DOCKET CONTENT GUIDELINES, CODE OF CONDUCT POLICIES, AND STANDARD TERMS & CONDITIONS
Content Guidelines and Code of Conduct Policies
PART I – Brand ’S INFLUENCER POLICY
Brand believes in full, fair and effective disclosures of material facts relating to Influencer’s relationship with Brand in accordance with Federal Trade Commission’ Guides Concerning Endorsements and Testimonials at http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf. As such, Brand requires that all Influencers adhere to the following guidelines (the “Guidelines”) when blogging, tweeting or otherwise publishing content about Brand products or services.
Disclose Connection to Brand – When blogging about Brand or Brand ’s products or services, Influencer must clearly disclose its “material connections” with Brand , including the fact that Influencer was afforded any compensation (in-kind or otherwise) for a particular service. “Material connections” may be defined as any connection between Influencer and a marketer that could affect the credibility consumers give to that Influencer’s statements. Important examples of “material connections” include benefits or incentives, such as monetary compensation, loaner products, free products or services, in-kind gifts, or special access privileges provided by a marketer to Influencer.
Maintain Clear and Prominent Disclosure – The above disclosure must be made in close proximity to any statements that Influencer makes about Brand or Brand ’s products. This disclosure must be clear and prominent enough for consumers to view it when they are reading Influencer’s posts. This means that the disclosure must not be buried behind links or in the Terms and Conditions (or in similar documents). In addition, the consumer must not be required to click on, scroll down or mouse over a link in order to view the disclosure. 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, such as #sponsored, #paid or #ad (the latter of which is preferred at the beginning of the tweet).
Give Your Honest and Truthful Opinions – Influencer’s statements must always reflect Influencer’s honest and truthful opinions and actual experiences. However, we do ask that all blog entries, Facebook posts, tweets, and/or comments be in good taste and free of inappropriate language and/or any content that promotes bigotry, racism or discrimination against an individual based on race, gender, religion, nationality, disability, sexual orientation or age.
Only Make Factual Statements That Are Truthful and Can Be Verified – In an effort to accurately relay brand names, product attributes and program information, please refer to all Brand -provided materials, if available, when developing content pertaining to Brand or Brand ’s products. Most importantly, Influencer must only make factual statements about Brand or Brand ’s product’s characteristics or quality which Influencer knows for certain are true and can be verified. For example, Influencer must not make statements about the performance of a product unless Influencer has support for such claims.
Respect Intellectual Property Rights – Intellectual Property is the group of legal rights to works that people create or invent. Intellectual property rights typically include copyright, trademark, and trade secret rights, as well as the right to use someone’s name, likeness or voice. Examples include photographs, videos, music, trademarks/logos, personal names/likenesses (including celebrities’ names/likenesses), and writings. Influencer must never post or share any content that violates or infringes the intellectual property rights of any third party. If Influencer is unsure about a work, particularly in instances where a work includes a third-party’s trademark/logo, or music, film or television clips, or a celebrity’s name, photo or image, Influencer should check with Brand before using the work. A good rule of thumb is, if in doubt, do not post it.
Comply with Other Policies and Laws – Influencer must comply with all applicable laws, rules and regulations, as well as the terms, conditions, guidelines and policies of any social media platform or service that Influencer uses in connection with the Services, including all applicable advertising laws and standards in the jurisdiction/market/country where the Influencer’s audience is (primarily) located.
Do Not Alter – Influencer must not alter or modify any logo, image, copyright or trademark provided by the Brand if Influencer chooses to include such item in a blog entry, post or tweet.
Do Not Be Inappropriate – Influencer must not associate Brand or any of Brand ’s products or services with any inappropriate or controversial content that would reflect poorly upon Brand or the Program.
Respect Confidentiality – During Influencer’s time working with Brand , Influencer may learn of confidential information that is not yet public. Influencer shall take all necessary precautions in handling the confidential information and limit disclosures on a strict need-to-know basis. In the event Influencer has any questions regarding the confidentially of specific knowledge obtained at the event, Influencer must reach out to the appropriate contact at Brand before sharing the information.
PART II – CONTENT AND OTHER GUIDELINES
- Influencer shall comply with all applicable laws relating to product placement (including disclosure rules/obligations), embedded advertising, and branded partnership identification and disclosures.
