Affiliate Terms & Conditions

These Relive Everyday Affiliate Terms and Conditions (the “Terms and Conditions”) are entered into as of the Effective Date specified in the Scope of Work (as defined below) entered into by and between the Affiliate specified on the applicable Scope of Work (the “Affiliate”) and RELIVE EVERYDAY, LLC., a Pennsylvania corporation with its principal place of business at 533 S 2nd St, Highspire, PA, 17034 (the “Company”). Affiliate and the Company may be referred to hereinafter individually as a “Party” or collectively as the “Parties.”

BY ACCEPTING OR EXECUTING A SCOPE OF WORK, ORDER FORM OR ANY RELATED ADDENDUM THAT REFERENCES THIS AGREEMENT, YOU EXPRESSLY AGREE TO BE BOUND BY, AND STRICTLY ADHERE TO, ALL OF THE TERMS OF THIS AGREEMENT.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.

1. Scope(s) of Work.

Company wishes to engage an Affiliate to perform certain services set forth in one or more Scope(s) of Work and Affiliate desires to perform the services set forth in such Scope(s) of Work (the “Services”), subject to the terms and conditions of the applicable Scope of Work and these Terms and Conditions (collectively, the “Agreement”). The Company and Affiliate shall enter into one or more written scope(s) of work (each, a “Scope of Work” or “SOW”) detailing (a) the specific Services to be provided by Affiliate, including the scope of each applicable media campaign (each a “Campaign”), including the applicable Advertiser and Social Media Channels, or other media channels, that will be subject to the Campaign, the duration of the Campaign, and the reach of the Campaign, (b) any Content (as defined below) to be created by Affiliate and provided to the Company in connection with the performance of the applicable Services and Campaign, (c) a schedule and dates for performance by the Affiliate of the applicable Services and Campaign, and (d) such other terms as may be mutually agreed to by the Parties (e) Affiliate will post at least two times over a span of 7 days until the contract is ended.  Each Scope of Work shall only be deemed effective upon execution by an authorized representative of each Party, and, if required by the Company, the applicable advertiser that is sponsoring the applicable Campaign (the “Advertiser”). In the event of a conflict between a Scope of Work and these Terms and Conditions, this Scope of Work shall control, but only with regard to the Services described in the applicable Scope of Work. As used herein, “Social Media Channels” include but are not limited to: Facebook, Instagram, Twitter, Tumblr, YouTube, Pinterest, Google+, and website blogs.

2. Development and Approval of Content.

a. Initial Development and Approval. Affiliate shall submit all elements of any and all content, materials, videos, photographs and/or works of a similar nature produced, developed, or created by Affiliate, in whole or in part pursuant to this Agreement (collectively, the “Content”), including any captions relating to the Content or applicable post(s), to the Company for the Advertiser’s prior written approval prior to posting, which may be granted or withheld in the Advertiser’s and the Company’s sole discretion.  All Content must be submitted to the Company in accordance with the applicable schedule set forth in the Scope of Work. If, following each submission of Content to the Company for approval by the applicable Advertiser, the Company or the Advertiser requests or requires any edits to the applicable Content, the Affiliate shall make any and all edits as required or requested by the Company or the Advertiser. Following Affiliate’s implementation of such edits, Affiliate shall resubmit the applicable Content to the Company for review and approval by the Advertiser. In the event that Affiliate incorporates applicable edits in a manner reasonably consistent with the applicable requirements provided to Affiliate, but the Content is thereafter not approved by the Advertiser, the Company reserves the right to terminate this Agreement and/or the applicable SOW immediately upon notice to Affiliate, subject to the payment to Affiliate of a termination fee equal to twenty percent (20%) of the total compensation payable to Affiliate by the Company in connection with the Services and/or Campaigns to which the applicable Content relates.  In addition, if Affiliate makes any post without having received notice from the Company of the applicable Advertiser’s approval, such unauthorized post shall be deemed a material breach of Affiliate’s obligations under this Agreement and the Company shall have the right to (a) terminate the Agreement and/or the applicable SOW immediately upon notice to Affiliate, (b) require Affiliate to post a makegood that has been approved by the applicable Advertiser, without additional compensation to Affiliate, and/or (c) reduce the compensation payable to Affiliate by the amount that was otherwise payable in connection with the applicable unauthorized post.

