Upfluence Registered influencer Terms and Conditions

Upfluence, Inc. (“Upfluence”) and its client specified in any Influencer’s Brief (“Client”) believe in following industry best practices, including full, fair and effective disclosures of material facts relating to your relationship with Client in accordance with the Federal Trade Commission’s Guides Concerning Endorsements and Testimonials in Advertising (“FTC Guides”) as well as the UK Advertising Standards Authority’s Advertising Codes and associated guidance (“ASA Guides”). As such, we require that all bloggers, influencers and similar persons (“Influencer” or “You”) adhere to the guidelines set forth below (the “Guidelines”) and in Upfluence’s Influencer Terms and Conditions (the “Terms”) when blogging, tweeting or otherwise publishing content about Client or Client’s products or services. 

These Terms also apply to You if you (a) register with Upfluence to be a Registered Influencer whether by using the Single Sign On Service or otherwise, (b)apply to participate in any Client campaigns, (c) if you submit a COR, or (d) otherwise participate in any campaign administered via the Upfluence Platform.

The term “Brief” means, for each Campaign, a written document that sets forth various services and agreement terms relating to the Influencer’s services, which can include, without limitation:  an identification of Client and Influencer, the Deliverables, including services, to be provided by the Influencer in connection with the Brief or Campaign (as defined below), the timing such Deliverables are to be provided, and any specifics, and the consideration (including, without limitation, payment terms, method and schedule) relating to the Brief, and the term of the Influencer’s provision of services or Deliverables.  The term “Campaign” (which may be provided to Influencer in a separate document from Upfluence or Client)  is a short summary  of the promotional campaign in connection with which the Influencer will provide its services, which are governed by this Agreement. 

These Influencer Terms and Conditions (the “Terms”) are entered into by and between Upfluence, Inc. (“Upfluence”), on behalf of its Client and the Influencer, and govern Influencer’s performance of spokesperson, influencer, public relations, and social media or other services in connection with a Campaign for Client effective as of the date of the Influencer’s Brief acceptance (the “Effective Date”).  Any Brief or written Campaign provided by Upfluence or the Client in connection with any Campaign or services provided by You will form part of, and will be governed by, these Terms.

1. Guidelines

 (a) Respect Intellectual Property Rights.

Intellectual Property is, generally, the group of legal rights to works that people create or invent. Intellectual Property rights typically include copyright, trademark, and trade secret rights, as well as the right to use someone’s name, likeness, image, or voice. Examples include photographs, videos, music (including song lyrics), trademarks/logos (e.g. Nike), brand names or brand packaging (e.g. Coca-Cola, McDonald’s), personal names/likenesses (including celebrities’ names/likenesses), quotes and writings (“Intellectual Property Rights”). You should never post or share any content including these elements without obtaining written permission to do so from the third party who owns the rights, as this would constitute a violation or infringement of their intellectual Property Rights.

This Means :
i. You should not post or share any works or content that You do not own or have a proper license to use or share and that have not been authorized by Client for usage.
ii. You should get express permission from any third parties featured in photos and other content that You post – for example, a signed release, waiver, or other form of written permission from those third parties – even if You took the photo yourself, know the individuals involved and/or obtained verbal consent.
iii. If You are unsure about a work, particularly in instances where a work includes a third-party’s trademark/logo (e.g. a Coke can or Louis Vuitton bag), or music, film or television clips, or a celebrity’s name, photo or image, You should check with Client before using the work. A good rule of thumb is, if in doubt, do not post it.

(b) Disclose Your Connection to Client

As set forth in the Terms, when blogging or posted about Client or Client’s products or services, You are solely responsible for complying with FTC and other applicable regulations, laws and guidelines and agree to clearly disclose your “material connections” with a Client, (i.e. the fact that your post is “sponsored by Client” or is an “advertisement”) and include any hashtags requested by Upfluence or Client (such as #ad or #sponsored). Guidance and “best practices” concerning disclosures and other requirements may be found at FTC.gov/influencers.  These may change from time to time, and so we must check them frequently.   

