Standard Terms and Conditions
- Preamble. Endorser and Endorsed Company have entered into a “Promotion Agreement” (“Agreement”) which incorporates these Standard Terms and Conditions by reference. Endorser and Endorsed Company intend for the Agreement and the Standard Terms and Conditions, together, to be considered one document, to constitute one agreement, and to be read in conjunction with one another, in harmony, as one consistent whole. Any reference to the Agreement shall be read to include these Standard Terms and Conditions, and vice versa.
- Term. The Agreement shall be effective as of the date of execution by both parties and shall continue indefinitely until terminated (the “Term”).
a. The Royalty owed Endorser shall be calculated on a quarterly calendar basis (“Royalty Period”) and shall be payable no later than thirty (30) days after the close of the preceding full calendar quarter, i.e., commencing on the first (1st) day of January, April, July, and October, except that the first and last calendar quarters may be “short” depending on the effective date of the Agreement.
b. For each Royalty Period, Endorsed Company shall provide Endorser with a written royalty statement. Such royalty statement shall recite the number of Products sold using Endorser’s Code, and the amount billed customers less shipping costs, discounts, allowances, chargebacks, and returns for each Product. Such statements shall be furnished to Endorser regardless of whether any Products were sold during the Royalty Period or whether any actual Royalty was owed.
c. “Net Sales” shall mean Endorsed Company’s gross sales (the gross amount actually paid by customers) of Product, less shipping costs, discounts, allowances, chargebacks, and bona fide returns.
d. All payments due Endorser shall be made in U.S. currency unless otherwise specified by Endorser.
- Endorser Expenses. Endorser shall be responsible for all expenses incurred while performing services under the Agreement. This includes license fees, memberships and dues; automobile and other travel expenses; meals and entertainment; insurance premiums; telephone; and all salary, expenses, and other compensation paid to employees or contract personnel that Endorser hires to complete the work under the Agreement. Endorser will furnish all its own clothing, materials, equipment, and supplies used to provide the services required by the Agreement.
- Termination Without Cause. Either party shall have the right to terminate the Agreement at any time, without cause, upon sixty (60) days’ written notice to the other party. Such termination shall become effective at the conclusion of such sixty (60) day period.
- Termination For Cause. Endorsed Company shall have the right to terminate the Agreement immediately upon written notice to Endorser (or Endorser’s legal representative) in the event that Endorsed Company, in its sole and absolute discretion, determines that Endorser has done any of the following:
a. Engaged in illegal, unethical, immoral, or criminal conduct, or was arrested;
b. Misrepresented or concealed anything in his or her background that could be detrimental to the value of the endorsement being made;
c. Disparaged the Products or Endorsed Company in any way;
d. Breached any provision of the Agreement, or any representation or warranty contained therein;
e. Endorsed or publicly promoted a competing product;
f. Engaged in conduct contrary to the best interests of Endorsed Company;
g. Engaged in conduct that offends the sensitivities of a significant portion of the population;
h. Engaged in conduct that could bring Endorser into public disrepute;
i. Retired from the industry, became insolvent, bankrupt, or
j. Gave Endorsed Company other good cause for termination.
- Post-Termination Rights. In the event of termination of the Agreement by Endorsed Company pursuant to Paragraph 6, Termination for Cause, Endorsed Company shall be relieved of any further payment obligations to Endorser. In the event of termination of the Agreement for any other reason, Endorsed Company will continue to pay Endorser the Royalty for any online purchases made using Endorser’s Code which accrued prior to termination. Endorsed Company shall be relieved of any payment obligations to Endorser for any online purchases made using Endorser’s Code which accrued after termination. Endorser’s Code will remain active until termination of the Term.
- Good Faith. During the Term, the parties agree to work together in good faith with respect to the content, design, copy, timing, strategy, and development of the Promotion. Endorser shall provide services with all due care, skill, and ability, and use all reasonable endeavors to promote the Products in the interests of both parties; and to devote such time and attention as is required to effectively carry out the Promotion. Endorser will reasonably review and confirm the accuracy and suitability of the content developed in relation to the Product and the Promotion; provide feedback and guidance to Endorsed Company; assist Endorsed Company with obtaining feedback; use best efforts to endorse the Product and actively promote and market the Product through various forms of media; and perform such additional services as may be reasonably required for the success of the Promotion.
- Non-Exclusivity. Nothing in the Agreement shall prevent Endorser from being engaged, concerned or having any financial interest in any capacity in any other business, trade, profession or occupation during the Term, provided that such activity does not cause a breach of any of the Endorser’s obligations, representations, or warranties under the Agreement; and the Endorser shall not engage in any such activity if it relates to a business which is competitive with the Product or the business of the Endorsed Company. Nothing in the Agreement shall prevent Endorsed Company from engaging other endorsers, independent contractors, or similarly situated persons etc. to perform the same or similar services to Endorser.
