BRAND PROMOTION AGREEMENT
Last updated on 30 Nov 2023
This Brand Promotion Agreement (“Agreement”) is entered into by and between Athlete & Influencer Marketing Solutions, LLC, (“AIMS”) and you, the company entering into this Agreement (“Brand”). The terms and conditions contained herein supplement and supersede all prior agreements entered into by and between AIMS and Brand. The parties anticipate the execution of individual promotion agreements (each, a “Campaign”) for AIMS’s provision of services hereunder. All Campaigns are hereby incorporated into and become part of this agreement (collectively, the “Agreement”). Terms not defined in this Brand Agreement will have the meaning set forth in the applicable Campaign. Except where expressly indicated in a Campaign, where the terms of a Campaign contradict this Agreement, the terms of this Agreement will govern.
RECITALS:
Whereas, AIMS is in the business connecting NCAA Student-Athletes, Professional and Semi-Professional Athletes and Social Media Influencers (herein referred to as “Influencers”) with companies who desire to partner with and compensate Influencers for promoting, endorsing, and/or representing Brand’s products and/or services; and
Whereas, Brand promotes one or more products or services and desires to compensate Influencers for promoting, endorsing, and/or representing Brand’s products and/or services as set forth in a Campaign; and
Whereas, Brand desires to enter into a business relationship with AIMS in order to connect with Influencers who are willing to promote, endorse and/or represent Brand’s products and/or services, for a fee (“Influencer Promotion”).
NOW THEREFORE in consideration of the promises and the mutual covenants and agreements contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree to be legally bound as follows:
1. DEFINITION OF INFLUENCER PROMOTION
1.1 For purposes of this Agreement, an “Influencer Promotion” will be defined as an Influencer who completes and submits all of the required fields on the applicable form where such Influencer Promotions are delivered to Brand by AIMS. Any information provided by the Influencer, which is contained in the Influencer Promotion or otherwise, shall be referred to as “Influencer Data”.
1.2 Influencer Promotions are to be delivered to Brand in real-time file formats and communication protocols unless otherwise agreed in a Campaign.
1.3 An Influencer is under no obligation to promote or represent any Brand product or service. Under this Agreement, an Influencer Promotion will be valid if an Influencer meets the minimum criteria as established in a Campaign and agrees to promote, endorser or represent a Brand product or service. The determination as to whether or not an Influencer has fulfilled its obligations under a Campaign triggering payment, shall be in AIMS sole discretion.
2. PRICING, VOLUME AND BILLING
2.1 The price per Influencer promotion, endorsement or representation shall be determined by Brand based on the product or service being promoted or represented and the manner in which the Influencer promotes or represents the Brand’s product or service (the “Fee”). Unless otherwise set forth in a campaign, as a commission for providing the Influencer Promotion, AIMS shall receive twenty percent (20%) of the Fee, and in such cases where the Brand provides the Influencer with a product as all or part of payment, Brand will pay AIMS and addition three percent (3%) of the product’s retail value (the “Commission”). The remaining eighty percent (80%) of the Fee shall constitute the promotion fee to be paid to the Influencer (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 Commission and Promotion Fee is subject to change based on individual IOs. Brand shall be responsible for payment on each valid Influencer Promotion it receives.
2.2 Brand shall pay AIMS as set forth in each individual Campaign. Brand shall pay AIMS in accordance with one of the following methods:
2.2.1 Pay First. Under the Pay First payment method, Brand has the option to set Campaign budgets and provide a pre-paid deposit into a Brand account managed by AIMS. AIMS will track the pre-paid deposits in Brand's account and will deduct the agreed-upon Commission from the Brand's account once Brand has contract with an Influencer. Once the Influencer has completed the Campaign, the Promotion Fee will be paid from the Brand’s account to the Influencer.
2.2.2. Pay As You Go. Under the Pay As You Go method, Brand has the option to choose to pay the Fees associated with each Campaign , each time they contract with an Influencer. In order for a Campaign with an Influencer to become valid, Brand must provide the full payment of Fees to AIMS. AIMS will immediately be paid its Commission and will retain the Promotion Fee until such time as the Influencer has completed the Campaign, at which time, such Promotion Fee will be paid to the Influencer.
2.3 Brand agrees that timely payment is necessary for AIMS to continue providing Influencer Promotions to Brand. AIMS reserves the right to halt delivery of Influencer Promotions and/or terminate this Agreement at any time upon Brand’s failure to comply with the payment terms set forth herein. In the event that AIMS has not received payment in full within thirty (30) days of the due date, Brand will pay AIMS an additional 1.5% of the outstanding balance per month, or the maximum amount allowable under Utah law, whichever is greater, until the outstanding balance is paid in full. To the extent calculation of any interest rate charged hereunder exceeds the maximum rate permitted by law, such rate shall automatically be reduced to the highest interest rate permitted by law without further action by any of the parties to this Agreement. In the event that AIMS incurs expenses related to collection of any past due amounts, Brand will be responsible to pay AIMS’s reasonable expenses associated with said collection including, but not limited to, reasonable attorneys’ fees.
2.4 AIMS retains the right to audit, or to have its agent audit, Brand’s books and records for the purpose of ensuring compliance with the terms of this Agreement and/or any IO. The audit shall be conducted on five (5) business days prior written notice to Brand, and at AIMS’s expense unless the audit reveals that Brand has misused Influencer Promotion Data or under paid AIMS for Influencer Promotions, in which case, Brand shall bear the costs of the audit.
3. TERM OF SERVICE / NON-CIRCUMVENTION
3.1 This Agreement will commence on the Effective Date and will continue for a period of twelve (12) months (the "Term"), subject to the terms and conditions of this Section. The Term of this Agreement will automatically renew for successive twelve (12) month periods (the “Renewal Period”) unless either party provides sixty (60) days written notice prior to the Renewal Period, of their intent not to renew. Notwithstanding the foregoing, AIMS may terminate this Agreement if it determines that Brand’s products or services are not in compliance with applicable laws, rules and regulations, or there is a legal change to the NIL rules which would negatively impact this Agreement.
3.2 During the Term of this Agreement and for a period of one (1) year after termination of this Agreement, Brand shall not knowingly and intentionally take any action to circumvent the relationship described in this Agreement by directly or indirectly soliciting Influencer referred by AIMS. Further, Brand 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 Influencer previously introduced to it by AIMS, unless Brand complies with the terms of this Agreement. Brand expressly acknowledges that if it violates its obligations under this Section, AIMS will suffer irreparable injury that cannot be adequately addressed through the ordinary calculation of damages and AIMS shall, therefore, be entitled to: (i) liquidated damages in the amount of fifteen thousand dollars ($15,000.00) or thirty percent (30%) of the total value of the deal entered into with the Influencer to promote or represent Brand’s products or services, whichever is greater; (ii) injunctive relief without the requirement to post a bond; and (iii) any and all other remedies that AIMS may have at law or in equity.
4. CONFIDENTIAL INFORMATION.
4.1 Definition. 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 of this Agreement, any IOs, and any proposals or other documents that preceded this Agreement, including without limitation the pricing of any services or Influencer Promotion Data provided under this Agreement, any IOs, 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, 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, manufacturing, accounting, marketing, selling, leasing, and/or software (including third party software).
4.2 Treatment of Confidential Information. 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 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.
4.3 Rights and Duties. 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.
5. WARRANTIES
5.1 Brand represents and warrants to AIMS that:
6. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY; INDEMNIFICATION
6.1 Brand understands and agrees that AIMS does not verify and has no responsibility for the accuracy of Influencer Data, Influencer Promotion, eventual sale(s), conversion(s) or other performance on the part of any Influencer Promotion.
6.2 AIMS REPRESENTS AND WARRANTS THAT THE SERVICES HEREUNDER SHALL BE PROVIDED IN A PROFESSIONAL AND WORKMANLIKE MANNER CONSISTENT WITH INDUSTRY STANDARDS. BRAND UNDERSTANDS, AGREES AND ACKNOWLEDGES THAT ALL INFLUENCER PROMOTIONS, ANY ASSOCIATED INFLUENCER DATA, ANY OF THE INFORMATION THAT IS PRESENTED OR DISPLAYED BY AIMS, UNDERLYING SOFTWARE AND ANY AND ALL OTHER INFORMATION, CREATIVE OR CONTENT PROVIDED BY AIMS HEREUNDER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND AIMS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BRAND UNDERSTANDS, AGREES AND ACKNOWLEDGES THAT BRAND’S USE OF THE INFLUENCER PROMOTION, ANY ASSOCIATED INFLUENCER DATA, AND ANY OF THE INFORMATION THAT IS PRESENTED OR DISPLAYED BY AIMS IS AT BRAND’S OWN RISK. AIMS DOES NOT WARRANT THAT THE AIMS SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. AIMS MAKES NO REPRESENTATIONS OR WARRANTIES TO BRAND WITH RESPECT TO PREFERRED VOLUME LEVELS FOR INFLUENCER PROMOTION DELIVERY OR ANY RESULTS OBTAINABLE THROUGH THE INFLUENCER PROMOTION, UNDERLYING SOFTWARE, INVOICES, ITS TRACKING METHODS OR OTHERWISE. AIMS MAKES NO REPRESENTATIONS OR WARRANTIES TO BRAND THAT THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT WILL GENERATE ANY NUMBER OF INFLUENCER PROMOTIONS OR PRODUCE ANY LEVEL OF PROFIT OR BUSINESS FROM SUCH INFLUENCER PROMOTION. INFLUENCER PROMOTION, INFLUENCER DATA, UNDERLYING SOFTWARE, INVOICES AND/OR TRACKING METHODS MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AIMS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT BRAND’S USE OF THE INFLUENCER PROMOTION, UNDERLYING SOFTWARE, INVOICES AND/OR TRACKING METHODS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT INFLUENCER PROMOTION WILL CONTAIN ACCURATE INFORMATION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY BRAND FROM AIMS SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
6.3 AIMS DOES NOT WARRANT THE SERVICES TO BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICES WILL MEET BRAND’S REQUIREMENTS. THE WARRANTY SET FORTH IN THIS SECTION IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT MIGHT BE IMPLIED FROM A COURSE OF PERFORMANCE OR DEALING OR TRADE USAGE OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.4 IN NO EVENT WILL AIMS, ITS RELATED COMPANIES, OR EACH SUCH COMPANY’S RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, DISTRIBUTION PARTNERS OR AGENTS BE LIABLE FOR ANY LEGAL FEES OR INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOSS OF REVENUE, PROFITS, USE OR DATA), HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR UNDER ANY OTHER LEGAL THEORY, WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT AIMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BRAND AGREES THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK AND ARE REFLECTED IN THE FEES AGREED UPON BY THE PARTIES. OTHER THAN FOR GROSS NEGLIGENCE AND WILLFUL MISCONDUCT AND EXCEPT FOR BRAND’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL AIMS’S LIABILITY EXCEED FIVE THOUSAND DOLLARS ($5,000.00). BRAND ACKNOWLEDGES AND AGREES THAT IN THE EVENT OF ANY BREACH OF THE FOREGOING WARRANTY, THAT AIMS’S SOLE AND EXCLUSIVE OBLIGATION, AND BRAND’S SOLE AND EXCLUSIVE REMEDY, IS AS SET FORTH IN THIS SECTION.
7.5 Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its related companies, and each such company’s respective directors, officers, members, shareholders, technology, employees, affiliates, agents and permitted successors and assigns from and against all claim, actions, losses, liability, damages, costs and expenses (including reasonable attorneys’ fees and expenses) (collectively a “Claim”) attributable to any Claim made by a third party arising out of: (i) the Indemnifying Party’s negligence or intentional misconduct; (ii) the Indemnifying Party’s failure to perform any of its obligations under this Agreement; or (iii) any breach of any representation, warranty or covenant contained herein by the Indemnifying Party. In addition, without limiting the generality of the foregoing, Brand will defend, indemnify and hold harmless AIMS, its related companies, and each such company’s respective directors, officers, shareholders, employees, attorneys, affiliates, agents, representatives, and permitted successors and assigns from and against liabilities arising from: (i) any Claim related the products and/or services provided by Brand; (ii) any Claim related to any actual or alleged defamatory or illegal material provided by Brand for placement on, or in connection with AIMS; (iii) any Claim that Brand’s products and/or services, or that an Influencer Promotion violates any state or federal laws, rules or regulations, including but not limited to NIL rules; (iv) any Claim that Brand and/or products or services are in violation of the representations and warranties in this agreement; and (v) any Claim related to product or service provided by Brand, or any Influencer Promotion, which actually or allegedly infringes on the intellectual property or personal rights of a third party.
