The Creator Agreement entered into between Creator and Aspire, along with any terms referenced therein (“Agreement”), together with these Creator Terms and Conditions, constitutes the entire agreement between the parties related to Creator’s participation in the Campaign. Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Agreement.
1. Term.
(i) Term. The Term of the Agreement shall run until such time as all performances called for therein are complete, unless earlier terminated in accordance with the provisions herein.
(ii) Termination for Cause. Aspire or Brand may immediately terminate the Agreement for "Cause" upon written notice. Cause includes: (i) Creator's breach of the Agreement (ii) any act of fraud, dishonesty, or willful misconduct in connection with the Campaign, the Agreement, Aspire, Brand, or their respective related parties, or any act that brings Aspire, Brand, or related parties into public disrepute, contempt, scandal, or ridicule, or that could reasonably hard their reputation or business; (iii) Creator's negligence or willful misconduct; or (iv) a change in Creator's public persona that, in Aspire's or Brand’s reasonable judgment, materially and adversely affects the Campaign. No payment will be made to Creator following a termination for Cause.
(ii) Termination by Creator. Creator may terminate the Agreement only upon Aspire's or Brand’s uncured material breach. Any such termination requires Creator to provide written notice identifying the breach and the breaching party will have thirty (30) days to cure before the termination takes effect.
2. Content Restrictions.
Creator agrees that all Content shall be:
(i) subject to the approval, direction and control of Aspire and Brand, as outlined in the Agreement;
(ii) provided in professional manner in accordance with the highest standards customary to the social media marketing industry and in compliance with:
a. all applicable laws, regulations, orders and ordinances, including without limitation the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, the FTC Enforcement Policy Statement on Deceptively Formatted Advertisements, and the CAN-SPAM Act;
b. best practices in the applicable industry, which may include but are not limited to the latest editions of Word of Mouth Marketing Association’s WOMMA Code, or Mobile Marketing Association’s MMA Consumer Best Practices Guidelines;
c. all applicable social media and similar platforms’ terms, policies, rules and practices; and/or
d. all applicable Aspire and Brand policies provided or made available to Creator in advance of Content creation; and
(iii) made in compliance with Brand messaging, style and social media guidelines and all reasonable instructions, suggestions and recommendations provided or made available to Creator in advance of Content creation.
(iv) removed by Creator within twenty-four (24) hours of request by Aspire or Brand.
3. Social Media Interaction.
Brand shall have the right to mention, tag and otherwise interact with Creator in any social media platform.
4. License to Brand Materials.
Brand grants Creator a limited, royalty-free, non-exclusive, revocable, terminable license to use the content, text, pictures, sound, graphics, video, names, trademarks, logos, content, data and other materials owned by Brand or a Brand customer and provided to Creator (collectively, “Brand Materials”) solely for the purposes of performing the services under, and in accordance with the terms of, an Agreement. Creator acknowledges and agrees that all of the Brand Materials, together with the goodwill of its business symbolized thereby, are the sole and exclusive property of Brand or Brand customer. Creator will not take any action that could interfere with any of rights in and to the Brand Materials or any benefits therefrom, or make any claim or take any action adverse to such ownership and all times shall treat the Brand Materials as confidential and retain the same only within Creator’s possession and control. All use of Brand Materials by Creator and any rights arising therefrom, and goodwill generated thereby, shall inure solely to the benefit of Brand or Brand customer, as the case may be. While Creator may retain rights or title to Content, no right to any of the Brand Materials, shall extend for any purpose other than the Services described in an Agreement. Following the termination or expiration of an Agreement, upon request, Creator, shall return or delete/destroy any and all Brand Materials at the direction/election of Brand or Aspire, except to such extent as the same are an incorporated part of Content.
5. Representations and Warranties.
(i) By Creator. Creator represents and warrants that Creator: (i) has the full right and authority to enter into the Agreement and is not now nor will in the future be subject to any obligation, legal disability or restriction which will or might prevent compliance with Creator’s obligations thereunder; (ii) will ensure that all Content will be accurate and reflect Creator’s honest views and experience with the subject products and services, and to provide testimonial affidavits as to the same upon request; (iii) will promptly notify Aspire if Creator’s opinion of the subject products or services changes from any which was previously expressed in Content; (iv) will not act or engage in any practice or conduct in any manner detrimental to the reputation of Aspire or Brand, Aspire or Brand customers, or and products or services included within any Content; (v) will not make any false, misleading or disparaging remarks about individuals or organizations or their products or services; (vi) except to the extent of provided Brand Materials, no Content shall violate, infringe or misappropriate any rights of any third parties and all such Content shall be Creator’s original work and shall not be subcontracted for production or produced or contributed to by any other party absent express written authorization by Aspire; (vii) shall not produce Content where tariff restrictions on intellectual property transfer would restrict the Services, and (viii) is eighteen years of age or older; (ix) will comply with the Federal Trade Commission Act and related guidelines, including the Guides Concerning the Use of Endorsements and Testimonials in Advertising available at https://www.ftc.gov (the "FTC Guidelines"); (x) will only provide Content containing truthful opinions, actual experiences, and true statements that can be substantiated; (xi) will only provide Content that is in good taste and free of language or imagery that promotes bigotry, racism, harassment, or discrimination of any kind; (xii) will not include anything in the Content that may incite or glorify violence, contain political or religious propaganda, or depict nudity or lewd content; (xiii) has not and will not purchase, generate, or otherwise artificially inflate followers, likes, views, comments, shares, or any other engagement metric in connection with a Campaign, whether directly or through a third party or automated tool; (xiv) will comply with all applicable laws, rules, and regulations, as well as the terms, conditions, and policies of every social media platform used for a Campaign; (xv) has not used and will not use generative artificial intelligence or similar tools in producing Content without Aspire's prior written consent.