- Notices. Any notice required to be given pursuant to the Agreement shall be in writing and mailed to the address appearing on the first page of the Agreement (or another address provided for in writing) by certified or registered mail, or delivered by a national overnight express service.
- Endorsed Products for Endorser’s Promotional Use. During the Term of the Agreement, Endorsed Company shall, in its discretion, supply Endorser, at no charge, such amounts of Product as Endorsed Company deems appropriate for Endorser’s personal use and for promotional use. Endorser shall, at Endorsed Company’s request, return the Products at the termination of the Term.
- Use of Likeness and Trademarks.
a. During the Term and after termination, Endorser grants Endorsed Company the unexclusive right and license to use and reproduce, and to authorize others to do so, any content, copy, photographs of Endorser, video recordings of Endorser, reproductions of Endorser’s likeness, recordings of Endorser’s voice, internet posts, or other content produced or created while promoting the Products, performing the Promotion, or rendering the services contemplated herein, along with Endorser’s name, autograph and biography, in each case for and in connection with the promotion and commercial exploitation of the Products in such manner and media, and for such purposes as Endorsed Company may reasonably require.
b. Subject to the terms of the Agreement, each party hereby grants to the other party during the Term a limited, non-exclusive, non-transferable license to use and display the trademarks and logos authorized in writing by the other, in each case solely for the purposes of performing the obligations hereunder. All use of such use must be approved in advance.
- Reservation of Rights.
a. Subject to the terms of the Agreement, Endorser shall retain all rights in and to his or her name, his or her right of publicity and endorsement; and during the Term, Endorser shall not be prevented from using, permitting, or licensing others to use his or her name or endorsement in connection with the advertisement, promotion, and sale of any product or service other than a product or service that is substantially similar to the Products. Endorsed Company and Endorser agree that they shall take all necessary steps during the Term to protect the endorsement in connection with the advertisement, promotion, and sale of the Products.
b. It is understood and agreed that Endorsed Company shall retain all right, title, and interest in its own likeness, name, tradename, patents, copyrights, trademarks, and other intellectual property. All intellectual property bearing Endorsed Company’s name, tradenames, services, data and other intellectual property rights related thereto, together with all improvements, amendments and modifications thereto (whether created by Endorser or Endorsed Company) will be solely and exclusively owned by Endorsed Company and Endorser hereby makes all assignments necessary to accomplish the foregoing.
c. Endorser shall only use Endorsed Company’s intellectual property in accordance with Endorsed Company’s guidelines as may be provided by Endorsed Company from time to time, and shall not alter or modify the Endorsed Company’s intellectual property or use the Endorsed Company’s intellectual property in any manner that might disparage or injure Endorsed Company’s reputation. Any goodwill developed or acquired in the Promotion of the Products, the development or use of the Products, or the provision of services under the Agreement shall inure solely to the benefit of Endorsed Company. All content, and intellectual property rights developed or produced in connection with or as a result of the Promotion, the development or use of the Products, or the provision of services under the Agreement will be solely and exclusively owned by Endorsed Company. Endorser hereby makes all assignments necessary to accomplish the foregoing.
d. The parties agree to execute any documents reasonably requested by the other party to effect any of the above provisions.
- Representations and Warranties. Endorser agrees, represents, and warrants that:
a. Endorser has the full right, power, and authority to use, and to license for use, all intellectual property associated with Endorser’s name, Endorser’s brand, and Endorser’s Accounts.
b. Endorser has not misrepresented or concealed anything with respect to his or her background that may have a prejudicial effect on the value of the endorsement, that he or she is in good health and does not plan to retire during the Term of the Agreement, and that he or she has not engaged nor will he or she engage during the Term of the Agreement in any activity (criminal or otherwise) that could potentially have a negative impact on the Product.
c. Endorser has full authority to enter into and perform the Agreement and Endorser is not bound by any previous agreement which conflicts with or adversely affects the Agreement;
d. The Promotion shall be original and will not infringe the intellectual property rights of any third party;
e. The Promotion will not contain any obscene or defamatory material and will not expose the Endorsed Company to criminal or civil proceedings;
f. Endorsed Company shall be entitled to use and permit the use of Endorser’s name, biography, photograph and fair likeness for the purposes of promoting and advertising the Products;
g. Endorser will not to participate in any activities which would prejudice the goodwill and reputation of the Endorsed Company and/or the Products;
h. Endorser will not take or engage in any action or conduct which would impugn his or her character, or reputation, or that of their work;
i. Endorser shall be responsible for their own tax due under the agreement;
j. The final editorial decision in respect of all advertising publicity, promotional and any other material created under the Agreement in respect of the Products and the Promotion shall be at the sole discretion of the Endorsed Company subject to the undertakings given in the Agreement;
k. Endorser will undertake not to develop, endorse or promote any other Product which is substantially similar in purpose to the Product during the Term and for 12 months following the Term; and
l. Endorser undertakes to comply with the advice of Endorsed Company in arranging the development and promotion of the Products and the Promotion.
