This Influencer Agreement (“Agreement”) is entered on the date of completion on the "Champion Approval Form", by and between Hero Trainer Inc (“Company”). and signer of the agreement (“Influencer”).
Hero Trainer Inc. and the Influencer agree:
1. Appointment. Company would like the Influencer’s assistance in creating content / promoting / offering / selling Company’s products via their social media accounts. Any content created as a result of this Agreement remains the property of Company. Company hereby appoints the Influencer as its representative on a non-exclusive, non-employee basis to endorse and promote its services to the target audience in exchange for the benefits described in the “The Rewards” section of the “Hero Trainer Champion Program Overview” for the respective tier.
2. Deliverables. The Influencer will follow the deliverables listed in the “Responsibilities” section of the “Hero Trainer Champion Program Overview” for the respective tier of the Influencer. The Services shall conform to Company’s specifications and instructions, abide by the rules of the relevant social media platforms, and are subject to Company’s acceptance and approval. Company has a maximum of 15 business days to reject any deliverable in accordance with this Section and must notify the Influencer within 10 business days of receipt of work that additional revisions and/or amendments will be requested.
3. Cancellation. Company may terminate this Agreement at any time if the Influencer breaches this Agreement and does not cure such breach within an agreed time period. In addition to any right or remedy that may be available to Company under this Agreement or applicable law, in addition, in the event that the Influencer has breached this Agreement, Company may (i) immediately suspend, limit or terminate the Influencer’s access to any Company account and/or (ii) instruct the Influencer to cease all promotional activities or make clarifying statements, and the Influencer shall immediately comply.
4. Brand Guidelines. The Influencer agrees to abide by any and all guidelines established by Company in the “Guidelines” section of the “Hero Trainer Champion Program Overview” for the respective tier of the Influencer. 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. The Influencer agrees to only make factual statements about the Company or its products which the Influencer knows are true and can be verified.
5. Approval and Content Origination. The Influencer understands that all promotions and products they promote as part of this agreement are controlled by Company. The Influencer assumes all responsibility for verifying that the campaign materials used meet Company’s approval.
6. Confidentiality. During the course of the Influencer’s performance of services for Company, the Influencer will receive, have access to and create documents, content, records and information of a confidential and proprietary nature to Company and customers of Company. The Influencer acknowledges and agrees that such information is an asset of Company or its clients, is not generally known to the trade, is of a confidential nature and, to preserve the goodwill of Company 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 Company or as otherwise directed by Company in the course of the Influencer’s performance of services under this Agreement, and thereafter only with the written permission of Company. Upon termination of this Agreement or upon the request of Company, the Influencer will return to Company all of the confidential information, and all copies or reproductions thereof, which are in Influencer’s possession or control.
7. Compensation. If applicable, in full consideration of the Influencer’s performance, his / her obligations and the rights granted herein, the Influencer shall be compensated in accordance with the “The Rewards” section of Company’s “Hero Trainer Champion Program Overview” for the respective tier of Influencer. It may be updated from time to time in Company’s sole discretion. Influencer acknowledges and agreed that the Rewards section represents the Influencer’s entire compensation with respect to this Agreement and Company 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.
8. Representations and Warranties. You represent, warrant, and covenant that (a) you are at least 18 years of age and have not been previously removed from or prohibited from receiving Company’s services, (b) you will participate in the program in accordance with this Agreement, (c) your participation in the program will not violate any applicable laws, ordinances, rules, regulations, orders, licenses, permits, industry standards, judgments, decisions, or other requirements of any applicable governmental authority (including all such rules governing communications and marketing), (d) you have the full corporate right, power and authority to enter into this Agreement and to perform the acts required hereunder; (e) your execution of this Agreement, and your performance of your obligations and duties hereunder, do not and will not violate any agreement to which you are a party or by which you are otherwise bound; and (f) the information you provide in connection with the Program is accurate and complete at all times. We do not make any representation, warranty, or covenant regarding the amount of fees or benefits you can expect at any time in connection with the program, and we will not be liable for any actions you undertake based on your expectations.