b. Ongoing Revisions. In addition, following approval of any Content by the Advertiser, and posting of such Content by Affiliate, the Advertiser shall have the right to (i) require Affiliate to revise any Content to the extent that the information included in a post with regard to the Advertiser is no longer accurate, and (ii) require Affiliate to remove any indicia of the Advertiser from the Content.  In the event of any such requirement by the Advertiser, upon request from the Company, Affiliate shall revise the applicable Content which shall be subject to the approval process set forth in Section 2(a).

c. Affiliate Delays.  Time is of the essence with regard to Affiliate’s performance under this Agreement.  In the event that Affiliate fails to provide the Content for review and approval in accordance with the timing requirements set forth herein or in the applicable SOW or otherwise mutually agreed to by the parties in connection with an applicable SOW, or otherwise fails to perform the Services in accordance with the timelines set forth in the applicable SOW, in addition to any other rights and remedies that the Company or the Advertiser may have hereunder, the compensation owed to Affiliate in connection with the applicable Services and Campaign shall be reduced for each day or instance of delay, as applicable under the circumstances, by ten percent (10%) of the total compensation owed to Affiliate in connection with the applicable Services and/or Campaign.

3. Objectionable Content.  Affiliate acknowledges and agrees that he/she will not (a) make any unsubstantiated claims about any third party or its products or services in any Content related to any Campaign; or (b) develop or post any Content that is in any way illegal, obscene or harmful to the reputation, goodwill or interest of the Company or the Advertiser or their respective products, services, associates, employees or affiliates or that is otherwise reasonably objectionable to the Company or the Advertiser.

4. Exclusivity.  Affiliate acknowledges and agrees not to include as part of any Content, or otherwise post to any Social Media Channel, or any other media channel set forth in an applicable SOW, in connection or combination with the Content, any reference to any other brand or trademark other than those authorized by the Company on behalf of the Advertiser and shall not post to any Social Media Channel, or any other media channel set forth in an applicable SOW, any information, promotion, endorsement or content related to the brands specified in the applicable SOW for the period of time set forth in the applicable SOW. In addition, Affiliate agrees to only tag Advertiser’s pages on Social Media Channels and/or Advertiser’s social media handles in Affiliate’s post(s) that include the Content.

5. Affiliate Representations and Warranties. Affiliate represents, warrants and covenants that (a) Affiliate shall provide all Services under each applicable SOW with commercially reasonably skill and care in a competent and professional manner and at a level of quality not less than that prevailing in the industry, (b) Affiliate has the proper skills, training and background to enable Affiliate to perform such Services under the SOW in a competent and professional manner and to exercise the diligence ordinarily exercised by members of Affiliate’s industry, (c) Affiliate shall comply with all applicable laws and regulations in connection with the performance of the Services and each applicable Campaign, including, without limitation, laws and regulations concerning advertising and promotional campaigns, including, without limitation, the FTC’s  Guides Concerning the Use of Endorsements and Testimonials in Advertising, (d) Affiliate shall comply with all terms of use, privacy policies, and other terms, rules or policies that are applicable to any Social Media Channel, (e) subject to the license grants pursuant to Section 8 and Section 9, Affiliate has all consents, permissions or licenses necessary for Affiliate to create the Content as contemplated hereunder; (f) the Content does not violate any copyright, trademark, or other intellectual property or proprietary right of any other party, (g) Affiliate is at least 25 years of age and upon request by the Company at any time during the Term, will provide proper evidence of his or her age in the form of a valid driver’s license, passport or other acceptable government-issued identification as determined by the Company in its sole discretion, and (h) Affiliate shall not engage in any fraudulent activity or other activity that would falsely or artificially increase or affect the number of Affiliate’s followers, “likes” or other indicators of Affiliate’s audience or reach on any applicable Social Media Channel, including, without limitation, with regard to a particular Campaign.

Refunds

If an unreasonable amount of returns or exchanges (unreasonable amount is determined by Relive Everyday, LLC) occurs within the affiliate audience or network. Relive Everyday, LLC has the right to charge a 50% restocking fee to the consumer, and terminate the Affiliate.

