The Advertiser and the Influencer Agree:
Appointment. The Advertiser would like the Influencer’s assistance in promoting / offering / selling the Advertiser’s products via their social media accounts and other online platforms. The Advertiser hereby appoints the Influencer as its representative on a non-exclusive, non-employee basis to endorse and promote its services to the target audience.
Term. This Agreement shall have a term of one year from the date of signing.
Deliverables. The Influencer will deliver the agreed number of posts on the agreed platforms on behalf of the Advertiser according to the delivery schedule specified by the Advertiser. The Services shall conform to the specifications and instructions of the Advertiser as outlined in detail in the “terms” email, abide by the rules of the relevant social media platforms, and are subject to the Advertiser's acceptance and approval. The Advertiser has a maximum of 4 days to reject any deliverable in accordance with this Section and must notify the Influencer within those 4 days that additional revisions and/or amendments will be requested.
Influencer grants to Advertiser the irrevocable, worldwide, unlimited, perpetual, royalty-free, non-exclusive license, for no additional consideration at any time, to use, publish, reproduce, perform, display, distribute copies of, prepare derivative works based upon, make, have made, sell, offer to sell, import, and otherwise commercially exploit the Deliverables and any materials related to the Deliverables to promote Advertiser’s business and services. For clarity, this license includes Advertiser’s right to use and to authorize others to use the Influencer’s name, logos, pictures, and other intellectual property in connection with promoting Advertiser’s business and services.
Cancellation. Either party may terminate this agreement upon ten days prior written notice if the other party breaches this agreement and does not cure such breach within such time period. In addition to any right or remedy that may be available to the Advertiser under this agreement or applicable law, In addition, in the event that the Influencer has breached this agreement, the Advertiser may (i) immediately suspend, limit or terminate the Influencer’s access to any Advertiser account and/or (ii) instruct the Influencer to cease all promotional activities or make clarifying statements, and the Influencer shall immediately comply. Either party may terminate this agreement at any time without cause upon thirty days prior written notice to the other party. In the case of cancellation, termination, or any of the cases above, the Influencer must return within ten days of the termination date a prorated amount of payment in accordance with the following formula:
Payment-Payment*(Days elapsed since the date of signing/365)
Return of payment shall be remitted via bank wire, check, or a mutually agreed-upon alternative payment method.
If the Influencer is in breach of this agreement, Advertiser also may request the return of any product provided to the Influencer within 10 days. Return shipping will be covered at the expense of the Influencer. If the product is not available or not returned, Advertiser reserves the right to request payment by Influencer for the fair market value of the product within 10 days.
Collateral Details. The Advertiser shall provide the necessary content and briefing materials to enable the Influencer to perform the influencer marketing services. If the Influencer has obtained employees or agents (the "Influencer Personnel"), the Influencer shall be solely responsible for all costs associated with the Influencer Personnel.
Items to Avoid in Influencer Posts. The Influencer agrees to avoid mentioning any other competitors in the earplug or in-ear headphone market. This includes, but is not limited to, competitors such as: Vibes, Loop Earplugs, Hearos, Etymotic, Earasers, dBud, Alpine, Decibullz, Earpeace, Downbeats, Eardial, Ultimate Ears, WAVS Custom, Westone, Urbanears, JBL, 64 Audio, and InEarz.
The Influencer agrees to ensure all blog posts, social media statuses, tweets, and/or comments should be in good taste and free of inappropriate language and/or any content promoting bigotry, racism, or discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age. Posting content as described in this paragraph will be considered a material breach of this agreement.
Approval and Content Origination. The Influencer understands that all promotions and products they promote as part of this agreement are controlled by the Advertiser. The Influencer assumes all responsibility for verifying that the campaign materials used meet the Advertiser’s approval. If a product is provided for review purposes, Advertiser acknowledges that it cannot control messaging of content the Influencer will post. However, Advertiser reserves the right to restrict the ability of an Influencer to make a post if proposed content is not acceptable to the Advertiser.
Confidentiality and Exclusivity. During the course of the Influencer's performance of services for the Advertiser, the Influencer will receive, have access to and create documents, records, and information of a confidential and proprietary nature to the Advertiser and customers of the Advertiser. The Influencer acknowledges and agrees that such information is an asset of the Advertiser or its clients, is not generally known to the trade, is of a confidential nature and, to preserve the goodwill of the Advertiser and its clients must be kept strictly confidential and used only in the performance of the Influencer's duties under this Agreement. The Influencer agrees that he/she will not use, disclose, communicate, copy or permit the use or disclosure of any such information to any third party in any manner whatsoever except to the existing employees of the Advertiser or as otherwise directed by the Advertiser in the course of the Influencer's performance of services under this Agreement, and thereafter only with the written permission of the Advertiser. Upon termination of this Agreement or upon the request of the Advertiser, the Influencer will return to the Advertiser all of the confidential information, and all copies or reproductions thereof, which are in the Influencer's possession or control. The Influencer agrees that during the tenure of this contract, and for a three-month term afterward, the Influencer will not undertake influencer marketing for a competitor in the same vertical as the Advertiser.
