Modified July 27, 2016
DEAL TERMS & CONDITIONS
Opendorse Inc., a Delaware corporation (“we”, “our”, or “us”) provides you access to our website (the “Site”) and online platform thereon (the “Platform”), which allows Influencers to receive endorsement offers and enables Influencers to execute the same using certain social media channels, subject to your compliance with these Deal Terms & Conditions (the “Deal Terms” or this “Agreement”). These Deal Terms are applicable to individual registered users of this Site, and govern your individual rights to use of the Platform. You or an affiliated employer, agent, or other Affiliate may have entered into a separate agreement with us whereby we agreed to provide certain services to you or your Affiliate, and to the extent of any conflict between the terms provided below and any such separate agreement, the separate agreement will govern as among the relevant parties. In general, these terms apply to the individual users of the Site, whereas the separate contracts represent commercial agreements for services to be provided by us.
Your use of the Site and the Platform is subject to your acceptance and compliance with these Deal Terms. If you do not agree to these Deal Terms, do not use the Site or the Platform. Each time you use the Site or the Platform, the current version of the Deal Terms will apply. Accordingly, when you use the Site or the Platform, you should check the date of the Deal Terms (at the top of this webpage). The Deal Terms will always be available on the Site.
In this Agreement, (i) “Affiliate” means (x) an entity’s officers, directors, employees, independent contractors, or other authorized agents, or (y) any entity or person that directly or indirectly controls the transactions of another party, including the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of voting securities, written voting rights agreements, written agreement, title, or other influence (ii) “Agent” means an agent or representative of an Influencer legally authorized to act on behalf of such Influencer, (iii) “Marketer” means collectively any person or entity who participates in the Platform directly or indirectly by our authorized personnel on behalf of such Marketer for the purpose of creating Deals to use the services of Influencers, and (iv) “Influencer” means any person, entity, or group that provides endorsement Deal content through the Platform.
1. REGISTRATION AND ACCOUNTS
When registering for an account on the Site (an “Account”), you agree to the terms of this Agreement. Please note that some sections of this Agreement may only apply to you depending on whether you represent a Marketer, an Influencer, or an Agent.
When you register for an Account on the Site, you agree to (i) provide accurate, current and complete information about yourself as prompted by our registration form (including your email address or phone number) and (ii) maintain and update your information (including your email address or phone number) to keep it accurate, current and complete. You acknowledge that if any information provided by you is untrue, inaccurate, not current or incomplete, you will have materially breached this Agreement, and we reserve the right to terminate this Agreement and your use of the Site and the Platform. As part of the registration process, you will be asked to provide a username and password that are unique to the Account (collectively referred to hereunder as “Login Information”). You will be responsible for the confidentiality and use of your Login Information and agree not to transfer or resell your use of or access to the Platform to any third party other than your appointed agent, manager or other staff member to whom you assign such responsibility. If you have reason to believe that your Account is no longer secure, you must immediately notify us of the problem by emailing us at firstname.lastname@example.org. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in the Account, and you further acknowledge and agree that all rights in and to the Account are and shall forever be owned by and inure to our benefit. You are entirely responsible for maintaining the confidentiality of your username and password for any and all activities (including Deals) that are conducted through your account.
1.2. Our Rights.
WE MAY SUSPEND, TERMINATE, MODIFY OR DELETE YOUR ACCOUNT, AND/OR TERMINATE OR SUSPEND YOUR ACCESS TO THE PLATFORM AT ANY TIME AFTER IT HAS DETERMINED YOU HAVE VIOLATED THESE DEAL TERMS OR ANOTHER AGREEMENT WITH US, WITH OR WITHOUT NOTICE, WITHOUT ANY LIABILITY TO YOU WHATSOEVER. For purposes of explanation and not limitation, most Account and/or Platform suspensions, terminations and/or deletions are the result of violations of this Agreement or our other policies. You acknowledge and agree that we are not required to provide you notice before terminating or suspending your Account, and/or your access to the Platform. In addition to the foregoing, we may, in addition to any of its other rights and remedies it may have against you at law or in equity, immediately with or without notice to you, cease the distribution, display or other exploitation of any Deal content which we believe contains any Prohibited Content (as defined in Section 3.3) without any liability to you of any kind.
1.3. Your Rights.
You have the right to cancel your Account at any time. You understand and agree that, except as expressly provided by law, the cancellation of your Account is your sole right and remedy with respect to any dispute you may have with us. This includes, but is not limited to, any dispute related to, or arising out of: (i) this Agreement or our enforcement or application of this Agreement; (ii) Deals conducted through the Platform or any change therein (provided that those with separate agreements with us may have separate and independent rights with respect to Deals); (iii) your ability to access and/or use the Site or the Platform; or (iv) the amount or type of fees, surcharges, applicable taxes, billing methods or any change to the fees, applicable taxes, surcharges or billing methods used on the Platform (provided that those with separate agreements with us may have separate and independent rights with respect to the payment of fees). We reserve the right to collect fees, surcharges or costs incurred before you cancel your Account(s). In the event that your Account is terminated, suspended or canceled, no refunds will be granted, and you will have no further access to your Account or anything associated with it (including Accounts on the system for which you may have been previously responsible, e.g., Agent-Influencer relationships).