6. Compensation. Subject to completion of the Services and applicable Campaign(s) set forth in the applicable SOW, and delivery to the Company of the photographic or other written confirmation reasonably required by the Company to evidence that the Services or Campaign(s) have been completed as required pursuant to the applicable SOW, and provided that Affiliate is not in breach of the terms and conditions set forth herein, the Company shall pay Affiliate the compensation set forth in the applicable SOW. Each such payment shall be made in accordance with the following terms: (a) if payment is via PayPal, on the 15th of each month following the 30 day period from the date Affiliate fulfills all of its obligations pursuant to the applicable  SOW; provided, however, that for all international (non U.S.) Campaigns, payment will be paid to Affiliate within sixty (60) to ninety (90) days of the date Affiliate completes all applicable obligations, and (b) if payment is via ACH, within thirty (30) days following the Company’s receipt from Affiliate of a valid invoice, following Affiliate’s fulfillment of all of their obligations pursuant to the applicable SOW. Any and all standard transfer fees payable to a financial institution in connection with payments made to Affiliate shall be the responsibility of the Company. The Company shall submit payments to Affiliate using the payment account information provided by Affiliate on the applicable Scope of Work and Affiliate shall be solely responsible for maintaining and/or updating his or her payment account information (including but not limited to financial institution and account number information) (“Affiliate Payment Information”) by contacting the Company.   Any failure by Affiliate to provide accurate Affiliate Payment Information, or to timely submit an invoice, or update any changes to Affiliate Payment Information may result in delays in payment of thirty (30) days or more. In addition, if the Company makes a payment to an incorrect account due to Affiliate’s failure to provide accurate Affiliate Payment Information, and the Company is unable to recover the amount of such incorrect payment, the Company shall be deemed to have made such payment in full to Affiliate, and the Company shall have no further obligation to Affiliate with regard to such payment. Further, if Affiliate fails to provide photographic or other written evidence of Affiliate’s successful completion of the Services and/or Campaign(s), the Company shall have the right to (a) require Affiliate to post a makegood that has been approved the applicable Advertiser, and/or (b) withhold the compensation otherwise payable to Affiliate in connection with the applicable Services and/or Campaign(s).  Further, any failure by Affiliate to claim or request payment on or before 180 days from the date Affiliate fulfills all of its obligations as set forth in the applicable SOW, whether as a result of Affiliate’s failure to maintain and/or update his or her Affiliate Payment Information or any other reason, shall result in Affiliate forfeiting any and all right, title and interest to any payment due under the applicable SOW with regard to the applicable Campaign.

7. Term: Termination.

a. Term. This Agreement shall be effective as of the Effective Date set forth in the first SOW entered into between the Parties and shall continue in full force and effect through the end date of the last Campaign set forth in any outstanding SOW entered into hereunder, unless this Agreement is otherwise terminated as set forth herein (the “Term”).  Notwithstanding the foregoing, the Term of this Agreement shall be concurrent with the insertion order or other written agreement between Company and Advertiser (the “Advertiser Agreement”) to which each applicable Campaign pertains.

b. Termination.  In addition to any termination rights otherwise set forth herein, the Company shall have the right to terminate this Agreement, including any and all outstanding SOW’s, (i) immediately upon written notice to Affiliate if the applicable Advertiser Agreement is terminated for any reason, (ii) at any time upon five (5) business days prior notice to Affiliate, and (iii) upon notice to Affiliate if Affiliate materially breaches any of its obligations hereunder and fails to cure any such breach within twenty-four (24) hours. A material breach by Affiliate shall include any breach of Section 3 or Section 5. In the event that the Company reasonably suspects that Affiliate is in breach of Subsection 5(h), the Company shall notify Affiliate, and, unless Affiliate is able to provide reasonable evidence to the Company that Affiliate has not fraudulently or falsely increased or affected the applicable number(s) within twenty-four (24) hours of receipt of such notice, the Company shall have the right to terminate this Agreement and/or the applicable SOW, immediately upon notice to Affiliate, without any compensation or liability to Affiliate, and subject to Affiliate’s indemnification obligations set forth in Section 11(a)(3). (iv) immediately upon written notice to Affiliate if Affiliate, its representatives and/or agents, act in any way that causes it or them to undergo material adverse publicity or scandal, or fall into disrepute, including, without limitation if Affiliate personally commits any act that results in a conviction of a felony, or any misdemeanor of moral turpitude (by way of example only, a misdemeanor involving a controlled substance, fraud, embezzlement, assault, and battery) or the neglect of others or self-harm.