“Material connections” may be defined as any connection between an Influencer and a marketer that could affect the credibility consumers give to that Influencer’s statements. Important examples of “material connections” include consideration (i.e., benefits or incentives such as monetary compensation, loaner products, free products or services, in-kind gifts, or special access privileges) provided by a marketer to an Influencer. Note that while Upfluence and/or Client may provide recommendations and options for disclosures, neither Upfluence nor Client will be responsible for any failure by You to comply with the FTC Guides and/or ASA Guides, local laws or any failure by You to obtain all third party clearances and permissions with respect to content You post.

(c) Maintain Clear and Prominent Disclosure

The above disclosure should be made in close proximity to any statements that You make about Client or Client’s products. This disclosure should be clear and prominent enough for consumers to view it when they are reading your posts. This means that the disclosure should not be buried behind links or in terms and conditions (or in similar documents). In addition, the consumer should not be required to click on, scroll down or mouse over a link in order to view the disclosure. Please note that this disclosure is required regardless of any space limitations of the medium (e.g., Twitter), where the disclosure can be made via hashtags, such as #sponsored, #paid or #ad (preferably at the beginning of the social media post). For video, the disclosure should be in the content of the video (audio and video) and not just in the description, and for live stream, it should be repeated from time to time.

(d) Give Your Honest and Truthful Opinions

Your statements should always reflect your honest and truthful opinions and actual experiences. If a statement is not your opinion, but rather something that Client has asked You to say, this fact should be made clear to readers, viewers and other consumers.

(e) Only Make Factual Statements That Are Truthful and Can Be Verified

Only make a factual statement about Client or Client’s product/service’s characteristics or quality which You know for certain is true and can be verified. For example, do not make statements about the performance of a product unless You have support for such claims. Remember that even if You do not expressly state a fact, it may be implied from your other statements, context, and other circumstances, and these Guidelines apply to both express and implied messages.

(f) Comply with other policies and laws

You should comply with the terms, conditions, guidelines and policies of any service that You use and all applicable laws including, for the avoidance of doubt, FTC guidelines, the United States Copyright and Trademark Acts, EU Regulation (EU) 2016/679 (General Data Protection Regulation), the California Consumer Protection Act (CCPA), and the UK Data Protection Act 2018 (as amended or superseded from time to time) and the ASA Guides. For instance, if a social media platform or website or other service says it may not be used for commercial purposes, then You should not promote Client or Client’s products or services on such a platform, site or service. You are responsible for complying with all regulations, laws and guidelines in carrying out any services or providing any Content and will indemnify and hold Upfluence and Client harmless of and from any violations of any regulations, laws or guidelines relating to any services or Content you may provide, including, without limitation, failure to properly or adequately disclose. 

(g) Protect Your Personal Information

Protect your privacy by keeping in mind that your posts are public. Don’t share personal or sensitive information about You or your family that You may not want to make available to the public.

(h) Respect Others’ Privacy

Do not include personal information about any third party that has not been voluntarily made available by them for You to share in your posts. This includes any information that may make it possible for someone to reasonably identify another person. 

2. Engagement

In exchange for certain compensation, products and/or experiences, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Upfluence engages Influencer to perform, and Influencer agrees to perform the services specified in the Influencer’s Brief for the fees and compensation set forth in the agreement or as otherwise agreed-to via the Platform for any Campaign. Except as otherwise expressly provided herein, Influencer will perform at its own expense and using its own resources and equipment.

3. Intellectual Property Rights

 (a) Work Product

Influencer shall perform and develop any work product hereunder for Upfluence and Client as a “work made for hire” according to U.S. Copyright law, and such work product, including all copyrights, trademarks and other intellectual property rights embodied therein (collectively, the “Work Product”) shall be owned by the Client.  Effective immediately and automatically upon delivery of any Work Product, including any Deliverables you shall grant a valid perpetual, non-exclusive, royalty-free, irrevocable, and non-transferable license in respect of the Deliverables (as described in the Brief) in favor of the Client (i.e. Client shall be the licensee) which shall permit the Client to use, copy, reproduce, display or distribute the Deliverable (or parts thereof, including images) in any and all media. The license shall permit the Client to use the Influencer’s name/likeness/social media handle or channel/blog name and any other Influencer attributes (collectively, “Influencer’s Name and Likeness”) in any manner that support the purposes of the agreement and any Campaign, to the extent embedded in the Deliverables (which license shall grant Client the right to use edits, cuts, video excerpts, photos and stills of the Influencer’s Name and Likeness. Client shall also expressly be permitted to make nominative use of the foregoing Influencer’s Name and Likeness in connection with the Deliverables and products and services relating to the Campaign. The license shall be conveyed and effective automatically upon content publication by the Influencer. For the avoidance of doubt, the foregoing license shall permit the Client to (without limitation), at any time:

i. Post any image, text, audio and video created by Influencer under this Agreement to its social media channels (which may include livestream) (collectively “Content”), accompanied by Client created copy, provided the relevant Influencer is acknowledged in such copy;

ii. Post any Content created by influencer under this Agreement to its social media channels, provided the relevant Influencer is acknowledged in the associated copy;
iii. Post any image or Content created by an Influencer under this Agreement on Client’s websites;
iv. Use any image and/or Content created under this Agreement for internal business purposes; and/or
v. Crop or reasonably edit any image or audio visual content created by an Influencer under this Agreement for the purposes listed at clauses i. to iv. above.

 (b) In the event any portion of the Work Product is not considered “work made for hire” or as otherwise necessary to ensure full ownership of the Work Product by Client, Influencer hereby assigns to Client, effective immediately upon creation, all right, title, and interest in and to such Work Product. Influencer will sign any additional documents that may be reasonably necessary to effect such assignment.

(c) Intellectual Property Rights

No license or other right of any kind is granted by Upfluence or Client to Influencer, except as expressly provided in these Terms. Influencer shall not use Upfluence’s or Client’s copyrights, trademarks, trade names, or other intellectual property in any way except to the limited extent as may be expressly agreed in the influencer’s Brief or otherwise over the Platform in connection with a Campaign.

(d) Influencer’s Content and Attributes

i.For the services which Influencer is providing under these Terms and without limiting Client’s ownership of the Work Product as specified above, Influencer grants Client the irrevocable, sublicensable, 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, “Client-Related Content”) in any manner, in whole or in part, and for any purpose in any and all media, including and without limitation, on Client 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 Client may contact (including by means of messages on public social media platforms) Influencer about any Client-Related Content.
Influencer acknowledges that participation in the Campaign includes granting Influencer’s consent and all permissions and licenses required for Client to use Influencer’s Client-Related Content and include Influencer’s name/likeness/social media handle or channel/blog name and any other Influencer attributes in any manner that Client determine 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), to the extent embedded in the Deliverables (which license shall grant Client all of the right to use edits, cuts, video excerpts, photos and stills of any or all of the Influencer’s Name and Likeness, as set forth above in Paragraph 3.a., and expressly the uses permitted in 3.a.i. – 3.a.v., in addition to making nominative use of the Influencer’s Name and Likeness in connection with the products and services relating to the Campaign.

ii.Influencer agrees that Influencer will not hold Upfluence or Client, or their respective licensees, responsible for any liability resulting from their use of Influencer’s Client-Related Content in accordance with the terms hereof.

(e)  Limitation of Liability

Influencer agrees and acknowledges that Upfluence and Client shall not be liable for any indirect, consequential, exemplary damages (including but not limited to lost profits) and the combined, aggregate liability of Upfluence and Client hereunder shall not exceed the fees payable to Influencer under a Brief, or as applicable, any Influencer Agreement between Upfluence and Influencer for services. Finally, Upfluence shall not be liable for any use by any third party, including any Client, of any Client-Related Content, or other work product.

4. Representations and Warranties; Indemnity

(a) Influencer represents and warrants that: 

(i) Influencer has the right to assign the Work Product to Upfluence as set forth in Section 3; 

(ii) the Work Product and other Client-Related Content will be 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; 

(iii) the services rendered by Influencer shall be promptly rendered with due care and shall be of first rate quality; 

(iv) Influencer will not commit any act which brings Upfluence or Client into public disrepute, contempt, scandal, or ridicule, or which insults or offends the general community to which Upfluence’s advertising materials are directed, or which might tend to harm Upfluence or any of Upfluence’s or Client’s products or services including, without limitation, disparaging Upfluence, Client, their products or services, or their competitors; 

(v) Influencer’s statements, posts and feedback are true and accurately reflect Influencer’s honest opinion and experience with Upfluence, Client, and their competitors’ products and/or services to the extent applicable, 

(vi) Influencer agrees that time is of the essence in connection with these Terms and all deadlines provided by Upfluence, 

(vii) Influencer has and will provide accurate, current, and complete information as sought by Upfluence over the Platform and Clients, including, without limitation, in connection with Registered User’s contact information, information relating to the Influencer’s social media site(s) and presence, and payment information and 

(viii) Influencer will comply with all applicable federal, state and local laws, regulations, administrative guidelines, orders and ordinances, including without limitation, all privacy, marketing, 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 Guides and ASA Guides as further detailed in 3(b) below, in rendering the services herein.

