INFLUENCER PROMOTION AGREEMENT
Last updated 6 Nov 2023
The following Influencer Promotion Agreement (the “Agreement”) is made and agreed to between Athlete & Influencer Marketing Solutions, LLC ("AIMS") and you, the individual (“Influencer”), wishing to participate in the AIMS Influencer Program (the "Influencer Program"). Influencer agrees to use the Influencer Program, and any additional services offered by AIMS in the future, only in accordance with this Agreement as amended from time to time. AIMS reserves the right to make changes to the Influencer Program and the Agreement at any time by posting the change at [URL]. Influencer's continued use of the Influencer Program after any such change will constitute its consent to and acceptance of the amended Agreement. The most current version of this Agreement will supersede all previous versions. Notwithstanding the foregoing, any change to this Agreement shall not apply to any dispute between Influencer and AIMS arising prior to the date of the posting of such change.
1. INFLUENCER PROGRAM
1.1 The “Influencer Program” allows AIMS to post offers of brands who have entered into an agreement with AIMS for the purpose offering posting opportunities to potential Influencers (the "Posting"). The company offering the advertising program is referred to as the Brand (“Brand”). Each Posting will specify the amount and terms under which the Influencer will receive payment. Payment is generated from a specified event ("Action") identified in the Posting. The definition of the Action associated with a Posting is set forth in the online offer specifications. If the Influencer elects to promote, endorse and/or represent Brand’s products and/or services, (collectively the "Influencer's Promotion"), the Influencer is accepting the Terms and Conditions associated with that Posting. Collectively, the services offered by AIMS through the Influencer Program shall be referred to as the “Services”.
1.2 AIMS may change or discontinue a Posting at any time without notice or liability to Influencer.
1.3 AIMS shall display and manage all active Postings and tracking of the payments owed.
1.4 In order to be eligible to participate in the Influencer Program, the Influencer must be an NCAA Student-Athlete, Professional or Semi-Professional Athlete, or Social Media Influencer.
2. INFLUENCER'S PARTICIPATION IN THE INFLUENCER PROGRAM
2.1 Brand may authorize Influencer to utilize its trademarks, service marks, tradenames, and/or copyrighted material in order for Influencer to fulfill a Posting.
2.2 Influencer will be solely responsible for compliance with the terms of this Agreement and of each Posting. Influencer will be solely responsible for the content created in fulfillment of the Posting, including but not limited to the legality, accuracy and appropriateness of the material posted by Influencer. Influencer will not post misleading or otherwise deceptive content. All content posted by Influencer must comply with all applicable laws, rules and regulations. Influencer is solely responsible for all content posted by Influencer.
2.2 Influencer is an independent contractor. Influencer understands that he/she is responsible to pay his/her own taxes, including income taxes, resulting from any compensation received from a Posting, in accordance with applicable federal, state, and local law.
2.3 Under no circumstances may Influencer allow any other party to fulfill its obligations associated with a Posting.
2.4 Influencer agrees that AIMS may identify Influencer a participant in the Influencer Program as long as Influencer remains a participant in good standing. AIMS may make this identification orally, in writing or electronically, including without limitation, in press releases, public announcements and promotional materials publicizing, advertising or promoting the Influencer Program. Influencer may not issue any press release or public announcement, distribute any marketing or promotional materials or otherwise make any public communications regarding this Agreement or your participation in the Influencer Program without AIMS’ prior written consent.
2.5 In consideration of the considerable expenses incurred by AIMS in developing its Services and assisting the Influencer in finding Brands, Influencer agrees that for a period of one (1) year after termination of Influencer's relationship with AIMS, Influencer shall not, either directly or indirectly, become engaged in any business or activity with an AIMS Brand (an AIMS Brand is defined as an Brand which has posted an offer with AIMS) which promotes a Brand's product or service. Further, Influencer acknowledges and agrees that during the term of this Agreement and for a period of one (1) year after termination, it may not enter into a relationship with any Brand previously introduced to it by AIMS, unless Influencer complies with the terms of this Agreement. Should the Influencer enter into a business relationship with an AIMS Brand within a period of one (1) year after termination of Influencer’s relationship with AIMS, Influencer shall disgorge all profits generated from Influencer’s business with such AIMS Brand and said profits shall be immediately tendered to AIMS.
3. INFLUENCER PROMOTION FEES AND PAYMENTS
3.1 Influencer will earn a fee for on qualifying Actions as set forth in the applicable Posting (the “Promotion Fee”). Such Promotion Fee shall be clearly determined and presented to the Influencer, prior to the Influencer agreeing to promote or represent Brand’s products or services. The Promotion Fee is subject to change based on individual Postings.
3.2 AIMS reserves the right to withhold Promotion Fee payments with respect to a particular Posting if funds have not been received from the Brand promoted by such Posting. In the event this Agreement is terminated, Influencer will only be entitled to Promotion Fees earned through the effective date of termination. AIMS may withhold final payment for a reasonable time to ensure that the Promotion Fees are received from the Brand associated with each applicable Posting.