c. Additional Remedies of the Company.  In the event Affiliate materially breaches this Agreement, in addition to the termination rights hereunder, the Company shall be entitled to recover all costs (including attorney’s fees) in the enforcement of the Company’s rights hereunder and, if Affiliate shall have been paid in advance pursuant to the terms of this Agreement, the Company shall be entitled to a refund of any monies advanced to Affiliate under this Agreement.  In addition, if Affiliate fails to perform any of the Services and/or Campaign(s) as required pursuant to the applicable SOW, Affiliate shall pay to the Company as liquidated damages an amount equal to thirty percent (30%) of the compensation payable to Affiliate under the applicable SOW to which such Services and/or Campaign(s) relate.

d. Termination Fees. In the event that the Company terminates the Agreement or an applicable SOW pursuant to Section 7(b)(ii), the Company shall pay Affiliate the following termination fees (i) if such termination occurs one month or more from the Services or Campaign start date set forth in the applicable SOW (the “Start Date”), an amount equal to any documented costs or expenses incurred by Affiliate in connection with any work completed by Affiliate prior to the date of termination, (ii) if such termination occurs less than one month prior to the Start Date, but at least two weeks prior to the Start Date, an amount equal to ten percent (10%) of the overall compensation payable by the Company to Affiliate in connection with the terminated Services and/or Campaign(s), (iii) if such termination occurs less than two weeks prior to the Start Date, an amount equal to twenty percent (20%) of the overall compensation payable by the Company to Affiliate in connection with the terminated Services and/or Campaign(s), and (iv) if such termination occurs after Affiliate has posted approved Content, but prior to the completion of all Services and/or Campaign(s) under the applicable SOW, the amount of any compensation payable in connection with the applicable post, as well as any documented costs or expenses incurred by Affiliate in connection with any work performed by Affiliate prior to the date of termination in connection with the uncompleted Services and/or Campaign(s).

8. License to Use Advertiser Trademarks and Content. The Company, on behalf of the Advertiser,  hereby grants to Affiliate, a non-exclusive, non-transferable, revocable, limited license to use and display Advertiser’s name, logo and trademarks, and any other content provided to Affiliate by the Company or the applicable Advertiser in connection with an SOW, in the form and manner specifically described in the applicable SOW, or otherwise approved for use as part of the Content in accordance with Section 2 hereof (collectively, the “Advertiser Works”), solely as necessary to perform its obligations hereunder and only during the Term hereof, unless otherwise expressly authorized herein.  For the avoidance of doubt, Affiliate may only use the Advertiser Works in the form and format provided or approved by the Company or Advertiser, as applicable. Affiliate acknowledges the Advertiser’s exclusive right, title and interest in and to the Advertiser Works and the goodwill pertaining thereto, that any use of the Advertiser Works by Affiliate does not create any ownership, license or other right or interest in or to the Advertiser Works by Affiliate except as specifically set forth in this Agreement, and that all use of the Advertiser Works by Affiliate shall inure to the benefit of the Advertiser.  Affiliate agrees that it shall not, challenge, or assist in any challenge to, the validity or exclusivity of the Advertiser’s ownership of the applicable Advertiser Works.

9. Ownership Rights.  The Parties shall elect one of the following ownership options which shall be set forth in the applicable SOW. Not withstanding the foregoing, in the event that the SOW fails to expressly identify the Advertiser’s usage rights with regard to the Content, the Parties hereby agree that the Standard and Paid Social Rights as defined in “Option 1” below shall be the controlling form of use rights applicable to such SOW. Further, in the event that the SOW fails to expressly identify the duration of Advertiser’s right to use the Content, the Parties hereby agree that Advertiser shall have the right to use the Work Product for the specified purposes for a period of twelve (12) months.

Ownership Option 1 – Standard and Paid Social:

– Ownership of Content.  Except with regard to any Advertiser Works incorporated therein, Affiliate shall own, exclusively and in perpetuity, any and all intellectual property rights, including trademarks, trade secrets, trade dress, design, mask work, copyrights, and patent rights, and other rights of whatever kind and character, throughout the universe and in any and all languages, in and to the Content.