Compensation. In full consideration of the Influencer’s performance, his / her obligations, and the rights granted herein, the Influencer shall be compensated with payment/product as outlined in the terms section of the agreement, sent to the Influencer’s email. For details regarding affiliate sales earnings, please see the section titled “Affiliate Sales”.
This includes any agreed bonus incentives should the Influencer meet the agreed targets. The Influencer will otherwise perform the services at his/her own expense and use his/her own resources and equipment. The Influencer acknowledges that the agreed-upon compensation represents the Influencer’s entire compensation with respect to this agreement and the Advertiser shall have no other obligation for any other compensation to or expenses or costs incurred by the Influencer in connection with the performance of its obligations under this agreement.
Affiliate Sales. PayPal payments on Eargasm’s 15% commissions are dispersed at the end of each month. The Influencer is aware that all sales must come in their unique code, for them to be able to earn a commission.
The Influencer represents and warrants that: (i) they have all sufficient rights and permissions to participate in the Affiliate Program and to provision, Eargasm with Affiliate Lead’s for our use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) their participation in this Affiliate Program will not conflict with any of their existing agreements or arrangements; and (iii) they own or have sufficient rights to use and to grant to us our right to use the Affiliate Marks.
The Influencer further represents and warrants that: (i) they will ensure that they are compliant with any trade or regulatory requirements that may apply to your participation in the Affiliate Program (for example, by clearly stating they are an Eargasm Affiliate on any website(s)/social media account(s) they own where they make an Affiliate Coupon Code available); (ii) they will not purchase ads that direct to their site(s) or through an Affiliate Link/Discount Code that could be considered as competing with Eargasm’s own advertising, including, but not limited to, our branded keywords; (iii) they will not participate in cookie stuffing or pop-ups, false or misleading links are strictly prohibited; (iv) they will not attempt to mask the referring URL information; (v) they will not use their own Affiliate Coupon to purchase Eargasm products for themself, friends, family, or anyone at the same address as their own residence; (vi) share Affiliate Link/Discount Codes on coupon or deal websites; (vii) advertise affiliate links/discount codes via paid advertising such as (but not limited to) Google Ads or Facebook Ads; and (viii) they will not use any mechanisms to deliver leads other than through an intended consumer. This includes sourcing leads through compilations of personal data such as phonebooks, using fake redirects or other tools or automation devices to generate leads (including but not limited to robots, lframes, or hidden frames), or offering incentives to encourage purchases or signups.
Violations of these terms will result in the immediate deactivation of the Influencer’s account with or without notice.
Material disclosures and compliance with FTC Guidelines. When publishing posts/statuses about the Advertiser’s products or services, the Influencer must clearly disclose his/her “material connection” with the Advertiser, including the fact that the Influencer was given any consideration, was provided with certain experiences or is being paid for a particular service. The above disclosure should be clear and prominent and made in close proximity to any statements that the Influencer makes about the Advertiser or the Advertiser’s products or services. Please note that this disclosure is required regardless of any space limitations of the medium (e.g. Twitter), where the disclosure can be made via
Hashtags, e.g. #sponsored. The Influencer’s statements should always reflect the Influencer’s honest and truthful opinions and actual experiences. The Influencer should only make factual statements about the Advertiser or the Advertiser's products which the Influencer knows for certain are true and can be verified.
Payment Terms. If applicable, payment can be made by PayPal, check to the address given by the Influencer, or a mutually agreed-upon alternative method. Payments will be due seven days after the agreed invoice date.
Force Majeure. If either party is unable to perform any of its obligations by reason of fire or other casualties, strike, act or order of public authority, the act of God, or other cause beyond the control of such party, then such party shall be excused from such performance during the pendency of such cause.
Independent Contractor. The Influencer is retained as an independent contractor of the Advertiser. The Influencer acknowledges and agrees that (i) The Influencer is solely responsible for the manner and form by which the Influencer performs under this Agreement, and (ii) The Influencer is a self-employed individual, who performs services similar to the services outlined in the attached Schedule of Services for various entities and individuals other than the Advertiser. The Influencer is responsible for the withholding and payment of all taxes and other assessments arising out of the Influencer's performance of services, and neither the Influencer nor any of the Influencer's employees or independent clients shall be entitled to participate in any employee benefit plans of the Advertiser.
Choice of Law/Venue All actions or proceedings with respect to this Agreement shall be instituted only in any state or federal court sitting in Los Angeles County, California and by execution and delivery of this Agreement, the parties irrevocably and unconditionally subject to the jurisdiction (both subject matter and personal) of each such court and irrevocably and unconditionally waive: (a) any objection that the parties might now or hereafter have to the venue of any of such court; and (b) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum.