SMART PATCHES LLC
INDEPENDENT INFLUENCER AFFILIATE AGREEMENT
This Independent Influencer Agreement (including any schedules, exhibits or addenda attached hereto, the “Agreement”), is made and entered into as of the date identified below (the “Effective Date”), by and between Smart Patches LLC with an address PO BOX 2903, Gilbert AZ, 85299, United States and the influencer identified below (“Independent Influencer” or “you”). In consideration of the mutual promises contained herein, the parties agree as follows:
The Independent Influencer Program. Independent Influencer agrees to provide to Smart under the terms and conditions of this Agreement, services (the “Services”) in connection with Smart Patches Independent Influencer Program (the “Program”). As part of the Services, Independent Influencer will generate and post content (including, without limitation, text, videos and images) regarding Smart Patches brand and Smart Patches products on Independent Influencer’s chosen social media network(s) in an effort to generate sales.
Independent Influencer agrees to:
Devote such of his/her time, resources and best efforts to the Services as is reasonably necessary to perform them in a professional and diligent manner
Comply with all applicable laws and regulations.
Determine, in his /her discretion, the time, place, manner, means, methods and independent/personal resources by which the Services are performed and achieved.
Provide and utilize his/her own equipment, tools and other resources in performing the Services but Smart Patches will provide to Independent Influencer certain informational materials to facilitate the creation of Independent Influencer's created content to his/her Influencer Page and/or Social Channels (such templates and other materials are collectively referred to as the “Smart Patches Materials”).
Independent Influencer agrees that they will not: (i)
Make any derogatory statements about Smart Patches and/or Smart Patches products
Resell or distribute any Smart Patches products, including those received for free or as gifts, for commercial purposes, other than via the Smart Patches website.
Promote Smart Patches products, the Smart Patches brand, or the Program and/or the Influencer Page via any paid media channels
Promote Smart Patches products, the Smart Patches brand, the Program and/or the Influencer Page via any website, media, social media, or electronic presence or resource that may be considered pornographic, lewd, offensive, or discriminate
Engage in any fraudulent transactions, as reasonably determined by Smart Patches, including without limitation making transactions from Influencer's IP addresses or computers under Influencer's control.
In consideration for the Services, Smart Patches will pay to Independent Influencer a fixed amount of the Net Revenue (as defined below) collected by Smart Patches in accordance with the Commission Appendix below (the “Commission(s)”). For purposes of this Agreement, “Net Revenue” means gross fees received by Smart Patches from Qualifying Orders (as defined below), less amounts paid for using store credit or gift certificates, taxes, duties and transaction-based costs and expenses, including but not limited to payment process fees and shipping fees. For purposes of this Agreement, “Qualifying Orders” means purchases of Smart Patches product(s) via the Smart Patches website that are made by a method of payment accepted by Smart Patches. The Commission is also only paid to Independent Influencer if the Qualifying Order is final -any returns will cause that specific Commission to be deducted out of the month payouts. The Commission will be calculated solely based on records maintained by Smart Patches using its standard methodologies. Smart Patches will pay Independent Influencer its Commission on the 5th day of each month. Commissions due hereunder will be made by Smart Patches to Independent Influencer through its payment processor (“Payment Processor”), which, as of the Effective Date, is PayPal Holdings, Inc. Independent Influencer is solely responsible for creating and maintaining a Payment Processor account, and communicating such account information to Smart Patches for purposes of receiving the payments set forth herein. Smart Patches is not responsible for making any payments based on any amounts which result from any fraudulent transactions, as reasonably determined by Smart Patches, including without limitation any transactions originating from Influencer 's IP addresses or computers under Influencer's control. Each compensation period is 90 days long. After 90 days Smart Patches has the opportunity to extend this offer for another 90 days.
Definition. “Confidential Information” means all trade secrets and confidential or proprietary information, whether or not in writing, concerning Smart Patches's business technology, business relationships or financial affairs which Smart Patches has not released to the general public. By way of illustration, Confidential Information includes, but is not limited to, information or material which has not been made generally available to the public, such as: (i) corporate information , including plans, strategies, method, policies, resolutions, negotiations or litigation;(ii) marketing information, including strategies methods, customer identities or other information about customers , prospect identities or other information about prospects, or market analyses or projections; (iii) financial information, including cost and performance data (iv) operational and technological information , including plans, specifications, manuals, forms, templates, software, designs, methods, procedures, formulas, discoveries, inventions improvements, concepts and ideas; (v) personnel information, including personnel lists, reporting or organizational structure, resumes, personnel data; and (vi) product-specific data including dosage of ingredients, production, formulation, process, materials, facilities, and delivery methods. Confidential Information also includes information received in confidence by Smart Patches from its customers or suppliers or other third parties.
