These Opt-In Terms, each applicable Brand Deal and the Talent Onboarding form to which these terms are attached (collectively, the “Agreement”) is made effective upon the date of acceptance of this Agreement (“Effective Date”) by you (“ARTIST”) by clicking the box marked “I have reviewed and agree to be bound by the Opt-In Terms” on the Talent Onboarding form to which these terms are attached, in connection with the services to be rendered by Otter Influence Inc. (“AGENCY”).
Nature of Relationship.
ARTIST is a content creator with a following that allows for the exploitation and monetization of ARTIST’s’ name, likeness and platform. AGENCY has developed business contacts and relationships with third party brands’ (collectively “BRANDS”) in connection with the promotion of their products and services and possess expertise in locating content creators on behalf of BRANDS in connection with such BRANDS’ desires to engage content creators to utilize the name, likeness and platform of such content creators in order to promote such BRANDS’ products and services (collectively, “Brand Deals”). AGENCY and, by accepting the terms of this Agreement, ARTIST desire to create a profile for ARTIST to be presented to BRANDS in connection with Brand Deal opportunities in order to allow ARTIST to procure such Brand Deals directly with AGENCY (the “Brand Deal Services”).
In consideration of the mutual covenants and agreements set forth in this Agreement, the adequacy and receipt of which are hereby acknowledged, the parties agree as follows:
The Brand Deal Services.
ARTIST shall summarize and provide certain publicly available information about ARTIST via the Talent Onboarding form to which these terms are attached in order to create a profile of ARTIST for BRANDS to review. AGENCY shall have the non-exclusive right to utilize the name, image and likeness of ARTIST in connection with allowing BRANDS to review ARTIST’s profile in connection with a Brand Deal. AGENCY, on behalf of BRAND, shall enter into such Brand Deals directly with ARTIST.
All communications between ARTIST and BRAND whether in connection with a Brand Deal or otherwise, shall go through AGENCY and all Brand Deals shall be entered into by AGENCY, on behalf of BRAND, on the one hand, and ARTIST, on the other hand. ARTIST and AGENCY agree that while AGENCY shall present Brand Deal opportunities to ARTIST (and enter into such Brand Deals with ARTIST on behalf of BRAND) and act as an intermediary between BRAND and ARTIST, any Brand Deal, including any proposal or agreement thereof, shall be negotiated and procured directly by ARTIST. Each Brand Deal shall be entered into in ARTIST’s name or other entity specified by ARTIST. AGENCY shall have no say or consultation right in connection with the terms or nature of any Brand Deal (including without limitation whether any ARTIST should accept such Brand Deal). The decision to enter into or decline to enter into any Brand Deal shall be made in the sole and absolute discretion of ARTIST and ARTIST shall owe no compensation to nor have any liability to AGENCY with respect to any decision by ARTIST to decline to enter into any Brand Deal regardless of the reason or lack of reason therefore. In this regard, AGENCY is merely acting as an intermediary between ARTIST and BRAND on behalf of ARTIST. In connection therewith, any opportunity presented to ARTIST by AGENCY on behalf of a BRAND and any negotiations facilitated through AGENCY as an intermediary between ARTIST and BRAND shall not be construed, claimed, or deemed to be a conflict of interest or a violation or breach of any fiduciary or any other obligation or duty to ARTIST.
In connection with a Brand Deal, ARTIST may be asked to create, produce and post on ARTIST’s own social media channels those photos, videos or other content promoting BRAND’s products and services as described in a Brand Deal (each, a “Creator Post”). AGENCY will issue to ARTIST a Brand Deal on behalf of BRAND for which ARTIST shall provide all services required therein. Such Brand Deal will include, amongst other information, the name of the products and services and/or the nature of the ad campaign and the obligations of the ARTIST with respect to Creator Posts, original photos or videos to be provided by ARTIST (such photos and/or videos, “Creator Materials”) and any other promotional services required of ARTIST by BRAND. ARTIST shall grant all rights necessary to allow BRAND to share the Creator Posts or post the Creator Materials or other content from Creator Posts organically on such BRAND’s owned and operated website and social media channels solely to promote the products and services of BRAND (each a “Brand Post”) (the Brand Posts and Creator Posts shall collectively be referred to as the “Posts”). In addition to complying with all guidelines and approval processes set forth herein and in each Brand Deal, ARTIST will ensure that each Creator Post will:
(a) Be made no less frequently than as set forth in the Brand Deal;
(b) Include proper campaign hashtags, @-mentions, calls to action, product page, promotional code (each, a “Promo Code") and disclosures as required by BRAND and otherwise comply with all of the foregoing and any other guidelines of the BRAND;
(c) Comply with all applicable laws and regulations, including the FTC Endorsement Guidelines, as set forth in more detail below.
