Influencer TERMS OF service
Jun Group Productions, LLC
THESE INFLUENCER TERMS OF SERVICE (these “Terms”) are incorporated by reference and constitute an integral part of the Influencer Services Agreement (the “Agreement”) made and entered into by and between Jun Group Productions, LLC (“Company”) and the Influencer identified in the Agreement (“Influencer”) (Company and Influencer are referred to herein individually as a “Party” and collectively as the “Parties”).
WHEREAS, Influencer is in the business of creating social media content; and
WHEREAS, Company desires to retain Influencer to provide certain services, as set forth in the Agreement (the “Services”) for Company on behalf of the Client identified in the Agreement (“Client”).
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
Services, Deliverables, Schedule and Fees. Company hereby retains Influencer to render, and Influencer hereby agrees to render to Company, the Services specifically set forth in the Agreement, upon the terms and conditions hereinafter set forth. Said Agreement describes (i) the Services to be performed by Influencer; (ii) the term of the contract relationship, and (iii) the fees to be paid by Company. Influencer shall not commence services under the Agreement until Influencer has returned an executed copy of the Agreement to the Company.
Cooperation of Company. Company agrees to comply with reasonable and lawful requests of Influencer and to provide access to all documents, equipment and facilities which are reasonably necessary to the performance of Influencer’s duties under the Agreement and to the timely completion of the Services.
Location of Performance. The Services to be performed by Influencer, as set forth in the Agreement, may be performed at Influencer’s facilities or other location, as determined by Influencer. The Company shall not provide facilities for Influencer to perform the Services.
Duties of Influencer. Influencer shall, while on Company’s premises and/or
while performing services on behalf of or otherwise representing the Company (i) perform the Services in a diligent, professional and respectful manner; in full compliance with Company’s rules for site security, environmental compliance, and health and safety to the extent such rules have been communicated to Influencer; and (ii) not engage in any activities that could be deemed harassing (including sexual harassment) or discriminatory.
Independent Contractor. In Influencer’s performance of the Services under the Agreement and these Terms, Influencer will at all times act in Influencer’s own capacity and right as an independent contractor, and nothing contained herein may be construed to make Influencer an agent, partner or joint venturer of Company or of Client. Nothing in the Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Company and Influencer. As an independent contractor, Influencer has sole discretion and ultimate control over the time, details, manner and methods necessary to perform the Services. Company shall not have supervisory authority over the time, manner and methods of services provided by Influencer. Company’s sole and exclusive obligation with respect to Services performed by Influencer under this Agreement shall be payment of fees earned as specified herein. Influencer agrees that Influencer shall not be entitled to the rights or benefits afforded to Company’s employees, including but not limited to health insurance, disability insurance, workers’ compensation insurance/benefits, unemployment insurance or retirement benefits. Influencer agrees that if Influencer were ever deemed entitled to participate in any welfare or retirement benefit plan of the Company, Influencer hereby waives such participation. Influencer shall supply all materials, tools and equipment necessary to perform such services, and Influencer shall be solely responsible for Influencer’s insurance and maintenance of same. At no time during or after the term of this Agreement will Influencer assert or make any attempt to enforce any alleged employment relationship with Company with respect to Services performed under this Agreement. Neither Party shall have any right, power or authority to assume, create or incur any expense, liability or obligation, express or implied, on behalf of the other Party.
Other Work. During the term of this Agreement, Influencer may render consulting or other services to persons or entities other than Company provided that the rendering of such services does not violate, conflict with or impair Influencer’s duties or obligations hereunder, or any contractual obligation that Influencer has otherwise made to the Company or its affiliates (i) pursuant to any separate agreement, or (ii) as specified in the Agreement.
Policy Against Harassment and Discrimination. Company strictly prohibits all forms of unlawful discrimination and harassment, which includes harassment and/or discrimination on the basis of race, religion, color, sex, gender identity, sexual orientation, national origin, ancestry, citizenship status, uniform service member status, marital status, pregnancy, age, protected medical condition, disability or any other category protected by applicable state or federal law. Company’s policy against harassment and discrimination applies to all independent contractors. Independent contractors of Company are strictly prohibited from harassing one another as well as Company’s employees, customers, clients, vendors, suppliers and others doing business with Company. Company further prohibits its customers, clients, vendors, suppliers, and others doing business with Company from harassing its employees and independent contractors. Influencer acknowledges that violation of this policy constitutes cause for immediate termination of this Agreement. Influencer also acknowledges that Influencer may be held personally liable for engaging in any harassing conduct that violates federal, state or local law.