3.3 AIMS will compile, calculate and provide payment to Influencer. [payment timeline]. Influencer may initiate payment to any transfer accounts at any time in the online portal (and mobile app).
4. TERM AND TERMINATION OF THIS AGREEMENT
4.1 The term of this Agreement will begin upon AIMS’s acceptance, in its sole discretion, of Influencer’s application to become an Influencer in the Influencer Program and will continue for a period of twelve (12) months (the "Term"), subject to the terms and conditions of this Agreement. The Term of this Agreement will automatically renew for successive twelve (12) month periods (the “Renewal Period”) unless the Influencer provides sixty (60) days written notice prior to the Renewal Period, of their intent not to renew. AIMS may terminate this Agreement at any time, with or without cause, for any reason, by giving the Influencer written or electronic notice of termination.
5. REPRESENTATIONS AND WARRANTIES
5.1 In addition to its other representations and warranties contained in this Agreement, Influencer represents and warrants to AIMS that:
6. CONFIDENTIAL INFORMATION.
6.1 The term "Confidential Information" shall mean: (i) any and all information which is disclosed by either party ("OWNER") to the other ("RECIPIENT") verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary; and (ii) the terms, including without limitation, the pricing, of this Agreement and any proposals or other documents that preceded this Agreement. Confidential Information may include, but not be limited to, trade secrets, computer programs, software, documentation, formulas, data, inventions, techniques, marketing plans, strategies, forecasts, client lists, employee information, financial information, confidential information concerning Owner's business or organization, as Owner has conducted it or as Owner may conduct it in the future. In addition, Confidential Information may include information concerning any of Owner's past, current, or possible future products or methods, including information about Owner's research, development, engineering, purchasing, accounting, marketing, and/or software (including third party software).
6.2 Owner's Confidential Information shall be treated as strictly confidential by Recipient, and Recipient shall protect and preserve its confidential nature. Recipient shall not directly or indirectly disclose any Confidential Information to any third party except to those third parties operating under non-disclosure provisions no less restrictive than in this Section and who have a justified business "need to know" or upon the express written consent of the Owner. This clause shall be enforceable during the Term of this Agreement and will continue to remain enforceable after the termination or expiration of this Agreement. This Agreement imposes no obligation upon the Parties with respect to Confidential Information which either party can establish by legally sufficient evidence: (a) was in the possession of, or was rightfully known by the Recipient without an obligation to maintain its confidentiality prior to receipt from Owner; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality; (d) is independently developed by Recipient without the participation of individuals who have had access to the Confidential Information or the use of Confidential Information; or (e) is required to be disclosed by court order or other lawful governmental action, but only to the extent so ordered, provided that the Recipient immediately notifies the Owner of such requirement so that the Owner may attempt to obtain a protective order either restricting or preventing such disclosure, and the Recipient cooperates with the Owner to resist such disclosure and protect its rights in the Confidential Information..
6.3 The Recipient shall not obtain, by virtue of this Agreement, any rights, title, or interest in any Confidential Information of the Owner. Within fifteen (15) days after termination of this Agreement, each party shall certify in writing to the other that all copies of Confidential Information in any form in its possession or control, including partial copies, have been destroyed, returned to Owner, or used solely as the Owner so directs.
7. INDEMNIFICATION
7.1 Influencer shall defend, indemnify and hold harmless AIMS and Brands from and against all claims, suits, demands, damages, liabilities, losses, penalties, civil fines, interest settlements, judgments, costs and expenses, including reasonable attorneys’ fees, incurred, claimed or sustained by AIMS or Brand arising directly or indirectly from (i) Influencer’s breach or non-compliance with any term of this Agreement; (ii) Influencer’s violation or alleged violation of any law, statute, regulation, or ordinance arising from Influencer’s activities in connection with this Agreement; (iii) Influencer’s participation in the Influencer Program; (iv) any claim that AIMS is obligated to pay any tax in connection with payments made to Influencer; and/or (v) any violation or alleged violation by Influencer of any rights of another, including breach of another’s privacy or intellectual property rights.
8. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTY
8.1 AIMS’S SERVICE IS PROVIDED ON AN AS IS BASIS AND AIMS MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE INFLUENCER PROGRAM, ANY OF ITS PRODUCTS OR SERVICES, POSTINGS (INCLUDING ANY CREATIVE), BRAND PRODUCTS OR SERVICES, OR ANY OF AIMS’S SITES (INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE). IN ADDITION, AIMS MAKES NO REPRESENTATION OR WARRANTY THAT THE OPERATION OF ITS SITES OR ORDERING PAGES WILL BE UNINTERRUPTED OR ERROR-FREE, AND AIMS WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
8.2 TO THE EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY OR ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY, AIMS WILL NOT BE LIABLE TO INFLUENCER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA OR SERVICES, ARISING IN CONNECTION WITH THIS AGREEMENT, THE INFLUENCER PROGRAM, OR THE AIMS PRODUCTS OR SITES, HOWEVER CAUSED, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER AIMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. FURTHER, AIMS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE INFLUENCER PROGRAM, OR THE AIMS PRODUCTS OR SITES, UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STATUTORY OR OTHERWISE) SHALL IN NO EVENT EXCEED THE TOTAL COMMISSION FEES PAID TO THE INFLUENCER UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CAUSE OF ACTION.
