Pets on Q and all parties (“Brands” or
“Clients” and “Influencers” or “Talent”) endeavors to follow industry
best practices, including full, fair and effective disclosures of material
facts relating to your relationship with each other in accordance with the
Federal Trade Commission’s Guides Concerning Endorsements and Testimonials in
Advertising (“FTC Guides”). As such, we require that all, influencers and
similar persons (“Influencer” or “Talent”) adhere to the guidelines set forth
below (the “Guidelines”) and to the Pets on Q’s Campaign Terms and Conditions
(the “Terms”) when blogging, tweeting, posting or otherwise publishing content
about Brand/Client or Client’s products or services.
We expect that you will respect the
intellectual property rights of others, including, without limitation,
copyrighted material, trademarks and logos, and trade secret rights, as well as
rights of publicity, including the right to use another’s name, likeness,
image, voice or other indicia of identity. You may not post or share any
content that incorporates any of these elements without first obtaining written
permission to do so from the rights holder.
This Means:
- You
may not post or share any works that You do not own or have a proper
license or authorization to use.
- You
must get written permission from any third parties featured in photos and
other content that You post – even if You took the photo yourself.
- If You are unsure about any
material, particularly in instances where the material includes a
third-party’s trademark/logo, or music, film or television clips, or a
celebrity’s name, photo or image, you must check with Client before using
the material.
Our rule is when in doubt, do not
post.
Disclose Your Connection to
Brand/Client – As set forth in the Terms, when blogging or posting about Client
or Client’s products or services, you must clearly disclose your “material
connections” with Client, (i.e. the fact that your post is “sponsored by
Client”) and you must include any hashtags requested by Pets on Q or Client
(such as #ad or #sponsored). Note that while Pets on Q and/or Client may
provide recommendations and options for disclosures, neither Pets on Q nor
Client will be responsible for any failure by You to comply with the FTC Guides
or any failure by You to obtain all third-party clearances and permissions with
respect to content You post.
The above disclosure should be made in
close proximity to any statements that You make about Client or Client’s
products. This disclosure should be clear and prominent enough for consumers to
view it when they are reading your posts. This means that the disclosure should
not be buried behind links or in terms and conditions (or in similar
documents). In addition, the consumer should not be required to click on,
scroll down or mouse over a link in order to view the disclosure
Your statements must reflect your
honest and truthful opinions and actual experiences. If a statement is not your
opinion, but rather something that Client has asked You to say, this fact
should be made clear to readers.
Only make a factual statement about
Client or Client’s product/service’s characteristics or qualities which You
know for certain is true and can be verified.
You may not send any e-mails on
Client’s behalf, nor will Client provide You with any compensation if You send
any emails on its behalf.
You must comply with the terms, conditions,
guidelines and policies of any service that You use and all applicable laws.
Do not include personal information
about any third party that has not been explicitly made available to You to
share in your posts. This includes any information that may make it possible
for someone to reasonably identify another person.
These Influencer Terms and Conditions
(the “Terms”) are entered into by and between Pets on Q, INC., on behalf of its
Client or Brand named in any applicable campaign that you further agree to,
with regard to Influencer’s performance of spokesperson, influencer, public
relations, and social media services for Client effective as of the date of the
Campaign (the “Effective Date”).
1) Engagement.
In exchange for agreed upon
compensation, products and/or experiences, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
as set forth in the Campaign, Pets on Q engages Influencer to perform, and
Influencer agrees to perform the services specified in one or more Campaigns
entered into by Influencer and Pets on Q (the “Services”). Except as otherwise
expressly provided herein, Influencer will perform the Services at its own
expense and using its own resources and equipment.
2) Intellectual Property Rights
(a) No license or other right of any
kind is granted by Pets on Q or Client to Influencer, except as expressly
provided in these Terms. Influencer shall not use Pets on Q’s or Client’s
copyrights, trademarks, trade names, or other intellectual property in any way
except to the limited extent as may be expressly agreed in the Campaign.