7.6 The indemnified party agrees:
(i) to promptly notify the other party in writing of any Claim that it becomes aware of and provide the other party with the opportunity to defend or negotiate a settlement of any such Claim at that party’s expense; and
(ii) to cooperate fully with the other party, at that other party’s expense, in defending or settling such Claim.
Subject to the following reservations:
(iii) the indemnified party reserves the right, at its own expense, to assume the exclusive defense and control of any Claim subject to indemnification by AIMS hereunder;
(iv) the indemnified party shall not make any settlement of any claims which might give rise to liability of the Indemnifying Party hereunder without the prior written consent of the Indemnifying Party; and
(v) The Indemnifying Party shall not make any settlement of any claims which give rise to or impose any liability or obligations on the indemnified party without the prior written consent of the indemnified party, such consent not to be unreasonably withheld.
8. DISPUTE RESOLUTION
8.1 In the event of a dispute between Brand and Influencer, Brand will promptly notify AIMS through its online portal and include the details of the dispute, desired resolution and timeframe for Influencer to resolve said dispute (“Dispute Notice”). AIMS will provide the Dispute Notice to the Influencer and Influencer will have the opportunity to comply with the Dispute Notice of dispute the allegations set forth in the Dispute Notice. In the event that the Brand and Influencer 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.
8.2 In the event of a disputed between AIMS and Brand, 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 Brand 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 Brand more than one (1) year after the cause of action occurred. Brand hereby waives any statute of limitations to the contrary.
8.2.1 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 8.2.1.
8.2.2 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 8.2.1 of this Agreement and secondly, if that fails, by either arbitration or litigation in the courts located in Utah.
8.2.3 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.
9. GENERAL PROVISIONS
9.1 Except as otherwise provided for in this Agreement, any amendment or modification to this Agreement must be in writing and signed by both parties.
9.2 This Agreement will be binding upon and will insure to the benefit of each party and its permitted successors and assigns; provided that, Brand will not assign or transfer its rights or obligations under this Agreement by operation of law or otherwise, without AIMS’s prior written consent. AIMS may assign its rights and obligations under this Agreement.
9.3 The waiver or failure of either party to exercise any rights provided for in this Agreement will not be deemed a waiver of any further or future right under this Agreement.
9.4 The invalidity or unenforceability of any term or provision in this Agreement will not affect the validity or enforceability of any other term or provision in this Agreement.
9.5 If Brand is more than one person or entity, each person or entity, as a signatory to this Agreement, agrees to be jointly and severally liable for all of Brand's obligations under this Agreement.
9.6 This Agreement is the final, full and exclusive statement of agreement between AIMS and Brand with respect to the subject matter set forth herein.
9.7 This Agreement may be executed in counterparts and, when fully executed, will be deemed effective on the Effective Date. The executed Agreement may be delivered by electronic facsimile transmission.
9.8 The relationship of AIMS and Brand established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other. Neither party shall make any representations, warranties or covenants, or assume or create any obligations, on the other party’s behalf. Each party shall be solely responsible for the actions of its respective employees, agents and representatives.
9.9 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.
9.10 Captions and section numbers are used in this Agreement for convenience only and may not be used in the construction or interpretation of this Agreement.
9.11 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.
9.12 No Export. Brand agrees that it shall not export any information obtained under this Agreement, related documentation or technical data, or any product incorporating information obtained under this Agreement, related documentation, or technical data, without the written consent of AIMS.
9.13 Force Majeure. AIMS will not be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet.
9.14 No Third Party Beneficiaries. Brand agrees that there are, and shall be no, third party beneficiaries of Brand to this Agreement, including but not limited to Brand’s insurance providers or Influencers.
9.15 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 the aimsmarketing.ai website.[AIMS Mailing Address].
BRAND PROMOTION AGREEMENT
This Brand Promotion Agreement (“Agreement”) is entered into by and between Athlete & Influencer Marketing Solutions, LLC, (“AIMS”) and you, the company entering into this Agreement (“Brand”). The terms and conditions contained herein supplement and supersede all prior agreements entered into by and between AIMS and Brand. The parties anticipate the execution of individual promotion agreements (each, a “Campaign”) for AIMS’s provision of services hereunder. All Campaigns are hereby incorporated into and become part of this agreement (collectively, the “Agreement”). Terms not defined in this Brand Agreement will have the meaning set forth in the applicable Campaign. Except where expressly indicated in a Campaign, where the terms of a Campaign contradict this Agreement, the terms of this Agreement will govern.
RECITALS:
Whereas, AIMS is in the business connecting NCAA Student-Athletes, Professional and Semi-Professional Athletes and Social Media Influencers (herein referred to as “Influencers”) with companies who desire to partner with and compensate Influencers for promoting, endorsing, and/or representing Brand’s products and/or services; and
Whereas, Brand promotes one or more products or services and desires to compensate Influencers for promoting, endorsing, and/or representing Brand’s products and/or services as set forth in a Campaign; and
Whereas, Brand desires to enter into a business relationship with AIMS in order to connect with Influencers who are willing to promote, endorse and/or represent Brand’s products and/or services, for a fee (“Influencer Promotion”).
NOW THEREFORE in consideration of the promises and the mutual covenants and agreements contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree to be legally bound as follows:
1. DEFINITION OF INFLUENCER PROMOTION
1.1 For purposes of this Agreement, an “Influencer Promotion” will be defined as an Influencer who completes and submits all of the required fields on the applicable form where such Influencer Promotions are delivered to Brand by AIMS. Any information provided by the Influencer, which is contained in the Influencer Promotion or otherwise, shall be referred to as “Influencer Data”.
1.2 Influencer Promotions are to be delivered to Brand in real-time file formats and communication protocols unless otherwise agreed in a Campaign.
1.3 An Influencer is under no obligation to promote or represent any Brand product or service. Under this Agreement, an Influencer Promotion will be valid if an Influencer meets the minimum criteria as established in a Campaign and agrees to promote, endorser or represent a Brand product or service. The determination as to whether or not an Influencer has fulfilled its obligations under a Campaign triggering payment, shall be in AIMS sole discretion.
2. PRICING, VOLUME AND BILLING
2.1 The price per Influencer promotion, endorsement or representation shall be determined by Brand based on the product or service being promoted or represented and the manner in which the Influencer promotes or represents the Brand’s product or service (the “Fee”). Unless otherwise set forth in a campaign, as a commission for providing the Influencer Promotion, AIMS shall receive twenty percent (20%) of the Fee, and in such cases where the Brand provides the Influencer with a product as all or part of payment, Brand will pay AIMS and addition three percent (3%) of the product’s retail value (the “Commission”). The remaining eighty percent (80%) of the Fee shall constitute the promotion fee to be paid to the Influencer (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 Commission and Promotion Fee is subject to change based on individual IOs. Brand shall be responsible for payment on each valid Influencer Promotion it receives.
2.2 Brand shall pay AIMS as set forth in each individual Campaign. Brand shall pay AIMS in accordance with one of the following methods:
2.2.1 Pay First. Under the Pay First payment method, Brand has the option to set Campaign budgets and provide a pre-paid deposit into a Brand account managed by AIMS. AIMS will track the pre-paid deposits in Brand's account and will deduct the agreed-upon Commission from the Brand's account once Brand has contract with an Influencer. Once the Influencer has completed the Campaign, the Promotion Fee will be paid from the Brand’s account to the Influencer.
2.2.2. Pay As You Go. Under the Pay As You Go method, Brand has the option to choose to pay the Fees associated with each Campaign , each time they contract with an Influencer. In order for a Campaign with an Influencer to become valid, Brand must provide the full payment of Fees to AIMS. AIMS will immediately be paid its Commission and will retain the Promotion Fee until such time as the Influencer has completed the Campaign, at which time, such Promotion Fee will be paid to the Influencer.
2.3 Brand agrees that timely payment is necessary for AIMS to continue providing Influencer Promotions to Brand. AIMS reserves the right to halt delivery of Influencer Promotions and/or terminate this Agreement at any time upon Brand’s failure to comply with the payment terms set forth herein. In the event that AIMS has not received payment in full within thirty (30) days of the due date, Brand will pay AIMS an additional 1.5% of the outstanding balance per month, or the maximum amount allowable under Utah law, whichever is greater, until the outstanding balance is paid in full. To the extent calculation of any interest rate charged hereunder exceeds the maximum rate permitted by law, such rate shall automatically be reduced to the highest interest rate permitted by law without further action by any of the parties to this Agreement. In the event that AIMS incurs expenses related to collection of any past due amounts, Brand will be responsible to pay AIMS’s reasonable expenses associated with said collection including, but not limited to, reasonable attorneys’ fees.
2.4 AIMS retains the right to audit, or to have its agent audit, Brand’s books and records for the purpose of ensuring compliance with the terms of this Agreement and/or any IO. The audit shall be conducted on five (5) business days prior written notice to Brand, and at AIMS’s expense unless the audit reveals that Brand has misused Influencer Promotion Data or under paid AIMS for Influencer Promotions, in which case, Brand shall bear the costs of the audit.
3. TERM OF SERVICE / NON-CIRCUMVENTION
3.1 This Agreement will commence on the Effective Date and will continue for a period of twelve (12) months (the "Term"), subject to the terms and conditions of this Section. The Term of this Agreement will automatically renew for successive twelve (12) month periods (the “Renewal Period”) unless either party provides sixty (60) days written notice prior to the Renewal Period, of their intent not to renew. Notwithstanding the foregoing, AIMS may terminate this Agreement if it determines that Brand’s products or services are not in compliance with applicable laws, rules and regulations, or there is a legal change to the NIL rules which would negatively impact this Agreement.
3.2 During the Term of this Agreement and for a period of one (1) year after termination of this Agreement, Brand shall not knowingly and intentionally take any action to circumvent the relationship described in this Agreement by directly or indirectly soliciting Influencer referred by AIMS. Further, Brand 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 Influencer previously introduced to it by AIMS, unless Brand complies with the terms of this Agreement. Brand expressly acknowledges that if it violates its obligations under this Section, AIMS will suffer irreparable injury that cannot be adequately addressed through the ordinary calculation of damages and AIMS shall, therefore, be entitled to: (i) liquidated damages in the amount of fifteen thousand dollars ($15,000.00) or thirty percent (30%) of the total value of the deal entered into with the Influencer to promote or represent Brand’s products or services, whichever is greater; (ii) injunctive relief without the requirement to post a bond; and (iii) any and all other remedies that AIMS may have at law or in equity.
4. CONFIDENTIAL INFORMATION.
4.1 Definition. 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 of this Agreement, any IOs, and any proposals or other documents that preceded this Agreement, including without limitation the pricing of any services or Influencer Promotion Data provided under this Agreement, any IOs, 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, 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, manufacturing, accounting, marketing, selling, leasing, and/or software (including third party software).
4.2 Treatment of Confidential Information. 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 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.
4.3 Rights and Duties. 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.
5. WARRANTIES
5.1 Brand represents and warrants to AIMS that:
6. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY; INDEMNIFICATION
6.1 Brand understands and agrees that AIMS does not verify and has no responsibility for the accuracy of Influencer Data, Influencer Promotion, eventual sale(s), conversion(s) or other performance on the part of any Influencer Promotion.