(d) Post the Creator Posts during ARTIST’s peak engagement hours, unless AGENCY or BRAND requests alternative delivery times in writing.
ARTIST hereby acknowledges that AGENCY is not licensed under the Labor Code of the State of California as a talent agency, or as an employment agent or otherwise under the Business and Professions Code of the State of California or as a theatrical employment agency under the General Business Law of the State of New York or as any of the foregoing under the laws of any state or country, and that AGENCY acts solely as an intermediary between COMPANY and BRAND. In connection therewith, ARTIST further acknowledges that AGENCY is not licensed to seek or obtain employment or engagements for ARTIST or CLIENTS and AGENCY has made no representations to you, either oral or written, to the contrary. ARTIST (on behalf of CLIENTS) hereby acknowledges that AGENCY does not hereby and has not heretofore offered or promised to attempt to obtain, seek or procure employment or engagements for ARTIST OR CLIENTS, and that AGENCY is not obligated to do so. The Parties acknowledge and agree that AGENCY shall provide the Brand Deal Services as an independent contractor. Nothing contained in this Agreement shall be construed to establish a joint venture, agency or partnership between AGENCY and ARTIST.
Term and Exclusivity.
This Agreement shall commence on the Effective Date, and shall continue until written notice of intent to terminate is given by either party to this Agreement (the “Term”).
Nothing herein shall prevent AGENCY from providing similar intermediary or other services to third parties during or after the Term of this Agreement; provided, however, that AGENCY shall not use or disclose any Confidential Information in breach of this Agreement in the course of providing such services to third parties. ARTIST agrees that during the Term, subject to the terms herein, ARTIST shall have the right to enter into agreements with BRANDS, to located opportunities for agreements with BRANDS and/or to engage any third party that renders similar services as those rendered by AGENCY during the Term.
Fees and Payments/Expenses.
AGENCY is not a talent agency and does not directly represent ARTIST. As such, AGENCY shall have no right to commission any Brand Deals or any other deals entered into by ARTIST during the Term. As compensation for the performance of its Brand Deal Services hereunder, ARTIST shall pay AGENCY a services and operations fee for each Brand Deal entered into during the Term by ARTIST, as follows (“Service Fee”):
Primary Network: 15% Service Fee to AGENCY for any ARTIST with AGENCY business email located in ARTIST social media bios.
General Network: 25% Service Fee to AGENCY for any ARTIST with AGENCY business email NOT located in ARTIST social media bios.
While Brand Deals will be between AGENCY, on behalf of BRAND, and ARTIST, any agreement entered into directly between BRAND and ARTIST in connection with the Brand Deal Services or otherwise in connection with a Brand Deal opportunity located, secured or presented by AGENCY shall nevertheless be treated as Brand Deal herein and shall be subject to the Service Fee. For clarity, if AGENCY presents a Brand Deal opportunity to ARTIST with respect to one ad campaign for BRAND and ARTIST (or any affiliated party) elects to engage with BRAND directly on a subsequent ad campaign, then all deals and agreements on such subsequent campaign shall be treated as Brand Deals herein and shall be subject to the Service Fee. Notwithstanding the foregoing, unless ARTIST can conclusively prove that a pre-existing relationship with such BRAND exists (i.e., a relationship with a key executive or decision maker at such BRAND existed before the Effective Date) ARTIST agrees not to solicit any repeat/additional services from any BRAND that AGENCY introduced ARTIST to for a period of three (3) years after delivery/completion of the conclusion of the latest Brand Deal, unless such subsequent opportunity was presented by AGENCY.
All compensation in connection with a Brand Deal will be payable to ARTIST. ARTIST will pay the Service Fee promptly upon receipt of such monies (in a form designated by AGENCY). Any Service Fee payment not made when due will, in addition to any other right or remedy of AGENCY, incur a finance charge at the lesser of three hundred basis points over the 3-month London Inter-Bank Offered Rate (“LIBOR +3”) on the date payment was due or the highest applicable legal contract rate. This finance charge will accrue from the date the payment was due until it is paid in full. AGENCY shall have the right to audit ARTIST’s books and records, but not more than once per year, and if any audit discloses an underpayment to AGENCY in excess of three percent (3%) for the time period covered by such audit, ARTIST shall pay the owed monies, plus audit costs and interest on the owed payments at the interest rate provided above. ARTIST and AGENCY shall be responsible for their own costs associated with any and all Brand Deals. In connection with all Brand Deals, ARTIST shall provide Zelle account info for all payments. If a Zelle account is not provided, ARTISTS will be responsible for any Paypal fees in connection therewith and the reduction of the compensation received by ARTIST in conenction therewith shall not affect the Service Fee.
