STANDARD TERMS AND CONDITIONS -- Between Cohley and all Influencers

Influencer acknowledges that Cohley is an advertising and marketing agency that acts on behalf of its Client.  Notwithstanding the payment and liability provisions of this Agreement, Influencer agrees to hold Cohley liable for payments solely to the extent proceeds have cleared from Client to Cohley for Services rendered under an Insertion Order.    For sums not cleared to Cohley, Influencer agrees to hold Client solely liable.  Influencer understands that Client is Cohley’s disclosed principal and Cohley, as agent, has no obligations relating to such payments, either joint or severa.  Cohley agrees to make every reasonable effort to collect and clear payment from Client on a timely basis.   If Client proceeds have not cleared for the Insertion Order, (a) then Influencer shall have the right to seek payment from Client upon not less than five (5) business days’ notice to Cohley to that effect and (b) other clients from Cohley hereunder, if any, will not be prohibited from utilizing the Services due to such non-clearance if such the other clients’ credit is not in question.

1. Influencer Ownership and License.  The ownership of videos, photos, transmissions, creative, graphic, and textual materials created by Influencer (individually and together, the “Custom Materials”) shall be specified in the “Creative Brief” section of each campaign that an influencer is accepted into. If agreement is finalized in “Active Chats”, the finalized “Proposal Form” represents the agreed upon terms of the agreement. Upon submitting her or his submission form to a Cohley client’s Campaign, influencer agrees to the terms set form in both the Terms and Conditions and the Creative Brief. A checkbox on the submission confirms that said influencer has read and agreed to all terms set forth.

2. FTC Disclosure Compliance.  Without limiting any of the statutory and regulatory compliance requirements of this Agreement, Influencer shall comply with the FTC and other disclosure and use requirements presently accessible at http://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf (“Guidelines”) as such Guidelines may be later updated by the FTC, in particular the June, 2015 What People Are Asking guidelines accessible at https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking#intro.

3. Non-Solicitation. Influencer acknowledges that Cohley is an agency providing, among other things, social media strategy and solutions for its clients.  For the term of this Agreement and for six (6) months thereafter (the “Restricted Period”), Influencer will not solicit or seek to secure, or cause any individual or entity to solicit or seek to secure, any social media influencer or social media marketing opportunities from any client of Cohley with the intent to circumvent Cohley’s agency relationship with such client.  This provision does not restrict Influencer from soliciting a Cohley client for the purpose of informing that client of Influencer’s social media resources and capabilities during the Restricted Period, so long as any resulting business opportunity or undertaking with Provider will be through Cohley and not directly with the solicited client.

4. Confidential Information.  Cohley may furnish to Influencer Confidential Information (as defined below) solely as is necessary to enable Influencer to perform Services and for no other purpose or use. Influencer agrees to keep confidential, and will not use for any other purposes other than in connection with its engagement with Cohley all confidential information of Cohley and Client. As used herein, the term “Confidential Information” shall mean all non-public information (whether written, oral or in another medium) of Cohley and/or its client(s) to which Influencer comes into possession. The terms and conditions of this Agreement are Confidential Information of Cohley. Influencer shall use at least the same degree of care in protecting Confidential Information as it uses in protecting its own confidential information, but not less than reasonable care.  Influencer recognizes that irreparable harm would be caused to Cohley and/or Client that is not capable of being compensated with money damages if Confidential Information were used or disclosed in violation of this Agreement and in such event and in addition to any other right or remedy available, Cohley and/or Client shall have the right to equitable relief without the need to secure bonding.  This section shall survive the termination or expiration of this Agreement for any reason.