6.2 AIMS REPRESENTS AND WARRANTS THAT THE SERVICES HEREUNDER SHALL BE PROVIDED IN A PROFESSIONAL AND WORKMANLIKE MANNER CONSISTENT WITH INDUSTRY STANDARDS. BRAND UNDERSTANDS, AGREES AND ACKNOWLEDGES THAT ALL INFLUENCER PROMOTIONS, ANY ASSOCIATED INFLUENCER DATA, ANY OF THE INFORMATION THAT IS PRESENTED OR DISPLAYED BY AIMS, UNDERLYING SOFTWARE AND ANY AND ALL OTHER INFORMATION, CREATIVE OR CONTENT PROVIDED BY AIMS HEREUNDER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND AIMS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BRAND UNDERSTANDS, AGREES AND ACKNOWLEDGES THAT BRAND’S USE OF THE INFLUENCER PROMOTION, ANY ASSOCIATED INFLUENCER DATA, AND ANY OF THE INFORMATION THAT IS PRESENTED OR DISPLAYED BY AIMS IS AT BRAND’S OWN RISK. AIMS DOES NOT WARRANT THAT THE AIMS SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. AIMS MAKES NO REPRESENTATIONS OR WARRANTIES TO BRAND WITH RESPECT TO PREFERRED VOLUME LEVELS FOR INFLUENCER PROMOTION DELIVERY OR ANY RESULTS OBTAINABLE THROUGH THE INFLUENCER PROMOTION, UNDERLYING SOFTWARE, INVOICES, ITS TRACKING METHODS OR OTHERWISE. AIMS MAKES NO REPRESENTATIONS OR WARRANTIES TO BRAND THAT THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT WILL GENERATE ANY NUMBER OF INFLUENCER PROMOTIONS OR PRODUCE ANY LEVEL OF PROFIT OR BUSINESS FROM SUCH INFLUENCER PROMOTION. INFLUENCER PROMOTION, INFLUENCER DATA, UNDERLYING SOFTWARE, INVOICES AND/OR TRACKING METHODS MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AIMS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT BRAND’S USE OF THE INFLUENCER PROMOTION, UNDERLYING SOFTWARE, INVOICES AND/OR TRACKING METHODS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT INFLUENCER PROMOTION WILL CONTAIN ACCURATE INFORMATION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY BRAND FROM AIMS SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
6.3 AIMS DOES NOT WARRANT THE SERVICES TO BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICES WILL MEET BRAND’S REQUIREMENTS. THE WARRANTY SET FORTH IN THIS SECTION IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT MIGHT BE IMPLIED FROM A COURSE OF PERFORMANCE OR DEALING OR TRADE USAGE OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.4 IN NO EVENT WILL AIMS, ITS RELATED COMPANIES, OR EACH SUCH COMPANY’S RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, DISTRIBUTION PARTNERS OR AGENTS BE LIABLE FOR ANY LEGAL FEES OR INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOSS OF REVENUE, PROFITS, USE OR DATA), HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR UNDER ANY OTHER LEGAL THEORY, WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT AIMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BRAND AGREES THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK AND ARE REFLECTED IN THE FEES AGREED UPON BY THE PARTIES. OTHER THAN FOR GROSS NEGLIGENCE AND WILLFUL MISCONDUCT AND EXCEPT FOR BRAND’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL AIMS’S LIABILITY EXCEED FIVE THOUSAND DOLLARS ($5,000.00). BRAND ACKNOWLEDGES AND AGREES THAT IN THE EVENT OF ANY BREACH OF THE FOREGOING WARRANTY, THAT AIMS’S SOLE AND EXCLUSIVE OBLIGATION, AND BRAND’S SOLE AND EXCLUSIVE REMEDY, IS AS SET FORTH IN THIS SECTION.
7.5 Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its related companies, and each such company’s respective directors, officers, members, shareholders, technology, employees, affiliates, agents and permitted successors and assigns from and against all claim, actions, losses, liability, damages, costs and expenses (including reasonable attorneys’ fees and expenses) (collectively a “Claim”) attributable to any Claim made by a third party arising out of: (i) the Indemnifying Party’s negligence or intentional misconduct; (ii) the Indemnifying Party’s failure to perform any of its obligations under this Agreement; or (iii) any breach of any representation, warranty or covenant contained herein by the Indemnifying Party. In addition, without limiting the generality of the foregoing, Brand will defend, indemnify and hold harmless AIMS, its related companies, and each such company’s respective directors, officers, shareholders, employees, attorneys, affiliates, agents, representatives, and permitted successors and assigns from and against liabilities arising from: (i) any Claim related the products and/or services provided by Brand; (ii) any Claim related to any actual or alleged defamatory or illegal material provided by Brand for placement on, or in connection with AIMS; (iii) any Claim that Brand’s products and/or services, or that an Influencer Promotion violates any state or federal laws, rules or regulations, including but not limited to NIL rules; (iv) any Claim that Brand and/or products or services are in violation of the representations and warranties in this agreement; and (v) any Claim related to product or service provided by Brand, or any Influencer Promotion, which actually or allegedly infringes on the intellectual property or personal rights of a third party.
7.6 The indemnified party agrees:
(i) to promptly notify the other party in writing of any Claim that it becomes aware of and provide the other party with the opportunity to defend or negotiate a settlement of any such Claim at that party’s expense; and
(ii) to cooperate fully with the other party, at that other party’s expense, in defending or settling such Claim.
Subject to the following reservations:
(iii) the indemnified party reserves the right, at its own expense, to assume the exclusive defense and control of any Claim subject to indemnification by AIMS hereunder;
(iv) the indemnified party shall not make any settlement of any claims which might give rise to liability of the Indemnifying Party hereunder without the prior written consent of the Indemnifying Party; and
(v) The Indemnifying Party shall not make any settlement of any claims which give rise to or impose any liability or obligations on the indemnified party without the prior written consent of the indemnified party, such consent not to be unreasonably withheld.
8. DISPUTE RESOLUTION
8.1 In the event of a dispute between Brand and Influencer, Brand will promptly notify AIMS through its online portal and include the details of the dispute, desired resolution and timeframe for Influencer to resolve said dispute (“Dispute Notice”). AIMS will provide the Dispute Notice to the Influencer and Influencer will have the opportunity to comply with the Dispute Notice of dispute the allegations set forth in the Dispute Notice. In the event that the Brand and Influencer 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.
8.2 In the event of a disputed between AIMS and Brand, 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 Brand 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 Brand more than one (1) year after the cause of action occurred. Brand hereby waives any statute of limitations to the contrary.
8.2.1 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 8.2.1.
8.2.2 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 8.2.1 of this Agreement and secondly, if that fails, by either arbitration or litigation in the courts located in Utah.
8.2.3 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.
9. GENERAL PROVISIONS
9.1 Except as otherwise provided for in this Agreement, any amendment or modification to this Agreement must be in writing and signed by both parties.
9.2 This Agreement will be binding upon and will insure to the benefit of each party and its permitted successors and assigns; provided that, Brand will not assign or transfer its rights or obligations under this Agreement by operation of law or otherwise, without AIMS’s prior written consent. AIMS may assign its rights and obligations under this Agreement.
9.3 The waiver or failure of either party to exercise any rights provided for in this Agreement will not be deemed a waiver of any further or future right under this Agreement.
9.4 The invalidity or unenforceability of any term or provision in this Agreement will not affect the validity or enforceability of any other term or provision in this Agreement.
9.5 If Brand is more than one person or entity, each person or entity, as a signatory to this Agreement, agrees to be jointly and severally liable for all of Brand's obligations under this Agreement.
9.6 This Agreement is the final, full and exclusive statement of agreement between AIMS and Brand with respect to the subject matter set forth herein.
9.7 This Agreement may be executed in counterparts and, when fully executed, will be deemed effective on the Effective Date. The executed Agreement may be delivered by electronic facsimile transmission.
9.8 The relationship of AIMS and Brand established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other. Neither party shall make any representations, warranties or covenants, or assume or create any obligations, on the other party’s behalf. Each party shall be solely responsible for the actions of its respective employees, agents and representatives.
9.9 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.
9.10 Captions and section numbers are used in this Agreement for convenience only and may not be used in the construction or interpretation of this Agreement.
9.11 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.
9.12 No Export. Brand agrees that it shall not export any information obtained under this Agreement, related documentation or technical data, or any product incorporating information obtained under this Agreement, related documentation, or technical data, without the written consent of AIMS.
9.13 Force Majeure. AIMS will not be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet.
9.14 No Third Party Beneficiaries. Brand agrees that there are, and shall be no, third party beneficiaries of Brand to this Agreement, including but not limited to Brand’s insurance providers or Influencers.
9.15 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 the aimsmarketing.ai website.[AIMS Mailing Address].
BRAND PROMOTION AGREEMENT
This Brand Promotion Agreement (“Agreement”) is entered into by and between Athlete & Influencer Marketing Solutions, LLC, (“AIMS”) and you, the company entering into this Agreement (“Brand”). The terms and conditions contained herein supplement and supersede all prior agreements entered into by and between AIMS and Brand. The parties anticipate the execution of individual promotion agreements (each, a “Campaign”) for AIMS’s provision of services hereunder. All Campaigns are hereby incorporated into and become part of this agreement (collectively, the “Agreement”). Terms not defined in this Brand Agreement will have the meaning set forth in the applicable Campaign. Except where expressly indicated in a Campaign, where the terms of a Campaign contradict this Agreement, the terms of this Agreement will govern.
RECITALS:
Whereas, AIMS is in the business connecting NCAA Student-Athletes, Professional and Semi-Professional Athletes and Social Media Influencers (herein referred to as “Influencers”) with companies who desire to partner with and compensate Influencers for promoting, endorsing, and/or representing Brand’s products and/or services; and
Whereas, Brand promotes one or more products or services and desires to compensate Influencers for promoting, endorsing, and/or representing Brand’s products and/or services as set forth in a Campaign; and
Whereas, Brand desires to enter into a business relationship with AIMS in order to connect with Influencers who are willing to promote, endorse and/or represent Brand’s products and/or services, for a fee (“Influencer Promotion”).
NOW THEREFORE in consideration of the promises and the mutual covenants and agreements contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree to be legally bound as follows:
1. DEFINITION OF INFLUENCER PROMOTION
1.1 For purposes of this Agreement, an “Influencer Promotion” will be defined as an Influencer who completes and submits all of the required fields on the applicable form where such Influencer Promotions are delivered to Brand by AIMS. Any information provided by the Influencer, which is contained in the Influencer Promotion or otherwise, shall be referred to as “Influencer Data”.
1.2 Influencer Promotions are to be delivered to Brand in real-time file formats and communication protocols unless otherwise agreed in a Campaign.
1.3 An Influencer is under no obligation to promote or represent any Brand product or service. Under this Agreement, an Influencer Promotion will be valid if an Influencer meets the minimum criteria as established in a Campaign and agrees to promote, endorser or represent a Brand product or service. The determination as to whether or not an Influencer has fulfilled its obligations under a Campaign triggering payment, shall be in AIMS sole discretion.
2. PRICING, VOLUME AND BILLING
2.1 The price per Influencer promotion, endorsement or representation shall be determined by Brand based on the product or service being promoted or represented and the manner in which the Influencer promotes or represents the Brand’s product or service (the “Fee”). Unless otherwise set forth in a campaign, as a commission for providing the Influencer Promotion, AIMS shall receive twenty percent (20%) of the Fee, and in such cases where the Brand provides the Influencer with a product as all or part of payment, Brand will pay AIMS and addition three percent (3%) of the product’s retail value (the “Commission”). The remaining eighty percent (80%) of the Fee shall constitute the promotion fee to be paid to the Influencer (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 Commission and Promotion Fee is subject to change based on individual IOs. Brand shall be responsible for payment on each valid Influencer Promotion it receives.
2.2 Brand shall pay AIMS as set forth in each individual Campaign. Brand shall pay AIMS in accordance with one of the following methods:
2.2.1 Pay First. Under the Pay First payment method, Brand has the option to set Campaign budgets and provide a pre-paid deposit into a Brand account managed by AIMS. AIMS will track the pre-paid deposits in Brand's account and will deduct the agreed-upon Commission from the Brand's account once Brand has contract with an Influencer. Once the Influencer has completed the Campaign, the Promotion Fee will be paid from the Brand’s account to the Influencer.
2.2.2. Pay As You Go. Under the Pay As You Go method, Brand has the option to choose to pay the Fees associated with each Campaign , each time they contract with an Influencer. In order for a Campaign with an Influencer to become valid, Brand must provide the full payment of Fees to AIMS. AIMS will immediately be paid its Commission and will retain the Promotion Fee until such time as the Influencer has completed the Campaign, at which time, such Promotion Fee will be paid to the Influencer.
2.3 Brand agrees that timely payment is necessary for AIMS to continue providing Influencer Promotions to Brand. AIMS reserves the right to halt delivery of Influencer Promotions and/or terminate this Agreement at any time upon Brand’s failure to comply with the payment terms set forth herein. In the event that AIMS has not received payment in full within thirty (30) days of the due date, Brand will pay AIMS an additional 1.5% of the outstanding balance per month, or the maximum amount allowable under Utah law, whichever is greater, until the outstanding balance is paid in full. To the extent calculation of any interest rate charged hereunder exceeds the maximum rate permitted by law, such rate shall automatically be reduced to the highest interest rate permitted by law without further action by any of the parties to this Agreement. In the event that AIMS incurs expenses related to collection of any past due amounts, Brand will be responsible to pay AIMS’s reasonable expenses associated with said collection including, but not limited to, reasonable attorneys’ fees.