(ii) By Aspire. Aspire represents and warrants that it: (i) has the full right and authority to enter into this Agreement and is not now nor will in the future be subject to any obligation, legal disability or restriction which will or might prevent compliance with its obligations hereunder; (ii) Brand Materials will not constitute any false, misleading or disparaging representations about individuals or organizations or their products or services; (iii) Brand Materials shall not violate, infringe or misappropriate any rights of any third parties.
6. Indemnification.
Creator will indemnify and hold harmless Aspire, Brand, and their respective clients, affiliates, subsidiaries, shareholders, officers, directors, agents, contractors, and employees (collectively, "Aspire Parties") from and against any liabilities, losses, claims, demands, costs, and expenses, including reasonable outside attorneys' fees ("Losses"), arising from: (a) Creator's breach of its obligations under the Agreement or breach of any of its representations and warranties contained therein; (b) Creator's gross negligence or willful misconduct. Aspire will indemnify and hold harmless Creator from Losses arising from: (a) Aspire's breach of its obligations under the Agreement or breach of any of its representations and warranties contained therein; (b) Aspire’s gross negligence or willful misconduct.
7. Limited Liability.
Except for a Party’s fraud or intentional misconduct, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST REVENUES, PROFITS, AND/OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NONPERFORMANCE OF THE AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FURTHER, WITH THE EXCEPTION OF A PARTY’S FRAUD, INTENTIONAL MISCONDUCT, OR INDEMNITY OBLIGATIONS CONTAINED HEREIN, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR CLAIMS OR LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, THAT EXCEED THE AMOUNT PAID OR PAYABLE TO CREATOR UNDER THE AGREEMENT.
8. Confidentiality.
Neither party will use the other's Confidential Information except as expressly required by the Agreement. Each receiving party will: (a) hold Confidential Information in strict confidence; (b) not disclose it to third parties, other than accountants, attorneys, and advisors who have a need to know such information and who are bound by confidentiality obligations as least as stringent as those contained herein, or use it for any purpose other than performing obligations under this Agreement; and (c) use at minimum the same measures it uses to protect its own confidential information. "Confidential Information" means all confidential and proprietary information relating to a party, including research, product and service information and ideas, idea submissions, product concepts, plans, creator information, customer lists, technology, marketing data, financial information, the terms of this Agreement, and all other business discussions between the parties. The Fee is Confidential Information of both parties. Confidential Information does not include information that: (i) was publicly known when communicated; (ii) entered the public domain through no fault of the receiving party; (iii) is generally known in the industry and was not obtained through breach of this Section; or (iv) was independently developed without reference to Confidential Information. The obligations of this Section survive expiration or termination of the Agreement for three (3) years. Neither party will be in breach for disclosures legally required by applicable law, regulation, or court order, to the extent so required; however, in the event the receiving party is legally compelled to disclose Confidential Information of the disclosing party, the receiving party will promptly notify disclosing party and reasonably cooperate with disclosing party to limit or restrict such disclosure.
9. Non-Disparagement.
Creator agrees that during the Term and for one (1) year thereafter, Creator will not: (i) make any statement that Aspire or Brand could reasonably view as publicly critical or disparaging of Aspire, Brand, or their parents, subsidiaries, affiliates, advertisers, directors, officers, employees, agents, sponsors, or brands.
10. Cancellation.
Aspire or Brand may terminate the Agreement at any time for any reason or no reason. Termination shall not affect payment obligations to Creator for work performed prior to termination.
11. Assignment.
Aspire or Brand may assign or transfer any of its rights or obligations under the Agreement without Creator’s consent or notice. All terms and conditions in the Agreement will be binding upon such transferees, successors, and assigns.
12. Rights Use.
Nothing contained herein will constitute any obligation on the Parties hereto to make any use of the rights set forth herein.
13. Successors and Assigns; No Third-Party Beneficiaries.
The Agreement is legally binding upon and inures to the benefit of the parties and their permitted successors and assigns. No third-party is intended to benefit from, nor may any third-party seek to enforce, any of the terms of the Agreement.
14. Relationship of the Parties.
Creator is an independent contractor under the Agreement. Nothing contained in the Agreement shall be deemed to create an association, partnership, joint venture, or relationship of principal and agent or master and servant between the parties, or to grant either party the right or authority to assume, create or incur any liability or obligation of any kind, express or implied, against, in the name of, or on behalf of, the other party.