Compensation and Expenses.
Compensation to Influencer. In consideration of the performance of the Services, Company shall pay Influencer the fees set forth in the Agreement.
Expenses. Influencer shall be responsible for and shall pay all costs and expenses related to the conduct of Influencer’s business, including any and all expenses incurred by Influencer in connection with services performed under the Agreement. Notwithstanding the forgoing, if the Project Coordinator approves in writing to reimburse Influencer for a certain expense associated with the Services, Influencer may include such expense on the relevant invoice.
Taxes and Insurance. Influencer is responsible for properly calculating all income taxes, including estimated taxes, and other government mandated charges and fees, if any, incurred as a result of or in connection with the fees paid by Company to Influencer for Services under the Agreement, and remitting such taxes and charges to the appropriate government entity. Influencer shall at Influencer’s sole expense provide for such insurance as may be appropriate with respect to Influencer’s services and obligations under the Agreement. The Company or Company’s applicable service provider will timely provide a Form 1099 to Influencer and will file the Form 1099 with the Internal Revenue Service as required by law. Influencer agrees to provide such information regarding Influencer as Company may reasonably request, including, without limitation, a completed W-9 form.
Nondisclosure of Confidential Material. In connection with Influencer’s performance of the Services, Influencer will necessarily have access to highly sensitive confidential and proprietary information of Company and/or Client. As a condition to receiving such information, Influencer hereby agrees to treat any “Confidential Material,” as defined below, provided by or on behalf of Company in accordance with the provisions of these Terms and the Agreement and to take or abstain from taking certain other actions herein set forth. Company also agrees to keep confidential Influencer’s confidential information.
Confidential Material. For purposes of these Terms, the term “Confidential Material” shall mean all data or information regarding Company’s or Client’s business, including, without limitation, strategic plans, marketing plans, financial models or projections, financial, accounting and operational data or reports, vendors, clients, customers, employees, technology, operations, facilities, consumer markets, products, capacities, systems, procedures, security practices, research, development, business plans, business affairs and finances, innovations, inventions, designs, business methodologies, improvements, trade secrets, know-how, copyrightable and patentable subject matter and other proprietary information, and further including any information or data Company has received from third parties that Company is obligated to treat as confidential or proprietary, which is furnished, disclosed or otherwise made available to Influencer, whether oral or written, and regardless of the manner in which it is furnished, disclosed or otherwise made available, by or on behalf of Company. Confidential Material shall not include, however, information which (i) is already in Influencer’s possession, provided that such information is not subject to another confidentiality agreement with, or other obligation of secrecy to, Company or another party, (ii) is or becomes generally available to the public other than as a result of an act or omission by Influencer, (iii) becomes available to Influencer on a non-confidential basis from a source other than Company, provided that such source is not bound by a confidentiality agreement with, or other obligation of secrecy to, Company or another party, or (iv) is independently developed by Influencer without the use of any Confidential Material.
Use of Confidential Material. Influencer agrees that all Confidential Material shall be the sole property of Company. Influencer further agrees that Influencer will not use, disseminate, or in any way disclose any Confidential Material to any person, firm or business, except to the extent necessary to perform the Services hereunder. Influencer shall treat all Confidential Material with the same degree of care as Influencer accords to Influencer’s own highly-sensitive confidential and proprietary information, but not less than reasonable care. Nothing herein shall be construed as granting any right or license to Influencer with respect to any Confidential Material. Upon termination of the Agreement for any reason or upon request of Company at any time, all Confidential Material, including all copies, reproductions, summaries, analyses or extracts thereof or based thereon in Influencer’s possession, shall be returned to Company.
No Publicity/Non-Disparagement. Influencer agrees that, during the term of this Agreement, and at all times thereafter, Influencer will not, without prior written consent from Company, for any reason whatsoever, use directly or indirectly the name of Company or any customer or client of Company, or any work product created pursuant to this Agreement in any advertising or promotional materials, or publish any articles post any blogs or comments, communications, or documents relating to Company or any customer or client of Company. Likewise, Influencer agrees that during the term of this Agreement, and at all times thereafter, Influencer will not for any reason whatsoever, directly or indirectly, make any negative comments about or otherwise defame or disparage Company or any customer or client of Company.