2.4 AIMS retains the right to audit, or to have its agent audit, Brand’s books and records for the purpose of ensuring compliance with the terms of this Agreement and/or any IO. The audit shall be conducted on five (5) business days prior written notice to Brand, and at AIMS’s expense unless the audit reveals that Brand has misused Influencer Promotion Data or under paid AIMS for Influencer Promotions, in which case, Brand shall bear the costs of the audit.
3. TERM OF SERVICE / NON-CIRCUMVENTION
3.1 This Agreement will commence on the Effective Date and will continue for a period of twelve (12) months (the "Term"), subject to the terms and conditions of this Section. The Term of this Agreement will automatically renew for successive twelve (12) month periods (the “Renewal Period”) unless either party provides sixty (60) days written notice prior to the Renewal Period, of their intent not to renew. Notwithstanding the foregoing, AIMS may terminate this Agreement if it determines that Brand’s products or services are not in compliance with applicable laws, rules and regulations, or there is a legal change to the NIL rules which would negatively impact this Agreement.
3.2 During the Term of this Agreement and for a period of one (1) year after termination of this Agreement, Brand shall not knowingly and intentionally take any action to circumvent the relationship described in this Agreement by directly or indirectly soliciting Influencer referred by AIMS. Further, Brand 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 Influencer previously introduced to it by AIMS, unless Brand complies with the terms of this Agreement. Brand expressly acknowledges that if it violates its obligations under this Section, AIMS will suffer irreparable injury that cannot be adequately addressed through the ordinary calculation of damages and AIMS shall, therefore, be entitled to: (i) liquidated damages in the amount of fifteen thousand dollars ($15,000.00) or thirty percent (30%) of the total value of the deal entered into with the Influencer to promote or represent Brand’s products or services, whichever is greater; (ii) injunctive relief without the requirement to post a bond; and (iii) any and all other remedies that AIMS may have at law or in equity.
4. CONFIDENTIAL INFORMATION.
4.1 Definition. 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 of this Agreement, any IOs, and any proposals or other documents that preceded this Agreement, including without limitation the pricing of any services or Influencer Promotion Data provided under this Agreement, any IOs, 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, 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, manufacturing, accounting, marketing, selling, leasing, and/or software (including third party software).
4.2 Treatment of Confidential Information. 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 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.
4.3 Rights and Duties. 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.
5. WARRANTIES
5.1 Brand represents and warrants to AIMS that:
6. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY; INDEMNIFICATION
6.1 Brand understands and agrees that AIMS does not verify and has no responsibility for the accuracy of Influencer Data, Influencer Promotion, eventual sale(s), conversion(s) or other performance on the part of any Influencer Promotion.
6.2 AIMS REPRESENTS AND WARRANTS THAT THE SERVICES HEREUNDER SHALL BE PROVIDED IN A PROFESSIONAL AND WORKMANLIKE MANNER CONSISTENT WITH INDUSTRY STANDARDS. BRAND UNDERSTANDS, AGREES AND ACKNOWLEDGES THAT ALL INFLUENCER PROMOTIONS, ANY ASSOCIATED INFLUENCER DATA, ANY OF THE INFORMATION THAT IS PRESENTED OR DISPLAYED BY AIMS, UNDERLYING SOFTWARE AND ANY AND ALL OTHER INFORMATION, CREATIVE OR CONTENT PROVIDED BY AIMS HEREUNDER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND AIMS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BRAND UNDERSTANDS, AGREES AND ACKNOWLEDGES THAT BRAND’S USE OF THE INFLUENCER PROMOTION, ANY ASSOCIATED INFLUENCER DATA, AND ANY OF THE INFORMATION THAT IS PRESENTED OR DISPLAYED BY AIMS IS AT BRAND’S OWN RISK. AIMS DOES NOT WARRANT THAT THE AIMS SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. AIMS MAKES NO REPRESENTATIONS OR WARRANTIES TO BRAND WITH RESPECT TO PREFERRED VOLUME LEVELS FOR INFLUENCER PROMOTION DELIVERY OR ANY RESULTS OBTAINABLE THROUGH THE INFLUENCER PROMOTION, UNDERLYING SOFTWARE, INVOICES, ITS TRACKING METHODS OR OTHERWISE. AIMS MAKES NO REPRESENTATIONS OR WARRANTIES TO BRAND THAT THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT WILL GENERATE ANY NUMBER OF INFLUENCER PROMOTIONS OR PRODUCE ANY LEVEL OF PROFIT OR BUSINESS FROM SUCH INFLUENCER PROMOTION. INFLUENCER PROMOTION, INFLUENCER DATA, UNDERLYING SOFTWARE, INVOICES AND/OR TRACKING METHODS MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AIMS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT BRAND’S USE OF THE INFLUENCER PROMOTION, UNDERLYING SOFTWARE, INVOICES AND/OR TRACKING METHODS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT INFLUENCER PROMOTION WILL CONTAIN ACCURATE INFORMATION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY BRAND FROM AIMS SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
6.3 AIMS DOES NOT WARRANT THE SERVICES TO BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICES WILL MEET BRAND’S REQUIREMENTS. THE WARRANTY SET FORTH IN THIS SECTION IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT MIGHT BE IMPLIED FROM A COURSE OF PERFORMANCE OR DEALING OR TRADE USAGE OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.4 IN NO EVENT WILL AIMS, ITS RELATED COMPANIES, OR EACH SUCH COMPANY’S RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, DISTRIBUTION PARTNERS OR AGENTS BE LIABLE FOR ANY LEGAL FEES OR INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOSS OF REVENUE, PROFITS, USE OR DATA), HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR UNDER ANY OTHER LEGAL THEORY, WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT AIMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BRAND AGREES THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK AND ARE REFLECTED IN THE FEES AGREED UPON BY THE PARTIES. OTHER THAN FOR GROSS NEGLIGENCE AND WILLFUL MISCONDUCT AND EXCEPT FOR BRAND’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL AIMS’S LIABILITY EXCEED FIVE THOUSAND DOLLARS ($5,000.00). BRAND ACKNOWLEDGES AND AGREES THAT IN THE EVENT OF ANY BREACH OF THE FOREGOING WARRANTY, THAT AIMS’S SOLE AND EXCLUSIVE OBLIGATION, AND BRAND’S SOLE AND EXCLUSIVE REMEDY, IS AS SET FORTH IN THIS SECTION.
7.5 Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its related companies, and each such company’s respective directors, officers, members, shareholders, technology, employees, affiliates, agents and permitted successors and assigns from and against all claim, actions, losses, liability, damages, costs and expenses (including reasonable attorneys’ fees and expenses) (collectively a “Claim”) attributable to any Claim made by a third party arising out of: (i) the Indemnifying Party’s negligence or intentional misconduct; (ii) the Indemnifying Party’s failure to perform any of its obligations under this Agreement; or (iii) any breach of any representation, warranty or covenant contained herein by the Indemnifying Party. In addition, without limiting the generality of the foregoing, Brand will defend, indemnify and hold harmless AIMS, its related companies, and each such company’s respective directors, officers, shareholders, employees, attorneys, affiliates, agents, representatives, and permitted successors and assigns from and against liabilities arising from: (i) any Claim related the products and/or services provided by Brand; (ii) any Claim related to any actual or alleged defamatory or illegal material provided by Brand for placement on, or in connection with AIMS; (iii) any Claim that Brand’s products and/or services, or that an Influencer Promotion violates any state or federal laws, rules or regulations, including but not limited to NIL rules; (iv) any Claim that Brand and/or products or services are in violation of the representations and warranties in this agreement; and (v) any Claim related to product or service provided by Brand, or any Influencer Promotion, which actually or allegedly infringes on the intellectual property or personal rights of a third party.
7.6 The indemnified party agrees:
(i) to promptly notify the other party in writing of any Claim that it becomes aware of and provide the other party with the opportunity to defend or negotiate a settlement of any such Claim at that party’s expense; and
(ii) to cooperate fully with the other party, at that other party’s expense, in defending or settling such Claim.
Subject to the following reservations:
(iii) the indemnified party reserves the right, at its own expense, to assume the exclusive defense and control of any Claim subject to indemnification by AIMS hereunder;
(iv) the indemnified party shall not make any settlement of any claims which might give rise to liability of the Indemnifying Party hereunder without the prior written consent of the Indemnifying Party; and
(v) The Indemnifying Party shall not make any settlement of any claims which give rise to or impose any liability or obligations on the indemnified party without the prior written consent of the indemnified party, such consent not to be unreasonably withheld.
8. DISPUTE RESOLUTION
8.1 In the event of a dispute between Brand and Influencer, Brand will promptly notify AIMS through its online portal and include the details of the dispute, desired resolution and timeframe for Influencer to resolve said dispute (“Dispute Notice”). AIMS will provide the Dispute Notice to the Influencer and Influencer will have the opportunity to comply with the Dispute Notice of dispute the allegations set forth in the Dispute Notice. In the event that the Brand and Influencer 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.
8.2 In the event of a disputed between AIMS and Brand, 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 Brand 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 Brand more than one (1) year after the cause of action occurred. Brand hereby waives any statute of limitations to the contrary.
8.2.1 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 8.2.1.
8.2.2 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 8.2.1 of this Agreement and secondly, if that fails, by either arbitration or litigation in the courts located in Utah.
8.2.3 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.
9. GENERAL PROVISIONS
9.1 Except as otherwise provided for in this Agreement, any amendment or modification to this Agreement must be in writing and signed by both parties.
9.2 This Agreement will be binding upon and will insure to the benefit of each party and its permitted successors and assigns; provided that, Brand will not assign or transfer its rights or obligations under this Agreement by operation of law or otherwise, without AIMS’s prior written consent. AIMS may assign its rights and obligations under this Agreement.
9.3 The waiver or failure of either party to exercise any rights provided for in this Agreement will not be deemed a waiver of any further or future right under this Agreement.
9.4 The invalidity or unenforceability of any term or provision in this Agreement will not affect the validity or enforceability of any other term or provision in this Agreement.
9.5 If Brand is more than one person or entity, each person or entity, as a signatory to this Agreement, agrees to be jointly and severally liable for all of Brand's obligations under this Agreement.
9.6 This Agreement is the final, full and exclusive statement of agreement between AIMS and Brand with respect to the subject matter set forth herein.
9.7 This Agreement may be executed in counterparts and, when fully executed, will be deemed effective on the Effective Date. The executed Agreement may be delivered by electronic facsimile transmission.
9.8 The relationship of AIMS and Brand established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other. Neither party shall make any representations, warranties or covenants, or assume or create any obligations, on the other party’s behalf. Each party shall be solely responsible for the actions of its respective employees, agents and representatives.
9.9 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.
9.10 Captions and section numbers are used in this Agreement for convenience only and may not be used in the construction or interpretation of this Agreement.
9.11 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.
9.12 No Export. Brand agrees that it shall not export any information obtained under this Agreement, related documentation or technical data, or any product incorporating information obtained under this Agreement, related documentation, or technical data, without the written consent of AIMS.
9.13 Force Majeure. AIMS will not be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet.
9.14 No Third Party Beneficiaries. Brand agrees that there are, and shall be no, third party beneficiaries of Brand to this Agreement, including but not limited to Brand’s insurance providers or Influencers.
9.15 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 the aimsmarketing.ai website.[AIMS Mailing Address].
BRAND PROMOTION AGREEMENT
This Brand Promotion Agreement (“Agreement”) is entered into by and between Athlete & Influencer Marketing Solutions, LLC, (“AIMS”) and you, the company entering into this Agreement (“Brand”). The terms and conditions contained herein supplement and supersede all prior agreements entered into by and between AIMS and Brand. The parties anticipate the execution of individual promotion agreements (each, a “Campaign”) for AIMS’s provision of services hereunder. All Campaigns are hereby incorporated into and become part of this agreement (collectively, the “Agreement”). Terms not defined in this Brand Agreement will have the meaning set forth in the applicable Campaign. Except where expressly indicated in a Campaign, where the terms of a Campaign contradict this Agreement, the terms of this Agreement will govern.
RECITALS:
Whereas, AIMS is in the business connecting NCAA Student-Athletes, Professional and Semi-Professional Athletes and Social Media Influencers (herein referred to as “Influencers”) with companies who desire to partner with and compensate Influencers for promoting, endorsing, and/or representing Brand’s products and/or services; and
Whereas, Brand promotes one or more products or services and desires to compensate Influencers for promoting, endorsing, and/or representing Brand’s products and/or services as set forth in a Campaign; and
Whereas, Brand desires to enter into a business relationship with AIMS in order to connect with Influencers who are willing to promote, endorse and/or represent Brand’s products and/or services, for a fee (“Influencer Promotion”).