- Influencer’s Posts and Content shall not:
- violate or infringe any rights of any other party, including but not limited to, copyright, trademark, privacy, publicity or any other intellectual property rights;
- contain material or content in any way that is inappropriate, indecent, obscene hateful, tortious, defamatory, slanderous or libelous;
- contain material or content in any way that is unlawful, in violation of or contrary to the laws or regulations of the United States or of any jurisdiction where Content is created, directed, viewed or received;
- contain information or material in any way known by Influencer to be false, inaccurate or misleading or make deceptive or misleading claims about Brand ’s products or its competitors’ products or claims which are not backed up by evidence;
- contain material or content in any way that is, or may reasonably be considered to be, hateful speech, or promotes bigotry, racism, hatred or harm against any group or individual or promotes discrimination based on race, gender, religion, nationality, disability, sexual orientation or age or content that has the effect of creating an intimidating or hostile environment;
- contain material or content for which Influencer has been paid or granted any consideration by any third party;
- make any comments or post any content that in any way promotes unsafe activities that could lead to an unsafe situation involving Brand ’s consumers or other individuals;
- include the intellectual property of third parties, including any third-party music, photographs, artwork, trademarks, logos, or slogans, without a legally enforceable license or permission to do so;
- disparage Brand or any other person or party; and/or
- contain material or content in any way that is not consistent with the image and values of Brand .
- Influencer shall not create fake followers or engagement on social media platforms, such as buying followers; using bots to grow audience size by automating account creation, following, commenting, and liking; or posting fake sponsored content.
- Influencer shall not offer for sale or solicit products on behalf of Brand .
- Influencer shall review and comply with the following:
- The FTC’s Endorsement Guides: What People Are Asking (https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking).
- FTC: The Do’s and Don’ts for Social Media Influencers (https://www.ftc.gov/news-events/press-releases/2017/09/csgo-lotto-owners-settle-ftcs-first-ever-complaint-against).
- FTC: Disclosures 101 for Social Media Influencers (https://www.ftc.gov/system/files/documents/plain-language/1001a-influencer-guide-508_1.pdf).
- FTC: Do you endorse things on social media? (https://www.ftc.gov/news-events/audio-video/video/advice-social-media-influencers).
STANDARD TERMS & CONDITIONS
- Representations and Warranties; Guilds.
- Without limiting the foregoing, Influencer represents, warrants and covenants to Brand that Influencer (i) will comply with (and will ensure that all Content (including the Videos and Posts) and Services comply with) the Federal Trade Commission’s “Guides Concerning the Use of Endorsements and Testimonials” (http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf) (“FTC Endorsement Guides”) and any other applicable advertising laws and standards in the jurisdiction/market/country where the Influencer’s audience is (primarily) located, and (ii) shall comply with whatever reasonable instructions, marketing guides and codes, suggestions and recommendations Brand may give (or direct to) Influencer in connection with the Services.
- Notwithstanding anything to the contrary, to the extent the Services or any other services rendered by Influencer (or the proceeds thereof) constitute “covered services” under the SAG-AFTRA Commercials Contract or Influencer Agreement or the agreement(s) of any other guilds, teams, leagues, organizations, collective bargaining agreements, unions or other such bodies, anywhere in the world (including SAG-AFTRA, each and collectively, a “Guild” and such applicable Guild agreement, the “Guild Agreement”), Influencer, at its sole cost and expense, will process, administer and pay all compensation payable on account of any covered services rendered hereunder in accordance with any Guild Agreement, whether or not specified herein, and to make all applicable pension and health contributions thereon.
- Indemnification; Release; Limitation of Liability.
- Influencer agrees to defend, indemnify, release, forever discharge and hold harmless Brand and its affiliates, subsidiaries and parent companies, and its and their respective officers, directors, employees, business partners and agents (collectively, “Released Entities”), from and against any and all demands, claims, suits, actions, damages, obligations, losses, liabilities, costs or debt, and expenses (including reasonable attorney’s fees) arising from or in connection with: (a) Influencer’s breach of this Agreement, including any of its representations and/or warranties herein; (b) Influencer’s use or publication of any materials related to the Program in contravention of Brand ’s specific instructions; (c) any allegation that the Content (including the Videos and Posts), the Services or the Influencer’s Likeness, or the receipt, use, publication, distribution and/or other disposition thereof (as applicable) as contemplated by this Agreement, infringes any patents, copyrights, trademarks, trade secrets or other intellectual property rights, violates any applicable law, regulation, policy or code, or violates the rights of privacy, publicity or other rights of any person, entity or estate or otherwise is libelous, defamatory, obscene, pornographic, abusive, indecent, threatening, harassing, hateful, or offensive or otherwise unlawful; and (d) the Services or any acts or omissions of Influencer in connection with the Agreement, including Influencer’s negligence or more culpable conduct. The Released Entities may, at their election, participate in the defense, settlement or other resolution of such claim with counsel of their own choosing. Influencer, for him/herself, his/her heirs, executors and administrators, hereby releases, waives, discharges, absolves, agrees to hold harmless and covenants not to sue the Released Entities from and against any and all claims, suits, actions, demands, liabilities and damages of any kind whatsoever arising out of or in connection with the use of the Content (including the Videos and Posts) or the Influencer’s Likeness in accordance with the terms herein, including, without limitation, any and all claims for copyright infringement, invasion of privacy, violation of the right of publicity or of moral rights, and/or defamation. Without limiting the foregoing, in no event will Influencer be entitled to, and Influencer waives any right to, enjoin, restrain or interfere with use of the Content (including the Videos and Posts) or the exploitation of any of Brand ’s rights in accordance with the terms herein.