9. Modification. Company reserves the right, at our discretion, to change, modify, add, or remove portions of this Agreement at any time (for example to reflect updates to Company’s services or to reflect changes in the law). If Company changes this Agreement, it will provide notice of such changes, such as by sending an email, posting a notice on the Company’s website. Please check the website and Agreement periodically for those changes. Modifications may include, for example, changes to the program fees or benefits, program eligibility, payment procedures, and other program requirements. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE EFFECTIVE DATE OF ANY MODIFICATION (E.G., THE DATE OF POSTING OF A CHANGE NOTICE OR REVISED AGREEMENT OR THE DATE SPECIFIED IN ANY EMAIL TO YOU REGARDING SUCH MODIFICATION) WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
10. Disclaimers. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) THE PROGRAM AND THE CONTENT AND MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY HERO TRAINER INC.; (B) COMPANY, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE PROGRAM, INCLUDING ANY INFORMATION, CONTENT OR MATERIALS CONTAINED THEREIN; (C) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, COMPANY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY FOR THE PROGRAM WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION, THE TERM COMPANY INCLUDES COMPANY’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.
11. Indemnification. Influencer hereby release and agree to defend, hold harmless, and indemnify Company, and/or its subsidiaries, affiliates, directors, officers, employees, agents, successors and assigns from and against any allegation or claim based on, or any loss, damage, settlement, cost, expense and any other liability (including but not limited to reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification), arising from or related to: (a) any act or omission by you, including, without limitation any breach of this Agreement (including your representations and warranties) or allegation or claim of negligence, strict liability, willful misconduct or fraud of you; or (b) your access to or use of the program.
12. Limitation of Liability. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE LIABLE TO YOU FOR LOST REVENUE, LOST PROFITS, LOST BUSINESS, OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS AGREEMENT OR THE PROGRAM. FURTHER, OUR AGGREGATE LIABILITY TO YOU, UNDER ANY THEORY OF LIABILITY, IN CONNECTION WITH THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
13. Force Majeure. If either party is unable to perform any of its obligations by reason of fire or other casualty, strike, act or order of public authority, 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.
14. Independent Contractor. The Influencer is retained as an independent contractor of Company. 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 pursuant to this Agreement and individuals other than Company
Influencer’s relationship with the Company is that of an independent contractor, and nothing in this Agreement is intended to, or shall be construed to, create a partnership, agency, joint venture, employment, or similar relationship. The details of the method and manner for the performance of the services contemplated by this Agreement by the Influencer shall be under the Influencer's own control, the Influencer’s being interested only in the results thereof. Influencer shall be solely responsible for supervising, controlling, and directing the details and manner of the completion of the services contemplated by this Agreement. Influencer is not authorized to make any representation, contract, or commitment on behalf of the Client unless specifically requested or authorized in writing to do so by the Client.
15.1 Governing Law. All matters relating to this Agreement, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of California, without giving effect to any conflict of law principles.
15.2 Dispute Resolution. Please read this Section carefully. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Any dispute, claim or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, shall be submitted to and decided by a single arbitrator by binding arbitration under the rules of the American Arbitration Association in the County of Alameda, California. The decision of the arbitrator shall be final and binding on the parties and may be entered and enforced in any court of competent jurisdiction by either party. The prevailing party in the arbitration proceedings shall be awarded reasonable attorneys’ fees, expert witness costs and expenses, and all other costs and expenses incurred directly or indirectly in connection with the proceedings, unless the arbitrator shall for good cause determine otherwise.
All arbitrations shall proceed on an individual basis. Influencer agrees that it may bring claims against the Company in arbitration only in an individual capacity and in so doing hereby waives the right to a trial by jury, to assert or participate in a class-action lawsuit or class action arbitration (either as a named-plaintiff or class member), and to assert or participate in any joint or consolidated lawsuit or joint or consolidated arbitration of any kind. Notwithstanding anything to the contrary under the rules of the American Arbitration Association, 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. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
INFLUENCER UNDERSTANDS AND AGREES THAT BY ENTERING INTO THESE TERMS, YOU ARE WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
17.3 Limitation to Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY WAIVED AND BARRED.
16.1. Assignment. Influencer may not assign this Agreement, by operation of law or otherwise, without our express prior written approval. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Any attempt to assign in violation of this section is void in each instance. Company may assign this Agreement: (a) to any of our affiliates; or (b) in connection with any merger, consolidation, reorganization, sale of all or substantially all of our assets or any similar transaction.
16.2. Further Assurances. Influencer will take or cause to be taken such further actions, and will execute, deliver and file or cause to be executed, delivered and filed such further documents and instruments, and will obtain such consents, as may be reasonably required or requested by us in order to effectuate fully the purposes, terms and conditions of this Agreement.