8.3 Benefit of the Bargain. The limitation of liability set forth in this Section 8 and the indemnification obligations set forth in Section 8 are an essential element of the benefit of the bargain reflected in this Agreement.
9. DISPUTE RESOLUTION
9.1 In the event of a dispute between Influencer and Brand, InfluencerBrand will promptly notify AIMS through its online portal and include the details of the dispute, desired resolution and timeframe for BrandInfluencer to resolve said dispute (“Dispute Notice”). AIMS will provide the Dispute Notice to the BrandInfluencer and BrandInfluencer will have the opportunity to comply with the Dispute Notice of dispute the allegations set forth in the Dispute Notice. In the event that Influencer and the Brand are unable to amicably resolve the dispute, AIMS will determine the outcome of the dispute, which decision shall be final and binding on both Brand and Influencer.
9.2 In the event of a disputed between AIMS and InfluencerBrand, before undertaking any arbitration or litigation, the parties will make reasonable efforts to resolve all disputes informally, including but not limited to, a conference meeting between executive officers of AIMS and InfluencerBrand who have authority to resolve the dispute. If such officers are unable to reach an agreement within forty-five (45) days of such referral, then either party may pursue whatever remedies or rights it may have under law or in equity. No action arising out of this Agreement, regardless of the form of action, may be brought by InfluencerBrand more than one (1) year after the cause of action occurred. InfluencerBrand hereby waives any statute of limitations to the contrary.
9.2.1 Notwithstanding the dispute resolution provision of Section 8.2, either party may seek equitable relief at any time before or during any dispute resolution proceedings in any court of competent jurisdiction to protect its interests or to preserve the status quo pending completion of any dispute resolution process or to otherwise protect its rights or interests as permitted at law and in equity. By seeking or obtaining such remedy, a party seeking injunctive relief hereunder will not waive any of the provisions of this Section 9.2.1.
9.2.2 This Agreement will be governed, interpreted, construed and enforced in all respects in accordance with the laws of the State of Utah, without regard to any conflicts of laws principles. Each party agrees that any controversy or claim between the parties will be determined first pursuant to Section 9.2.1 of this Agreement and secondly, if that fails, by either arbitration or litigation in the courts located in Utah.
9.2.3 If any litigation or arbitration proceeding is commenced in connection with this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees (including allocated costs for in-house legal services), costs, interest and necessary disbursements incurred in such action or proceeding, as determined by the applicable court or arbitrator.
10.1 GENERAL MATTERS
10.1 Entire Agreement. This Agreement sets forth the entire understanding of both parties hereto with respect to its subject matter and supersedes any and all previous contracts and covenants between both parties whether written or oral, with respect to such subject matter. This Agreement includes any Posting(s) entered into by Influencer and AIMS. In the event of any inconsistency between a Posting and the Agreement, the terms of this Agreement shall govern.
10.2 The Parties’ Relationship. Each party is an independent contractor and not a partner, joint venturer or employee of the other. Influencer will not make any statement that would cause confusion as to AIMS’s or any Brand’s relationship with Influencer or otherwise contradict anything in this Agreement.
10.3 Notices. All notices will be sent to the address or other contact information submitted by Influencer when signing up for the service by certified mail, fax, email or courier. All notices to AIMS shall be sent to the mailing address found at aimsmarketing.ai[AIMS Mailing Address].
10.4 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.
10.5 Force Majeure. Neither party will be liable to the other by reason of its failure to perform or its delay in the performance of its obligations hereunder as a result of any causes or conditions which are beyond such party's reasonable control and which such party is unable to overcome by the exercise of reasonable diligence, including but not limited to Acts of God, fires, storms, wars, governmental action, labor conditions, earthquakes, natural disasters, and interruption in internet service.
10.6 Captions. Captions contained in the Agreement are for reference purposes only and are not part of the Agreement.
10.7 Neither Party Considered the Drafter. Despite the possibility that one party may have prepared the initial draft of this Agreement or played the greater role in the physical preparation of subsequent drafts, the parties agree that neither of them shall be deemed the drafter of this Agreement and that, in construing this Agreement in case of any claim that any provision hereof may be ambiguous, no such provision shall be construed in favor of one party on the ground that such provision was drafted by the other.
10.8 Waiver. A waiver of a breach or default under this Agreement shall not be a waiver of any subsequent breach or default of that or any other provision. Failure of either party to enforce compliance with any term or condition of this Agreement shall not constitute a waiver of such term or condition.
10.9 Assignment. This Agreement may not be assigned or otherwise transferred by Influencer.
10.10 Survival. The provisions of this Agreement that by their nature may reasonably be presumed to have been intended to survive any termination of this Agreement shall survive any termination of this Agreement. Without limiting the foregoing, Sections 6, 7, 8 and 9shall survive the termination of this Agreement.
