Legal
Creator Terms and Conditions
These Creator Terms and Conditions (the “Terms and Conditions”) are entered into as of the Effective Date specified in the Scope of Work (as defined below) entered into by and between the Creator specified on the applicable Scope of Work (the “Creator”) and Mighty Joy LLC, Inc DBA MightyJoy, a California corporation with its principal place of business at 1801 Century Park West 6th Floor, Los Angeles CA 90067 (the “Company”). Creator and the Company may be referred to hereinafter individually as a “Party” or collectively as the “Parties.”BY ACCEPTING OR EXECUTING A SCOPE OF WORK, ORDER FORM OR ANY RELATED ADDENDUM THAT REFERENCES THESE TERMS AND CONDITIONS, YOU EXPRESSLY AGREE TO BE BOUND BY, AND STRICTLY ADHERE TO, ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN WHICH SHALL BE DEEMED TO BE INCORPORATED INTO ANY SUCH SCOPE OF WORK, ORDER, AGREEMENT OR ANY RELATED ADDENDUM. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.
1. Scope(s) of Work.The Company wishes to engage Creator to perform certain services set forth in one or more Scope(s) of Work (each, a “Scope of Work” or “SOW”) and Creator desires to perform the services set forth in such Scope(s) of Work (the “Services”), subject to the terms and conditions of the applicable Scope of Work and these Terms and Conditions (collectively, the “Agreement”). The Company and Creator shall enter into one or more written SOWs detailing:i. the specific Services to be provided by Creator, ii. the scope of each applicable media campaign (each a “Campaign”), including the applicable Advertiser and Social Media Channels, or other media channels, that will be subject to the Campaign, the duration of the Campaign, and the reach of the Campaign, iii. any Content (as defined below) to be created by Creator and provided to the Company in connection with the performance of the applicable Services, iv. a schedule and dates for performance by the Creator of the applicable Services, and v. such other terms as may be mutually agreed to by the Parties. Each Scope of Work shall only be deemed effective upon execution by an authorized representative of each Party, and, if required by Company, the applicable advertiser that is sponsoring the applicable Campaign (the “Advertiser”). In the event of a conflict between a Scope of Work and these Terms and Conditions, the Scope of Work shall control, but only with regard to the Services described in the applicable Scope of Work. As used herein, “Social Media Channels” include but are not limited to: Facebook, Instagram, Twitter, Tumblr, YouTube, Pinterest, TikTok, and website blogs.
2. Development and Approval of Content.
a. Initial Development and Approval. Creator shall submit all elements of any and all content, materials, videos, photographs and/or works of a similar nature produced, developed, or created by Creator, in whole or in part pursuant to this Agreement (collectively, the “Content”), including any captions relating to the Content or applicable post(s), to the Company for the Advertiser’s prior written approval prior to posting. Advertiser’s approval will not be unreasonably withheld may be granted or withheld in the Advertiser’s and the Company’s sole discretion. All Content must be submitted to the Company in accordance with the applicable schedule set forth in the Scope of Work. If, following each submission of Content to the Company for approval by the applicable Advertiser, the Company or the Advertiser requests or requires any edits to the applicable Content, the Creator shall make any and all edits as required or requested by the Company or the Advertiser. Following Creator’s completion of such edits, Creator shall resubmit the applicable Content to the Company for review and approval by the Advertiser. In the event that Creator submits such edits in a manner reasonably consistent with the applicable requirements provided to Creator, but the Advertiser still fails to approve such Content, the Company reserves the right to terminate this Agreement and/or the applicable SOW immediately upon notice to Creator, subject to the payment to Creator of a termination fee equal to twenty percent (20%) of the total compensation payable to Creator by the Company in connection with the Services and/or Campaigns to which the applicable Content relates. In addition, if Creator makes any post without having received notice from the Company of the applicable Advertiser’s approval, such unauthorized post shall be deemed a material breach of Creator’s obligations under this Agreement and the Company shall have the right to (i) terminate the Agreement and/or the applicable SOW immediately upon notice to Creator, (ii) require Creator to post a make-good that has been approved by the applicable Advertiser, without additional compensation to Creator, and/or (iii) reduce the compensation payable to Creator by the amount that was otherwise payable in connection with the applicable unauthorized post.