Ownership and Licensing of Intellectual Property. Unless specified otherwise in the Agreement, title to all documents and other items and portions thereof delivered to Company by Influencer hereunder, including but not limited to all related work-in-process and all proprietary rights therein, shall reside in Influencer.
Third Party Intellectual Property Rights. Influencer will not violate or infringe any patent, copyright, trade secret or other intellectual property rights of any third-party in Influencer’s performance under the Agreement, and no item or portion thereof delivered to Company shall violate or infringe any such third party right.
Influencer’s Grant of Intellectual Property Rights. With respect to Influencer’s intellectual property, Influencer hereby grants Company and Client with all rights and licenses necessary to complete the Services and accomplish the purposes set forth in the Agreement. To the extent that any item or portion thereof delivered hereunder would violate or infringe any pre-existing patent, copyright, trade secret or other intellectual property right owned or licensable by Influencer, Influencer hereby grants Company and Client a worldwide, perpetual, irrevocable, nonexclusive, fully paid and royalty-free right and license to make, have made, use, sell, lease, license, import, export, distribute, market, copy, modify, display, perform and otherwise use any such infringing item or portion thereof.
No Conflicts. Influencer represents and warrants that the execution, delivery and performance by Influencer of this Agreement will not, with or without the giving of notice or the lapse of time, or both, (i) violate any provision of law, statute, rule or regulation to which Influencer is subject; (ii) conflict with, or result in a breach or default under, any term or condition of any material agreement or other instrument to which Influencer is a party; or (iii) conflict with any services performed in connection with Influencer’s other business activities. For avoidance of doubt, Influencer is solely responsible for notifying Company of any potential conflicts with other engagements that may violate any exclusivity terms of the Agreement.
Indemnification. Influencer shall defend, indemnify and hold harmless Company, its affiliates, and their respective directors, officers, employees and agents, from and against all third-party actions, causes of action, liabilities, claims, suits, judgments, liens, awards, damages, costs and expenses of any kind and nature whatsoever, including but not limited to costs of litigation and counsel fees, arising out of or in any way related to any material breach of this Agreement, willful misconduct, negligent act or omission of Influencer (or any employee or subcontractor of Influencer, as applicable) in connection with the performance of services under the Agreement including without limitation, any inaccuracy or breach of any representation, warranty or obligation of Influencer under this Agreement, and any employment-related claim brought by Influencer or any third-party.
Term and Termination The Agreement will remain in effect until terminated in accordance with this Section 14. Company shall be obligated to pay Influencer only for such Services as are completed prior to the date of termination. Upon the termination of the Agreement for any reason, the provisions relating to Confidential Material, Nonsolicitation, Ownership of Intellectual Property and Indemnification shall survive, and Sections 8 – 26 shall also survive.
a. Automatic Termination. This Agreement shall terminate automatically without any action of Company or Influencer on the occurrence of (i) the completion by Influencer of the services set forth in the Agreement, (ii) the completion of any term set forth in the Agreement, or (iii) the bankruptcy or insolvency of either Party or the death or incapacity of Influencer.
b. Termination by Company. Company shall have the right to terminate the Agreement at any time, for any reason or no reason, immediately upon giving written notice to Influencer.
c. Termination by Influencer. Influencer shall have the right to terminate this Agreement at any time, for any reason or no reason, by giving Company thirty (30) days’ written notice. Influencer shall be deemed to have terminated this Agreement if Influencer materially ceases to perform Services under this Agreement, and Influencer fails to materially perform the Services following Company’s written request (email to suffice) to do so.
Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of receipt if delivered personally, or if sent by Federal Express or other nationally-recognized overnight delivery service, or if sent by first class registered or certified mail, return receipt requested, postage prepaid, and properly addressed, or any other address or number that any Party may designate by written notice to the other.