15. Complete Agreement.
The Agreement, including these Terms and the Terms of Service constitutes the final agreement between the parties. It is the complete and exclusive expression of the parties’ agreement on the matters addressed herein. All prior and contemporaneous negotiations and agreements between the parties on the matters addressed in this Agreement are expressly merged into and superseded by this Agreement. In entering into this Agreement, neither party has relied upon any statement, representation, warranty, or agreement by or from the other party except for those expressly contained in the Agreement.
16. Modification.
The terms of the Agreement may not be modified or amended other than by a writing executed by both parties by their duly authorized representatives.
17. Counterparts.
The Agreement may be executed in one or more counterparts, each of which is deemed an original and all of which, taken together, constitute a single enforceable agreement.
18. Governing Law; Jurisdiction; Venue.
The Agreement is governed by the laws of the state of California, without regard to its principles of choice of law. A party must bring and maintain any action arising out of this Agreement and not subject to Section 21 exclusively in any state or federal court located in San Francisco, California. The parties each hereby expressly and irrevocably submit to the personal jurisdiction of such courts for the purposes of any such action and waive any claim of inconvenient forum. This choice of law and forum shall also apply to any extent of enforcement of the parties alternative dispute resolution requirements under Section 21 and the entry and enforcement of any judgment resulting from arbitration.
19. Savings Clause.
If any provision of the Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of the Agreement remain in full force if the essential terms and conditions of the Agreement for each party remain valid, binding and enforceable. All provisions of the Agreement which by their nature should survive any expiration or termination of the Agreement, including granted licenses therein, shall survive.
20. Waiver.
Any delay by a party in exercising its rights under the Agreement shall not constitute a waiver of its rights or its entitlement to enforce any provision of the Agreement. All rights and remedies are cumulative.
21. Dispute Resolution.
In the event of any dispute, claim, question, or disagreement arising from or relating to the Agreement or the breach thereof (collectively “Dispute”), the parties shall use their best efforts to settle the Dispute.
(i) Meeting. Such efforts will include, at a minimum, that they consult, meet in person and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties.
(ii) Mediation. If the parties do not resolve the Dispute pursuant to the foregoing paragraph within a period of 30 days, then, upon notice by either party to the other, the parties agree to mediate the Dispute in good faith according to the American Arbitration Association’s Commercial Mediation Procedures in San Francisco, California or another location mutually agreeable to the parties. The parties shall work in good faith with the mediator to attempt to complete the mediation within 60 days of such notice. Any party refusing to mediate prior to initiation of a legal action (including arbitration) upon such Dispute shall automatically and irrevocably waive any claim or right to seek or receive attorney’s fees in any such action.
(iii) Arbitration. If the parties do not resolve the Dispute through mediation, then, upon notice by either party to the other, the Dispute shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules. The arbitration shall be conducted on a confidential basis before a single arbitrator mutually agreed to by the parties. The arbitrator shall be experienced in contract, technology and intellectual property law. The arbitrator shall issue a written decision or award which provides an explanation for all conclusions of law and fact. The arbitration shall be conducted in San Francisco, California or another location if mutually agreeable to the parties. An award of arbitration may be confirmed in a court of competent jurisdiction. The arbitrator may award any prevailing party on a claim or defense some or all of its reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, out-of-pocket expenses such as copying and telephone, witness fees, and attorneys’ fees. Except to such extents as the foregoing prevailing party clause applies, arbitration fees shall be borne equally by the parties and each of the parties expressly consent that upon a party’s refusal to participate in the arbitration, including by way of failure to pay arbitration fees when due, upon notice to show cause, the arbitrator may rule that such non-complying party is in default and may enter judgment in favor of the other party as the prevailing party.
(iv) Exception. Each party agrees that the protection of confidential or non-public information shared between them, including all Brand Materials, is necessary and reasonable in order to protect the disclosing party and its business. Each party expressly agrees that due to the unique nature of the disclosing party’s confidential information, monetary damages would be inadequate to compensate them for any breach by the receiving party of its covenants and agreements set forth in the Agreement. Accordingly, each party agrees and acknowledge that any such violation or threatened violation may cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach or continued breach by the receiving party, without the necessity of proving actual damages or posting an undertaking. In such case, an action may be initiated for the purpose of obtaining such injunctive relief and the sought-after relief may be obtained on noticed motion (or ex parte application where irreparable harm is imminent), and upon the initial ruling with regard to the granting or denial of such relief, any other aspects of the concerned action shall be stayed or otherwise referred to mediation and/or arbitration, as the case may be, for resolution, with the Court retaining jurisdiction for purposes of any ultimate entry of judgment. A party initiating this equitable relief procedure shall not be held to have violated the foregoing alternative dispute resolution requirements by virtue of doing so. The foregoing notwithstanding, no part of this Section shall prohibit or restrict any party from bringing or maintaining an action in small claims court.