NOW THEREFORE in consideration of the promises and the mutual covenants and agreements contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree to be legally bound as follows:
1. DEFINITION OF INFLUENCER PROMOTION
1.1 For purposes of this Agreement, an “Influencer Promotion” will be defined as an Influencer who completes and submits all of the required fields on the applicable form where such Influencer Promotions are delivered to Brand by AIMS. Any information provided by the Influencer, which is contained in the Influencer Promotion or otherwise, shall be referred to as “Influencer Data”.
1.2 Influencer Promotions are to be delivered to Brand in real-time file formats and communication protocols unless otherwise agreed in a Campaign.
1.3 An Influencer is under no obligation to promote or represent any Brand product or service. Under this Agreement, an Influencer Promotion will be valid if an Influencer meets the minimum criteria as established in a Campaign and agrees to promote, endorser or represent a Brand product or service. The determination as to whether or not an Influencer has fulfilled its obligations under a Campaign triggering payment, shall be in AIMS sole discretion.
2. PRICING, VOLUME AND BILLING
2.1 The price per Influencer promotion, endorsement or representation shall be determined by Brand based on the product or service being promoted or represented and the manner in which the Influencer promotes or represents the Brand’s product or service (the “Fee”). Unless otherwise set forth in a campaign, as a commission for providing the Influencer Promotion, AIMS shall receive twenty percent (20%) of the Fee, and in such cases where the Brand provides the Influencer with a product as all or part of payment, Brand will pay AIMS and addition three percent (3%) of the product’s retail value (the “Commission”). The remaining eighty percent (80%) of the Fee shall constitute the promotion fee to be paid to the Influencer (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 Commission and Promotion Fee is subject to change based on individual IOs. Brand shall be responsible for payment on each valid Influencer Promotion it receives.
2.2 Brand shall pay AIMS as set forth in each individual Campaign. Brand shall pay AIMS in accordance with one of the following methods:
2.2.1 Pay First. Under the Pay First payment method, Brand has the option to set Campaign budgets and provide a pre-paid deposit into a Brand account managed by AIMS. AIMS will track the pre-paid deposits in Brand's account and will deduct the agreed-upon Commission from the Brand's account once Brand has contract with an Influencer. Once the Influencer has completed the Campaign, the Promotion Fee will be paid from the Brand’s account to the Influencer.
2.2.2. Pay As You Go. Under the Pay As You Go method, Brand has the option to choose to pay the Fees associated with each Campaign , each time they contract with an Influencer. In order for a Campaign with an Influencer to become valid, Brand must provide the full payment of Fees to AIMS. AIMS will immediately be paid its Commission and will retain the Promotion Fee until such time as the Influencer has completed the Campaign, at which time, such Promotion Fee will be paid to the Influencer.
2.3 Brand agrees that timely payment is necessary for AIMS to continue providing Influencer Promotions to Brand. AIMS reserves the right to halt delivery of Influencer Promotions and/or terminate this Agreement at any time upon Brand’s failure to comply with the payment terms set forth herein. In the event that AIMS has not received payment in full within thirty (30) days of the due date, Brand will pay AIMS an additional 1.5% of the outstanding balance per month, or the maximum amount allowable under Utah law, whichever is greater, until the outstanding balance is paid in full. To the extent calculation of any interest rate charged hereunder exceeds the maximum rate permitted by law, such rate shall automatically be reduced to the highest interest rate permitted by law without further action by any of the parties to this Agreement. In the event that AIMS incurs expenses related to collection of any past due amounts, Brand will be responsible to pay AIMS’s reasonable expenses associated with said collection including, but not limited to, reasonable attorneys’ fees.
2.4 AIMS retains the right to audit, or to have its agent audit, Brand’s books and records for the purpose of ensuring compliance with the terms of this Agreement and/or any IO. The audit shall be conducted on five (5) business days prior written notice to Brand, and at AIMS’s expense unless the audit reveals that Brand has misused Influencer Promotion Data or under paid AIMS for Influencer Promotions, in which case, Brand shall bear the costs of the audit.
3. TERM OF SERVICE / NON-CIRCUMVENTION
3.1 This Agreement will commence on the Effective Date and will continue for a period of twelve (12) months (the "Term"), subject to the terms and conditions of this Section. The Term of this Agreement will automatically renew for successive twelve (12) month periods (the “Renewal Period”) unless either party provides sixty (60) days written notice prior to the Renewal Period, of their intent not to renew. Notwithstanding the foregoing, AIMS may terminate this Agreement if it determines that Brand’s products or services are not in compliance with applicable laws, rules and regulations, or there is a legal change to the NIL rules which would negatively impact this Agreement.
3.2 During the Term of this Agreement and for a period of one (1) year after termination of this Agreement, Brand shall not knowingly and intentionally take any action to circumvent the relationship described in this Agreement by directly or indirectly soliciting Influencer referred by AIMS. Further, Brand 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 Influencer previously introduced to it by AIMS, unless Brand complies with the terms of this Agreement. Brand expressly acknowledges that if it violates its obligations under this Section, AIMS will suffer irreparable injury that cannot be adequately addressed through the ordinary calculation of damages and AIMS shall, therefore, be entitled to: (i) liquidated damages in the amount of fifteen thousand dollars ($15,000.00) or thirty percent (30%) of the total value of the deal entered into with the Influencer to promote or represent Brand’s products or services, whichever is greater; (ii) injunctive relief without the requirement to post a bond; and (iii) any and all other remedies that AIMS may have at law or in equity.
4. CONFIDENTIAL INFORMATION.
4.1 Definition. 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 of this Agreement, any IOs, and any proposals or other documents that preceded this Agreement, including without limitation the pricing of any services or Influencer Promotion Data provided under this Agreement, any IOs, 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, 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, manufacturing, accounting, marketing, selling, leasing, and/or software (including third party software).
4.2 Treatment of Confidential Information. 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 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.
4.3 Rights and Duties. 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.
5. WARRANTIES
5.1 Brand represents and warrants to AIMS that:
6. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY; INDEMNIFICATION
6.1 Brand understands and agrees that AIMS does not verify and has no responsibility for the accuracy of Influencer Data, Influencer Promotion, eventual sale(s), conversion(s) or other performance on the part of any Influencer Promotion.
6.2 AIMS REPRESENTS AND WARRANTS THAT THE SERVICES HEREUNDER SHALL BE PROVIDED IN A PROFESSIONAL AND WORKMANLIKE MANNER CONSISTENT WITH INDUSTRY STANDARDS. BRAND UNDERSTANDS, AGREES AND ACKNOWLEDGES THAT ALL INFLUENCER PROMOTIONS, ANY ASSOCIATED INFLUENCER DATA, ANY OF THE INFORMATION THAT IS PRESENTED OR DISPLAYED BY AIMS, UNDERLYING SOFTWARE AND ANY AND ALL OTHER INFORMATION, CREATIVE OR CONTENT PROVIDED BY AIMS HEREUNDER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND AIMS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BRAND UNDERSTANDS, AGREES AND ACKNOWLEDGES THAT BRAND’S USE OF THE INFLUENCER PROMOTION, ANY ASSOCIATED INFLUENCER DATA, AND ANY OF THE INFORMATION THAT IS PRESENTED OR DISPLAYED BY AIMS IS AT BRAND’S OWN RISK. AIMS DOES NOT WARRANT THAT THE AIMS SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. AIMS MAKES NO REPRESENTATIONS OR WARRANTIES TO BRAND WITH RESPECT TO PREFERRED VOLUME LEVELS FOR INFLUENCER PROMOTION DELIVERY OR ANY RESULTS OBTAINABLE THROUGH THE INFLUENCER PROMOTION, UNDERLYING SOFTWARE, INVOICES, ITS TRACKING METHODS OR OTHERWISE. AIMS MAKES NO REPRESENTATIONS OR WARRANTIES TO BRAND THAT THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT WILL GENERATE ANY NUMBER OF INFLUENCER PROMOTIONS OR PRODUCE ANY LEVEL OF PROFIT OR BUSINESS FROM SUCH INFLUENCER PROMOTION. INFLUENCER PROMOTION, INFLUENCER DATA, UNDERLYING SOFTWARE, INVOICES AND/OR TRACKING METHODS MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AIMS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT BRAND’S USE OF THE INFLUENCER PROMOTION, UNDERLYING SOFTWARE, INVOICES AND/OR TRACKING METHODS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT INFLUENCER PROMOTION WILL CONTAIN ACCURATE INFORMATION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY BRAND FROM AIMS SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
6.3 AIMS DOES NOT WARRANT THE SERVICES TO BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICES WILL MEET BRAND’S REQUIREMENTS. THE WARRANTY SET FORTH IN THIS SECTION IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT MIGHT BE IMPLIED FROM A COURSE OF PERFORMANCE OR DEALING OR TRADE USAGE OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.4 IN NO EVENT WILL AIMS, ITS RELATED COMPANIES, OR EACH SUCH COMPANY’S RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, DISTRIBUTION PARTNERS OR AGENTS BE LIABLE FOR ANY LEGAL FEES OR INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOSS OF REVENUE, PROFITS, USE OR DATA), HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR UNDER ANY OTHER LEGAL THEORY, WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT AIMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BRAND AGREES THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK AND ARE REFLECTED IN THE FEES AGREED UPON BY THE PARTIES. OTHER THAN FOR GROSS NEGLIGENCE AND WILLFUL MISCONDUCT AND EXCEPT FOR BRAND’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL AIMS’S LIABILITY EXCEED FIVE THOUSAND DOLLARS ($5,000.00). BRAND ACKNOWLEDGES AND AGREES THAT IN THE EVENT OF ANY BREACH OF THE FOREGOING WARRANTY, THAT AIMS’S SOLE AND EXCLUSIVE OBLIGATION, AND BRAND’S SOLE AND EXCLUSIVE REMEDY, IS AS SET FORTH IN THIS SECTION.
7.5 Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its related companies, and each such company’s respective directors, officers, members, shareholders, technology, employees, affiliates, agents and permitted successors and assigns from and against all claim, actions, losses, liability, damages, costs and expenses (including reasonable attorneys’ fees and expenses) (collectively a “Claim”) attributable to any Claim made by a third party arising out of: (i) the Indemnifying Party’s negligence or intentional misconduct; (ii) the Indemnifying Party’s failure to perform any of its obligations under this Agreement; or (iii) any breach of any representation, warranty or covenant contained herein by the Indemnifying Party. In addition, without limiting the generality of the foregoing, Brand will defend, indemnify and hold harmless AIMS, its related companies, and each such company’s respective directors, officers, shareholders, employees, attorneys, affiliates, agents, representatives, and permitted successors and assigns from and against liabilities arising from: (i) any Claim related the products and/or services provided by Brand; (ii) any Claim related to any actual or alleged defamatory or illegal material provided by Brand for placement on, or in connection with AIMS; (iii) any Claim that Brand’s products and/or services, or that an Influencer Promotion violates any state or federal laws, rules or regulations, including but not limited to NIL rules; (iv) any Claim that Brand and/or products or services are in violation of the representations and warranties in this agreement; and (v) any Claim related to product or service provided by Brand, or any Influencer Promotion, which actually or allegedly infringes on the intellectual property or personal rights of a third party.
7.6 The indemnified party agrees:
(i) to promptly notify the other party in writing of any Claim that it becomes aware of and provide the other party with the opportunity to defend or negotiate a settlement of any such Claim at that party’s expense; and
(ii) to cooperate fully with the other party, at that other party’s expense, in defending or settling such Claim.
Subject to the following reservations:
(iii) the indemnified party reserves the right, at its own expense, to assume the exclusive defense and control of any Claim subject to indemnification by AIMS hereunder;
(iv) the indemnified party shall not make any settlement of any claims which might give rise to liability of the Indemnifying Party hereunder without the prior written consent of the Indemnifying Party; and
(v) The Indemnifying Party shall not make any settlement of any claims which give rise to or impose any liability or obligations on the indemnified party without the prior written consent of the indemnified party, such consent not to be unreasonably withheld.