1.4. No Account Transfer.
We do not recognize the transfer of Accounts. You may not purchase, sell, gift or trade any Account, or offer to purchase, sell, gift, or trade any Account, and any such attempt shall be null and void.
1.5. Administrator Rights.
If you are using the Site at the direction of, or for the benefit of, an Affiliate that has a separate agreement with us regarding the provision of services; you hereby grant rights to such Affiliate to monitor and have access to your Account, including any information provided through such Account. In addition, your supervising Affiliate shall have the ability to direct us to provide additional or restricted access to functionality on the Platform as may be dictated in a separate agreement by and among us and your supervising Affiliate.
A Marketer may make an offer for a proposed Deal (“Proposed Deal”) to Influencers using the Platform that may or may not include compensation as part of the Deal Terms, and such offer shall be deemed to incorporate the terms of this Section 0. Influencer will then have the opportunity to review the proposed Deal for up to five (5) days (or such other period as we may be specify) and either accept or decline it within such period. Upon acceptance of a Proposed Deal, the Deal becomes a contract between Marketer and Influencer where we are an express third party beneficiary. Upon acceptance, Influencer agrees to fulfill all of the terms and conditions listed in the Proposed Deal (collectively, “Deal Terms”), including, but not limited to, the number of digital activities or engagements (“Digital Activities”) to be delivered by Influencer, the specific social media platform on which Influencer will deliver the Digital Activities, and the content and date and time of delivery of the Digital Activities.
A Compensation-Managed Deal will include compensation (“Compensation”) to be paid to Influencer (and/or Influencer’s Agent, as applicable) upon Influencer’s (i) acceptance of the Proposed Deal and (ii) fulfillment of the Deal Terms. The parties acknowledge and agree that we shall collect a transaction or service fee from Marketer for each Deal that includes compensation.
A Non-Compensation Managed Deal will not include Compensation for the Influencer. Non-Compensated Deals may include Deals offered by property advocacy subscribers of the Platform (who may offer promotion or endorsement Deals to Influencers that have indicated an interest in such Deals), or may include Deals from Marketers who have negotiated separate endorsement agreements with Influencer and are using the Platform to execute and fulfill such agreements. The parties acknowledge and agree that we shall collect a service fee from Marketer for each Deal that has been negotiated in a separate endorsement agreement but is begin fulfilled by the Platform.
2.2. Deal Compensation.
After Influencer’s acceptance of a Compensation-Managed Proposed Deal and fulfillment of the Deal Terms, we shall invoice Marketer for the Compensation. When the Marketer makes payment of the Compensation to us, we will deliver the Compensation to Influencer. Influencer expressly acknowledges that Marketer must deliver payment to us before we can forward such payment to Influencer and that any dispute over such Compensation will be a dispute by and between Influencer and Marketer.
We will not be a party to, be liable for or manage fulfillment of compensation for a Deal with compensation and Deal Terms agreed upon outside of our Platform between Influencer and another party using the Platform to execute or fulfill the terms of any such agreement.
2.3. Deal Term.
If the Deal Terms require Influencer to complete any Digital Activities on any social media platform, unless otherwise agreed to by the parties, Influencer shall leave the Digital Activities active and publicly accessible on such social media platform for no less than seven (7) days (“Deal Term”) following the delivery of the Digital Activities. Notwithstanding the foregoing, if no compensation has been provided to Influencer for the Deal (either within or outside the Platform), there shall be no restrictions on how long the Influencer shall leave the Digital Activities active and publicly accessible on such social media platform.
2.4. General Deal Terms.
2.4.1. Editable Deal Content.
The Platform may offer Marketer the ability to permit Influencers to edit Deal content prior to the Influencer’s delivery of the Digital Activities (“Editable Deal Content”). If Marketer elects to offer Editable Deal Content to Influencers, Marketer acknowledges and agrees that we cannot control and are not responsible for any such edits to the Editable Deal Content made by Influencer and expressly waives all rights of action against us for any such edits to the Editable Deal Content. Likewise, Influencer accepts sole responsibility for any such edited content. The following requirements apply to all Deal content, including any edits made to Editable Deal Content: (i) All Deals must be in the English language or such other language as is identified in the particular Deal; (ii) Deal content must be original, unless otherwise specified in the particular Deal; and (iii) Deal content may not target children under the age of 13, infringe on the legal rights of third parties, or include or support: excessive profanity, violence, or racial intolerance, illicit drugs or drug paraphernalia, pornography or sexually explicit material, or any other content that promotes intolerance or illegal activity.
2.4.2. Intellectual Property.
Neither Influencer nor Marketer grants to the other any rights or uses of any names, logos, trademarks, service marks, or other intellectual property owned or controlled by any third party by virtue of entering into a Deal.