b. Ongoing Revisions. In addition, following approval of any Content by the Advertiser, and posting of such Content by Creator, the Advertiser shall have the right to (i) require Creator to revise any Content, within reason, prior to the Content being published to the extent that the information included in a post with regard to the Advertiser is no longer accurate, and (ii) require Creator to remove any indicia of the Advertiser from the Content. In the event of any such requirement by the Advertiser, Creator shall revise the applicable Content upon request from the Company, which revision shall be subject to the approval process set forth in Section 2(a).
c. Creator Delays. Time is of the essence with regard to Creator’s performance under this Agreement. In the event that Creator fails to provide the Content for review and approval in accordance with the timing requirements set forth herein or in the applicable SOW or otherwise mutually agreed to by the parties in connection with an applicable SOW, or otherwise fails to perform the Services in accordance with the timelines set forth in the applicable SOW, in addition to any other rights and remedies that the Company or the Advertiser may have hereunder, then such failure, if not cured within 5 days of receiving written notice would constitute an uncured material breach, and the compensation owed to Creator in connection with the applicable Services and Campaign shall be reduced for each day or instance of delay, as applicable under the circumstances, by ten percent (10%) of the total compensation owed to Creator in connection with the applicable Services and/or Campaign.
3. Objectionable Content. Creator acknowledges and agrees that they will not (a) make any unsubstantiated claims about any third party or its products or services in any Content related to any Campaign; (b) develop or post any Content that is in any way illegal, obscene or harmful to the reputation, goodwill or interest of the Company or the Advertiser or their respective products, services, associates, employees or affiliates or that is otherwise reasonably objectionable to the Company or the Advertiser; (c) develop or post any politically or socially contentious Content that results in harm to the reputation of the Advertiser or could reasonably result in harm to the reputation of the Advertiser; or (d) develop or post any Content mentioning the Advertiser that affiliates the Advertiser, either directly or in-directly, with any social, political, or other cause, without the explicit pre-approval of the Company or the Advertiser.
4. Exclusivity. Creator acknowledges and agrees not to include as part of any Content, or otherwise post to any Social Media Channel, or any other media channel set forth in an applicable SOW, in connection or combination with the Content, any reference to any other brand or trademark other than those authorized by the Company on behalf of the Advertiser and shall not post to any Social Media Channel, or any other media channel set forth in an applicable SOW, any information, promotion, endorsement or content related to the brands specified in the applicable SOW for the period of time set forth in the applicable SOW. In addition, Creator agrees to only tag Advertiser’s pages on Social Media Channels and/or Advertiser’s social media handles in Creator’s post(s) that include the Content.
5. Creator Representations and Warranties. Creator represents, warrants and covenants that (a) Creator shall provide all Services under each applicable SOW with commercially reasonable skill and care in a competent and professional manner and at a level of quality not less than that prevailing in the industry, (b) Creator has the proper skills, training and background to enable Creator to perform such Services under the SOW in a competent and professional manner and to exercise the diligence ordinarily exercised by members of Creator’s industry, (c) Creator shall comply with all applicable laws and regulations in connection with the performance of the Services and each applicable Campaign, including, without limitation, laws and regulations concerning advertising and promotional campaigns, including, without limitation, the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, (d) Creator shall comply with all terms of use, privacy policies, and other terms, rules or policies that are applicable to any Social Media Channel, (e) subject to the license grants pursuant to Section 8 and Section 9, Creator has all consents, permissions or licenses necessary for Creator to create the Content as contemplated hereunder; (f) the Content does not violate any copyright, trademark, or other intellectual property or proprietary right of any other party, (g) if requested by the Company, Creator shall provide proper evidence of his or her age in the form of a valid driver’s license, passport or other acceptable government-issued identification as determined by the Company in its sole discretion, and (h) Creator shall not engage in any fraudulent activity or other activity that would falsely or artificially increase or affect the number of Creator’s followers, “likes” or other indicators of Creator’s audience or reach on any applicable Social Media Channel, including, without limitation, with regard to a particular Campaign.
6. Compensation. Subject to completion of the Services and applicable Campaign(s) set forth in the applicable SOW, and delivery to the Company of the photographic or other written confirmation reasonably required by the Company to evidence that the Services or Campaign(s) have been completed as required pursuant to the applicable SOW, and provided that Creator is not in breach of the terms and conditions set forth herein and that Company has been paid by the Advertiser for Creator’s Services, the Company shall pay Creator the compensation and on the terms set forth in the applicable SOW. If the SOW is silent as to payment terms, the Company shall pay Creator on the first Friday after thirty (360) days after the completion of all of Creator’s obligations under the applicable SOW (including any reporting requirements) contingent upon Company having been paid by Advertiser. The Company shall submit payments to Creator using the payment account information provided by Creator in the payment portal nominated by the Company and Creator shall be solely responsible for maintaining and/or updating their payment account information (including but not limited to financial institution and account number information) (“Creator Payment Information”) on that portal. Any failure by Creator to provide accurate Creator Payment Information, or to timely submit an invoice, or update any changes to Creator Payment Information may result in delays in payment. In addition, if the Company makes a payment to an incorrect account due to Creator’s failure to provide accurate Creator Payment Information, and the Company is unable to recover the amount of such incorrect payment, the Company shall be deemed to have made such payment in full to Creator, and the Company shall have no further obligation to Creator with regard to such payment. Further, if Creator fails to provide photographic or other written evidence of Creator’s successful completion of the Services and/or Campaign(s), the Company shall have the right to (a) require Creator to post a makegood that has been approved the applicable Advertiser, and/or (b) withhold the compensation otherwise payable to Creator in connection with the applicable Services and/or Campaign(s). Further, any failure by Creator to claim or request payment on or before 360180 days from the date Creator fulfills all of their obligations as set forth in the applicable SOW, whether as a result of Creator’s failure to maintain and/or update their Creator Payment Information or any other reason, shall result in Creator forfeiting any and all right, title and interest to any payment due under the applicable SOW with regard to the applicable Campaign.
7. Term: Termination.
a. Term. This Agreement shall be effective as of the Effective Date set forth in the first SOW entered into between the Parties and shall continue in full force and effect through the end date of the last Campaign set forth in any outstanding SOW entered into hereunder, unless this Agreement is otherwise terminated as set forth herein (the “Term”). Notwithstanding the foregoing, the Term of this Agreement shall be concurrent with the insertion order or other written agreement between Company and Advertiser (the “Advertiser Agreement”) to which each applicable Campaign pertains.
b. Termination. In addition to any termination rights otherwise set forth herein, the Company shall have the right to terminate this Agreement, including any and all outstanding SOW’s, (i) immediately upon written notice to Creator if the applicable Advertiser Agreement is terminated for any reason, (ii) at any time upon five (5) business days prior notice to Creator, and (iii) upon notice to Creator if Creator materially breaches any of its obligations hereunder and fails to cure any such breach within twenty-four (24) hours. A material breach by Creator shall include any breach of Section 3 or Section 5. In the event that the Company reasonably suspects that Creator is in breach of Subsection 5(h), the Company shall notify Creator, and, unless Creator is able to provide reasonable evidence to the Company that Creator has not fraudulently or falsely increased or affected the applicable number(s) within twenty-four (24) hours of receipt of such notice, the Company shall have the right to terminate this Agreement and/or the applicable SOW, immediately upon notice to Creator, without any compensation or liability to Creator, and subject to Creator’s indemnification obligations set forth in Section 11(a)(3). (iv) immediately upon written notice to Creator if Creator, its representatives and/or agents, act in any way that causes it or them to undergo material adverse publicity or scandal, or fall into disrepute, including, without limitation if Creator personally commits any act that results in a conviction of a felony, or any misdemeanor of moral turpitude (by way of example only, a misdemeanor involving a controlled substance, fraud, embezzlement, assault, and battery) or the neglect of others or self-harm. Creator may terminate this Agreement and the SOW if Advertiser breaches this Agreement or SOW and fails to cure said breach within the scope of the SOW, in which a pro rata portion of the fee will be due for all work completed prior to termination. If Advertiser terminates this Agreement or the SOW for any reason aside from Creator’s material breach, a pro rata portion of the fee will be due for all work completed prior to termination.