(b) Influencer’s Content and
Attributes. For the Services which Influencer is providing under these Terms,
Influencer gives Pets on Q and Client the irrevocable, sublicensable, worldwide
right and permission to use any Work Product or other video, photo, written or
verbal content Influencer shares or provides related to the Services
(collectively, “Client-Related Content”) in any manner, in whole or in part,
and for any purpose in any and in any and all media, including and without
limitation, on Pets on Q and/or Client owned or controlled websites and
platforms, social media, any advertising materials, publications, marketing
materials, and/or presentations, and in any and all other media, now known or
hereafter devised, in perpetuity. Any statements, posts and/or feedback that
Influencer provides may be paraphrased, amplified, shortened and/or put into
conversational form. Influencer further agrees that Pets on Q and/or Client may
contact Influencer (including by means of messages on public social media
platforms) concerning any Client-Related Content. Influencer acknowledges that
participation in the Services means Pets on Q and Client has the right to use
Influencer’s Client-Related Content and include Influencer’s
name/likeness/social media handle or channel/blog name and any other Influencer
attributes in any manner that Pets on Q and/or Client determine effectuates the
purposes of these Terms, including use in any media that accepts advertising or
promotional content or communications (such as, but not limited to, digital,
print, television or radio).
Influencer agrees that Influencer will
not hold Pets on Q or Client, or their respective licensees, responsible for
any liability resulting from use of Influencer’s Client-Related Content in
accordance with the terms hereof. Pets on Q and Client shall not be liable for
any indirect, consequential, exemplary damages (including but not limited to
lost profits) and the combined, aggregate liability of Pets on Q and Client
hereunder shall not exceed the fees payable to Influencer under the Campaign.
3) Representations and Warranties;
Indemnity.
(a)Influencer represents and warrants
that: (i) Influencer has the right to assign the Work Product to Pets on Q as
set forth in Section 2; (ii) the Work Product and other Client-Related Content
will be original and will not infringe upon any copyright, patent, trademark,
right of publicity or privacy, or any other proprietary or other right of any
person, whether contractual, statutory or common law; (iii) the Services
rendered by Influencer shall be promptly rendered with due care and shall be of
first rate quality; (iv) Influencer shall not, during the term of these Terms,
render any services of any kind directly or indirectly for any company
competitive with Pets on Q or Client or conduct or participate in any program,
promotion or other project that would detract from the Services Influencer is
providing hereunder; (v) Influencer will not commit any act which brings Pets
on Q or Client into public disrepute, contempt, scandal, or ridicule, or which
insults or offends the general community to which Pets on Q’s advertising
materials are directed, or which might tend to harm Pets on Q or any of Pets on
Q’s or Client’s products or services including, without limitation, disparaging
Pets on Q, Client, their products or services, or their competitors; (vi)
Influencer’s statements, posts and feedback are true and accurately reflect
Influencer’s honest opinion and experience with Pets on Q, Client, and their
competitors’ products and/or services to the extent applicable, (vii) Influencer
agrees that time is of the essence in connection with these Terms and all
deadlines provided by Pets on Q, and (vii) Influencer will comply with all
applicable federal, state and local laws, regulations, administrative
guidelines, orders and ordinances, including without limitation, all privacy
and data security laws and the terms and conditions of all applicable third
party websites, platforms or applications, including by making disclosures in
accordance with the FTC Guides as further detailed in 3(b) below, in rendering
the Services herein.
Further, Pets on Q and its licensors
retain all ownership rights in their proprietary platforms, software, websites
and technology, including any updates, enhancements, modifications thereto or
any back-end technology associated therewith (“Pets on Q Platforms”).
Influencer will not: (i) copy, rent, lease, sell, distribute, or create
derivative works based on the Pets on Q Platforms in whole or in part, by any
means, except as expressly authorized in writing by Pets on Q; (ii) use any
Pets on Q trademarks without prior written permission; (iii) use or launch any
automated system, including, “robots,” “spiders,” or “offline readers,” to send
messages to the Pets on Q Platforms or systems; (ii) use the Pets on Q Platforms
in any manner that damages, disables, overburdens, or impairs any of Pets on
Q’s websites or interferes with any other party’s use of the Pets on Q
Platforms; (iii) attempt to gain unauthorized access (or exceed any authorized
access) to Pets on Q Platforms; (iv) access the Pets on Q Platforms other than
through the Pets on Q interface; or (v) use the Pets on Q Platforms for any
purpose or in any manner that is unlawful or prohibited by these Terms. Pets on
Q hereby grants Influencer a limited, non-exclusive, non-transferable license
to access and use the Pets on Q Platforms solely as necessary in connection
with the provision of Services hereunder.