Each party (in such capacity, “Indemnitor”), agrees to indemnify and hold the other party and its Affiliates (in such capacity, “Indemnitee”) harmless from and against all losses, damages, claims, costs, expenses, fines, and penalties (including reasonable attorney’s fees) of any name or nature arising out of any claims, suits, or disputes against Indemnitee arising out of, or in any way connected with a Deal, to the extent such claims allege negligence or willful misconduct on the part of Indemnitor or any of Indemnitor’s Affiliates. In the event Marketer requests Influencer modify or remove disclosure language in their Deals, and the mutually agreed Deal content is published and results in a violation of Federal Trade Commission’s Staff Opinion Letter dated December 7, 2006, and all applicable laws and regulations, including but not limited to, Section 5 of the Federal Trade Commission Act and the Federal Trade Commission’s Endorsement Guidelines, Marketer agrees to protect, indemnify, save, defend, and hold us harmless, Influencer, and Influencer’s Affiliates from and against any and all fines and penalties resulting from the Federal Trade Commission’s assessment of the Influencer’s violation. Each party (in such capacity, “Indemnitor”), agrees to indemnify and hold the other party and its Affiliates (in such capacity, “Indemnitee”) harmless from and against all losses, damages, claims, costs, expenses, fines, and penalties (including reasonable attorney’s fees) of any name or nature arising out of any claims, suits, or disputes against Indemnitee arising out of, or in any way connected with a Deal, to the extent such claims allege negligence or willful misconduct on the part of Indemnitor or any of Indemnitor’s Affiliates. In the event Marketer requests Influencer modify or remove disclosure language in their Deals, and the mutually agreed Deal content is published and results in a violation of Federal Trade Commission’s Staff Opinion Letter dated December 7, 2006, and all applicable laws and regulations, including but not limited to, Section 5 of the Federal Trade Commission Act and the Federal Trade Commission’s Endorsement Guidelines, Marketer agrees to protect, indemnify, save, defend, and hold us harmless, Influencer, and Influencer’s Affiliates from and against any and all fines and penalties resulting from the Federal Trade Commission’s assessment of the Influencer’s violation.
2.4.4. Termination by Marketer.
Marketer (or us on our Marketer’s behalf) may terminate a Deal (1) immediately upon written notice to Influencer in the event that Influencer commits, or is publicly accused of committing, any crime or other act involving moral turpitude that could negatively affect Marketer’s brand image or (2) in the event Influencer materially breaches the terms of the Deal and fails to cure said material breach, within five (5) days of Influencer’s receipt of written notice from Marketer (or from us on Marketer’s behalf) specifying said material breach. If Marketer terminates a Deal under this Section2.4.4, neither Marketer nor Influencer shall have any further rights, obligations, or duties with respect to such Deal; provided, however, that if Marketer terminates a Deal pursuant to subsection (1) of this Section 2.4.4 during the Deal Term, Marketer may require reimbursement of any compensation or consideration paid to Influencer. Marketer may, at any time and for any reason, require Influencer to delete any Digital Activities delivered pursuant to a Deal; provided, however, that Influencer need not reimburse Marketer for any compensation or consideration unless otherwise provided in this Section 2.4.4.
2.4.5. Termination by Influencer.
Influencer shall have the right to terminate a Deal immediately upon written notice to Marketer (or from us on Marketer’s behalf) (1) in the event Marketer files or has filed against it any petition for bankruptcy, reorganization, arrangement or other protection under any state, federal or other applicable jurisdictions bankruptcy, insolvency or similar laws; or (2) Marketer materially breaches the terms of the Deal (and fails to cure said material breach within five (5) days of its receipt of written notice from Influencer specifying said material breach). If Influencer terminates a Deal under this Section 2.4.5, neither Marketer nor Influencer shall have any further rights, obligations, or duties with respect to such Deal; provided, however, that (1) any and all rights granted to Marketer by Influencer under such Deal shall automatically and irrevocably revert back to Influencer and (2) Influencer’s termination of such Deal shall not preclude Influencer’s recovery of any other damages to which Influencer is entitled under law or equity.
2.4.6. Governing Law.
Deals shall be governed by the laws of the State of Nebraska, without giving effect to conflicts of law principles. You agree to submit to the exclusive jurisdiction of the state and federal courts located in Lancaster County, Nebraska in circumstances where this Agreement permits litigation in court.
2.4.7. Dispute Resolution.
Please read this section carefully. It contains procedures for mandatory binding arbitration and a class action waiver.
Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to us should be sent to: opendorse, Inc., Attn: CEO, 1320 P Street, Suite 201, Lincoln, NE 68508. After the Notice is received, you and we may attempt to resolve the claim or dispute informally. If we do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) shall be resolved through binding non-appearance-based arbitration. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in Lincoln, Nebraska, unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
Additional Rules for Non-Appearance Based Arbitration. The arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
Time Limits. If either you or we pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of the parties involved, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under these terms. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the us in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND WE WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS SECTION 2.4.7 MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE PLATFORM USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER PLATFORM USER.
Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. You agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Section 2.4.7, to enforce an arbitration award, or to seek injunctive or equitable relief.
Severability. If any part or parts of this Section 2.4.7 are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
Right to Waive. Any or all of the rights and limitations set forth in this Section 2.4.7 may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Section 2.4.7.