Merchandise Services and Fee.
AGENCY shall advise, consult, manage and oversee all merch campaigns conducted by or on behalf of ARTIST (“Merch Services”). In connection with the Merch Services, ARTIST shall pay AGENCY an amount equal to fifteen percent (15%) of all gross receipts received by ARTIST or credited to ARTIST’s account in connection with the sale of merchandise (“Merch Fee”). Any Merch Fee payment not made when due will, in addition to any other right or remedy of AGENCY, incur a finance charge at the lesser of three hundred basis points over the 3-month London Inter-Bank Offered Rate (“LIBOR +3”) on the date payment was due or the highest applicable legal contract rate. This finance charge will accrue from the date the payment was due until it is paid in full. AGENCY shall have the right to audit ARTIST’s books and records in connection therewith, but not more than once per year, and if any audit discloses an underpayment to AGENCY in excess of three percent (3%) for the time period covered by such audit, ARTIST shall pay the owed monies, plus audit costs and interest on the owed payments at the interest rate provided above. ARTIST and AGENCY shall be responsible for their own costs associated with any and all agreements in connection with ARTIST’s sale of merchandising (including without limitation with merch vendors, artwork contractors, etc.). In connection with all such agreements, ARTIST shall provide Zelle account info for all payments. If a Zelle account is not provided, ARTISTS will be responsible for any Paypal fees in connection therewith and the reduction of the compensation received by ARTIST in connection therewith shall not affect the Merch Fee.
Syndication Services and Fee.
AGENCY shall advise, consult and manage ARTIST in connection with the sale, license, editing, optimization, syndication or other grant of all Creator Materials, Creator Posts and ARTIST’s other content to third-party platforms (e.g., Snapchat) (“Syndication Services”). In connection with the Syndication Services, ARTIST shall pay AGENCY an amount equal to thirty percent (30%) of all receipts received by ARTIST or credited to ARTIST’s account in connection with such sale, license, syndication or other grant (“Syndication Fee”). Any Syndication Fee payment not made when due will, in addition to any other right or remedy of AGENCY, incur a finance charge at the lesser of three hundred basis points over the 3-month London Inter-Bank Offered Rate (“LIBOR +3”) on the date payment was due or the highest applicable legal contract rate. This finance charge will accrue from the date the payment was due until it is paid in full. AGENCY shall have the right to audit ARTIST’s books and records in connection therewith, but not more than once per year, and if any audit discloses an underpayment to AGENCY in excess of three percent (3%) for the time period covered by such audit, ARTIST shall pay the owed monies, plus audit costs and interest on the owed payments at the interest rate provided above. ARTIST and AGENCY shall be responsible for their own costs associated with any and all agreements in connection with the sale, license, syndication or other grant of all Creator Materials, Creator Posts and ARTIST’s other content to third-party platforms. In connection with all such agreements, ARTIST shall provide Zelle account info for all payments. If a Zelle account is not provided, ARTISTS will be responsible for any Paypal fees in connection therewith and the reduction of the compensation received by ARTIST in conenction therewith shall not affect the Syndication Fee.
ARTIST agrees that ARTIST had an independent attorney review this Agreement with ARTIST or ARTIST has knowingly waived ARTIST’s right to do so, and that Artist fully understand the terms of this Agreement and the rights that ARTIST is granting to AGENCY and/or BRAND under this Agreement.
Grant of Rights/Ownership of Materials.
All Creator Materials and Creator Posts shall be owned by ARTIST, provided that CLIENT shall grant AGENCY the sublicenseable, assignable, worldwide, global and irrevocable license and right to use all Creator Materials in connection with the respective Brand Deal (including without limitation the right to broadcast and otherwise exploit all of the Creator Materials in any and all media, including without limitation on television, recorded discs, drives or other devices, interactive media, digital media, internet, mobile, theatrical and non-theatrical distribution, and any and all other media).
ARTIST shall grant to AGENCY, AGENCY’s licensees and assigns, the worldwide, irrevocable, royalty-free right and license to, for a period of at least thirty-six months (36 months) after the Campaign Period defined in each Brand Deal: (i) re-post and otherwise use the Creator Materials and/or Creator Posts on BRAND’s (or AGENCY’s licensees’ and assigns’) website and social media pages and in any and all advertising and promotion of AGENCY and BRAND in connection with Brand Posts; and (ii) use each ARTIST’s name, nickname, quotes, photograph, image, likeness, and/or biography in connection with BRAND’s exploitation of the Posts as permitted in each Brand Deal.