EXCEPT AS OTHERWISE SET FORTH HEREIN,
TO THE EXTENT PERMITTED BY LAW, THE Pets on Q PLATFORMS ARE PROVIDED “AS IS”
WITHOUT WARRANTY OR CONDITION OF ANY KIND. EXCEPT AS OTHERWISE SET FORTH
HEREIN, Pets on Q DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH
REGARD TO THE Pets on Q PLATFORMS INCLUDING ALL IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND
NON-INFRINGEMENT.
(b) As previously set forth herein,
Pets on Q believes in full, fair and effective disclosures of material facts
relating to Influencers’ relationship with Pets on Q and Client and Influencer
agrees to comply with all FTC Guides. Notwithstanding the termination
provisions set forth in Section 7, Pets on Q reserves the right to immediately
terminate these Terms if Influencer fails to make social media or other
disclosures in the manner set forth in the FTC Guides and/or as instructed by
Pets on Q, which failure shall be deemed a material breach of the Terms that is
not capable of cure.
Pets on Q and Client shall have the
right to inspect and/or approve the topics and content of blogs and/or social
media posts and other Client-Related Content prior to posting by Influencer and
to request revisions if such materials are not approved, such request to be
made to Influencer within two (2) business days of Influencer’s submission of
such materials. Influencer agrees to submit revised materials within two (2)
day(s) of receiving a request for revision from Pets on Q.
(c) Influencer agrees to defend,
indemnify and hold harmless Pets on Q, Client and their respective officers,
directors, employees, business partners and agents, from and against any and
all third party claims, damages, obligations, losses, liabilities, costs or
debt, and expenses (including but not limited to attorney’s fees) arising from:
(i) Influencer’s breach of any of its representations and/or warranties
hereunder, (ii) the authorized use of the Work Product and other Client-Related
Content or exercise of the rights granted hereunder, (iii) Influencer’s use of
third party products or content in performing the Services; and (iv) Influencer’s
negligence or misconduct.
(d) Influencer hereby agrees, on
Influencer’s behalf and on behalf of Influencer’s heirs, executors and
administrators (collectively “Influencer”), to release, waive, discharge,
absolve, agree to hold harmless, and covenants not to sue, Pets on Q, Client
and their respective agents, employees, officers, directors, successors and
assigns (collectively, “Released Parties”), from and/or in relation to any and
all liability, loss, harm, damage, injury, cost or expense whatsoever which
Influencer has or hereafter may have, by reason of any matter connected in any
way with the Released Parties’ exercise of their express or implied rights
hereunder, including but not limited to the right to use Influencer’s name,
voice or likeness, it being understood that the Release Parties shall be free
to use Influencer’s name, voice and likeness in any manner in connection with
the Client-Related Content or otherwise in support of the purposes of these
Terms.
(e) Influencer warrants that Influencer
is at least 18 years of age, will adhere to FTC Guides and has the right to
contract in Influencer’s own name.
4) Relationship of Parties.
Influencer’s relationship with Pets on
Q is that of an independent contractor, and nothing in these Terms is intended
to, or should be construed to, create a partnership, agency, joint venture or
employment relationship. Influencer will not be entitled to any of the benefits
that Pets on Q may make available to its employees. Influencer is not
authorized to make any representation, contract, or commitment on behalf of
Pets on Q or Client unless specifically requested or authorized in writing to
do so by an authorized officer of Pets on Q or Client, as applicable, or both.