Arbitration of Disputes. Any dispute or claim arising out of or in connection with this Agreement shall be submitted to binding arbitration in Orange County, California in accordance with the Federal Arbitration Act, in conformity with the procedures of the California Arbitration Act (“Act”) (Cal. Code Civ. Proc. sec 1280 et seq., including section 1283.05 and all of the Act’s other mandatory and permissive rights to discovery). The FAA applies to this Agreement because the Company’s business involves interstate commerce. To the fullest extent permitted by applicable law, claims must be brought by either Influencer or Company in its individual capacity, not as plaintiffs or class members in any purported class, collective or representative proceeding (such as an action as a private attorney general), and the arbitrator shall not have the power to hear the arbitration or award relief as a class, collective or representative action. To the fullest extent permitted by applicable law, both Influencer and Company waive the right to bring, maintain, participate in, or receive money from any class, collective or representative proceeding. The arbitrator shall be bound to apply all applicable law in deciding the dispute(s) presented. Judgment on the award rendered by the arbitrator may be entered by any court having jurisdiction thereof.
In addition to any other requirements imposed by law, the arbitrator selected to hear claims under this Agreement shall be a retired California Superior Court Judge, or an otherwise qualified individual to whom the parties mutually agree, and shall be subject to disqualification on the same grounds as would apply to a judge of such court. All rules of pleading (including the right of demurrer), all rules of evidence, all rights to resolution of the dispute by means of motions for summary judgment, judgment on the pleadings, and judgment under Code of Civil Procedure Section 631.8 shall apply and be observed. The arbitrator shall have the immunity of a judicial officer from civil liability when acting in the capacity of an arbitrator, which immunity supplements any other existing immunity. Likewise, all communications during or in connection with the arbitration proceedings are privileged in accordance with Cal. Civil Code Section 47(b). As reasonably required to allow full use and benefit of this agreement’s modifications to the Act’s procedures, the arbitrator shall extend the times set by the Act for the giving of notices and setting of hearings. Awards shall include the arbitrator’s written reasoned opinion. Resolution of all disputes shall be based solely upon the law governing the claims and defenses pleaded, and the arbitrator may not invoke any basis (including but not limited to, notions of “just cause”) other than such controlling law. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for preliminary or interim equitable relief, or to compel arbitration in accordance with this provision. Each party shall bear its own attorneys’ fees.
Waiver. The failure of any Party in any one or more instances to insist upon strict performance of any of the terms or provisions of this Agreement, or to exercise any option herein conferred, shall not be construed as a waiver or relinquishment, to any extent, of the right to assert or rely upon any such terms, provisions or options on any future occasion. No waiver of any of the provisions of this Agreement will constitute a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. No waiver will be binding unless executed in writing by the Party making the waiver.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. In such event, such invalid, void, or unenforceable provision shall be considered subject to reform by a court of competent jurisdiction and shall be changed and interpreted so as to conform its terms to the reasonable intent of the parties within the limits of applicable law or court decisions.
Attorneys Fees. If any legal action or other proceeding is brought by any Party for the enforcement of these Terms or the Agreement, or because of any alleged breach, default, or misrepresentation in connection with any of the provisions of these Terms, the prevailing Party shall be entitled to recover from the non-prevailing Party its reasonable attorneys’ fees and other costs and expenses incurred in connection therewith, in addition to any other relief to which it might be entitled.
Assignment; Successors. These Terms, the Agreement, and all duties and obligations hereunder may not be assigned or subcontracted by Influencer without the prior written consent of Company, which consent may be withheld in Company’s sole discretion. These Terms and the Agreement shall be binding upon Company and its successors and assigns, and upon Influencer and Influencer’s heirs, executors, administrators, successors and permitted assigns.
Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the state in which the Services are performed, without giving effect to its conflict of laws principles. In addition to any other rights it may have, Company shall be entitled to injunctive or other equitable relief to restrain any breach or threatened breach or otherwise to specifically enforce the provisions of Sections 8, 9, 10, 11 and 13 of this Agreement, it being agreed that money damages alone would be an inadequate remedy for any such breach.
Entire Agreement. These Terms together with the Agreement hereto constitutes the entire agreement between Company and Influencer with respect to the subject hereof, and fully supersedes any prior agreements or understandings with respect thereto. No provision of this Agreement shall be deemed waived, amended or modified by any Party, unless in writing and signed by the Parties hereto.
WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(end of Terms of Services)