c. Additional Remedies of the Company. In the event Creator materially breaches this Agreement, in addition to the termination rights hereunder, the Company shall be entitled to recover all costs (including attorney’s fees) in the enforcement of the Company’s rights hereunder and, if Creator shall have been paid in advance pursuant to the terms of this Agreement, the Company shall be entitled to a refund of any monies advanced to Creator under this Agreement.
d. Termination Fees. In the event that the Company terminates the Agreement or an applicable SOW pursuant to Section 7(b)(ii), the Company shall pay Creator for any direct expenses incurred in connection with the SOW, and prorate the deliverables accordingly.
8. License to Use Advertiser Trademarks and Content. The Company, on behalf of the Advertiser, hereby grants to Creator, a non-exclusive, non-transferable, revocable, limited license to use and display Advertiser’s name, logo and trademarks, and any other content provided to Creator by the Company or the applicable Advertiser in connection with an SOW, in the form and manner specifically described in the applicable SOW, or otherwise approved for use as part of the Content in accordance with Section 2 hereof (collectively, the “Advertiser Works”), solely as necessary to perform its obligations hereunder and only during the Term hereof, unless otherwise expressly authorized herein. For the avoidance of doubt, Creator may only use the Advertiser Works in the form and format provided or approved by the Company or Advertiser, as applicable. Creator acknowledges the Advertiser’s exclusive right, title and interest in and to the Advertiser Works and the goodwill pertaining thereto, that any use of the Advertiser Works by Creator does not create any ownership, license or other right or interest in or to the Advertiser Works by Creator except as specifically set forth in this Agreement, and that all use of the Advertiser Works by Creator shall inure to the benefit of the Advertiser. Creator agrees that it shall not, challenge, or assist in any challenge to, the validity or exclusivity of the Advertiser’s ownership of the applicable Advertiser Works.
9. Usage Rights. The Parties shall mutually agree upon the ownership rights to be set forth in the applicable SOW. In the event that the SOW fails to identify the Usage Rights with regard to the Content, the Parties hereby agree to Standard Usage Rights, as defined below.
Standard Usage Rights are defined as follows: The Creator shall own, exclusively and in perpetuity, any and all intellectual property rights, including trademarks, trade secrets, trade dress, design, mask work, copyrights, and patent rights, and other rights of whatever kind and character, throughout the universe and in any and all languages, in and to the Content, except with regard to any Advertiser Works, IP, and/or Trademarks incorporated therein. Advertiser and/or Company will have the right to reshare and/or repost the Content organically on their social channels, including but not limited to their Instagram, Facebook, TikTok, YouTube, blog or other digital social channel. Advertiser and/or Company may not use the Content as a paid ad or promote via a paid ad network without the explicit pre-approval in writing of Creator.
a. Case Study Content Usage Rights by Company. The Company has the right to feature all creator content as part of its own marketing materials, unless otherwise stated in the SOW. This includes, but is not limited to re-posting branded content on Company's own social accounts, featuring content in case studies, and/or in other marketing materials.