- Indemnity. Endorser agrees to defend, indemnify, and hold Endorsed Company and its officers, directors, agents, partners, joint venturers, independent contractors, and employees, harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred through claims of third parties against Endorsed Company based on a breach by Endorser of any covenant, representation, and/or warranty made in the Agreement or with respect to any third-party claims for infringement involving the use of the Intellectual Property by Endorsed Company.
- Confidential Information. The tern “Confidential Information” means all financial, commercial, technical, proprietary, personal and other information or data, trade secrets and know-how of either party, including the non-public terms of the Agreement. Neither party shall (except in the proper course of their duties), either during the Term of the Agreement or at any time after its termination, use or disclose to any third party (and shall use their best endeavors to prevent the publication or disclosure of) any Confidential Information. This restriction does not apply to: any use or disclosure authorized by the party to whom the disclosure relates; any use or disclosure required by law, by any government or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of this disclosure as possible and time to file appropriate objections; any information which is already in, or comes into, the public domain otherwise than through the disclosing party’s unauthorized disclosure; or any use by or disclosure made to legal advisors or any bona fide prospective purchaser or subscriber who is intending to acquire shares in the Endorsed Company by way of purchase or subscription.
- Relationship of the Parties. Endorser’s performance of services for Endorsed Company hereunder is in his or her capacity as an independent contractor. Accordingly, nothing contained in the Agreement shall be construed as establishing an employer/employee, partnership, or joint venture relationship between Endorser and Endorsed Company.
- Taxes, Fringe Benefits, Worker’s Compensation, and Unemployment. Endorser is responsible for payment of its own taxes. Endorsed Company will not withhold FICA (Social Security and Medicare taxes) from any payments made to Endorser or make FICA payments on Endorser’s behalf, or make state or federal unemployment compensation contributions on Endorser’s behalf, or withhold state or federal income tax from any payments made to Endorser. Endorser shall pay all taxes incurred while performing services under the Agreement, including all applicable income taxes and, if Endorser is not a corporation, self-employment (Social Security) taxes. On demand, Endorser shall provide endorsed Company with proof that such payments have been made. Endorser understands that neither Endorser nor Endorser’s employees or contract personnel are eligible to participate in any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of Endorsed Company. Endorsed Company shall not obtain worker’s compensation insurance on behalf of Endorser or Endorser’s employees. If Endorser hires employees to perform any work under this Agreement, Endorser will cover them with worker’s compensation insurance and provide Endorsed Company with a certificate of worker’s compensation insurance before the employees begin work. Endorsed Company shall make no state or federal unemployment compensation payments on behalf of Endorser or Endorser’s employees or contract personnel. Endorser will not be entitled to these benefits in connection with work performed under the Agreement. If Endorser files a petition for and receives unemployment compensation, the total amount of unemployment compensation awarded to and received by Endorser shall be deducted from and be an offset against the amount of compensation due and payable to Endorser by Endorsed Company under this Agreement.
- Force Majeure. Neither party will be liable for, or will be considered to be in breach of or default under the Agreement on account of any delay or failure to perform as required by the Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
- Arbitration. Any controversy or claim arising out of or relating to Agreement or its breach shall, in the discretion of Endorsed Company, be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator (or arbitrators) may be entered in any court having jurisdiction over it.
- Jurisdiction and Venue. The Agreement shall be governed in accordance with the laws of the State of Michigan. All disputes under the Agreement shall be resolved by litigation in the courts of the State of Michigan including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
- Agreement Binding on Successors. The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
- Assignability. Endorser may not assign the Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Endorsed Company.
- Waiver. No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of the Agreement.
- Amendment. No amendment, supplement, modification, or waiver of the Agreement will be binding unless executed in writing by the party to be bound by it.
- Counterparts. The Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be an original, but the counterparts together shall constitute one and the same instrument.
- Severability. If any provision in the Agreement is held to be invalid or unenforceable, it will be ineffective only to the extent of the invalidity, without affecting or impairing the validity and enforceability of the remainder of the provision or the remaining provisions of the Agreement. If the Agreement or any provision of the Agreement is held by a court to be invalid or unenforceable because it is too broad in any respect, the Agreement or provision will be narrowed by the court to the extent required to be enforceable.
- Survivability. Paragraphs 1, 7, 10, 12(a), 13 – 30 inclusive shall survive any termination or expiration of the Agreement.
- Conflicting Terms and Headings. If there is a conflict between the terms of the Agreement and those of the Standard Terms and Conditions, the Standard Terms and Conditions shall control. Titles and headings to articles, sections, or paragraphs in the Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of the Agreement.
- Integration. The Agreement together with the Standard Terms and Conditions constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their agreement.