Survival of Agreement. This Section 2.4.7 will survive the termination of your relationship with us.
Small Claims Court. Notwithstanding the foregoing, either you or we may bring an individual action in small claims court.
Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Section 2.4.7.
Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the our patent, copyright, trademark or trade secrets rights shall not be subject to this Section 2.4.7.
Neither Marketer nor Influencer shall disclose (or permit any third party to disclose) the financial or other terms of a Deal, with the exception of either party’s agents, attorneys, accountants, representatives, or employees, except as may be required by law.
2.4.9. No Partnership/Withholding.
Engaging in a Deal shall not be construed to create an employer/employee, joint venture, partnership, or principal-agent relationship between Marketer and Influencer. Influencer’s services provided to Marketer with respect to a Deal are completed as an independent contractor. Influencer shall be responsible for the payment of all taxes on compensation received with respect to any Deal, and Marketer shall make no deductions for tax purposes from any consideration transferred to Influencer.
Notwithstanding anything to the contrary herein, in no event shall either party be liable for exemplary, punitive, or incidental damages, including lost profits, arising out of any Deal, or the breach of any term, covenant, representation, warranty, or obligations contained herein.
Neither Influencer nor Marketer shall transfer or assign any right in a Deal to any other party.
The failure of any party to enforce its rights under a Deal shall not be construed as a continuing waiver or relinquishment thereof.
In the event of any action to interpret or enforce the terms of a Deal, the prevailing party shall be entitled to recover its costs of suit incurred, including reasonable attorneys’ fees.
2.4.14. Rights Granted.
Upon expiration or termination of a Deal, all rights granted to Marketer shall cease and revert to Influencer.
2.4.15. Modification & Entire Agreement.
The terms and conditions of this Agreement and any Deal, except as noted in the following sentence, constitutes the entire agreement between Marketer and Influencer with respect to such Deal, and may not be modified except in an agreement in writing executed by both Influencer and Marketer. Notwithstanding the foregoing, if we, the Marketer, or Influencer, have negotiated separate agreements with each other concerning the terms of any Deal, or the use of the Platform or the Site to execute of fulfill such Deal, the terms of such separate agreement shall prevail over the terms hereof to the extent of any conflict.
3. Marketer Specific Terms. This Section 3 applies to Marketers participating in the Platform.
3.1. Transparency & Disclosure.
We require full disclosure by all Platform participants for Compensation–Managed and fulfillment Deals for which Influencer is receiving Compensation, either within or outside of the Platform. Any attempt to instruct, coerce or manipulate an Influencer into hiding the commercial relationship between a Marketer and an Influencer may result in your immediate removal from the Platform and termination of your Account. You, on behalf of any Marketer, agree to comply with the Federal Trade Commission’s Staff Opinion Letter dated December 7, 2006, and all applicable laws and regulations, including but not limited to Section 5 of the Federal Trade Commission Act and the Federal Trade Commission’s Endorsement Guidelines, as well as the guidelines set forth by all governing bodies with authority over Influencers.
You, on behalf of any Marketer you represent, acknowledge and agree that the terms and conditions in Section 2 apply to any Deals you enter into with an Influencer. You may manage Deals yourself on the Platform (“Self-Managed Deals”) or you may engage us to manage Deals on your behalf (“Managed Deals”) by executing a separate agreement with us.
3.3. Responsibility for Deal Content.
You, and any Marketer you represent, are solely responsible for the content of all Deals (subject to the provisions hereof regarding Editable Deal Content as provided in Section 2.4) and for any aspect of your products or services included in a Deal. You represent and warrant that (i) all information you provide or approve or that is provided on your behalf in connection with a Deal and this Agreement is current and accurate; (ii) the website to which any links are included in a listed Deal will look substantially the same to all end users regardless of the end users’ location; and (iii) your website does not contain any of our owned or licensed content, except pursuant to a separate signed agreement with us. You acknowledge and agree that Influencers are independent third parties and are not directly controlled by us. As a consequence, any Deals carry an inherent risk of negative or unflattering comments about your content, product(s) or company. You, on behalf of any Marketer you represent, specifically acknowledge and agree that we have no control over any Deals that may be available or published, and that you are solely responsible (and assumes all liability and risk) for determining whether or not such Deals are appropriate or acceptable to you. The following requirements apply to all Deal content: (i) All Deals must be in the English language or such other language as is identified in the particular Deal; (ii) Deal content must be original, unless otherwise specified in the particular Deal; and (iii) Deal content may not target children under the age of 13, infringe on the legal rights of third parties, or include or support: excessive profanity, violence, or racial intolerance, illicit drugs or drug paraphernalia, pornography or sexually explicit material, or any other content that promotes intolerance or illegal activity. Any Deal content in violation of the previous sentence shall constitute “Prohibited Content”.
You acknowledge that if we determine that any content you submit to the Platform is “Prohibited Content” we have the right to delete any such content and terminate any Deal that might have been associated therewith.