10. Pre-Existing Advertiser Intellectual Property & Work Product
a. Subject in each case to the Advertiser’s prior review and written approval in each instance in accordance with Section 2, during the Term of this Agreement, on behalf of the Advertiser, the Company hereby grants to Creator a limited, revocable, non-exclusive, royalty-free, license to use the Work Product only as required for Creator to perform the Services and implement the Campaign to which such Work Product relates. Upon any expiration or termination of this Agreement, the rights and licenses granted to Creator hereunder will automatically terminate and Creator shall immediately cease any and all use of the Work Product; provided, that the Advertiser hereby grants to Creator a worldwide, non-exclusive, perpetual, irrevocable, royalty-free right and license to continue to use and display the applicable Work Product in the manner originally featured or used by Creator during the permitted posting period specified in the applicable SOW, as well as for all internal uses of Creator.
b. To the extent that any copyrighted materials of Creator that were developed or created by Creator prior to the Effective Date of the applicable SOW (collectively “Creator Intellectual Property”), are incorporated into the Work Product, Creator hereby grants to the Company, for the Company itself and to the Company for the Advertiser’s benefit, and each of the Company’s and the Advertiser’s respective agents, employees, licensees, vendors, and representatives a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, fully sub-licensable and transferable unrestricted right and license to use, reproduce, distribute, transmit, publicize, display, modify, adapt, translate, create derivative works from, and exploit, in whole or in part, edited or otherwise modified, alone or with other materials, in whatever form or medium, the Creator Intellectual Property incorporated into the Work Product.
11. Third-Party Licenses. Creator shall be solely responsible for obtaining, in a form acceptable to and approved in writing by the Company, any required licenses, permissions or approvals from third parties, contributors, and/or other affected rights holders with regard to third party content incorporated into the Content by Creator, as necessary for the Company and/or the Advertiser to make full and unrestricted use of the Content as set forth herein, including by way of example and without limitation, requiring all individuals appearing in the Content, to sign an authorization, consent and release form and granting to the Company and the Advertiser all license and publicity rights necessary for the Company or the Advertiser to make use of the name, likeness, image, biography, statements, avatar, and/or social media name and handle and other indicia of such individual contained in the Content. Creator will provide the Company with copies of such consents upon its written request.
12. Indemnification; Limitation of Liability.
a. Indemnification. Creator agrees to indemnify, defend and hold harmless the Company and the Advertiser, and their respective parents, subsidiaries and affiliates, and each of their officers, directors, agents and employees, from and against any and all claims, demands, liabilities, fees, costs or expenses (including reasonable attorneys’ fees) arising out of or related to, in whole or in part, (i) the Content (excluding any Advertiser Works incorporated therein if used as permitted hereunder) and/or any act or omission of Creator or its employees, agents, trustees, partners, officers or directors, (ii) the content or operation of Creator’s digital properties or any Creator webpages or digital properties on Social Media Channels (e.g. YouTube channels or social media posts) on which Content appears, and (iii) Creator’s performance of, or failure to perform, its obligations under this Agreement; including, without limitation, any claims, actions or proceedings for libel, slander, invasion of privacy, infringement of trademark, copyright, license, or other intellectual property rights, unfair or improper trade practices or other wrongful business conduct, including, without limitation, claims relating to Creator’s fraudulent activity or other activity that would falsely or artificially increase or affect the number of Creator’s followers, “likes” or other indicators of Creator’s audience or reach, or claims for bodily injury, death or property damage, or loss or employment claims.