(b) Upfluence believes in full transparency and in full, fair and effective disclosures of material facts relating to Influencers’ relationship with Upfluence – Because Influencer has a relationship with Upfluence as an Influencer, in accordance with FTC Guides and ASA Guides, Influencer will include a disclaimer with all Client-Related Content Influencer shares publicly stating that Influencer has a material connection to the Client and was compensated or otherwise incentivized to post the Client-Related Content. Upfluence and Client reserve the right to specify the form and content of such disclaimers. Notwithstanding the termination provisions set forth in Section 7, Upfluence reserves the right to immediately terminate these Terms if Influencer fails to make social media or other disclosures in the manner set forth in the FTC Guides, ASA Guides and/or as instructed by Upfluence, which failure shall be deemed a material breach of the Terms that is not capable of cure.
Upfluence and Client shall have the right to inspect and/or approve the topics and content of blogs and/or social media posts and other Client-Related Content prior to posting by Influencer and to request revisions if such materials are not approved, such request to be made to Influencer within two (2) business days of Influencer’s submission of such materials. Influencer agrees to submit revised materials within two (2) day(s) of receiving a request for revision from Upfluence.  Client has the full right, but not the obligation to use any Client-Related Content or Deliverable, and may use or elect not to use it.  In the event, furthermore, that any Client-Related Content may in the absolute discretion of Upfluence or Client be improperly sourced, utilized or may otherwise be objectionable to Client, Influencer shall remove or take such content down immediately (within one (1) day) of receiving notice from Client or Upfluence of such desired take down; to the extent that the Client-Related Content may not be within Influencer’s control at such time, Influencer shall grant Upfluence and/or Client its full cooperation and assistance to take down or remove the same from any third party site, platform or other publication. 

(c) Influencer agrees to defend, indemnify and hold harmless Upfluence, Client and their respective 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 the Work Product and other Client-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.

(d) To the full extent permitted by law, Influencer hereby agrees, for herself, her heirs, executors and administrators, to release, waive, discharge, absolve, agree to hold harmless, and covenants not to sue, Upfluence and/or Client and their respective 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 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 Release Parties shall be free to use Influencer’s name, voice and likeness in any manner in connection with the Client-Related Content or otherwise in support of the purposes of these Terms.

(e) Influencer represents and warrants that Influencer is at least 18 years of age, will adhere to the Guidelines, and has the right to contract in Influencer’s own name.  To the extent that the Influencer may be an entity, Influencer represents and warrants that it is in good standing and all rights to enter into this Agreement and provide the services of any individual influencer providing services or any Intellectual Property Rights under this Agreement.  Furthermore, in such event, the acceptance of this Agreement by any individual constitutes such individual’s consent to the Terms, obligations, representations, grants and permissions provided hereunder.

(f) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, UPFLUENCE PROVIDES ITS SERVICES AND PLATFORM “AS IS”, AND WITHOUT ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTY THAT THE SERVICES OR PLATFORM WILL OPERATED UNINTERRUPTED, WHETHER SUCH WARRANTIES ARISING BY A COURSE OF DEALING, USAGE OR TRADE PRACTICE OR COURSE OF PERFORMANCE. 

5. Relationship of Parties

Influencer’s relationship with Upfluence is that of an independent contractor, and nothing in these Terms is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Influencer will not be entitled to any of the benefits that Upfluence may make available to its employees. Influencer is not authorized to make any representation, contract, or commitment on behalf of Upfluence or Client unless specifically requested or authorized in writing to do so by an authorized officer of Upfluence or Client, as applicable, or both. Influencer is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of the Services and receipt of fees under these Terms and will hold Upfluence and Client harmless from and against any tax liability associated with fees hereunder. No part of Influencer’s compensation will be subject to withholding by Upfluence for the payment of any social security, federal, state, or any other employee payroll taxes.