8. DISPUTE RESOLUTION
8.1 In the event of a dispute between Brand and Influencer, Brand will promptly notify AIMS through its online portal and include the details of the dispute, desired resolution and timeframe for Influencer to resolve said dispute (“Dispute Notice”). AIMS will provide the Dispute Notice to the Influencer and Influencer will have the opportunity to comply with the Dispute Notice of dispute the allegations set forth in the Dispute Notice. In the event that the Brand and Influencer 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.
8.2 In the event of a disputed between AIMS and Brand, 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 Brand 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 Brand more than one (1) year after the cause of action occurred. Brand hereby waives any statute of limitations to the contrary.
8.2.1 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 8.2.1.
8.2.2 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 8.2.1 of this Agreement and secondly, if that fails, by either arbitration or litigation in the courts located in Utah.
8.2.3 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.
9. GENERAL PROVISIONS
9.1 Except as otherwise provided for in this Agreement, any amendment or modification to this Agreement must be in writing and signed by both parties.
9.2 This Agreement will be binding upon and will insure to the benefit of each party and its permitted successors and assigns; provided that, Brand will not assign or transfer its rights or obligations under this Agreement by operation of law or otherwise, without AIMS’s prior written consent. AIMS may assign its rights and obligations under this Agreement.
9.3 The waiver or failure of either party to exercise any rights provided for in this Agreement will not be deemed a waiver of any further or future right under this Agreement.
9.4 The invalidity or unenforceability of any term or provision in this Agreement will not affect the validity or enforceability of any other term or provision in this Agreement.
9.5 If Brand is more than one person or entity, each person or entity, as a signatory to this Agreement, agrees to be jointly and severally liable for all of Brand's obligations under this Agreement.
9.6 This Agreement is the final, full and exclusive statement of agreement between AIMS and Brand with respect to the subject matter set forth herein.
9.7 This Agreement may be executed in counterparts and, when fully executed, will be deemed effective on the Effective Date. The executed Agreement may be delivered by electronic facsimile transmission.
9.8 The relationship of AIMS and Brand established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other. Neither party shall make any representations, warranties or covenants, or assume or create any obligations, on the other party’s behalf. Each party shall be solely responsible for the actions of its respective employees, agents and representatives.
9.9 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.
9.10 Captions and section numbers are used in this Agreement for convenience only and may not be used in the construction or interpretation of this Agreement.
9.11 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.
9.12 No Export. Brand agrees that it shall not export any information obtained under this Agreement, related documentation or technical data, or any product incorporating information obtained under this Agreement, related documentation, or technical data, without the written consent of AIMS.
9.13 Force Majeure. AIMS will not be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet.
9.14 No Third Party Beneficiaries. Brand agrees that there are, and shall be no, third party beneficiaries of Brand to this Agreement, including but not limited to Brand’s insurance providers or Influencers.
9.15 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 the aimsmarketing.ai website.[AIMS Mailing Address].
BRAND PROMOTION AGREEMENT
This Brand Promotion Agreement (“Agreement”) is entered into by and between Athlete & Influencer Marketing Solutions, LLC, (“AIMS”) and you, the company entering into this Agreement (“Brand”). The terms and conditions contained herein supplement and supersede all prior agreements entered into by and between AIMS and Brand. The parties anticipate the execution of individual promotion agreements (each, a “Campaign”) for AIMS’s provision of services hereunder. All Campaigns are hereby incorporated into and become part of this agreement (collectively, the “Agreement”). Terms not defined in this Brand Agreement will have the meaning set forth in the applicable Campaign. Except where expressly indicated in a Campaign, where the terms of a Campaign contradict this Agreement, the terms of this Agreement will govern.
RECITALS:
Whereas, AIMS is in the business connecting NCAA Student-Athletes, Professional and Semi-Professional Athletes and Social Media Influencers (herein referred to as “Influencers”) with companies who desire to partner with and compensate Influencers for promoting, endorsing, and/or representing Brand’s products and/or services; and
Whereas, Brand promotes one or more products or services and desires to compensate Influencers for promoting, endorsing, and/or representing Brand’s products and/or services as set forth in a Campaign; and
Whereas, Brand desires to enter into a business relationship with AIMS in order to connect with Influencers who are willing to promote, endorse and/or represent Brand’s products and/or services, for a fee (“Influencer Promotion”).
NOW THEREFORE in consideration of the promises and the mutual covenants and agreements contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree to be legally bound as follows:
1. DEFINITION OF INFLUENCER PROMOTION
1.1 For purposes of this Agreement, an “Influencer Promotion” will be defined as an Influencer who completes and submits all of the required fields on the applicable form where such Influencer Promotions are delivered to Brand by AIMS. Any information provided by the Influencer, which is contained in the Influencer Promotion or otherwise, shall be referred to as “Influencer Data”.
1.2 Influencer Promotions are to be delivered to Brand in real-time file formats and communication protocols unless otherwise agreed in a Campaign.
1.3 An Influencer is under no obligation to promote or represent any Brand product or service. Under this Agreement, an Influencer Promotion will be valid if an Influencer meets the minimum criteria as established in a Campaign and agrees to promote, endorser or represent a Brand product or service. The determination as to whether or not an Influencer has fulfilled its obligations under a Campaign triggering payment, shall be in AIMS sole discretion.
2. PRICING, VOLUME AND BILLING
2.1 The price per Influencer promotion, endorsement or representation shall be determined by Brand based on the product or service being promoted or represented and the manner in which the Influencer promotes or represents the Brand’s product or service (the “Fee”). Unless otherwise set forth in a campaign, as a commission for providing the Influencer Promotion, AIMS shall receive twenty percent (20%) of the Fee, and in such cases where the Brand provides the Influencer with a product as all or part of payment, Brand will pay AIMS and addition three percent (3%) of the product’s retail value (the “Commission”). The remaining eighty percent (80%) of the Fee shall constitute the promotion fee to be paid to the Influencer (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 Commission and Promotion Fee is subject to change based on individual IOs. Brand shall be responsible for payment on each valid Influencer Promotion it receives.
2.2 Brand shall pay AIMS as set forth in each individual Campaign. Brand shall pay AIMS in accordance with one of the following methods:
2.2.1 Pay First. Under the Pay First payment method, Brand has the option to set Campaign budgets and provide a pre-paid deposit into a Brand account managed by AIMS. AIMS will track the pre-paid deposits in Brand's account and will deduct the agreed-upon Commission from the Brand's account once Brand has contract with an Influencer. Once the Influencer has completed the Campaign, the Promotion Fee will be paid from the Brand’s account to the Influencer.
2.2.2. Pay As You Go. Under the Pay As You Go method, Brand has the option to choose to pay the Fees associated with each Campaign , each time they contract with an Influencer. In order for a Campaign with an Influencer to become valid, Brand must provide the full payment of Fees to AIMS. AIMS will immediately be paid its Commission and will retain the Promotion Fee until such time as the Influencer has completed the Campaign, at which time, such Promotion Fee will be paid to the Influencer.
2.3 Brand agrees that timely payment is necessary for AIMS to continue providing Influencer Promotions to Brand. AIMS reserves the right to halt delivery of Influencer Promotions and/or terminate this Agreement at any time upon Brand’s failure to comply with the payment terms set forth herein. In the event that AIMS has not received payment in full within thirty (30) days of the due date, Brand will pay AIMS an additional 1.5% of the outstanding balance per month, or the maximum amount allowable under Utah law, whichever is greater, until the outstanding balance is paid in full. To the extent calculation of any interest rate charged hereunder exceeds the maximum rate permitted by law, such rate shall automatically be reduced to the highest interest rate permitted by law without further action by any of the parties to this Agreement. In the event that AIMS incurs expenses related to collection of any past due amounts, Brand will be responsible to pay AIMS’s reasonable expenses associated with said collection including, but not limited to, reasonable attorneys’ fees.
2.4 AIMS retains the right to audit, or to have its agent audit, Brand’s books and records for the purpose of ensuring compliance with the terms of this Agreement and/or any IO. The audit shall be conducted on five (5) business days prior written notice to Brand, and at AIMS’s expense unless the audit reveals that Brand has misused Influencer Promotion Data or under paid AIMS for Influencer Promotions, in which case, Brand shall bear the costs of the audit.
3. TERM OF SERVICE / NON-CIRCUMVENTION
3.1 This Agreement will commence on the Effective Date and will continue for a period of twelve (12) months (the "Term"), subject to the terms and conditions of this Section. The Term of this Agreement will automatically renew for successive twelve (12) month periods (the “Renewal Period”) unless either party provides sixty (60) days written notice prior to the Renewal Period, of their intent not to renew. Notwithstanding the foregoing, AIMS may terminate this Agreement if it determines that Brand’s products or services are not in compliance with applicable laws, rules and regulations, or there is a legal change to the NIL rules which would negatively impact this Agreement.
3.2 During the Term of this Agreement and for a period of one (1) year after termination of this Agreement, Brand shall not knowingly and intentionally take any action to circumvent the relationship described in this Agreement by directly or indirectly soliciting Influencer referred by AIMS. Further, Brand 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 Influencer previously introduced to it by AIMS, unless Brand complies with the terms of this Agreement. Brand expressly acknowledges that if it violates its obligations under this Section, AIMS will suffer irreparable injury that cannot be adequately addressed through the ordinary calculation of damages and AIMS shall, therefore, be entitled to: (i) liquidated damages in the amount of fifteen thousand dollars ($15,000.00) or thirty percent (30%) of the total value of the deal entered into with the Influencer to promote or represent Brand’s products or services, whichever is greater; (ii) injunctive relief without the requirement to post a bond; and (iii) any and all other remedies that AIMS may have at law or in equity.
4. CONFIDENTIAL INFORMATION.
4.1 Definition. 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 of this Agreement, any IOs, and any proposals or other documents that preceded this Agreement, including without limitation the pricing of any services or Influencer Promotion Data provided under this Agreement, any IOs, 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, 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, manufacturing, accounting, marketing, selling, leasing, and/or software (including third party software).
4.2 Treatment of Confidential Information. 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 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.
4.3 Rights and Duties. 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.
5. WARRANTIES
5.1 Brand represents and warrants to AIMS that:
6. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY; INDEMNIFICATION
6.1 Brand understands and agrees that AIMS does not verify and has no responsibility for the accuracy of Influencer Data, Influencer Promotion, eventual sale(s), conversion(s) or other performance on the part of any Influencer Promotion.
6.2 AIMS REPRESENTS AND WARRANTS THAT THE SERVICES HEREUNDER SHALL BE PROVIDED IN A PROFESSIONAL AND WORKMANLIKE MANNER CONSISTENT WITH INDUSTRY STANDARDS. BRAND UNDERSTANDS, AGREES AND ACKNOWLEDGES THAT ALL INFLUENCER PROMOTIONS, ANY ASSOCIATED INFLUENCER DATA, ANY OF THE INFORMATION THAT IS PRESENTED OR DISPLAYED BY AIMS, UNDERLYING SOFTWARE AND ANY AND ALL OTHER INFORMATION, CREATIVE OR CONTENT PROVIDED BY AIMS HEREUNDER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND AIMS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BRAND UNDERSTANDS, AGREES AND ACKNOWLEDGES THAT BRAND’S USE OF THE INFLUENCER PROMOTION, ANY ASSOCIATED INFLUENCER DATA, AND ANY OF THE INFORMATION THAT IS PRESENTED OR DISPLAYED BY AIMS IS AT BRAND’S OWN RISK. AIMS DOES NOT WARRANT THAT THE AIMS SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. AIMS MAKES NO REPRESENTATIONS OR WARRANTIES TO BRAND WITH RESPECT TO PREFERRED VOLUME LEVELS FOR INFLUENCER PROMOTION DELIVERY OR ANY RESULTS OBTAINABLE THROUGH THE INFLUENCER PROMOTION, UNDERLYING SOFTWARE, INVOICES, ITS TRACKING METHODS OR OTHERWISE. AIMS MAKES NO REPRESENTATIONS OR WARRANTIES TO BRAND THAT THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT WILL GENERATE ANY NUMBER OF INFLUENCER PROMOTIONS OR PRODUCE ANY LEVEL OF PROFIT OR BUSINESS FROM SUCH INFLUENCER PROMOTION. INFLUENCER PROMOTION, INFLUENCER DATA, UNDERLYING SOFTWARE, INVOICES AND/OR TRACKING METHODS MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AIMS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT BRAND’S USE OF THE INFLUENCER PROMOTION, UNDERLYING SOFTWARE, INVOICES AND/OR TRACKING METHODS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT INFLUENCER PROMOTION WILL CONTAIN ACCURATE INFORMATION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY BRAND FROM AIMS SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
6.3 AIMS DOES NOT WARRANT THE SERVICES TO BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICES WILL MEET BRAND’S REQUIREMENTS. THE WARRANTY SET FORTH IN THIS SECTION IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT MIGHT BE IMPLIED FROM A COURSE OF PERFORMANCE OR DEALING OR TRADE USAGE OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.4 IN NO EVENT WILL AIMS, ITS RELATED COMPANIES, OR EACH SUCH COMPANY’S RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, DISTRIBUTION PARTNERS OR AGENTS BE LIABLE FOR ANY LEGAL FEES OR INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOSS OF REVENUE, PROFITS, USE OR DATA), HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR UNDER ANY OTHER LEGAL THEORY, WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT AIMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BRAND AGREES THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK AND ARE REFLECTED IN THE FEES AGREED UPON BY THE PARTIES. OTHER THAN FOR GROSS NEGLIGENCE AND WILLFUL MISCONDUCT AND EXCEPT FOR BRAND’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL AIMS’S LIABILITY EXCEED FIVE THOUSAND DOLLARS ($5,000.00). BRAND ACKNOWLEDGES AND AGREES THAT IN THE EVENT OF ANY BREACH OF THE FOREGOING WARRANTY, THAT AIMS’S SOLE AND EXCLUSIVE OBLIGATION, AND BRAND’S SOLE AND EXCLUSIVE REMEDY, IS AS SET FORTH IN THIS SECTION.