16.3. Waiver. The waiver by Company of a breach of or a default under any provision of this Agreement will be in writing and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay or omission on our part to exercise or avail itself of any right or remedy that we have or may have hereunder operate as a waiver of any right or remedy.
16.4. Severability. Any determination that any provision of this Agreement, or any application thereof is invalid, illegal or unenforceable in any respect in any instance will not affect the validity, legality and enforceability of such provision in any other instance, or the validity, legality, or enforceability of any other provision of this Agreement, and such provision shall be deemed to be reinstated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law.
16.5. Captions and Section Headings. The captions and section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.
16.6. Entire Agreement. This Agreement contains the complete understanding between the parties with respect to their respective subject matter hereof and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and will not be modified except in writing, signed or otherwise agreed to by both parties, or by a change to this Agreement made by Company as set forth in Section 9 above.
Without limiting anything in these Terms, all posts and all promotional messages, photos, or other communications made on social media platforms about Hero Trainer and its products or services (collectively, “Posts”), must meet the following requirements:
You and all of the Posts must comply with the Federal Trade Commission’s (the “FTC”) Guides Concerning Endorsements and Testimonials (the “Endorsement Guides”) described in this Section 1 of this agreement and Hero Trainer’s social media endorsement policies in effect from time to time. You will, if requested by Hero Trainer, participate in training which is designed to ensure compliance with the Endorsement Guides and Hero Trainer’s policies. Without limiting the foregoing, with respect to promotional messages, photos, or other communications made on social media platforms about Hero Trainer and its products or services, including all Posts and you will adhere to the following standards:
You will comply with the Federal Trade Commission’s (the “FTC”) Guides Concerning Endorsements and Testimonials (http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf
), including making:
statements that reflect honest beliefs, opinions, and experiences; and
clear and conspicuous disclosure about any connection to Hero Trainer in all Posts.
You will review:
- 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
You will not:
- make deceptive or misleading claims about Hero Trainer’s products or services or Hero Trainer’s competitors’ products or services;
- make any claims about Hero Trainer’s products or services or Hero Trainer’s competitors’ products or services that are not backed up by evidence;
- disclose any Confidential Information;
- disparage Hero Trainer or Hero Trainer products or services;
- engage in any communication that is defamatory or infringes upon the copyright, trademark, privacy, publicity, or other intellectual property rights of others;
- offer for sale or solicit products on behalf of Hero Trainer;
- make offensive comments that have the purpose or effect of creating an intimidating or hostile environment;
post content that promotes bigotry, racism, or discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age;
use ethnic slurs, personal insults, obscenity, or other offensive language; or
- make any comments or post any content that in any way promotes unsafe activities that could lead to an unsafe situation involving Hero Trainer’s consumers or other individuals.
You will adhere to:
You will 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
post fake sponsored content.
You must clearly and conspicuously disclose the “material connection” with Hero Trainer, making it clear that you are a paid influencer and have received compensation. You must place the disclosure in plain sight in close proximity to any audio or visual communications that you make about Hero Trainer, Hero Trainer’s brand or Hero Trainer’s products. You may not bury the disclosure in a link or place the disclosure in a string of hashtags or other disclosures. For the avoidance of doubt, this disclosure is required regardless of any space limitations of the platform (like Twitter), and includes any platform where hashtags for the disclosure (like #ad or #sponsored) can be used. If a platform does not allow for a clear and conspicuous disclosure, you should not use that platform to post about Hero Trainer.
Posts will only make factual statements about Hero Trainer and Hero Trainer’s products that are known for certain are true and can be proven or verified. In the Campaign Materials (as defined below), Hero Trainer will provide you with a list of verified factual statements that may be used in Posts by you. Posts should be authentic and based on your own opinions, beliefs, and experiences; provided, however, that Posts will rely on the Campaign Materials to accurately use the Hero Trainer trademarks, describe the Campaign, and describe the Hero Trainer products.
Posts by you will be original and created solely by you.
Posts by you will not include the intellectual property of other parties, including any third-party music, photographs, artwork, trademarks, logos, or slogans.
Posts by you will not include any person, or personally identifiable information about anyone, other than you unless you receive Hero Trainer’s prior written approval and has such person(s) at issue sign a release provided by Hero Trainer.
Posts by you will comply with the rules of the applicable social media platforms and each of the provisions set forth in this agreement.