Notwithstanding anything to the contrary contained herein, after the expiration or earlier termination of this Agreement or any applicable Brand Deal, neither AGENCY (nor BRAND or any of AGENCY’s licensees or assigns) shall be required to takedown or cease distribution of any uses of the Creator Posts or Creator Materials (including in connection with Brand Posts) that commenced during the Term (e.g., BRAND may continue to use advertising and promotional materials created during the Term that incorporated the Creator Material and any Posts incorporating Creator Material shall continue to exist in the ‘feeds’ of the social media channel(s) that allow(s) historical feeds).
ARTIST agrees to the following with respect to the Creator Posts and/or Creator Material or any other broadcast, publishing, distribution or mention of any BRAND by ARTIST via Snapchat, Facebook, Instagram, Twitter, and any other form of social media: ARTIST will comply with the Federal Trade Commission’s (“FTC”) Endorsement and Testimonial Guides, as published on the FTC website (www.ftc.gov/bcp/guides/endorse.htm) (the “FTC Endorsement Guidelines”), when talking or writing about BRAND or BRAND’s products or services; ARTIST shall clearly and conspicuously disclose ARTIST’s true identity and that ARTIST has received compensation, product and/or other incentive items from BRAND proximate to any mention by ARTIST of BRAND or BRAND’s products or services; (ii) ARTIST shall not make any false, misleading or deceptive statement and will not make any product performance or attribute claims about the products or services of BRAND (ARTIST may express opinions, but will not make factual claims about the products); (iii) ARTIST’s statements accurately reflect only ARTIST’s honest, current opinions and beliefs based on ARTIST’s personal experience.
ARTIST acknowledges that (a) BRAND will be responsible for handling all Customer inquiries, purchases, billing, collection, and product shipments; (b) pricing of the products and services is totally within the BRAND’s discretion; and (c) BRAND reserves the right to change the pricing structure, terminate any special offers including Promo Codes, discontinue products or services, or change the terms under which products or services are offered at any time, without any advanced notice to ARTIST.
Representations and Warranties / Indemnification.
ARTIST represents and warrants that (a) ARTIST is eighteen years of age or older, (b) ARTIST has the right and authority to enter into this Agreement and grant all rights granted herein, (c) ARTIST possesses any and all rights, permissions and/or clearances required for ARTIST and/or BRAND or AGENCY to upload Posts and AGENCY (and their licensees and assigns), create merchandise and sell, license, syndicate or otherwise grant Creator Materials, Creator Posts and ARTIST’s other content to third-party platforms and has the right to grant and exercise all rights set forth herein and (d) ARTIST shall at all time comply with the Content Guidelines above. ARTIST will indemnify and hold AGENCY harmless against any losses, damages, liabilities, costs and expenses (including reasonable outside attorneys’ fees) relating to any action or suit brought by third parties resulting from: (a) ARTIST’s gross negligence or intentional misconduct in connection with the Brand Deal(s); (b) an uncured material breach by ARTIST of the terms of this Agreement; or (c) ARTIST’s uncured material breach of the Content Guidelines set forth above.
AGENCY and BRAND shall have a right of prior written approval over all Posts. ARTIST shall not have approval over any content and hashtags AGENCY or BRAND includes when posting a Brand Post provided that the content and hashtags used by BRAND: (a) are not disparaging to ARTIST, and (b) do not violate any law or regulation.
All notices which either party is required or may desire to give to the other party may be emailed o to such party at the email address set forth in this Agreement, or at such other email address as such party shall have furnished the other party in writing.
In order to facilitate the services required under a Brand Deal, a party (“Discloser”) may be required to share with the other party (“Recipient”) certain Confidential Information and desires to ensure that Recipient will not use or disclose such Confidential Information, except as may be permitted by this Agreement. Provided further that all Confidential Information shall remain the exclusive property of Discloser. Nothing herein shall be construed as giving Recipient any right or interest therein.
