This Influencer Agreement (the "Agreement") is entered into by and between you (the “Influencer”) and MINDFUL LABS PBC (“Wellow”), a New York Corporation (the "Company") each a “Party” and together the “Parties,”. This Agreement will be effective as of the date of opting-in (the “Effective Date”) to the particular content creation project for the Company (the “Campaign”).

In consideration of the mutual agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged; the Parties hereto, intending to be legally bound, agree as follows:

 

I. Influencer Services.

Scope. Subject to the terms of this Agreement, the Influencer shall provide the Services (the “Campaign Content”) in the Deliverables and Due Dates section of the email and/or document about the Campaign sent to the Influencer (the “Campaign Invitation”).  Pursuant to this Agreement, the Influencer shall provide and publish all of the Influencer Content set forth in the Campaign Invitation and on such timeline as stated therein.  Each Campaign Invitation shall specify the deliverables and content required, and shall name a specific product(s) for which that content will be produced. The terms of this Agreement apply to all Campaign Invitation opted-into by the Influencer within the Term.

 

Standards. The Influencer shall perform its Services and provide all Influencer Content hereunder in accordance with any general creative, editorial, aesthetic and technical requirements, design features and other guidelines and specifications provided herein, in the applicable Campaign Invitation, or otherwise communicated by Company (collectively, the “Specifications”), as well as in compliance with all applicable federal, foreign, international, state/provincial/territorial, local or other laws, rules or regulations, and self-regulatory guidelines (collectively, “Laws”), including without limitation, the Federal Trade Commission’s (FTC) Guidelines on Endorsements and Testimonials

 

Deadlines. The Influencer shall provide the Services and complete and deliver the Influencer Content according to the deadlines set forth in the applicable Campaign Invitation. The Parties hereto acknowledge and agree that time is of the essence of this Agreement.

 

Right to Monitor. Company reserves the right, but does not have an obligation, to monitor and/or review all Influencer Content. Company reserves the right at all times to require the Influencer to edit, take down, or otherwise remove Influencer Content published through its social media accounts that in Company’s sole discretion is  objectionable or in violation of this Agreement or FTC Guidelines.

 

No Disparaging Impact. The Influencer acknowledges that the reputation of Company and its products and services is of the highest order.  In no event shall Influencer, in the performance of the Services or otherwise during the Term, take any action that adversely affects the Company and/or their respective image, brand, reputation, products and/or services, or that casts any of the foregoing in a disparaging light, as determined by Company, in its respective sole and absolute discretion, as applicable under state law.  In particular, the Influencer shall ensure that, at all times during the Term hereof, the Influencer’s conduct shall reflect adherence to the highest professional, moral and ethical standards. If, in the absolute judgment of Company, any act or omission of Influencer is inconsistent with any of the foregoing, Company may immediately terminate this Agreement for cause. Company’s decision on all matters arising under this paragraph shall be conclusive, and its rights under this paragraph shall be in addition to any other rights or remedies, which Company may have hereunder or at law or in equity.

 

Independent Contractor.  The relationship of Influencer to Company shall be that of an independent contractor rendering professional services.  The Influencer shall not have any authority to execute contracts or make commitments on behalf of Company.  Nothing contained herein shall be deemed to create the relationship of employer/employee, principal/agent, joint venturer or partner between the Influencer and Company.  Further, the Influencer recognizes that in view of its status as an independent contractor, neither it nor its employees, contractors, representatives or agents will be entitled to participate in or receive any fringe benefits normally granted to Company’s employees under such programs, including, but not limited to, worker’s compensation, voluntary disability, travel accident insurance, medical/dental insurance, life insurance, long-term disability, holiday pay, sick pay, salary continuation pay, leaves of absence (paid or unpaid), pension plan and savings plan.  The Influencer shall be responsible for and shall defend, indemnify and hold harmless Company against any and all Damages (as defined below) in connection with the Influencer’s engagement as an independent contractor.

Ⅱ. Compensation; Taxes.

Compensation. In consideration for the Influencer’s full performance of all Services, provision of Influencer Content, and the grant of all rights granted by the Influencer hereunder, and subject to all terms and conditions hereof, the Influencer shall be entitled to receive the compensation in the manner, at the rates and value of received products at the times indicated in the applicable Campaign Invitation (collectively, the “Compensation”).  The Influencer hereby acknowledges and agrees that the Compensation shall cover all of the Services, Influencer Content, and all fees, hourly rates, costs and/or expenses incurred by the Influencer in connection therewith and with this Agreement. Unless otherwise expressly provided herein, the Influencer shall be responsible for paying all costs and expenses required in connection with the full performance of the Services and full delivery of the Influencer Content.  In no event shall Company be required to pay any compensation to the Influencer in excess of the Compensation.