- Without limiting the foregoing, on behalf of itself, its heirs, executor, administrators and assigns, Influencer hereby agrees to indemnify, defend, hold harmless, release and forever discharge the Released Entities from and against any and all claims, demands or actions of any kind whatsoever, and any liabilities, damages, costs and expenses (including reasonable attorneys’ fees), or losses related thereto, including, without limitation, with respect to personal injuries or death, and any damage to persons and property, which may be sustained or incurred, directly or indirectly, as a result of my production of the Content, provision of the Services and/or participation in the Program or performance under the Agreement, or while traveling to, preparing for, attending and/or participating in any of the foregoing, whether caused by the negligence of the Released Entities or otherwise.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BRAND’S AGGREGATE TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE COMPENSATION PAID OR PAYABLE BY BRAND HEREUNDER. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT, AND SHALL APPLY EVEN IF THE REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BRAND HAVE ANY LIABILITY TO INFLUENCER OR TO ANY THIRD PARTY FOR ANY (A) LOSS OF ACTUAL OR ANTICIPATED PROFITS, (B) LOSS OF BUSINESS, (C) LOSS OF, DAMAGE TO, OR CORRUPTION OF, DATA, (D) LOSS OF USE, (E) COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, (F) ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, REGARDLESS WHETHER (I) ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, (II) BRAND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (III) SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.
Relationship of Parties. Influencer’s relationship with Brand is that of an independent contractor, and nothing in this Agreement is intended to create a partnership, joint venture or employment relationship. Influencer is solely responsible for, and will file on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of the Services and receipt of any Compensation (monetary, in-kind or otherwise) under this Agreement. Influencer understands and acknowledges that Brand shall not provide Influencer with any insurance, either life, medical or liability, for any illness, accident, injury, loss, or damage that may arise in connection with Influencer’s Services set forth in the Agreement.
No PII. The Content (including the Videos and Posts) shall not include any personally identifiable information (as defined or recognized under applicable law) about any person, other than Influencer unless Influencer receives Brand ’s prior written approval and has the persons at issue sign a release provided by Brand .
- Termination; Survival.
- Brand may terminate this Agreement immediately (i) in the event of a material breach of this Agreement by Influencer, or which breach remains uncured for a period of forty-eight (48) hours after notice of such breach is delivered to Influencer (if determined to be curable by Brand ), (ii) if Brand (in its sole, but reasonable discretion) is dissatisfied with the Content or the Content’s brand integration therein, or if the number of subscribers to Influencer’s YouTube channel decreases in any material respect, (iii) if Influencer commits or is alleged to have committed any criminal act or other act involving moral turpitude, drugs, or felonious activities or commits any act or becomes involved in any situation or occurrence which brings Influencer into public disrepute, contempt, scandal, or ridicule, or which shocks or offends the community or any group or class thereof, or which reflects unfavorably upon Brand , its products, or otherwise reduces the commercial value of Brand ’s association with Influencer, or (iv) if information becomes public about Influencer having, in the past, so conducted himself or herself in the manner described in clause (iii).
- Influencer may terminate this Agreement immediately upon notice in the event of a material breach of this Agreement by Brand , which breach remains uncured for a period of thirty (30) days after notice of such breach is delivered to Brand.
- All provisions of this Agreement that are, by their nature, intended to survive the expiration or termination of this Agreement, including the provisions relating to intellectual property rights, representations and warranties; indemnification, liability waivers and releases, and confidential information, will survive any termination or expiration of this Agreement.