Influencer is solely responsible for, and will file, on a timely basis, all tax
returns and payments required to be filed with, or made to, any federal, state
or local tax authority with respect to the performance of the Services and
receipt of fees under these Terms and will hold Pets on Q and Client harmless
from and against any tax liability associated with fees hereunder. No part of
Influencer’s compensation will be subject to withholding by Pets on Q for the
payment of any social security, federal, state, or any other employee payroll
taxes.
If an agreement or contract is entered
into by Influencer and Pets on Q or Client, all payment terms specific to the
individual transaction or collaboration will be stated, in writing, in the
individual campaign for said transaction or collaboration. In these instances,
Pets on Q will bill the Client for services rendered by Influencer, and pay
Influencer their agreed upon fee via direct deposit once the invoice is paid in
full. If a Client chooses to pay an invoice via a method that requires
unforseen payment processing fees (Paypal, credit card fees, etc…) those fees
will be deducted from the amount paid to Influencer. All transactions are
subject to a 5% processing fee. Pets on Q is compensated by retaining a portion
of the agreed-upon fee paid by the Brand or Client, the amount of which varies
with each collaboration.
5) Confidential Information.
Unless authorized by Pets on Q,
Influencer agrees to hold all Confidential Information in strict confidence,
not to disclose Confidential Information to any third parties, and to use
Confidential Information solely for the purpose of fulfilling its obligations
under these Terms. “Confidential Information” shall mean all information,
excluding information available from the public domain, disclosed by Pets on Q
or Client to Influencer related to these Terms or the current, future, and
proposed business, products, and services of Pets on Q or Client.
6) No Conflict of
Interest/Non-Circumvent.
Influencer is not subject to, and will
not accept, and within the 12 months prior to the Effective Date has not
performed, any obligation that is inconsistent or incompatible with
Influencer’s obligations under these Terms, including any obligation to perform
services for any company whose goods and services compete with those of the
Client. Further, Influencer acknowledges and agrees that Pets on Q’s
relationships with its customers, including Client and other brands, agencies
and entities that use Pets on Q’s services (“Customers”) are of great value to
Pets on Q. Accordingly, Influencer agrees that during the term of this
Agreement and for one (1) year thereafter, Influencer will not directly or
indirectly solicit or engage any Customer to purchase services similar to those
provided by Pets on Q, other than through Pets on Q.
7) Term and Termination
(a) Term. The initial term of these
Terms shall commence on the Effective Date and continue in full force and
effect until terminated as set forth herein or until completion of all Services
specified in the campaign, whichever is sooner.
(b) Termination. Pets on Q may
terminate these Terms and/or the Services under any Campaign: (i) immediately
in the event of a material breach by Influencer or (ii) for convenience at any
time. Influencer must return any materials supplied under these Terms upon
termination.(c) Survival. The rights and obligations contained in Sections 2,
3, 5, 7 and 8 will survive any termination or expiration of these Terms.
8) Miscellaneous
Influencer will not be entitled to,
and hereby waives any right to seek injunctive relief to enforce the provisions
of these Terms, and Influencer’s sole remedy for any breach by Pets on Q shall
be to recover monetary damages, if any, subject to the terms and conditions
herein.
Influencer may not subcontract or
otherwise delegate Influencer’s obligations under these Terms without Pets on
Q’s prior written consent. Subject to the foregoing, these Terms shall benefit
and bind the parties’ successors and permitted assigns. These Terms shall be
governed in all respects by the laws of the State of California and Influencer
agrees that unless otherwise indicated by Pets on Q any action arising from or
relating to these Terms shall be brought exclusively in a state or federal
court located in Los Angeles County, California. Should any provisions of these
Terms be held by a court of law to be illegal, invalid, or unenforceable, the
legality, validity and enforceability of the remaining provisions of these
Terms shall not be affected or impaired thereby. The waiver by either party of
a breach of any provision of these Terms by the other party shall not operate
or be construed as a waiver of any other or subsequent breach by the other
party. These Terms (including the applicable campaign) constitute the entire
agreement between the parties relating to this subject matter and supersedes
all prior or contemporaneous oral or written agreements concerning such subject
matter. These Terms may only be changed by mutual agreement of authorized
representatives of the parties in writing.