Taxes. The Influencer agrees and acknowledges that taxes or other amounts will not be withheld from any Compensation or other amounts payable to Influencer hereunder. Influencer agrees and acknowledges that it has sole responsibility and liability for any and all taxes, contributions, penalties, interest or other sums arising out of the Compensation and/or any other amounts and/or expenses paid pursuant to this Agreement, the understanding being that the quoted rates include therein a component attributable to such amounts.

 

III. Term.

Term. This Agreement will remain in effect for one year from the Effective Date until it is terminated by either party as provided below (the “Term”).  The term of each Campaign will be as set forth in such Campaign Invitation.

 

Termination of Agreement Without Cause. Company may immediately terminate this Agreement at any time, without cause, by giving written notice to the Influencer.  In the event that Company terminates this Agreement without cause as set forth above, the Influencer shall be entitled to any installment of the Compensation owing but not yet paid to the Influencer in accordance with the applicable Campaign Invitation as of the date of such termination (and any portion of any installment paid to the Influencer that is more than what the Influencer is entitled to as of the date of termination shall be immediately refunded to Company).

 

Termination by Parties for Cause. Either Party may terminate this Agreement

1. upon ten (10) days prior written notice to the other Party in the event such other Party breaches this Agreement and fails to cure such breach within such 

2.  ten (10) day notice period, or (i) immediately upon written notice to the other

Party in the event such other Party becomes insolvent, files a petition for bankruptcy, executes an assignment for the benefit of creditors or takes advantage of any insolvency or any other like statute.  In the event of termination by Company under subsection (i), Influencer will promptly refund a pro-rata portion of Compensation received as of the date of termination.

 

Surviving Provisions.  Sections IV - X hereof (and those terms in the applicable Campaign Invitation, which by their nature ought to survive) shall survive the expiration or early termination of this Agreement.

 

IV. Likeness.

Right to Use Likeness.  The Influencer hereby grants Company, and its/their designees, a royalty-free, perpetual, worldwide license and right to photograph, record, publish, display, exploit, modify, edit, reproduce and otherwise use the Influencer’s name, image, likeness, voice, performance, social media handles, nicknames, biographical materials, statements, testimonials, and other indicia, and any portion thereof (collectively, “Likeness”), in any and all media (now or hereafter known) for any and all purposes in connection with (a) the advertising and/or promotion of Company’s products or services, (b) posting, publication and/or any other exploitation of any of the Influencer Content, (c) any personal appearances of Influencer and/or any recordings thereof, and/or (d) the advertising, promotion, marketing, selling, and/or development of Company, without in each and every instance any additional permissions from and/or compensation or notices to the Influencer.  All advertising, promotional and/or publicity materials produced by or on behalf of Company shall be and remain the sole and absolute property of Company, and the Influencer will not have any right, title or interest of any kind in or to said materials, or any component part, element or reproduction thereof. The Influencer hereby waives any moral rights and any other similar rights he or she may have in such advertising, promotional and/or publicity materials.

No Guild or Other Obligations.  The Influencer hereby represents and warrants that the Influencer is not a member of any guild, union or similar organization such that the use of such Influencer’s name, likeness, voice, performance, biographical materials, statements or testimonials as contemplated hereunder would trigger any guild, union or third party payments or other obligations. In the event this status changes, the Influencer will immediately notify Company.

 

V. Grant of Rights and Use of Materials.

The Influencer hereby grants to Company, for itself, a fully paid up and royalty free, perpetual and irrevocable, non-exclusive worldwide unlimited right and license to use, publicly display, distribute, sub-license, modify, and otherwise exploit, in any and all media, channel, platform, or format now known or hereafter developed, in whole or in part, Influencer’s Likeness and any and all Influencer Content created under this Agreement, without further notice, approval or compensation to the Influencer or any third party.  Company will have the right to authorize others to exercise any and/or all of the rights granted to Company under this Agreement, whether by license, sublicense, assignment or otherwise.

