These Influencer Terms and Conditions (the “Terms”) govern Services to be provided by Influencers who participate in Switch Vodka’s marketing program. Capitalized terms not specifically defined herein shall have the meaning assigned to them in an Influencer Agreement (the “Agreement”).
1. Intellectual Property Rights.
a. Intellectual Property Rights. No license or other right of any kind is granted by Switch Vodka to Influencer, except as expressly provided in these Terms. Influencer shall not use Switch Vodka’s copyrights, trademarks, trade names, or other intellectual property in any way except to the limited extent as may be expressly agreed in the Agreement.
b. Influencer’s Content and Attributes. Influencer gives Switch Voka 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, “Switch Vodka-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 Switch Vodka owned or controlled websites and platforms, social media, any advertising materials, publications, marketing materials, and/or presentations, and in any and all 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 Switch Vodka may contact (including by means of messages on public social media platforms) Influencer about any Switch Vodka-Related Content.
Influencer acknowledges that participation in the Services means Switch Vodka can use Influencer’s Switch Vodka-Related Content and include Influencer’s name/likeness/social media handle or channel/blog name and any other Influencer attributes in any manner that Switch Vodka 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).
2. Representations and Warranties; Indemnity.
a. Influencer represents and warrants that: (i) Switch Vodka-Related Content will be wholly 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; (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 Switch Vodka into public disrepute, contempt, scandal, or ridicule, or which insults or offends the general community to which Switch Vodka’s advertising materials are directed, or which might tend to harm Switch Vodka or any of Switch Vodka’s staff, products, or services including, without limitation, disparaging Switch Vodka or its products or services; (iv) Influencer’s statements, posts and feedback are true and accurately reflect Influencer’s honest opinion and experience with Switch Vodka, 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 Switch Vodka, (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 websites, platforms or applications, including by making disclosures in accordance with the FTC Endorsement and Testimonial Guidelines (“FTC Guides”) as further detailed on the Agreement, 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 Agreement in Influencer’s own name.
b. Influencer agrees to defend, indemnify and hold harmless Switch Vodka and its parents, affiliates, subsidiaries, 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 Switch Vodka-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 willful misconduct.
c. Influencer hereby agrees, for Influencer and Influencer’s heirs, executors and administrators, to release, waive, discharge, absolve, agree to hold harmless, and covenants not to sue, Switch Vodka and its 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 resulting from the use of Influencer’s Switch Vodka-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 Switch Vodka-Related Content or otherwise in support of the purposes of these Terms. Switch Vodka shall not be liable for any indirect, consequential, exemplary damages (including but not limited to lost profits) and the combined, aggregate liability of Switch Vodka hereunder shall not exceed the fees payable to Influencer under these Terms.
3. Relationship of Parties.
Influencer’s relationship with Switch Vodka is that of an independent contractor and Influencer agrees that as an independent contractor, it will not be considered an employee of Switch Vodka for any purpose, including tax obligations, and will not be eligible to participate in any of Switch Vodka’s medical, benefit or health plans.
4. Confidential Information.
Unless authorized by Switch Vodka, 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 Switch Vodka to Influencer related.
5. No Conflict of Interest.
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 Switch Vodka.
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. Switch Vodka may terminate these Terms and/or the Services under any Agreement: (i) immediately in the event of a material breach by Influencer or (ii) for convenience at any time, upon seven (7) days’ notice to Influencer. Influencer must return any materials supplied under these Terms, and immediately remove any Switch Vodka-Related Content from dissemination or from Influencer channels upon termination. For clarity, Influencer’s failure to make disclosures in the manner set forth in the FTC Guides and/or as instructed by the Switch Vodka shall be deemed a material breach of the Terms that is not capable of cure.
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.
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 Switch Vodka 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 Switch Vodka’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 Colorado and Influencer agrees that unless otherwise indicated by Switch Vodka any action arising from or relating to these Terms shall be brought exclusively in a state or federal court located in Denver, Colorado. 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 Agreement) 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.