“Confidential Information” means all non-public information provided to Recipient or made available or accessible to Recipient by Discloser or its employees, officers, managers, members, consultants, advisors, or independent contractors or any subsidiary or affiliate of Discloser, in oral, written, graphic or electronic form, including without limitation: technical information, designs, and any information relating to products, services, customers, markets, customer content, customer agreements, customer procedures, customer data and information, security information, marketing and financial information and plans, business plans, pricing, and all other proprietary information and trade secrets of Discloser or third parties. Confidential Information shall also include the terms of this Agreement, all communications between Discloser and Recipient, all communications (including without limitation “chat messages” or “texts”) related to the duties or Discloser, and any other agreement between Discloser and Recipient. All of the foregoing shall be considered Confidential Information regardless of the form in which it is disclosed (e.g., oral, written, graphic or electronic form), whether or not it has been marked by Discloser to indicate that it is confidential or proprietary, and whether specifically disclosed by Discloser to Recipient or otherwise obtained, encountered, discovered, accessed or learned by Recipient in any manner. Any disclosure made by Discloser to Recipient preceding the Effective Date shall also be considered Confidential Information and protected by this Agreement.
Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain (in a manner not violating this or any other non-disclosure agreement) prior to the time of disclosure by the Discloser; (ii) becomes publicly known and made generally available after disclosure by the Discloser to the Recipient through no action or inaction of the Recipient; (iii) is already in the possession of the Recipient without restriction on disclosure or use at the time of disclosure by the Discloser as shown by the Recipient’s files and records immediately prior to the time of disclosure; or (iv) is independently developed by the Recipient by employees or others who did not have any access to the Discloser’s Confidential Information, as shown by documents and other competent evidence in the Recipient’s possession created in the ordinary course of business. In addition, Recipient’s obligations under this Agreement shall not extend to information that Recipient is compelled to disclose pursuant to a valid and effective subpoena, the order of a court of competent jurisdiction or government authority, provided that Recipient shall notify Discloser immediately of such demand for disclosure and shall cooperate with Discloser in using all reasonable efforts to resist or limit such disclosure and/or obtain confidential treatment or a protective order.
Recipient acknowledges that Discloser considers the Confidential Information to be proprietary, confidential and protectable as trade secrets under the Uniform Trade Secrets Act, California Civil Code § 3426 et. seq. In consideration of the disclosure contemplated herein, Recipient agrees: (i) to hold the Confidential Information in strict confidence and to protect such Confidential Information and prevent unauthorized access, reproduction or disclosure; (ii) not to make any use whatsoever at any time of any such Confidential Information, except in connection with the Duties, as defined above; (iii) not to copy, scan, store, share, or distribute such Confidential Information without Discloser’s prior written authorization; (iv) not to disclose any such Confidential Information to any party except those who have a legitimate “need to know” the Confidential Information in furtherance of the Duties, including representatives, client and agents, and who shall maintain the confidentiality of the Confidential Information to the same extent to which Recipient is bound hereunder; and (v) not remove any copyright notice, trademark notice, and/or other proprietary legend or indication of ownership or confidentiality set forth on or contained in any of the Confidential Information.
Recipient will use the Confidential Information only in connection with the Duties. Immediately upon the decision by either party to sever the relationship, the expiration of the Term, or upon request by Discloser made at any time, Recipient shall: (i) return to Discloser all manifestations of the Confidential Information in its possession or control including all documents or media, in any medium, which contain, embody, reflect or reference all or any part of the Confidential Information, and (ii) destroy any reproductions, summaries, and/or other writings or media whatsoever prepared by Recipient containing or relating to the Confidential Information in whole or in part.
Recipient acknowledges that the Confidential Information has been developed or obtained by Discloser by the investment of significant time, effort and expense and provides Discloser with a significant competitive advantage in its business. If Recipient fails to comply with any obligations hereunder, Discloser may suffer immediate, irreparable harm for which monetary damages may provide inadequate compensation. Accordingly, the parties hereto agree that Discloser will be entitled, in addition to any other remedies available to it, at law or in equity, to seek injunctive relief to specifically enforce the terms of this Agreement.
This Agreement (a) expresses the entire understanding between the parties hereto and, as of the Effective Date, replaces any and all former agreements, negotiations or understandings, written or oral, relating to the subject matter hereof.may be modified only by a written instrument signed by all parties; (b) is the entire understanding of the parties and supersedes all of their prior or contemporaneous oral and written agreements and understandings between the parties; (c) will be binding upon and inure to the benefit of each party and their respective successors, licensees and assigns; (d) will be governed by and construed in accordance with the laws of the State of California applicable to contracts made and performed in such State without regard to conflicts of law doctrines and any claim, dispute or disagreement with respect to this Agreement shall be submitted to the courts of the State of California, located within Los Angeles County or if appropriate, the Federal courts within the State of California located within Los Angeles County, which courts shall have the exclusive jurisdiction thereof; and (e) may be executed in any number of counterparts and by the parties hereto in separate counterparts, whether by electronic mail, facsimile or otherwise, each of which when executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.