– Licenses to Content.

a. Affiliate hereby grants to the Advertiser a worldwide, non-exclusive, royalty-free right and license, during the applicable posting periods and subject to any other limitations set forth in the applicable SOW, to (A) feature any and all Content generated by Affiliate (including Affiliate’s name and likeness) on all Social Media Channel accounts and websites owned, controlled or licensed by the Advertiser, and (B) repost any and all Content generated by Affiliate (including Affiliate’s name and likeness) in one or more sponsored posts distributed through Social Media Channels or other media channels mutually agreed to by the parties and set forth in the applicable SOW. Advertiser agrees to use Affiliate social media handles specified in the applicable SOW (e.g. @[Affiliate] or #[Affiliate] in connection with the use of applicable Content, or otherwise credit Affiliate in the event Advertiser re-posts any Content. In addition, Affiliate hereby grants to the Advertiser a worldwide, non-exclusive, perpetual, irrevocable, royalty-free right and license to continue to use and display the applicable Content in the manner originally featured or used by the Advertiser during the permitted posting period specified in the applicable SOW, as well as for all internal uses of the Advertiser, and in any reviews of the Advertiser’s products or services to which such Content relates.

b. Affiliate hereby grants to the Company a limited, worldwide, non-exclusive, royalty free, perpetual and irrevocable right and license to use the Content (including Affiliate’s name and likeness) for the purpose of marketing on the Social Media Channel accounts owned, controlled or licensed by the Company, as well as such third party digital and print platforms as the Company may elect in its sole discretion, which shall include but not be limited to internet rights, publication rights, white paper rights, newspapers, magazines, e-mail marketing, and brochures.

Ownership Option 2 – White Listing and Digital:

a. Ownership of Content.  Except with regard to any Advertiser Works incorporated therein, Affiliate shall own, exclusively and in perpetuity, any and all intellectual property rights, including trademarks, trade secrets, trade dress, design, mask work, copyrights, and patent rights, and other rights of whatever kind and character, throughout the universe and in any and all languages, in and to the Content.

b. Licenses to Content.

Affiliate hereby grants to the Advertiser a worldwide, non-exclusive, royalty-free right and license, during the applicable posting periods and subject to any other limitations set forth in the applicable SOW, to (A) feature any and all Content generated by Affiliate (including Affiliate’s name and likeness) on all Social Media Channel accounts owned, controlled or licensed by the Advertiser, (B) repost any and all Content generated by Affiliate (including Affiliate’s name and likeness) in one or more sponsored posts distributed through Social Media Channels or other media channels mutually agreed to by the parties and set forth in the applicable SOW, (C) feature and use any and all Content generated by Affiliate (including Affiliate’s name and likeness) in connection with white labeled posts on all Social Media Channel accounts owned, controlled or licensed by Affiliate, and (D) feature, use and distribute any and all Content generated by Affiliate (including Affiliate’s name and likeness) through any digital media or digital assets, whether in existence as of the date hereof or developed subsequently, as determined in Advertiser’s sole discretion; provided, for the avoidance of doubt, that such digital media or digital assets shall not be deemed to include television or billboards.  Advertiser agrees to use Affiliate social media handles specified in the applicable SOW (e.g. @[Affiliate] or #[Affiliate] in connection with the use of applicable Content, or otherwise credit Affiliate in the event Advertiser re-posts any Content. In addition, Affiliate hereby grants to the Advertiser a worldwide, non-exclusive, perpetual, irrevocable, royalty-free right and license to continue to use and display the applicable Content in the manner originally featured or used by the Advertiser during the permitted posting period specified in the applicable SOW, as well as for all internal uses of the Advertiser, and in any reviews of the Advertiser’s products or services to which such Content relates.

Affiliate hereby grants to the Company a limited, worldwide, non-exclusive, royalty free, perpetual and irrevocable right and license to use the Content (including Affiliate’s name and likeness) for the purpose of marketing on the Social Media Channel accounts owned, controlled or licensed by the Company, as well as such third party digital and print platforms as the Company may elect in its sole discretion, which shall include but not be limited to internet rights, publication rights, white paper rights, newspapers, magazines, e-mail marketing, and brochures.

Ownership Option 3 – Work for Hire:

a. Ownership of Content.  Affiliate acknowledges and agrees that all Content and all copyrightable material, notes, records, drawings, designs, inventions, improvements, developments, discoveries and trade secrets which relate in any manner to the business of the Advertiser that are conceived, made or discovered by Affiliate, solely or in collaboration with others, in performance of the Services or the implementation of the Campaign (collectively, “Work Product”), are the sole property of the Advertiser.  To the extent allowable under applicable law all Work Product shall constitute a “work made for hire” as such term is defined in 17 U.S.C. Section 101, made solely for the benefit of the Advertiser. In the event that any right, title or interest to any Work Product, or part thereof, may not, by operation of law, vest in the Advertiser or is determined not to be a “work made for hire” for any reason, then Affiliate hereby irrevocably conveys, transfers and assigns to the Advertiser all right, title and interest, in perpetuity and throughout the world and without further consideration, in and to such Work Product, and any and all related patents, copyrights, trademarks, trade names, and other industrial and intellectual property rights and applications therefor.  The assignment of the Work Product under this Agreement includes all rights of paternity, integrity, attribution and withdrawal and any other rights known as, or substantially similar to, “moral rights.” To the extent such moral rights may not be assigned under applicable law, Affiliate hereby waives such moral rights and consents to any action in connection therewith, including any violation of such moral rights, in the absence of such consent. Affiliate shall provide to the Advertiser, or to the Company on the Advertiser’s behalf, all reasonable assistance to enable, and execute all documents necessary to assist with enabling, Advertiser to prosecute, perfect, register or record its rights in any Work Product. Affiliate represents and warrants that it has secured all necessary assignments from its personnel to convey ownership of the Work Product as contemplated hereunder.

10. License to Work Product

a. Subject in each case to the Advertiser’s prior review and written approval in each instance in accordance with Section 2, during the Term of this Agreement, on behalf of the Advertiser, the Company hereby grants to Affiliate a limited, revocable, non-exclusive, royalty-free, license to use the Work Product only as required for Affiliate to perform the Services and implement the Campaign to which such Work Product relates. Upon any expiration or termination of this Agreement, the rights and licenses granted to Affiliate hereunder will automatically terminate and Affiliate shall immediately cease any and all use of the Work Product; provided, that the Advertiser hereby grants to Affiliate a worldwide, non-exclusive, perpetual, irrevocable, royalty-free right and license to continue to use and display the applicable Work Product in the manner originally featured or used by Affiliate during the permitted posting period specified in the applicable SOW, as well as for all internal uses of Affiliate.

b. To the extent that any copyrighted materials of Affiliate that were developed or created by Affiliate prior to the Effective Date of the applicable SOW (collectively “Affiliate Intellectual Property”), are incorporated into the Work Product, Affiliate hereby grants to the Company, for the Company itself and to the Company for the Advertiser’s benefit, and each of the Company’s and the Advertiser’s respective agents, employees, licensees, vendors, and representatives a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, fully sub-licensable and transferable unrestricted right and license to use, reproduce, distribute, transmit, publicize, display, modify, adapt, translate, create derivative works from, and exploit, in whole or in part, edited or otherwise modified, alone or with other materials, in whatever form or medium, the Affiliate Intellectual Property incorporated into the Work Product.

11. Third Party Licenses.  Affiliate shall be solely  responsible for obtaining, in a form acceptable to and approved in writing by the Company,  any required licenses, permissions or approvals from third parties, contributors, and/or other affected rights holders with regard to third party content incorporated into the Content by Affiliate, as necessary for the Company and/or the Advertiser to make full and unrestricted use of the Content as set forth herein, including  by way of example and without limitation, requiring all individuals appearing in the Content, to sign an authorization, consent and release form and granting to the Company and the Advertiser all license and publicity rights necessary for the Company or the Advertiser 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 the Content. Affiliate will provide the Company with copies of such consents upon its written request.

12. Indemnification; Limitation of Liability.

a. Indemnification.  Affiliate agrees to indemnify, defend and hold harmless the Company and the Advertiser, and their respective parents, subsidiaries and affiliates, and each of their officers, directors, agents and employees, from and against any and all claims, demands, liabilities, fees,  costs or expenses (including reasonable attorneys’ fees) arising out of or related to, in whole or in part, (i) the Content (excluding any Advertiser Works incorporated therein if used as permitted hereunder) and/or any act or omission of Affiliate or its employees, agents,  trustees, partners, officers or directors, (ii) the content or operation of Affiliate’s digital properties or any Affiliate webpages or digital properties on Social Media Channels (e.g. YouTube channels or social media posts) on which Content appears, and (iii) Affiliate’s performance of, or failure to perform, its obligations under this Agreement;  including, without limitation, any claims, actions or proceedings for libel, slander, invasion of privacy, infringement of trademark, copyright, license, or other intellectual property rights, unfair or improper trade practices or other wrongful business conduct, including, without limitation, claims relating to Affiliate’s fraudulent activity or other activity that would falsely or artificially increase or affect the number of Affiliate’s followers, “likes” or other indicators of Affiliate’s audience or reach, or claims for bodily injury, death or property damage, or loss or employment  claims.