6. Payment

As set forth in each Campaign, You may be paid in cash, or via merchandise, or some combination of both.  In the event a Campaign in which you participate offers You compensation solely via product/merchandise, or you elect to be paid via product/merchandise in lieu of some or all of a cash component:  (a) your selection as communicated to Upfluence or Client via the Platform, email, telephone, sms or other communication medium, will be final and binding, and cannot be changed at a later time, and (b) you will be responsible to account for and pay any income, VAT, use or other taxes that may be required by your jurisdiction concerning your provision of services for the Campaign, and you will hold Upfluence and Client harmless of and from any such tax liability or claim or investigation arising therefrom With respect to the contact address or banking/payment information you provide, Neither Upfluence nor any Client shall be responsible for any inability to deliver a payment (whether by check or product) if the contact information provided or confirmed by you may be inaccurate).  Moreover, if merchandise or payment may be sent to an incorrect address/payment information due to an error or inaccuracy in the data You entered or confirmed, if such merchandise or payment can be recovered for any reason, you will be responsible for paying any restocking or return shipment fees; otherwise, if the payment (merchandise or otherwise) is retained by a third party, it will be deemed paid in full.

7. Confidential Information

Unless expressly authorized by Upfluence in writing, 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 (or otherwise independently created or received by Influencer without use or reference to the Confidential Information and not in violation of these Terms), disclosed by Upfluence or Client to Influencer related to these Terms or the current, future, and proposed business, products, and services of Upfluence or Client.   For avoidance of doubt, the amounts paid to You or offered to You in connection with any Campaign shall be Confidential Information, provided, however that You may of course disclose it to your accountants, or any government entity for bona fide business reasons, such as payment of taxes. Our policies concerning Personal Information can be found at the Privacy Policy for the Services, and also the Platform as they apply specifically to Registered Users.  Influencer should not provide Upfluence or Client with Influencer’s or any third party’s Confidential Information; if it does, Influencer agrees that unless such information is clearly marked or labelled “Confidential” at the time of disclosure, neither Upfluence nor Client will be required to consider or treat any information or documents as “Confidential Information.”   Each party receiving Confidential Information (a “recipient”) shall keep the same strictly confidential for a period of five (5) years after the Term of this Agreement, or until such information ceases to be confidential, absent any act or omission by such recipient. 

8. Term and Termination

(a) 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 in the Term Sheet, whichever is sooner.

(b) Upfluence may terminate these Terms and/or the Services under any Term Sheet: (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 upon termination.

(c) The rights and obligations contained in Sections 3 (“Intellectual Property Rights”), 4 (“Representations and Warranties, Indemnity”), 7 (“Confidential Information”), 8.c. (“Survival”), and 9 (“Miscellaneous”) will survive any termination or expiration of these Terms.

9. Miscellaneous

(a) 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 Upfluence shall be to recover monetary damages, if any, subject to the terms and conditions herein.

(b) PLEASE NOTE: To the full extent permitted by applicable law, Influencer waives any right it may have to commence or participate in any class action (or “collective action”), whether as a class or group representative or as a member, in connection with any claim arising from or relating to with these Terms & Conditions or any agreement, Campaign or Influencer Brief relating to the same, the registration of Influencer as a Registered Influencer, or the Platform (or the software and Services provided by Upfluence provided via this website and related applications).

(c) Influencer may not subcontract or otherwise delegate Influencer’s obligations under these Terms without Upfluence’s prior written consent; the foregoing prohibition on subcontracting or delegation of obligations shall not apply to those third party vendors Influencer may use  to provide the Content (such as videographers and photographers), provided, however, all such vendors shall sign copyright assignment and/or work made for hire agreements sufficient to ultimately vest full copyright ownership and, as applicable, authorship, in Client as set forth above, and Influencer shall be responsible for any rights that may not be fully assigned to Client due to any third party’s performance of services hereunder). 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 New York and Influencer agrees that unless otherwise indicated by Upfluence any action arising from or relating to these Terms shall be brought exclusively in a state or federal court located in New York, New York. 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.