Non-Disclosure and Non-Use Obligations. Independent Influencer will not, at any time, without Smart Patches's prior written permission, either during or after the term of this Agreement, disclose any Confidential Information to anyone outside of Smart Patches, or use or permit to be used any Confidential Information for any purpose other than the performance of the Services for or on behalf of Smart Patches. Independent Influencer will cooperate with Smart Patches and use best efforts to prevent the unauthorized disclosure or use of any and all Confidential Information. Independent Influencer will deliver to Smart Patches all copies of Confidential Information in Independent Influencer's possession or control upon the earlier of a request by Smart Patches or termination of this Agreement for any reason.
Information of Third Parties. Independent Influencer understands that Smart Patches is now and may hereafter be subject to non-disclosure or confidentiality agreements with third persons which require Smart Patches to protect or refrain from use of Confidential Information. Independent Influencer agrees to be bound by the terms of such agreements in the event Independent Influencer has access to such Confidential Information.
Intellectual Property Rights.
Independent Influencer hereby grants to Smart Patches and its subsidiaries, affiliates, licensees, agents, representatives, successors and assigns:
Unrestricted, fully-paid, royalty free, exclusive, transferable and irrevocable rights, power and authority to use, reproduce, publish, print, distribute, transmit, copy or otherwise use any of the Content, worldwide and perpetually, in whole or in part, in any medium known now or later discovered, for the purpose of its advertisements, promotions, marketing activities, public relations, educational and other commercial or non-commercial purposes.
Independent Influencer shall have the revocable, unlimited, perpetual and worldwide right to use the Content, for Independent Influencer’s promotional purposes, in any and all media now known or hereafter developed.
Independent Influencer hereby grants to Smart Patches and its affiliated companies, successors and assigns, the royalty-free, perpetual, unrestricted, transferable, irrevocable sublicensable, non-exclusive, worldwide right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display any content or other materials, other than the Content, (i) submitted to Smart Patches in connection with the Program or (ii) otherwise created by Independent Influencer in connection with the Services, (collectively, the “Other Developments”)
Smart Patches Materials and Trademark.
Except for Independent Influencer's limited right to use the Smart Patches Materials solely in connection with performing the Services, Smart Patches retains all right title and interest in the Smart Patches Materials, including all related intellectual property rights. Smart Patches hereby grants to Independent Influencer, a limited, non-exclusive, non-transferable license to use and display Smart Patches's name, website address, logo and trade names (the “Marks”), solely in connection with performing the Services.
Independent Influencer agrees that any use of the Marks:
Will comply with Smart Patches quality standards and trademark guidelines.
Will solely inure to the benefit of Smart Patches. The Marks are proprietary and nothing in this Agreement constitutes the grant of a general license for their use. Independent Influencer does not acquire any right, title or interest in the Marks or the goodwill associated therewith. Independent Influencer agrees not to (A) attack the Marks or assist anyone in attack in the Marks, and (B) make any application to register the Marks or use any confusingly similar trademark, service mark, trade name, iconography, or derivation thereof including, but not limited to, the registration of any domain name including any of the Marks, during the term of this Agreement and thereafter.
Federal Trade Commission Requirements.
Independent Influencer acknowledges and agrees that the provisions of the Federal Trade Commission's Guides Concerning Use of Endorsements and Testimonials in Advertising (the “Guides”) apply to Independent Influencer's provision of the Services hereunder. Independent Influencer represents and warrants that he or she has read and understands the Guides and their requirements, and that the Content and Other Developments (including, without limitation, social media communications regarding Smart Patches products, the Smart Patches brand and/or the Program) will contain clear and prominent disclosures compliant with the Guides.
Independent Influencer Social Channels.
In connection with performing the Services, Independent Influencer may link certain of his or her Social Channels to the Influencer Page. If Independent Influence so elects, Smart Patches may link to, and stream content from such Social Channels on its websites, social media channels and in other Smart Patches advertising and promotional materials.
Representations and Warranties.
Independent Influencer represents and warrants that:
He or she is at least 21 year of age and legally allowed to live and work in his/her country of residence
The Services will be performed in a professional, lawful and workmanlike manner, in accordance with any terms and conditions set forth herein;
The Content and Other Developments are Independent Influencer' s original work
Use of the Content and Other Developments by Smart Patches will not infringe or involve the misappropriation of any third party rights
All clearances and licenses relating to the use of the Content or Other Developments have been obtained by Independent Influencer
Except as expressly set forth herein, no fee, compensation or any other payment whatsoever will be payable by Smart Patches for any Content or Other Developments or any content or material incorporated therein to any third party;
He or she will comply with all applicable laws, rules and regulations, including the Guides
Independent Influencer shall indemnify and hold Smart Patches, its affiliates and their respective directors, officers, agents and employees harmless from and against all claims, demands, losses, damages and judgments, including court costs and attorneys' fees, arising out of or based upon the Services and/or Independent Influencer's performance thereof including, but not limited to, (a) any claim that the Services provided hereunder or, any related intellectual property rights or the exercise of any rights in or to any Content, Other Development, Influencer IP or related intellectual property rights infringe on, constitute a misappropriation of the subject matter of, or otherwise violate any patent, copyright, trade secret, or trademark of any person or breaches any person' s contractual rights; and (b) any breach or alleged breach by Independent Influencer of any representation, warranty, certification, covenant, obligation or other agreement set forth in this Agreement.
