Influencer Terms & Conditions
These Influencer Terms and Conditions (the “Terms”) govern Services to be provided by Influencers who participate in Shark Zen’s marketing program. Capitalized terms not specifically defined herein shall have the meaning assigned to them in an Influencer Agreement (the “Agreement”), which includes any further instructions and communications by Shark Zen in relation to the marketing program.
1. Intellectual Property Rights.
a. Intellectual Property Rights. No license or other right of any kind is granted by Shark Zen to Influencer, except as expressly provided in these Terms. Influencer shall not use Shark Zen’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 Shark Zen the irrevocable, sub-licenseable, 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, “Shark Zen-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 Shark Zen 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 Shark Zen may contact (including by means of messages on public social media platforms) Influencer about any Shark Zen-Related Content.
Influencer acknowledges that participation in the Services means Shark Zen can use Influencer’s Shark Zen-Related Content and include Influencer’s name/likeness/social media handle or channel/blog name and any other Influencer attributes in any manner that Shark Zen 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) the Shark Zen-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 Shark Zen into public disrepute, contempt, scandal, or ridicule, or which insults or offends the general community to which Shark Zen’s advertising materials are directed, or which might tend to harm Shark Zen or any of Shark Zen’s products or services including, without limitation, disparaging Shark Zen or its products or services; (iv) Influencer’s statements, posts and feedback are true and accurately reflect Influencer’s honest opinion and experience with Shark Zen, 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 Shark Zen, (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 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 Shark Zen 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 the Shark Zen-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, Shark Zen 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 Shark Zen-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 Shark Zen-Related Content or otherwise in support of the purposes of these Terms. Shark Zen shall not be liable for any indirect, consequential, exemplary damages (including but not limited to lost profits) and the combined, aggregate liability of Shark Zen hereunder shall not exceed the fees payable to Influencer under these Terms.
3. Relationship of Parties. Influencer’s relationship with Shark Zen is that of an independent contractor and Influencer agrees that as an independent contractor, it will not be considered an employee of Shark Zen for any purpose, including tax obligations, and will not be eligible to participate in any of Shark Zen’s medical, benefit or health plans.
4. Confidential Information. Unless authorized by Shark Zen, 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 Shark Zen to Influencer. Confidential Information shall include, but is not limited to marketing processes and plans, operational processes and plans, internal marketing information, trade secrets, customer information and customer orders.
5. Non-Competition. The Influencer specifically agrees that while enrolled or involved in Shark Zen's marketing program and for a period of 1 year after the Influencer is no longer enrolled or involved in Shark Zen's marketing program, the Influencer will not engage, directly or indirectly, either as proprietor, stockholder, partner, officer, employee, contractor or otherwise, in the same or similar activities as were performed for Shark Zen in any business which distributes or sells products or provides services similar to those distributed, sold, or provided by Shark Zen at any time during the time period preceding the Influencer's termination from the program.
6. 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 the Shark Zen.
7. 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. Shark Zen 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. Influencer must return any materials supplied under these Terms, and immediately remove any Shark Zen-Related Content from dissemination or from Influencer channels upon termination if requested or if in breach of this agreement. For clarity, a material breach of the Terms that is not capable of cure can include but is not limited to misrepresentation, disparagement, or slander of Shark Zen; the communication or posting of lewd or offensive material about or in relation to Shark Zen; Influencer’s failure to make disclosures in the manner set forth in the FTC Guides and/or as instructed by Shark Zen.
c. Survival. The rights and obligations contained in Sections 1 (“Intellectual Property Rights”), 2 (“Representations and Warranties”), 4 (“Confidential Information”), 5 ("Non-Competition") 7(c) (“Survival”), and 8 (“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 Shark Zen 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 Shark Zen’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 Florida and Influencer agrees that unless otherwise indicated by Shark Zen any action arising from or relating to these Terms shall be brought exclusively in a state or federal court located in West Palm Beach, Florida. 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 be changed at any time in the future by Shark Zen and by mutual agreement of authorized representatives of the parties in writing.