INFLUENCER TERMS AND CONDITIONS
These Influencer Terms and Conditions (the “Terms”) govern Services to be provided by Influencers who participate in the SmallwoodHome.com, LLC (herein referred to as “Smallwood Home (Smallwoods)”) Influencer Community. Capitalized terms not specifically defined herein shall have the meaning assigned to them in a Smallwoods Influencer Campaign and sign-up form.
1. Intellectual Property Rights.
a. Intellectual Property Rights. No license or other right of any kind is granted by Smallwood Home (Smallwoods) to Influencer, except as expressly provided in these Terms. Influencer shall not use Smallwood Home (Smallwoods) copyrights, trademarks, trade names, or other intellectual property in any way except to the limited extent as may be expressly agreed in the Smallwoods Influencer Campaign.
b. Influencer’s Content and Attributes. For the consideration to be paid per the Smallwoods Influencer Campaign, Influencer gives Smallwood Home (Smallwoods) the irrevocable, sub-licensable, 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, “Smallwood Home (Smallwoods)-Related Content”) in any manner, in whole or in part, and for any purpose in any media, including and without limitation, on Smallwood Home (Smallwoods) owned or controlled websites and platforms, social media, any advertising materials, publications, marketing materials, and/or presentations, and in any other media, 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 Smallwood Home (Smallwoods) may contact (including through messages on public social media platforms) Influencer about any Smallwood Home (Smallwoods)-Related Content.
Influencer acknowledges that participation in the Services means Smallwood Home (Smallwoods) can use Influencer’s Smallwood Home (Smallwoods)-Related Content and include Influencer’s name/likeness/social media handle or channel/blog name and any other Influencer attributes in any manner that Smallwood Home (Smallwoods) determines supports 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). The consideration received by Influencer for the rights granted to Smallwood Home (Smallwoods) is the consideration stated in the Smallwoods Influencer Campaign.
2. Representations and Warranties; Indemnity.
a. Influencer represents and warrants that: (i) the Smallwood Home (Smallwoods)-Related Content will be wholly original and will not infringe upon any copyright, right of publicity or privacy, or any other proprietary or other right of any person, whether contractual, statutory or common law; (ii) the Services rendered by Influencer shall be promptly rendered with due care and shall be of first rate quality; (iii) Influencer will not commit any act which brings Smallwood Home (Smallwoods) into public disrepute, contempt, scandal, or ridicule, or which insults or offends the general community to which Smallwood Home (Smallwoods)’s advertising materials are directed, or which might tend to harm Smallwood Home (Smallwoods) or any of Smallwood Home (Smallwoods)’s products or services including, without limitation, disparaging Smallwood Home (Smallwoods) or its products, services, or representatives; (iv) Influencer’s statements, posts and feedback are true and accurately reflect Influencer’s honest opinion and experience with Smallwood Home (Smallwoods), and its competitors’ products and/or services to the extent applicable, (v) Influencer agrees that time is of the essence in connection with these Terms and all deadlines provided by Smallwood Home (Smallwoods), (viii) 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 web sites, platforms or applications, including by making disclosures in accordance with the FTC Endorsement and Testimonial Guidelines (“FTC Guides”) as further detailed in the Smallwoods Influencer Campaign, in rendering the Services herein and (ix) Influencer is at least 18 years of age and has the right and authority to enter into this Smallwoods Influencer Community in Influencer’s own name.
b. Influencer agrees to defend, indemnify and hold harmless Smallwood Home (Smallwoods) and its parents, affiliates, subsidiaries, officers, directors, owners, employees, business partners, and agents, from and against any third-party claims, damages, obligations, losses, liabilities, costs, or debt, and expenses (including but not limited to attorney fees) arising from: (i) Influencer’s breach of any of its representations and/or warranties hereunder, (ii) the authorized use of the Smallwood Home (Smallwoods)-Related Content or exercise of the rights granted hereunder, (iii) claims relating to Influencer’s actual or alleged use of third-party products or content in performing the Services; and (iv) Influencer’s negligence or willful misconduct.
c. Influencer hereby agrees, for Influencer and Influencer’s heirs, executors and administrators, to release, waive, discharge, and absolve, and agrees to hold harmless and covenants not to sue, Smallwood Home (Smallwoods) and its agents, employees, officers, directors, owners, and their successors and assigns (collectively, “Released Parties”), from and/or in relation to any and all liability, loss, harm, damage, injury, cost or expense whatsoever resulting from the use of Influencer’s Smallwood Home (Smallwoods)-Related Content or which Influencer, his/her heirs, executors, administrators and assigns had, now have 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 Released Parties shall be free to use Influencer’s name, voice and
likeness in any manner in connection with the Smallwood Home (Smallwoods)-Related Content or otherwise in support of the purposes of these Terms. Smallwood Home (Smallwoods) shall not be liable for any indirect, consequential, exemplary damages (including but not limited to lost profits) and the combined, aggregate liability of Smallwood Home (Smallwoods) hereunder shall not exceed the fees payable to Influencer in the Smallwoods Influencer Campaign.
3. Relationship of Parties.
Influencer’s relationship with Smallwood Home (Smallwoods) is that of an independent contractor and Influencer agrees that as an independent contractor, it will not be considered an employee of Smallwood Home (Smallwoods) for any purpose, including tax obligations, and will not be eligible to participate in any of Smallwood Home (Smallwoods)’s employee benefits.
4. Confidential Information.
Unless authorized by Smallwood Home (Smallwoods), 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 to fulfill its obligations under these Terms. “Confidential Information” shall mean all information, excluding information available from the public domain, disclosed by Smallwood Home (Smallwoods) to Influencer.
5. No Conflict of Interest.
An Influencer is not subject to, and will not accept during the Term, 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 Smallwood Home (Smallwoods).
6. 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 herein, whichever is sooner.
b. Termination. Smallwood Home (Smallwoods) may terminate these Terms and/or the Services within any Smallwoods Influencer 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, and immediately remove any Smallwood Home (Smallwoods)-Related Content from dissemination or Influencer channels upon termination. For clarity, the Influencer’s failure to make disclosures in the manner described in the FTC Guides and/or as instructed by Smallwood Home (Smallwoods) shall be deemed a material breach of the Terms that is not capable of cure. Smallwood Home (Smallwoods) may modify these Terms at any time and any such modified Terms will be binding effective as of the date on which a copy of the modified Terms is sent to Influencer by any
c. Survival. The rights and obligations contained in Sections 1 (“Intellectual Property Rights”), 2 (“Representations and Warranties”), 4 (“Confidential Information”), 6(c) (“Survival”), and 7 (“Miscellaneous”) will survive any termination or expiration of these Terms and any other Smallwoods Influencer Campaign agreement between Influencer and Smallwood Home (Smallwoods).
An 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 Smallwood Home (Smallwoods) shall be to recover any damages subject to the terms and conditions herein. Influencer may not assign, subcontract, or otherwise delegate Influencer’s obligations under these Terms without Smallwood Home (Smallwoods)’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 Texas, and Influencer agrees that unless otherwise indicated by Smallwood Home (Smallwoods), any action arising from or relating to these Terms shall be brought exclusively in a state court located in Gregg County, Texas, or federal court located in Marshall, Texas. 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 Smallwoods Influencer Campaign terms) constitute the entire Smallwoods Influencer Community between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.