This Agreement will commence on the Effective Date and continue until terminated as set forth herein. Either party may terminate this Agreement for convenience upon at least seven (14) days' prior written notice thereof to the other party. Smart Patches may, in addition to any other rights it may have at law or in equity, terminate this Agreement immediately and without prior notice if Independent Influencer refuses to or is unable to perform the Services or is in breach of any material provision of this Agreement. Upon any termination of this Agreement, all rights and duties of the parties toward each other shall cease, except that the following Sections shall survive: 2 (with respect to any Net Revenue accrued during the term of this Agreement but not yet paid); 3, 4(a), 4(b), 4(c) and 5 through 13 (inclusive).
Independent Contractor; No Agency.
Independent Influencer is not and shall not be deemed an employee, agent, joint venture or partner of Smart Patches, and neither party shall have any right or authority to assume or create any obligation on behalf of or bind the other party in any manner whatsoever.
Limitation of Liability.
IN NO EVENT SHALL SMART PATCHES, ITS AFFILIATES, THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS (EACH, A “SMART PATCHES PARTY”) BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) ARISING FROM OR RELATED TO THIS AGREEMENT, THE SMART PATCHES PRODUCTS AND/OR THE PROGRAM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH SMART PATCHES PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. IN SUCH STATES, THE LIABILITY OF THE SMART PATCHES PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Governing Law, Jurisdiction and Venue.
The provisions of this Agreement will be construed and enforced in accordance with, and any dispute arising out of or in connection with this Agreement, including any action in tort, will be governed by, the laws of the State of Arizona. Each party hereby irrevocably submits to the exclusive jurisdiction and venue of the courts within Arizona.
All notices or other communications, required or permitted to be given hereunder, shall be in writing and shall be delivered electronically, personally or mailed, certified mail, return receipt requested, postage prepaid, to the parties at their addresses as set forth above. Any notice given electronically shall be deemed received on the business day following transmission. Any notice mailed in accordance with the terms hereof shall be deemed received on the third day following the day of mailing. Either party may change the address to which such notices to such party may be given hereunder by serving proper notice of such change of address to the other party.
Independent Influencer and Smart Patches agree that it would be impossible or inadequate to measure and calculate Smart Patches's damages from any breach by Independent Influencer of this Agreement. Accordingly, Independent Influencer and Smart Patches agree that if Independent Influencer breaches this Agreement; Smart Patches will have available, in addition to any other right or remedy available and notwithstanding anything to the contrary in Section 10 above, the right to obtain from any court of competent jurisdiction an injunction restraining such breach or threatened breach and specific performance of Sections 3, 4 and Section 8. Independent Influencer and Smart Patches further agree that no bond or other security shall be required in obtaining such equitable relief and Independent Influencer and Smart Patches, hereby consent to the issuances of such injunction and to the ordering of such specific performance.
If any provision of this Agreement is found to be invalid by any court or arbitrator having competent jurisdiction, then the meaning of said provision shall be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement which shall remain in full force and effect. Failure of Smart Patches to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision of this Agreement. No waiver shall be effective against Smart Patches unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Smart Patches and Independent Influencer, this Agreement constitutes the entire agreement between Independent Influencer and Smart Patches with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience, and shall not be given any legal import. Neither this Agreement nor any right hereunder or interest herein may be assigned or transferred by Independent Influencer without the express written consent of Smart Patches. Smart Patches may assign any or all of its rights and obligations under this Agreement without Independent Influencer's written consent to any affiliate or to another third party affiliate by way of merger, acquisition, consolidation, or sale or transfer of all or substantially all of Smart Patches' assets or capital stock. Any attempted assignment, delegation or transfer to a third party in violation hereof shall be null and void. Subject to the foregoing, this Agreement shall be binding on the parties and their successors and assigns.
For Qualifying Orders in a calendar month, Smart Patches will pay to Independent Influencer payments in accordance with the following table, with the exception that Smart Patches could have promos, all details of such promos to be at Smart Patches' sole discretion and communicated to Independent Influencer in due time:
$10 per pack of Smart Patches
$4 per pack sold attributed to documented referred Independent Influencers
For purposes of this Commission Appendix, each Qualifying Order shall count as one Qualifying Order, regardless of the number of Smart Patches Products that are purchased pursuant to such Qualifying Order.