b. Limitation of Liability.  The Company shall not be liable for Affiliate’s misconduct.  Content created by Affiliate(s) in connection with any Campaign is the sole responsibility of Affiliate, and the accuracy of such Content is not endorsed or guaranteed by the Company.  The Company and its affiliates, successors, assigns, employees, agents, directors, and officers assume no responsibility or liability which may arise from the Content, including, but not limited to, claims for defamation, libel, slander, infringement, invasion of privacy and publicity rights, obscenity, pornography, profanity, fraud, or misrepresentation.

IN ADDITION, AFFILIATE ACKNOWLEDGES AND AGREES THAT THE COMPANY SHALL NOT BE LIABLE TO AFFILIATE, ITS PARENTS, SUBSIDIARIES, OR AFFILIATES, AND/OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, UNDER THIS AGREEMENT OR IN ANY WAY RELATED TO THIS AGREEMENT, FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES  (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST WAGES AND SAVINGS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF THE COMPANY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL PAYMENT BY THE COMPANY TO AFFILIATE FOR THE APPLICABLE CAMPAIGN OR SERVICES TO WHICH SUCH CLAIM RELATES.

13. Confidentiality. Affiliate hereby acknowledges that the Company’s privacy, and that of the Advertiser, is highly valued and that all efforts are made to maintain confidentiality with respect to Confidential Information (as defined below). Affiliate shall hold in confidence using commercially reasonable measures, and not directly or indirectly divulge to any third party, any Confidential Information.  For purposes of this Agreement, “Confidential Information” means any financial information, the identity of the Advertiser and/or any Advertiser lists or Advertiser contact information, or any brand strategy, marketing plans, technical data, intellectual property, content or know how relating to ideas, discoveries, inventions, concepts, software, equipment, designs, drawings, specifications, techniques, processes, models, data, documentation, diagrams, research, development, business plans or opportunities, business strategies, future projects or products, projects or products under consideration, procedures, and information related to finances, Affiliates, costs, prices, contractors and employees that are provided to Affiliate by the Company in connection with the applicable Campaign or Services or otherwise with regard to the relationship contemplated hereunder. All of the foregoing information is proprietary, and disclosure of such information to third parties or unauthorized use of such information would cause substantial and irreparable harm and injury to the Company’s and/or the Advertiser’s ongoing business for which there would be no adequate remedy at law. Accordingly, in the event of any breach or attempted or threatened breach of any of the terms of this Section, the Company shall be entitled to receive injunctive and other equitable relief without need of posting a bond, and without limiting the applicability of any other remedies.

14. Non-circumvention. Affiliate agrees that during the Term of this Agreement and for ninety (90) days from the expiration or termination of this Agreement it will not, either directly or indirectly, contact the Advertiser for the purpose of entering into, or attempting to enter into, any negotiations or contractual obligations with the Advertiser which could reasonably be construed to circumvent the efforts of Company under this Agreement, without the Company’s prior written consent.

15. Miscellaneous.

a. Severability.  If any provision of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision shall be modified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be deemed excised from this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law, as if such provision had been originally incorporated herein as so modified or restricted or as if such provision had not been originally incorporated herein, as the case may be.

b. Independent Contractor.  In providing services to the Company, Affiliate will act as an independent contractor, and it is expressly understood and agreed that this Agreement is not intended to create, and does not create, any partnership, agency, joint venture or similar relationship.

c. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements between the parties with respect to such matters.

d. Modification or Assignment.  This Agreement may be modified or amended only with the written consent of both Parties. Affiliate may not assign, transfer, or delegate any duty or obligation to perform such Services under the SOW or this Agreement.  Any such attempted assignment shall be null and void.

e. Waiver. Neither the failure nor any delay on the part of either party to exercise any right, remedy, power, or privilege under this Agreement shall operate as a waiver thereof.

f. Notice.  All notices required by this Agreement must be in writing and must be delivered by certified mail, return receipt requested.

g. Governing Law; Jurisdiction; Venue. The laws of the State of California applicable to contracts made or to be wholly performed there (without giving effect to choice of law or conflict of law principles) shall govern the validity, construction, performance, and effect of this Agreement.  The Parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in the City and County of Los Angeles, California for any dispute arising out of this Agreement.

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