7.5 Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its related companies, and each such company’s respective directors, officers, members, shareholders, technology, employees, affiliates, agents and permitted successors and assigns from and against all claim, actions, losses, liability, damages, costs and expenses (including reasonable attorneys’ fees and expenses) (collectively a “Claim”) attributable to any Claim made by a third party arising out of: (i) the Indemnifying Party’s negligence or intentional misconduct; (ii) the Indemnifying Party’s failure to perform any of its obligations under this Agreement; or (iii) any breach of any representation, warranty or covenant contained herein by the Indemnifying Party. In addition, without limiting the generality of the foregoing, Brand will defend, indemnify and hold harmless AIMS, its related companies, and each such company’s respective directors, officers, shareholders, employees, attorneys, affiliates, agents, representatives, and permitted successors and assigns from and against liabilities arising from: (i) any Claim related the products and/or services provided by Brand; (ii) any Claim related to any actual or alleged defamatory or illegal material provided by Brand for placement on, or in connection with AIMS; (iii) any Claim that Brand’s products and/or services, or that an Influencer Promotion violates any state or federal laws, rules or regulations, including but not limited to NIL rules; (iv) any Claim that Brand and/or products or services are in violation of the representations and warranties in this agreement; and (v) any Claim related to product or service provided by Brand, or any Influencer Promotion, which actually or allegedly infringes on the intellectual property or personal rights of a third party.
7.6 The indemnified party agrees:
(i) to promptly notify the other party in writing of any Claim that it becomes aware of and provide the other party with the opportunity to defend or negotiate a settlement of any such Claim at that party’s expense; and
(ii) to cooperate fully with the other party, at that other party’s expense, in defending or settling such Claim.
Subject to the following reservations:
(iii) the indemnified party reserves the right, at its own expense, to assume the exclusive defense and control of any Claim subject to indemnification by AIMS hereunder;
(iv) the indemnified party shall not make any settlement of any claims which might give rise to liability of the Indemnifying Party hereunder without the prior written consent of the Indemnifying Party; and
(v) The Indemnifying Party shall not make any settlement of any claims which give rise to or impose any liability or obligations on the indemnified party without the prior written consent of the indemnified party, such consent not to be unreasonably withheld.
8. DISPUTE RESOLUTION
8.1 In the event of a dispute between Brand and Influencer, Brand will promptly notify AIMS through its online portal and include the details of the dispute, desired resolution and timeframe for Influencer to resolve said dispute (“Dispute Notice”). AIMS will provide the Dispute Notice to the Influencer and Influencer will have the opportunity to comply with the Dispute Notice of dispute the allegations set forth in the Dispute Notice. In the event that the Brand and Influencer 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.
8.2 In the event of a disputed between AIMS and Brand, 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 Brand 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 Brand more than one (1) year after the cause of action occurred. Brand hereby waives any statute of limitations to the contrary.
8.2.1 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 8.2.1.
8.2.2 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 8.2.1 of this Agreement and secondly, if that fails, by either arbitration or litigation in the courts located in Utah.
8.2.3 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.
9. GENERAL PROVISIONS
9.1 Except as otherwise provided for in this Agreement, any amendment or modification to this Agreement must be in writing and signed by both parties.
9.2 This Agreement will be binding upon and will insure to the benefit of each party and its permitted successors and assigns; provided that, Brand will not assign or transfer its rights or obligations under this Agreement by operation of law or otherwise, without AIMS’s prior written consent. AIMS may assign its rights and obligations under this Agreement.
9.3 The waiver or failure of either party to exercise any rights provided for in this Agreement will not be deemed a waiver of any further or future right under this Agreement.
9.4 The invalidity or unenforceability of any term or provision in this Agreement will not affect the validity or enforceability of any other term or provision in this Agreement.
9.5 If Brand is more than one person or entity, each person or entity, as a signatory to this Agreement, agrees to be jointly and severally liable for all of Brand's obligations under this Agreement.
9.6 This Agreement is the final, full and exclusive statement of agreement between AIMS and Brand with respect to the subject matter set forth herein.
9.7 This Agreement may be executed in counterparts and, when fully executed, will be deemed effective on the Effective Date. The executed Agreement may be delivered by electronic facsimile transmission.
9.8 The relationship of AIMS and Brand established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other. Neither party shall make any representations, warranties or covenants, or assume or create any obligations, on the other party’s behalf. Each party shall be solely responsible for the actions of its respective employees, agents and representatives.
9.9 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.
9.10 Captions and section numbers are used in this Agreement for convenience only and may not be used in the construction or interpretation of this Agreement.
9.11 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.
9.12 No Export. Brand agrees that it shall not export any information obtained under this Agreement, related documentation or technical data, or any product incorporating information obtained under this Agreement, related documentation, or technical data, without the written consent of AIMS.
9.13 Force Majeure. AIMS will not be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet.
9.14 No Third Party Beneficiaries. Brand agrees that there are, and shall be no, third party beneficiaries of Brand to this Agreement, including but not limited to Brand’s insurance providers or Influencers.
9.15 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 the aimsmarketing.ai website.[AIMS Mailing Address].
Privacy Policy
Last Updated and Effective: October 23, 2023
You are visiting a website owned and operated by Athlete & Influencer Marketing Solutions, and its subsidiaries and affiliates (collectively, “Aims”, “us”, “we”, or “our”) are committed to maintaining your confidence and trust as it relates to the privacy and usage of your information. Please read below and learn how we collect, protect, share, and use your information as part of our technology platforms, and all of our products and services.
This privacy policy applies to Aims and all websites and mobile apps owned and operated by Aims on which this privacy policy is displayed (such websites and apps referred to hereafter as the “Website(s)” or “Site(s)”, whether individually or collectively, or collectively as “Services”) as well as Company affiliates.
Capitalized terms not defined herein shall have the meanings set forth in the Aims Website Terms and Conditions ("Terms of Website Use"). IF YOU DO NOT AGREE TO TERMS OF THIS PRIVACY POLICY IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR OTHERWISE USE THE SITE OFFERINGS.
For the purposes of this Privacy Policy, "information" shall mean individually identifiable information from or about an individual, in addition to any other information provided by you or collected by us as set forth in this privacy policy.
Information We Collect
Identifying Information: We collect information that could identify you such as your name, address, telephone number, mobile number, email address, Social Security Number and other information requested on the Website.
Financial Information: We may also collect your bank information and other financial information requested on the Website.
Other Information: We may also collect information such as demographic data, data about your online activity, and other information that is not used to identify you.
How We Collect Information
Information provided by you: We collect information from you when you enter it or otherwise provide it in connection with an inquiry into our Services and/or complete the required information request form and/or otherwise provide such information to us. This information could be provided via an online form, over the phone, or via other means in which you interact with our Services.
Information from third parties: Information is collected from credit bureaus, lead generators and other partners who may have data on your financial profile, home, or other demographic information.
Information from cookies and other tracking technologies: We may use cookies, web beacons, and similar technologies to record your preferences, track the use of our Site and collect information. This information may include internet protocol (IP) addresses, browser type, internet service provider (ISP), referring/exit pages, operating system, date/time stamp, and/or clickstream data. We may combine this automatically collected log information with other information we collect about you. You may choose to set your web browser to refuse cookies, or to alert you when cookies are being sent. If you do so, please note that some parts of our Sites may not function properly.
How We Use Information
We may use collected information to:
Upon entering any information and clicking on the applicable submission button on the Website: (i) we may pass your information along to one (1) or more of our brand partners and/or affiliates (collectively, “Brand Partners”) or third-party service providers (“Third-Party Service Providers”); (ii) you may be contacted by us and/or one (1) or more of our Brand Partners or Third-Party Service Providers regarding your request; and/or (iii) you may be contacted by one (1) or more Brand Partners with offers that we determine may be of interest to you. You may be contacted by us, or one of our Brand Partners or Third-Party Service Providers in connection with your submission of information for the purpose of requesting additional information.
By submitting your information by and through the Site Offerings, you agree that we may share, sell, rent, lease or otherwise provide that information to any third-party for any purpose permitted by law, and we may work with other businesses to bring selected third-party offers to you. These businesses and third-parties may include, but are not limited to: (a) various brands; (b) providers of direct marketing services and applications, including lookup and reference, data enhancement, suppression and validation; (b) email marketers; (c) telemarketers (where permitted by applicable law); and (d) direct marketers. We may also use your information to send you promotional messages regarding various products and/or services, as well as third-party products and/or services that we think may be of interest to you.
Without limiting the foregoing, by agreeing to this Privacy Policy, you are proving us with your permission, we may also share your User Data with those Brand Partners from whom you have requested contact. These Brand Partners may use your information, including identifying information, to offer you the opportunity to market or endorse certain products and/or services, and for any other lawful purposes, subject to any restrictions contained herein. The information that you supply directly to any Brand Partners and/or Third-Party Service Provider shall be governed by the applicable Brand Partners’ and/or Third-Party Service Provider’s privacy policy. Where you submit information, we use the information that you make available to personalize your experience with the Site and to facilitate the delivery of the applicable Site Offerings to you, including to respond to any inquiries made by you.
We may also provide your information to third-party companies and individuals to perform certain functions on our behalf. Examples include sending direct and electronic mail, removing duplicate information from User lists, analyzing data and providing marketing analysis. The agents performing these limited functions on our behalf shall have access to your information as needed to perform these functions for us, but we do not permit them to use your information for other purposes.
We may also use your information with your permission, for customer service, to provide you with information that you may request, to customize your experience with the Site Offerings and/or to contact you when necessary in connection with your use of the Site Offerings. We may also use your information for internal business purposes, such as analyzing and managing our service offerings including, without limitation, the Site Offerings. We may also combine the information we have gathered about you with information from other sources.
By submitting your information by and through the Site Offerings, and thereby providing your permission, you agree that such act constitutes an inquiry and/or application for purposes of the Amended Telemarketing Sales Rule (16 CFR §310 et seq.), as amended from time to time (the "Rule") and applicable state do-not-call regulations. As such, notwithstanding that your telephone number may be listed on the Federal Trade Commission’s Do-Not-Call List, and/or on applicable state do-not-call lists, we retain the right to contact you via telemarketing in accordance with the Rule and applicable state do-not-call regulations.
Where you provide "prior express written consent" within the meaning of the Telephone Consumer Protection Act (47 USC § 227), and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200), as amended from time-to-time ("TCPA"), you consent to receive telephone calls from us and/or our designated Brand Partners and/or Third-Party Service Provider(s), including artificial voice calls, pre-recorded messages and/or calls (including SMS text messages) delivered via automated technology, to the telephone number(s) that you provided. You are not required to provide this consent in order to obtain access to the Site Offerings, and your consent simply allows us and our designated Brand Partners and/or Third-Party Service Providers, as applicable, to contact you via these means. By agreeing to this Privacy Policy, you are obligated to immediately inform us if and when the telephone number that you have previously provided to us changes. Without limiting the foregoing, if you: (i) have your telephone number reassigned to another person or entity; (ii) give up your telephone number so that it is no longer used by you; (iii) port your telephone number to a landline or vice versa; or (iv) otherwise stop using that telephone number for any reason (collectively "Phone Number Change"), you agree that you shall promptly notify Company of the Phone Number Change via email at: [EMAIL], or by using one of the methods set forth in the "Contact Us" section below.