3.4. Deal Disputes.
You, on behalf of any Marketer you represent, agree that so long as an Influencer has met the requirements as outlined in any accepted Deal, Marketer will not deny payment of compensation for the Deal to Influencer. Marketer may not discriminate based on the racial, physical, political, spiritual, age, gender or sexual orientation characteristics of the Influencer. Payment will be made as required to us unless the Influencer has violated the terms of this Agreement or the specific terms of a Deal as stated in writing.
3.5. Data Reproduction.
You agree that any data you obtain from the Site or partnered sites is confidential and releasing that data to any third party without express, written consent from the owner will be considered a breach of this agreement. Confidential information includes but is not limited to Influencer profile information, whether free or paid for, Deal analytics, or other information meant solely for the Marketer when logged into the system. Reselling/sharing data gathered from the site, even if done generally or as part of other accrued analytics, is expressly forbidden. Marketer accounts acknowledge that we have full rights to claim monetary damages from an event of breach of this Section 3.5. Marketer will refrain from collecting and storing data from the Site in any permanent databases, files, or other storage means. All data replication (paper copies, etc.) for internal discussions should be disposed promptly and adequately, as any leak of confidential information (accidental or otherwise) will be considered a breach of this agreement. Marketer is solely responsible for the security of confidential data obtained through the Site.
3.6. Grant of Usage License.
By registering as a Marketer on the Site, you grant us a worldwide, royalty-free, non-exclusive, sub-licensable, unconditional, perpetual and transferable license to display Marketer’s or Marketer end user’s name, logos, trademarks, and likeness in a form clearly indicating the Marketer’s or Marketer end user’s status as a platform participant, in all forms of media and through any media channels (now known or hereafter developed), including but not limited to television, radio, print, Internet site and other electronic communications. We shall not, without permission of Marketer, indicate Marketer or Marketer end user as an endorser of us or our partners. Use of Marketer’s or Marketer End user’s image and likeness shall be limited to use as an indicator of platform participation. Marketer acknowledges and agrees that such license also includes granting us the ability to use and display Marketer’s name, likeness, and certain details relating to Marketer’s Deals and discrete marketing campaign(s) composed of various Deals (each a “Campaign”) in developing case studies for our marketing purposes. Such case studies may include details of a Campaign, including, but not limited to, Campaign strategy, objectives, recommendations, and results.
Notwithstanding anything to the contrary in this Section 3.6, upon the termination or cancellation of a Marketer’s Account with us, our rights to display Marketer’s or Marketer end user’s name and likeness shall terminate; provided, however, that we are entitled to continue to use any case studies published prior to such termination or cancellation.
3.7. Account Charges.
You, on behalf of any Marketer you represent, agree to pay us all charges to your account for the use of the Platform in accordance with this Agreement. If we do not receive timely payment or if your charges exceed any prepayment hereunder: (i) Marketer will incur a debit balance for the value of any unpaid charges incurred under your account; (ii) Marketer agrees to pay all amounts due on your account upon demand; and (iii) we reserve the right to either suspend or terminate your Account, including deletion of your Deals from the Platform. Any fees for the Platform charged to your Account, including any deposits, are non-refundable. You, on behalf of any Marketer you represent, agree to submit any disputes regarding any charge to your account in writing to us within thirty (30) days of such charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge. If Marketer fails to make payment as set forth herein, Marketer will be responsible for all reasonable expenses (including attorneys’ fees) we incur in collecting such amounts. All prices are in United States dollars and do not include taxes that may be assessed by any jurisdiction. If withholding taxes or any other taxes are imposed by any jurisdiction on the transactions pursuant to this Agreement, Marketer shall pay such taxes to ensure that we receive the full amount invoiced to you without offset or deduction. Marketer agrees to either (i) provide us with valid credit card information or (ii) authorize us to invoice it for amounts due on your Account (each a “Payment Option”). Marketer also agrees (i) to update all information to keep your Account and Payment Option current, complete, and accurate, (ii) notify us immediately in writing if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your user name or password, and (iii) notify us in writing if your Payment Option is canceled. Upon termination, suspension or discontinuation of the Platform or your participation therein, all outstanding payment obligations you have incurred under the Platform will become immediately due and payable.
3.8. Payment Account Charges.
You, on behalf of any Marketer you represent, authorize us to charge your Payment Option for all charges to your Account. If your Payment Account is an invoice, Marketer agrees to pay any invoiced amounts within thirty (30) days of the date of the invoice. Accounts delinquent after ninety (90) days of the invoice date will be sent to collections, and Marketer agrees to pay any amounts incurred by us in the collection of past-due amounts owed, including, but not limited to, reasonable attorneys’ fees and costs of collection. If we modify the terms of the method of payment for the Platform, the modifications will be reflected in an updated version of the Agreement posted on the Site. If Marketer does not consent to such modified terms, you must immediately discontinue use of the Platform. Your continued enrollment after any modifications constitutes your, on behalf of Marketer’s, acceptance of the terms of the method of payment as modified. Marketer determines a maximum amount for charges to your account for each Deal subject to the provisions below. When you list a Deal, and for each Deal thereafter, you pre-authorize us to charge your Payment Option up to the maximum amount that you specify plus any overages. Notwithstanding the total amount you anticipate for a Deal, if Deals are properly executed by Influencers within the criteria specified in your Deal listing in excess of your anticipated amount, you also authorize us to charge your Payment Option for the additional amount. You understand that all of your Deals may be taken offline if your Payment Option does not allow additional charges or rejects any charges made to it by us in which your account equals or exceeds your budget amount.
