FYI shall use reasonable efforts to resolve all statement disputes with Company in a timely manner.
c. Payments. In the event Company provides FYI with a credit card for monthly payments, such credit card will be charged by FYI for the statement amount by the tenth (10th) calendar day of the given month. If Company does not maintain a current credit card on file with FYI, Company shall pay all amounts due within thirty (30) calendar days from the date of Company’s receipt of the monthly invoice from FYI.
d. Late Payments. Any portion of the statement fees or any undisputed amount due to FYI from Company and received by FYI more than thirty (30) days subsequent to the date such payment is due shall be delivered with interest at a rate of one percent (1.0%) per month accruing from the date originally due. Such additional amounts shall be in addition to, and not in lieu of, FYI’s other rights and remedies pursuant to this Agreement. Company shall be responsible for all collection costs, attorneys’ fees and expenses incurred by FYI to collect any late payments due from Company.
e. Agency. Agencies entering into this Agreement on behalf of such agency’s clients agree that Agency is responsible for all amounts due to FYI incurred by agency on behalf of such clients. FYI shall have the right to, but not the obligation to, pursue such agency’s clients for any statement fees not paid by Agency. Such rights shall be in addition to and not in lieu of FYI’s other rights and remedies pursuant to this Agreement.
5. Term; Termination.
a. Term. This Agreement is effective on the date of your acceptance and terminates one (1) year thereafter, unless extended by parties in advance.
b. Termination.
You may cancel the Services at any time, with or without cause. However, you understand and accept that by cancelling the Services:
(i) you will not receive a refund
(ii) you are obligated to pay all charges due until the end of the subscription.
Upon termination, Company shall (i) cease all use and access of the Platform; (ii) all licenses, rights and subscriptions granted by this Agreement shall terminate; and (iii) Company shall delete or destroy anything, including Content, downloaded from the Platform.
c. Survival. Upon termination of this Agreement, the following sections shall survive: Section 1 (Definitions), Section 2(d) (Influencers), Section 2(e) (Ownership), Section 3 (Content), Section 4 (Payment Schedule and Terms), Section 5(c) (Survival), Section 6 (Warranties and Disclaimers), Section 7 (Indemnification and Damages), Section 8 (Data Privacy), and Section 9 (General).
6. Warranties; Disclaimers.
a. Representations and Warranties. Each party represents and warrants that (i) it will perform its obligations under this Agreement in accordance with all applicable laws, rules, regulations and orders; (ii) it has the legal right and authority to enter into and perform this Agreement; and (iii) this Agreement forms a binding legal obligations on behalf of such party. The party accepting this Agreement on behalf of Company represents and warrants that he or she is duly authorized and has full authority to execute and deliver this Agreement.
b. Warranty Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PLATFORM, TECHNOLOGY AND CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND FYI AND ITS PROVIDERS MAKE NO OTHER WARRANTIES (WHETHER STATUTORY, ARISING FROM COURSE OF DEALING OR OTHERWISE), EITHER EXPRESS OR IMPLIED, REGARDING THE PLATFORM, THE TECHNOLOGY OR FYI’S SERVICES, THEIR MERCHANTABILITY OR THEIR FITNESS FOR ANY PARTICULAR SERVICES.
7. Indemnification; Damages.
a. Indemnification. Company agrees to indemnify, defend and hold harmless FYI and its directors, officers, employees, independent contractors, successors and assigns (each an “Indemnified Party”) for, from and against any and all claims, demands, threats, suits, proceedings, losses, costs, expenses or damages (including attorneys’ fees) (a “Claim”) incurred by an Indemnified Party to the extent arising from (a) Company’s breach of this Agreement; (b) Company’s use of the Platform or Technology; (c) a third party’s use of Company’s Account. FYI shall provide Company with notice of any such Claim and FYI shall have the right to participate in the defense of a Claim at its own expense.
b. Consequential Damages Waiver; Limitation of Liability. FYI SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INDCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE TYPE OF CLAIM OR IF FYI WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. FYI’S ENTIRE LIABILITY HEREUNDER SHALL NOT EXCEED THE PLATFORM FEE PAID BY COMPANY IN THE MONTH PRIOR TO THE MONTH IN WHICH THE CLAIM AROSE.
8. Data Privacy.
Company expressly consents to the use and disclosure of personally identifiable and other data and information as described in the PrivacyPolicy. FYI will have the right to collect, extract, compile, synthesize, and analyze non-personally identifiable data or information resulting from accessto and use of the Platform. To the extent any such data or information is collected or generated by FYI, the data and information will be solely owned byFYI and may be used by FYI for any lawful business purpose without a duty of accounting, provided that the data and information is used only in anaggregated form, without directly identifying Company. FYI may reference Company as a user of the Platform and use Company’s name and logo (as provided by Company to FYI), as applicable in listings of users of the Platform and for other marketing and promotional purposes relating to the Platform and FYI.
9. General.
a. Governing Law; Venue. This Agreement shall be governed by the laws of the State of Arizona, without regard to conflicts of laws principles. Each party consents and agrees that all disputes arising under this Agreement shall be brought in the Superior Court of the State of Arizona in Maricopa County or the Federal District Court in Phoenix, Arizona, and each party irrevocably waives any objection such party may have as to the venue of any such proceeding brought in such court as an inconvenient forum.
b. Notices. All notices required to be provided by FYI by this Agreement shall be delivered by FYI to Company via email to the email address provided by Company, except such notices required by Section 7 (Indemnification) shall be delivered by U.S. Postal mail or any nationally recognized mail delivery service. It is Company’s responsibility to keep a current email and physical address on file with FYI. All notices required to be provided by Company to FYI shall be delivered via U.S. Postal mail, or any nationally recognized mail delivery service.
c. Force Majeure. Neither party shall be liable for any failure or delay in the performance of its obligations hereunder (except payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.
d. Waiver. The failure of either party to exercise any right or option arising out of a breach of this Agreement shall not be deemed a waiver of any right or option with respect to any subsequent or different breach or the continuance of any existing breach.
e. Severability. Each provision of this Agreement shall be interpreted in such fashion as to be effective and valid under applicable law. If any provision of this Agreement is declared void, unenforceable or invalid all remaining provisions shall remain in full force and effect.
f. Assignment. Company may not assign or transfer this Agreement, nor any of its rights or obligations, in whole or in part, without the express written consent of FYI. FYI may assign this Agreement to any party that assumes FYI’s obligations hereunder.
g. Independent Contractors. FYI and Company shall perform their obligations hereunder as independent contractors. Nothing herein is intended to, or shall be construed to create a partnership, agency, joint venture, employment or similar relationship between the parties. Neither party has any right or ability to bind or enter into any obligation on behalf of the other. Each party shall bear its own costs and expenses of its performance of its obligations under this Agreement.
h. Entire Agreement. This Agreement, together with the Rate Card hereto, states the entire agreement between the parties regarding its subject matter and supersedes and terminates any prior oral or written proposals, agreements or other communications between the parties regarding the subject matter. Except as stated in Section 2(c) (Modifications), this Agreement shall not be modified except by written amendment signed by a duly authorized representative of each party.