5. Warranties and Disclaimers.  Each party warrants and represents to the other that (a) it has the full power and authority to enter into this Agreement and fully perform all of its obligations and grant all necessary rights hereunder without violating the legal or equitable rights of any third party;(b) none of the acts, services or materials provided or created and/or modified by such party shall violate or will violate or infringe upon the rights of any third party, or contain any material that is obscene, defamatory, libelous, slanderous or injurious to the user; (c) in the case of Influencer, that the Services will be of a professional nature, performed with skills necessary to carry out the Services as contemplated under this Agreement; and (d) all acts, services and materials provided hereunder are in compliance with all applicable federal, state and local laws and regulations.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES MAKE NO OTHER WARRANTIES HEREUNDER AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

6. Indemnification.  Limitation of Liability. 

(a)        Each of Cohley and Influencer shall indemnify, defend and hold harmless the other,, and their respective parent companies, affiliates and subsidiaries and their respective officers, directors/managers, shareholders, agents, representatives, employees and affiliates from and against all third party claims, demands, causes of action, judgments, costs and expenses, including reasonable and actual attorneys’ fees, of whatsoever nature (in the aggregate, “Claims”), arising from or relating to (i) the activities performed by a party or any of the party’s agents, employees or subcontractors incident to or under this Agreement; (ii) a breach of any of the representations and warranties made under this Agreement by a party or any of its agents, employees or subcontractors; (iii) any failure of a party or any of its agents, employees or subcontractors to comply with all applicable laws; and (iv) and any products claims related to products in Custom Materials.  The indemnified party shall give prompt notice to the indemnifying party of any Claims and/or (iv) the gross negligence and/or intentional misconduct of a party.  The Indemnifying party shall control the defense of the Claim with counsel of its choosing and approved by the indemnified party, such approval not to be unreasonably withheld, delayed or conditioned.  The indemnified party may participate in the defense at its own cost with its own counsel.  The indemnified party shall cooperate with the indemnifying party in providing documents, information, materials, and reasonable assistance, all at the indemnifying party’s cost.  The indemnifying party shall not settle any Claim without the written consent of the indemnified party, such consent not to be unreasonably withheld, delayed or conditioned, unless the indemnified party is completely released from the Claim and, if applicable, fully and without prejudice removed from the case underlying the Claim.

(b)        WITH THE EXCEPTION OF GROSS NEGLIGENCE AND/OR INTENTIONAL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS REPUTATION, LOST BUSINESS, OR LOST PROFITS), WHETHER FORESEEABLE OR NOT AND HOWEVER CAUSED, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MIGHT ARISE.  THE FOREGOING RESTRICTIONS SHALL NOT APPLY TO A PARTY’S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS HEREUNDER.

11.Independent Contractor Relationship.  The relationship created by this Agreement is that of an independent contractor and neither Influencer nor Cohley are joint venturers, partners, employees or agents of each other.  Neither party shall bind the other to any agreement without the express written consent of the other. 

12. Choice of Law.  This Agreement is governed by and construed in accordance with the laws of the State of New York without regard to its conflicts of law rules.  Any dispute under this Agreement shall be brought in the federal, state, or local courts in the City of New York. 

13. General.  This Agreement sets forth the entire understanding of Cohley and Influencer with respect to the subject matter hereof and supersedes all prior agreements, whether oral or written, between the parties.  This Agreement may only be amended in writing signed by authorized representatives of both parties.  Any provision of this Agreement that by nature of its terms would reasonably be expected to survive termination, shall survive termination of this Agreement for any reason.  Either party may waive compliance by the other party with any covenants or conditions contained in this Agreement, but only by written instrument signed by the party waiving such compliance.  No such waiver, however, shall be deemed to waive any other circumstance or any other covenant or condition not expressly named in the written waiver.  This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective heirs, representatives, successors and permitted assignees.  This Agreement may not be assigned, transferred, shared or divided in whole or in part by Influencer without Cohley’s prior written consent.  Any other purported assignment or transfer by Influencer is void and without any legal effect.  Delivery of an executed copy of this Agreement, by facsimile, electronic mail in portable document format (.pdf) or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document has the same effect as delivery of an executed original of this Agreement.

14. Payment. Clients have a responsibility to pay out influencers within 30 days of the campaign end date. At this point, Cohley will be entitled to cover the owed amount in the interim to all influencers who are owed compensation. 

15. No Class Actions. YOU AND COHLEY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Cohley agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.

 

END OF STANDARD TERMS AND CONDITIONS