3.9. Security of Payment Information.
You acknowledge responsibility for use and security of your physical payment information and the location of the transaction.
We may use a third party partner for all storage, consumption, and management of your personal financial information. You acknowledge that we are compliant with federal laws pertaining to the PCI standards and waive all rights or causes of action against us with respect to the theft or misuse of payment information.
4. Influencer Specific Terms. This Section 4 applies to Influencers.
4.1. Transparency & Disclosure.
Influencers participating in the Platform must clearly disclose in their Deal Activities the relationship between themselves and the Marketer for Deals that involve Compensation to Influencer. We require that disclosure be made in a meaningful way that makes clear to an ordinary consumer that there is a relationship between the Influencer and the Marketer. We reserve the right to review and monitor the disclosure practices of all Influencers who participate in the Platform and to either require greater levels of disclosure (in the event that we determine in our sole discretion that current disclosure practices are inadequate) or remove the Influencer from the Platform (in the event of inadequate disclosures). You agree to comply with the Federal Trade Commission’s Staff Opinion Letter dated December 7, 2006, and all applicable laws and regulations, including but not limited to Section 5 of the Federal Trade Commission Act and the Federal Trade Commission’s Endorsement Guidelines.
You acknowledge and agree that the terms and conditions in Section 2 apply to any Deals you enter into with Marketer, including, but not limited to, your acknowledgement that you are solely responsible for any edits you make to Editable Deal Content as provided in Section 2.4.
4.3. Agent Compensation.
You acknowledge and agree that if your Agent is to receive any portion of the Compensation for a Deal, we may, at our option, forward all of the Compensation for such Deal to your Agent for deals for which we will manage any Compensation. Consequently, you release both us and Marketer from and against any and all liability relating to Compensation paid to your Agent.
4.4. Influencer Eligibility.
In order to participate in the Platform, you must register your Twitter account (as well as any additional social media accounts that may be specified by the Platform in the future) on the Platform and meet minimum eligibility requirements.
4.5. Influencer Grant of Usage License.
Influencer grants us and a Marketer with which Influencer has an accepted Deal content a worldwide, royalty-free, non-exclusive, sub-licensable, unconditional, perpetual and transferable license to use, display, perform, reproduce, republish, and distribute the content in its original form in all forms of media and through any media channels (now known or hereafter developed), including but not limited to television, radio, print, Internet site and other electronic communications, including any content or material added to any Editable Deal Content.
By registering as an Influencer, you grant us a worldwide, royalty-free, non-exclusive, sub-licensable, unconditional, perpetual and transferable license to display your name and likeness in a form clearly indicating your status as a Platform participant, in all forms of media and through any media channels (now known or hereafter developed), including but not limited to television, radio, print, Internet site and other electronic communications. We will not, without your permission, indicate Influencer as our endorser or our partners. Use of your image and likeness shall be limited to use as an indicator of platform participation.
Notwithstanding anything to the contrary in this Section 4.5, upon the termination or cancellation of your account, our rights to display your name and likeness will automatically terminate.
5. Agent Specific Terms. This Section 5 only applies to Agents.
5.1. Agent Regulations.
Agents must adhere to applicable law and applicable rules and regulations of organizations and unions representing player rights.
By taking ownership of an Influencer account on the Platform, Agents are legally claiming authority to accept, negotiate, and reject deals on the Influencer’s behalf. If for any reason you lose the authority to act on behalf of Influencer, you are required to notify us immediately, and you can no longer act on the Influencer’s behalf. In taking ownership of an Influencer on the Platform, you agree to indemnify and hold us harmless from and against any and all damages and costs of any nature, including attorneys’ fees, arising from any claims and disputes relating to your authority to act on the Influencer’s behalf on the Platform. Acting in an illicit manor is subject to penalty under the governing laws, and could result in immediate removal from the system at our discretion.
You acknowledge that we may charge certain fees to access or use the Platform from time to time. These requirements will be enumerated in separate agreements by and between us and any applicable users of the Platform.
5.3. Agent Eligibility.
In order to use the Platform, an Agent must have one or more Influencers to include on the Platform. If you at any time use the Platform in an illicit manner, as determined in our sole discretion, we will permanently ban your Account, and any criminal activity will be reported to the proper authorities.
5.4. Agent Grant of Usage License.
By registering as an Agent on the Site, you grant us a worldwide, royalty-free, non-exclusive, sub-licensable, unconditional, perpetual and transferable license to display your name and likeness in a form clearly indicating your status as a platform participant, in all forms of media and through any media channels (now known or here after developed), including but not limited to television, radio, print, Internet site and other electronic communications. We will not, without your permission, indicate you as an endorser of us or our partners; our use of your image and likeness shall be limited to use as an indicator of platform participation. Upon termination or cancellation of your Account, our right to display your name and likeness will automatically terminate.