With Whom Do We Share Your Information?
Company Affiliates: We may share information about you or provided by you with the Company affiliates.
Brand Partners: When you submit an inquiry or use another Service provided through the Website, you direct Company to share information about you or provided by you with Brand Partners and/or Third-Party Service Providers (collectively, “Brand Partners”). PLEASE NOTE: The Brand Partners that interact with you may retain or use your information whether or not you use their services, and their privacy and information sharing practices are set forth in their respective privacy policies. Pursuant to the contracts between Company and its Brand Partners, if you select a Brand Partner through our Services, Company may also receive information about you from that Brand Partner. Company and its Brand Partners may exchange information about you, for the purpose of providing you with information about brand opportunities. Company may maintain this information to assist with litigation, regulatory request(s), law enforcement requests, internal analytics, marketing purposes, and any other legally permissible purpose.
Other Business Partners: We also may share information about you with other business partners who offer products and services that we believe you may be interested in. Their privacy and information sharing practices are set forth in their respective privacy policies.
Company Service Providers: We may share information with Service Providers that perform certain services on our behalf including, but not limited to, credit bureaus, marketing partners, or entities providing business analysis and/or Website or product support.
Other Situations: We may also disclose information about you or provided by you at our sole discretion:
Cookies and Do Not Track
We may use cookies and other technologies such as web beacons and pixels to collect information about your online activities over time and across third-party websites or online services or which may allow a third-party to track your online activities over time and across different sites when you use the Websites.
The Websites may not respond to Do Not Track requests or headers from some or all browsers.
Third-Party Websites
This Site may contain links to third-party owned and/or operated websites including, without limitation, websites owned and/or operated by Brand Partners. We are not responsible for the privacy practices or the content of such entities and/or websites. These third-party websites and entities have separate privacy and data collection practices and we do not endorse, nor are we responsible for the accuracy of the privacy policies and/or terms and conditions of each of the Brand Partners or sellers that may advertise at the website.
Marketing and Communications
You may adjust your communications preferences by writing to us at customerservcie@aimsmarketing.ai. You may also modify your preferences by clicking on an unsubscribe link at the bottom of certain emails sent from Company.
We may use third-party tracking technology which allows targeted advertisements to you.
Electronic Disclosure
By submitting your information via the Internet, you agree to receive certain notifications, disclosures and/or documents electronically. This Consent to Electronic Disclosures applies to the information you are providing on this Site and any other communications we or any Brand Partners may provide to you. By submitting your information, you agree to receive all such notifications, disclosures and/or documents from us or any Brand Partners in electronic form or online in accordance with this document. You may withdraw your consent prior to submitting your information by exiting the website or by closing your browser. However, you will not be able to submit your information if you withdraw your consent by exiting the website or closing your browser. Following the submission of your information, you may be able to withdraw your consent to future electronic disclosures from a Brand Partner and/or Third-Party Service Provider by contacting them directly, but due to rules regarding the timing of delivery of disclosures that need to be made to you, you acknowledge that an opt-out notice may not be received and acted upon by such Brand Partners prior to such disclosures being delivered to you electronically. We do not process opt-out communications for Brand Partners, and each Brand Partners establishes its own rules regarding opting out of future electronic communications and disclosures.
All notifications, disclosures and/or documents that we or any Brand Partners provide to you in electronic format may be provided either (i) via e-mail; (ii) by access to a secure customer service website which will be provided to you in an e-mail notice sent to you when the documents are available; (iii) by posting on this Site or the Brand Partners’ site; (iv) by SMS text messaging to your mobile device; or (v) by posting on a website designated for that purpose. Any notifications, disclosures and/or documents provided in electronic or paper format from us or any Brand Partners to you will be considered “in writing,” and you should print a copy for your records. You may obtain any notifications, disclosures and/or documents in paper form without charge from us by printing them yourself from our website or the appropriate Brand Partners’ website when available. To access, view and retain the notifications, disclosures, and/or documents available to you in electronic form, you must have Internet access, sufficient electronic storage capacity, an e-mail account with an Internet service provider e-mail software.
You agree and intend the federal Electronic Signatures in Global and National Commerce Act to apply to (i) your consent to receive notifications, disclosures and/or documents in electronic form; (ii) the information you provide, and (iii) our Brand Partners’ and/or any Third-Party Service Providers’ ability to conduct business with you by electronic means.
By completing and submitting your information, you (i) agree to provide us with an accurate and complete e-mail address and other required information requested on this Site; (ii) confirm your consent to receive notifications, disclosures and/or documents from us and any Brand Partners in electronic format; (iii) affirmatively demonstrate your ability to access the notifications, disclosures and/or documents in electronic form; (iv) confirm that you have provided a current e-mail address at which electronic notifications, documents and/or disclosures can be sent to you; (v) acknowledge that you have read and reviewed the terms contained in this Electronic Disclosure section; and (vi) agree to the terms contained in this Electronic Disclosure section.
We and any Brand Partners, reserve the right, in our sole discretion, to discontinue electronic provision of notifications and/or documents. You will be provided with notice of any such termination or change as required by law.
To facilitate electronic commerce, to reduce the expense of records storage, and to obtain the benefits of faster access to records, you acknowledge and agree that all records may be stored electronically; and that neither we nor any Brand Partners will retain and have no obligation to retain any original or electronic documents for any period of time beyond the regulatory requirements. This applies to all notifications, disclosures and/or documentation. You further acknowledge and understand that all original and electronic notification, disclosures and/or documentation will be routinely destroyed, but not before the period of time designated by regulatory requirements. Records may be stored electronically via imaging, scanning, filming or other technology used for the storage of documentation via internal processes or third-party processors that we or any Brand Partners approve for these services. You agree that such storage shall be secure, and further agree that such records shall for all purposes be recognized and admissible in evidence or otherwise to prove the agreements, rights and obligations of the parties pursuant to any such records. We will retain your information for as long as needed to provide you services. If you wish to request that we no longer use your information to provide you services, please contact us at [customerservice@company.com]. We will retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements.
Updating and Accessing Your Information
The appropriate method(s) for accessing your information, if any, will depend on which Site or Services you have used. Depending on the respective Site or Service, you may have the ability to view or edit some of your information online using the respective Site or Service’s interface. If you have submitted a request through us, you can update your information by contacting our Customer Service Department at [customerservice@company.com]. Our address is [COMPANY ADDRESS].
How We Protect Your Information
While no data transmission over the Internet or information storage technology can be guaranteed to be 100% secure, Company understands your concerns with the safety of your personal information. We maintain physical, electronic, and procedural measures designed to safeguard your information from unauthorized access and disclosure. Because no system can be completely secure, and although we take steps to secure your information, we cannot guarantee that your information, searches, or other communication will always remain secure.
Transmissions between Company and third parties and affiliates are encrypted using public key cryptography algorithms with a minimum key size of 128 bits. SSL secures and prevents third parties from intercepting and reading your personal information; only we can decode the encryption. This technology requires a modern web browser such as Chrome, Edge, Firefox, Internet Explorer, Opera or Safari. You can verify that your communications with Company are secure by checking for the key or lock icon on your browser.
Changes to this Privacy Policy
Company has the discretion to update this privacy policy at any time. When we do, we will revise the date at the top of this page. We encourage you to frequently check this page for any changes to stay informed about how we are helping to protect the information we collect. You acknowledge and agree that it is your responsibility to review this privacy policy periodically and become aware of modifications.
Visiting our Websites From Outside the United States
The Site is designed to provide services in the United States and is governed by the laws of the United States. We make no representation that the Sites are governed by or operated in accordance with the laws of any other nation.
Compliance with Children’s Online Privacy Protection Rule
Our Services are not intended for individuals under 18 years of age, and we do not knowingly collect information from individuals under 18. If we learn we have collected or received information from a person under 18 without verification of parental consent, we will delete the information.
Online Tracking Opt-Out Guide
Like many companies online, we may use services provided by Google, Facebook and other companies that use tracking technology. These services rely on tracking technologies – such as cookies and web beacons – to collect directly from your device information about your browsing activities, your interactions with websites, and the device you are using to connect to the Internet. There are a number of ways to opt out of having your online activity and device data collected through these services, which we have summarized below:
Your Opt-Out Rights
You may opt-out of receiving communications from us by not submitting your information. During registration and/or when you submit personally identifiable information to us on the Website, you have opted-in to request that we share your personal information with third parties to receive marketing communications for the specific purposes of receiving offers that you have applied for on our websites. When contacted by any of these companies or third parties, you should notify them directly of your choices regarding their use and sharing of your information and to opt-out of receiving additional offers from them or any other third-party with whom we have shared your information. As noted, we use information, according to the consent you provided on the Website and as set forth in this Privacy Policy, to provide you with promotional offers through direct marketing, including without limitation e-mail, telephone, or SMS Messages. We may maintain separate e-mail lists for different purposes. If e-mail recipients wish to end their e-mail subscription from a particular list, they need to follow the instructions at the end of each e-mail message to unsubscribe from the particular list. To opt-out from receiving any additional email communications regarding the website, please send your request in writing via email to [customerservice@company.com].
Do Not Sell My Personal Information
You may also opt-out of having your personally identifiable information sold to third-parties. During registration and/or when you submit personally identifiable information to us at the Website, you have opted-in to request that we share your personal information with third parties, including Brand Partners for the specific purposes of receiving offers that you have applied for on our websites. When contacted by any of these companies or third parties, you should notify them directly of your choices regarding their use and sharing of your information. Please note that if you opt-out of having your personally identifiable information sold to third-parties, including Brand Partners, you will not be able to receive the services sought for which you originally visited this Website.
To opt-out from having your personally identifiable information sold to third-parties, including Brand Partners, please send your request in writing via email to [customerservice@company.com]or via postal mail to [COMPANY ADDRESS].
In addition, please note that if you subsequently sign up at one of our other websites for other product or service offerings, you will need to again address any information sharing preferences that you had previously established through this website.
How to Contact Us
If you have any questions about this privacy policy, the practices of any Company Business, or your dealings with a Company Business, please contact us at:
NOTICE TO CALIFORNIA RESIDENTS
We are required by the California Consumer Privacy Act of 2018 (“CCPA”) to provide this CCPA Notice to California residents to explain how we collect, use and share their information, and the rights and choices we offer California residents regarding our handling of their information.
CCPA Scope and Exclusions
This CCPA Notice applies only to California residents whose interactions with us are limited to:
This CCPA Notice does not apply to the information we collect, use or disclose about consumers who initiate or complete the process of applying for financial products or services. This is because this information is subject to the federal Gramm-Leach-Bliley Act (“GLBA”) and implementing regulations, or the California Financial Information Privacy Act (“FIPA”), or Representatives of businesses that seek to obtain our products or services, or to provide products or services to us.
Privacy Practices
As we explain in our Privacy Policy, we use cookies and other tracking technologies to analyze website traffic and facilitate advertising. If you would like to learn how you may opt out of our (and our third-party advertising partners’) use of cookies and other tracking technologies, please review the instructions provided in the “Online Tracking Opt-Out Guide” section of the Privacy Policy.
Please note that we may also disclose all information as described in the “Who Do We Share Your Information With?” section of the Privacy Policy.
Privacy Rights
The CCPA grants individuals the following rights:
Please note that the CCPA limits these rights by, for example, prohibiting us from providing certain sensitive information in response to an access request and limiting the circumstances in which we must comply with a deletion request. We will also respond to requests for information and access only to the extent we are able to associate with a reasonable effort the information we maintain with the identifying details you provide in your request. If we deny your request, we will communicate our decision to you. You are entitled to exercise the rights described above free from discrimination.
How to Submit a Request
To request access to or deletion of information please send an email to: [customerservice@company.com]
PLEASE NOTE THE FOLLOWING WITH RESPECT TO REQUESTS:
Identity verification. The CCPA requires us to verify the identity of the individual submitting a request to access or delete information before providing a substantive response to the request. We will ask you to verify your identity when you submit a request.
Authorized agents. California residents can empower an “authorized agent” to submit requests on their behalf. We will require the authorized agent to have a written authorization confirming that authority.
You will be provided a reasonable amount of time to provide sufficient identity verification and any request may be denied for lack of such identity verification.