- Confidentiality. “Confidential Information” means all information of a party (“Disclosing Party“) disclosed to the other party (“Receiving Party“), whether orally, electronically, in writing, or by inspection of tangible objects that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes without limitation, Brand’s business and marketing plans, technology and technical information, product strategies, reports and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to Disclosing Party. Receiving Party shall not disclose or use any Confidential Information of Disclosing Party for any purpose other than performance or enforcement of this Agreement without Disclosing Party’s prior written consent. If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure and in any event shall only disclose the minimum amount of Confidential Information required by such law. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Receiving Party shall promptly notify Disclosing Party if it becomes aware of any breach of confidentiality of Disclosing Party’s Confidential Information. Upon Termination. Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party’s Confidential Information and, upon request and to the extent practicable, return or destroy all materials containing such Confidential Information. Notwithstanding the foregoing, either Party may retain a copy of any Confidential Information if required by applicable law or regulation, in accordance with internal compliance policy, or pursuant to automatic computer archiving and back-up procedures, subject at all times to the continuing applicability of the provisions of this Agreement.
- Governing Law; Jurisdiction; Venue. This Agreement shall be governed by and interpreted in all respects in accordance with the substantive laws of the State of Colorado without regard to choice of law provisions. Influencer (i) agrees that any disputes directly or indirectly arising out of or relating to this Agreement shall be resolved exclusively in the state or federal courts located in Denver, CO (ii) hereby irrevocably consents to such venue and to the exclusive jurisdiction of any such court over any such dispute, and (iii) AGREES THAT ANY DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT WILL BE ADJUDICATED BY TRIAL TO A COURT SITTING WITHOUT A JURY.
- Assignment. This Agreement is personal to Influencer. It may not be assigned by Influencer and Influencer may not otherwise transfer any of Influencer’s rights, or delegate, subcontract, or otherwise transfer any of Influencer’s obligations or performance, under this Agreement. Brand may freely assign or transfer any of its rights, or delegate or transfer any of its obligations or performance, hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
- Counterparts. This Agreement may be signed in counterparts, and delivered by facsimile or pdf, and such facsimile or pdf counterparts will be valid and binding on the Parties hereto with the same effect as if original signatures had been exchanged.
- Entire Agreement. This Agreement sets forth the entire agreement of the Parties with respect to the subject matter hereof; it may not be changed except by an instrument in writing signed by both Parties, and it supersedes any and all prior agreements between the Parties.
- Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
- Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or: (i) personal delivery to the Party to be notified, (ii) upon confirmed receipt if sent by electronic mail, (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. The addresses for notices (unless changed by notice) are:
|If to Brand:
1667 Cole Blvd, Lakewood, CO 80401 Suite 350
|If to Influencer:
The address set forth in initial page of the letter to which these terms are attached.
- Waiver. The failure of either Party to object to or to take affirmative action with respect to any conduct of the other Party which is in violation of the terms hereof shall not be construed as a waiver thereof, nor of any subsequent breach or wrongful conduct.
- Time is of the Essence. Influencer acknowledges that time is of the essence with respect to Influencer’s performance of its obligations under this Agreement.
- Force Majeure. Subject to the provisions of this Agreement, neither Party shall be liable to the other for failure to perform hereunder if, and to the extent, such failure results from a force majeure event. Upon occurrence of a force majeure event and to the extent such occurrence interferes with either Party’s performance of this Agreement, such Party shall be excused from performance of its obligations, provided such Party gives prompt written notice to the other Party of such force majeure event and uses its commercially reasonable efforts to avoid or remove such causes of non-performance as soon as possible.
- Construction. For all purposes of this Agreement, except as otherwise expressly provided or unless the context clearly requires otherwise : (i) the terms defined herein include the plural as well as the singular and vice versa; (ii) words importing gender include all genders; (iii) the Exhibits hereto form part of this Agreement and are incorporated herein by this reference; (iv) all references to this Agreement and the words “herein”, “hereof”, “hereto” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, subsection or other subdivision; (v) all headings (captions) are for convenience only and shall not affect the interpretation or construction of this Agreement; (vi) unless otherwise specifically noted, the words “including,” “included” and “includes” means inclusion without limitation; (vii) references to “days” means calendar days, and “hours” means regular hours, unless specifically stated otherwise (e.g., “business days”); (viii) reference to “business days” refers to any day other than Saturdays, Sundays and any days designated as a bank holiday in the United States; (ix) except for decisions expressly stated as being within a Party’s sole discretion, all approvals, agreements and consents required hereunder shall not be unreasonably withheld, conditioned or delayed; (x) the word “or” is not exclusive and shall have the meaning commonly ascribed to the term “and/or”; and (xi) because each Party to this Agreement is commercially sophisticated and capable of understanding all of the terms of this Agreement, the rule of construction under which ambiguities are resolved against the drafting Party shall not apply