6. Electronic Notices and Disclosures.
6.1. Electronic Or Verbal Signatures And Verification.
If you choose to start or complete a signature of any kind you agree to comply with any relevant law, including the state version of the Uniform Electronic Transactions Act and federal ESIGN act. Our signing process may result in an electronic or verbal signature. You understand and accept that the same legal rights and obligations occur with any resulting electronic or verbal signature through the Site, the Platform, or through our representative as with physical ink to paper signature. You agree that for any deal signed digitally you had the option to use traditional physical ink signature, and you choose to forgo that option. You agree to use digital certificates as a possible form of signature. You represent that any party to a document signed using the Site agrees to the use of our electronic signatures. You are satisfied that our process completes and binds documents in such a way that any change is detectable and that the signature is verifiable.
6.2. Electronic Notices & Disclosures.
You agree that we are able to provide notices electronically to you through your Account or other electronic means all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship. You can receive all the disclosures and notices electronically. By using electronic disclosure, all pertinent delivery fees are waived as charged to you by third parties, including but not limited to text rates, bills, and surcharges.
6.3. Operational & Security Requirements.
We, in our effort to perform its identity verification, signing and other functions, is able to collect and retain unlimited user input, including all relevant computer data, including but not limited to access logs, IP addresses, audio and visual recordings, uploaded files, user click data, and other user inputted information.
8. Representations & Warranties.
You represent, warrant and covenant that (i) you have sufficient authority to enter into the Agreement on behalf of yourself, and if you represent a Marketer, Influencer or Agent, on behalf of such parties as well; (ii) your use of the Platform is solely for lawful commercial and business purposes; (iii) you have the necessary rights to provide all information provided under the Agreement (including all content, data, Deals, titles, URLs and descriptions) for use as described in this Agreement, and (iv) that all such information and all claims, statements, products and services contained or referenced herein and on the Site: (a) do not violate any law, statute, ordinance, treaty or regulation or our policy or guideline; (b) do not infringe any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (c) do not breach any duty toward or rights of any person or entity including rights of publicity or privacy, and have not otherwise resulted in or are not likely to result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (d) are not false, deceptive or misleading; (e) are not defamatory, libelous, slanderous or threatening; (f) will be free of viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that may potentially damage, interfere with, intercept, or expropriate any system data or personal information; and (g) comply with the applicable MSA (if applicable); and (iv) you will not engage or cause others to engage in any form of spamming or improper or malicious, as we determine, clicking, impression or marketing activities through the Platform, and you will comply with all applicable laws including complying with all applicable laws such as the CAN-SPAM Act of 2003.
All our graphics, logos, designs, page headers, button icons, scripts, and Platform names are registered trademarks, trademarks or trade dress of ours in the U.S. and/or other countries. Our trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion. The images and icons available on our media page may be used by partner and third party sites in connection with journalistic promotion of our Platforms, and commercial applications thereof are forbidden except where we have pre-approved such applications in writing.
You agree to indemnify and hold harmless us, our Affiliates and our and their officers, directors, licensors, partners, licensees, consultants, contractors, agents, attorneys, employees, third party service providers and third parties authorized by us to make your listings, results, and/or services available in connection with third party Websites, tweets, blogs, postings, content, applications and/or emails (“Third Party Products”), and their respective officers, directors, agents, affiliates, and employees (each, an “opendorse Entity” and collectively, the “opendorse Entities”) from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees (collectively, “Claim(s)”), that actually or allegedly result from your information, use of the Platform, any tweets, your website, or your breach of the Agreement. You agree to be solely responsible for defending any Claim against or suffered by us and/or any opendorse Entity, subject to our and/or the opendorse Entity’s right to participate with counsel of its own choosing, and for payment of damages or losses resulting from all claims against us, and/or any of the opendorse Entities provided that you will not agree to any settlement that imposes any obligation or liability on us and/or any of the operndorse Entities without our prior express written consent.
11. Warranty Disclaimer.
YOU EXPRESSLY AGREE THAT THE PLATFORM IS AVAILABLE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND THAT YOUR USE THEREOF IS AT YOUR OWN RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY (I) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, (III) WARRANTIES RELATING TO DELAYS, INTERRUPTIONS, ERRORS, OR OMISSIONS IN THE PLATFORM OR OUR WEBSITE, OR ANY PART THEREOF, (IV) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE PLATFORM OR OUR WEBSITE, (V) WARRANTIES RELATING TO THE ACCURACY OR CORRECTNESS OF DATA, AND ANY OTHER WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NONPERFORMANCE, OR OTHER ACTS OR OMISSIONS BY US. FURTHER, AND WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, THERE IS NO WARRANTY THAT THE PLATFORM OR THE SITE WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT OUR WARRANTY DOES NOT COVER TELECOMMUNICATIONS OR INTERNET OUTAGES CAUSED BY THIRD PARTIES OR OTHERWISE OUTSIDE OF OUR CONTROL. THE PLATFORM MAY BE LIMITED BY MANY FACTORS, INCLUDING INHERENT RISKS OF THE INTERNET.