b. Limitation of Liability. The Company shall not be liable for Creator’s misconduct. Content created by Creator(s) in connection with any Campaign is the sole responsibility of Creator, and the accuracy of such Content is not endorsed or guaranteed by the Company. The Company and its affiliates, successors, assigns, employees, agents, directors, and officers assume no responsibility or liability which may arise from the Content, including, but not limited to, claims for defamation, libel, slander, infringement, invasion of privacy and publicity rights, obscenity, pornography, profanity, fraud, or misrepresentation.IN ADDITION, Creator ACKNOWLEDGES AND AGREES THAT THE COMPANY SHALL NOT BE LIABLE TO Creator, ITS PARENTS, SUBSIDIARIES, OR AFFILIATES, AND/OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, UNDER THIS AGREEMENT OR IN ANY WAY RELATED TO THIS AGREEMENT, FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST WAGES AND SAVINGS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF THE COMPANY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL PAYMENT BY THE COMPANY TO THE CREATOR FOR THE APPLICABLE CAMPAIGN OR SERVICES TO WHICH SUCH CLAIM RELATES.
c. Acknowledgement of Advertiser LiabilitySequential Liability. In the event of any delay or failure by Advertiser to make payment for the services provided by Creator, Advertiser shall assume full responsibility for any and all costs, losses, or expenses incurred by Creator as a result of such delay or failure.
13. Confidentiality. Creator hereby acknowledges that the privacy of Company and Advertiser, is highly valued and that all efforts are made to maintain confidentiality with respect to Confidential Information (as defined below). Creator shall hold in confidence using commercially reasonable measures, and not directly or indirectly divulge to any third party, any Confidential Information. For purposes of this Agreement, “Confidential Information” means any financial information, the identity of the Advertiser and/or any Advertiser lists or Advertiser contact information, or any brand strategy, marketing plans, technical data, intellectual property, content or know how relating to ideas, discoveries, inventions, concepts, software, equipment, designs, drawings, specifications, techniques, processes, models, data, documentation, diagrams, research, development, business plans or opportunities, business strategies, future projects or products, projects or products under consideration, procedures, and information related to finances, Creators, costs, prices, contractors and employees that are provided to Creator by the Company in connection with the applicable Campaign or Services or otherwise with regard to the relationship contemplated hereunder. All of the foregoing information is proprietary, and disclosure of such information to third parties or unauthorized use of such information would cause substantial and irreparable harm and injury to the Company’s and/or the Advertiser’s ongoing business for which there would be no adequate remedy at law. Accordingly, in the event of any breach or attempted or threatened breach of any of the terms of this Section, the Company shall be entitled to receive injunctive and other equitable relief without need of posting a bond, and without limiting the applicability of any other remedies.
14. Non-circumvention. Creator agrees that during the Term of this Agreement and for ninety (90) days from the expiration or termination of this Agreement it will not, either directly or indirectly, contact the Advertiser for the purpose of entering into, or attempting to enter into, any negotiations or contractual obligations with the Advertiser which could reasonably be construed to circumvent the efforts of Company under this Agreement, without the Company’s prior written consent.
15. Miscellaneous
a. Severability. If any provision of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision shall be modified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be deemed excised from this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law, as if such provision had been originally incorporated herein as so modified or restricted or as if such provision had not been originally incorporated herein, as the case may be.
b. Independent Contractor. In providing services to the Company, Creator will act as an independent contractor, and it is expressly understood and agreed that this Agreement is not intended to create, and does not create, any partnership, agency, joint venture or similar relationship.
c. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements between the parties with respect to such matters. In the event a term here conflicts with the SOW, then the conflicting term in the SOW shall supersede.
d. Modification or Assignment. This Agreement may be modified or amended only with the written consent of both Parties. Creator may not assign, transfer, or delegate any duty or obligation to perform such Services under the SOW or this Agreement. Any such attempted assignment shall be null and void.e. Waiver. Neither the failure nor any delay on the part of either party to exercise any right, remedy, power, or privilege under this Agreement shall operate as a waiver thereof.f. Notice. All notices required by this Agreement must be in writing and must be delivered by certified mail, return receipt requested.
g. Governing Law; Jurisdiction; Venue. The laws of the State of California applicable to contracts made or to be wholly performed there (without giving effect to choice of law or conflict of law principles) shall govern the validity, construction, performance, and effect of this Agreement. The Parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in the City and County of Los Angeles, California for any dispute arising out of this Agreement.