Because some states do not allow the exclusion or limitation of certain categories of damages or implied warranties, the above limitations may not apply to you. In such jurisdictions, our liability is limited to the greatest extent permitted by law.
12. Limitation of Liability.
ANY LIABILITY OF OURS TO YOU IN CONNECTION WITH THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, SHALL BE STRICTLY LIMITED TO A MAXIMUM LIABILITY OF $1,000. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL WE OR ANY OF ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, ARISING OUT OF, OR IN CONNECTION WITH, THE AGREEMENT. YOU AGREE THAT YOU WILL NOT HOLD US RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT.
THE FOREGOING LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF WE OR OUR AFFILIATES OR ANY OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Because some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, our liability in such jurisdictions shall be limited to the extent permitted by law. You will idemnify and hold us harmless for, any breach of security or any compromise of your account(s) with any social media site or service that may be utilized as part of our service or platform.
We may give general notices to you by posting on its Website, or by electronic mail to the email address you provide to us. It is your responsibility to ensure that your email address and any other contact information you provide to us is updated, current and correct. All notices to us shall be sent via recognized overnight courier or certified mail, return receipt requested, to: opendorse, Attn: CEO, 1320 P Street, Suite 201, Lincoln, NE 68508.
14. Choice Of Law.
Any dispute referring or relating to the Agreement or between the parties shall be governed by the laws of the State of Nebraska, without regard to its conflict of laws principles. You agree to submit to the exclusive jurisdiction of the state and federal courts located in Lancaster County, Nebraska. Any claim against us arising from the Agreement shall be adjudicated on an individual basis, and shall not be consolidated in any proceeding with any claim or controversy of any other party.
15. Use of Influencer Information.
We do not claim to or represent ourselves as the exclusive agent, manager, publicist, assistant, PR firm or management company for any Influencer. Biographies listed on the Site are provided as a resource to Marketers in order to provide them with information and approximate fees that allow comparison and assists in decision-making processes. Influencer’s Deal fees, costs and prices on this website are estimates and act as a guideline. Exact Deal fees are determined by a number of factors, including location of event, Influencer schedule, desired endorsement, supply and demand and other market factors. Bios on this site are for informational purposes only and deemed to be reliable resources, but not guaranteed.
16.1. Entire Agreement.
This Agreement constitutes the entire agreement and understanding between the parties regarding the subject matter contained herein; provided, that, notwithstanding the foregoing, if Marketer, Influencer, or we have negotiated separate agreements with each other concerning the terms of any Deal, or the use of the Platform or the Site to execute of fulfill such Deal, the terms of such separate agreement shall prevail over the terms hereof to the extent of any conflict. Only a written instrument executed by the party waiving compliance may waive the terms or covenants of this Agreement. No waiver by either party of a breach of any provision hereof shall be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself.
If any provision of this Agreement is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of this Agreement, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the parties to this Agreement and has like economic effect.
16.3. Limitation of Liability.
We shall have no liability under this Agreement by reason of any failure or delay in the performance of its obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, computer virus, Acts of God, war, governmental action, or any other cause that is beyond its reasonable control.
16.4. Independent Contractors.
The parties are independent contractors and nothing in this Agreement shall be construed to create, evidence, or imply any agency, employment, partnership, or joint venture between the parties. Neither Marketers, Influencers, Agents, nor Moderators are our employees. We, neither the Marketer, Agent, Moderator, nor Influencer shall have any right, power, or authority to create any obligation or responsibility on behalf of the other, except as otherwise provided for herein.
16.5. No Third Party Beneficiaries.
This Agreement is not intended to benefit, nor shall it be deemed to give rise to any rights in, any third party; provided, however, that we are an express third party beneficiary to Deals as provided for herein.
You may not assign or transfer this Agreement, or sublicense, assign or delegate any right or duty under this Agreement without our prior written consent. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. We and our subsequent assignees may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties, under this Agreement to any party.
16.7. Disclaimer of Implied Licenses.
We reserve any rights not expressly granted in this Agreement, and all implied licenses are disclaimed.
Headings used in this Agreement are for reference purposes only and in no way affect this Agreement. The term “including” is a term of enlargement meaning “including without limitation,” and does not denote exclusivity.
16.9. Modification of this Agreement and the Platform.
All information or material in connection with the Platform must be submitted in a form requested by us. The organization, specifications, structure or appearance of any of our property or any page where your information (including listings) may be displayed may be redesigned or modified at any time. You acknowledge and agree that the form and nature of the services which we provide, including the Platform, may change from time to time without prior notice to you.
We reserve the right to discontinue offering, and/or modify the Platform at any time.
Except as otherwise specified by us, you agree that you will direct all communications relating to the services or your participation therein directly to us and not to any other entity.
16.10. Eligibility and Representations.
You must be eighteen (18) years or older to use the Platform; however, Influencers under the age of 18 may be signed up and managed by their parent, legal guardian, or authorized Agent.
Outside of a LICENSED API provided by us, any attempt to utilize automated programs, bots, screen scraping, database calls, human initiated data collection or any other means of gathering data, content or other information for the purpose of reverse engineering our Platform for commercial gain is strictly prohibited.