 

VI. Ownership.

Influencer Content.  For any Influencer Content created hereunder, including, without limitation, all social media posts authored by the Influencer, the Influencer acknowledges that he/she has no right, title or interest (and agree that he/she will not claim any right, title, or interest) in or to any such Influencer Content, and Influencer further acknowledges and agrees that Company shall own all rights, title and interest in or to all such Influencer Content.  For the avoidance of doubt, and to further evidence the full ownership of the Influencer Content by Company, the Influencer hereby assigns to Company all rights, title and interest to the Influencer Content. The Influencer agrees to assist Company  in the enforcement of its proprietary rights over all such Influencer Content, including the prompt execution of any additional documents that may be reasonably requested by Company.  If the Influencer fails to cooperate with or assist, execute, acknowledge, verify or deliver any such document requested by Company, the Influencer hereby irrevocably appoints Company and its authorized officers and agents as the Influencer’s agent and attorney-in-fact to act in the Influencer’s place to execute, acknowledge, verify, and/or deliver any such document (as applicable) on the Influencer’s behalf. To the fullest extent allowable under any applicable law, the Influencer hereby irrevocably waives or assigns to Company the benefits of any provision of law known as "droit moral," "moral rights" or any similar rights or principles of law in any country of the world which you may now or later have in the Influencer Content, and agrees not to institute or permit any action or lawsuit on the grounds that the Influencer Content or any other materials or content based upon the Influencer Content constitutes an infringement of your droit moral or is in any way a defamation or mutilation of the Influencer Content or any part thereof, or contains unauthorized variations, alterations, modifications, changes or translations.

 

Company Marks.  The Influencer agrees that any trademarks, trade names, logos, service marks and/or other indicia of Company and/or its parent, affiliated and/or subsidiary companies (collectively, the “Company Marks”) and any materials provided to the Influencer by or on behalf of Company (and/or any of its parent, affiliated and/or subsidiary companies and/or their respective employees, representatives, contractors or agents) hereunder shall be owned exclusively by and shall inure solely to the benefit of Company.  The Influencer further agrees that it will not claim any right in or to the Company Marks and/or such materials. The Influencer shall not use or modify any Company Marks or such materials without the prior written approval of Company in each instance.

VII. Influencer Representations and Warranties. The Influencer represents, warrants and covenants to Company that:

The Influencer has the full right, power and authority to enter into this Agreement, grant the rights granted herein, and fully perform its obligations hereunder, and, in particular, the Influencer is not subject to any obligation or disability that will or might hinder or prevent the full completion and performance by the Influencer of all obligations and conditions hereunder.

 

Except as otherwise specifically authorized in writing by Company, the Influencer Content is wholly original by the Influencer, and Company’s use thereof does not and will not infringe any patents, copyrights, trademarks, trade secrets or other intellectual property rights or violate the right of privacy, publicity or other rights of any third party, nor has any claim of such infringement or violation been threatened or asserted against the Influencer or others.

The Influencer’s performance of the Services and all of its other obligations under this Agreement will comply with the Specifications and all other terms and conditions of this Agreement.

 

The Influencer Content (a) is not false and/or defamatory, inaccurate, libelous, abusive, vulgar, hateful, harassing or threatening, obscene, offensive, or contain disparaging remarks about other people or companies; (b) does not endorse any form of hate or hate group; (c) is not profane or pornographic; (d) is not sexually oriented, explicit or suggestive; (e) is not unnecessarily violent nor derogatory of any ethnic, racial, gender, religious, professional or age group; (f) does not promote alcohol, illegal drugs, tobacco, firearms/weapons (or the use of any of the foregoing); (g) does not promote any activities that may be construed as unsafe or dangerous; (h) is in compliance with all applicable Law; or (i) unless specifically approved by Company, does not promote any particular political agenda or message.

 

All testimonials or other similar statements by the Influencer shall be expressions of his/her personal experience and belief, and shall be valid unless and until he/she advises Company in writing otherwise.

 

VIII. Confidentiality.

Definition of Confidential Information. For purposes of this Agreement, the term “Confidential Information” shall be deemed to include all information and materials furnished by or on behalf of Company to the Influencer, and/or otherwise arising from and/or in connection with the Services.

Ownership and Non-Disclosure of Confidential Information.  The Influencer agrees and acknowledges that he/she shall have no proprietary interest in any Confidential Information, and will not disclose, communicate or publish the nature or content of such Confidential Information to any person or entity, nor use, except as authorized in writing by Company, any of the Confidential Information that Influencer receives, acquires or obtains in connection with this Agreement.  In the event the Influencer becomes legally compelled to disclose any of the Confidential Information, the Influencer shall provide Company with prompt notice thereof and shall not divulge any information until Company (or their designees) has had the opportunity to seek a protective order or other appropriate remedy to curtail such disclosure. If such actions are unsuccessful, or Company (or their designees) otherwise waives the right to seek such remedies, the Influencer shall disclose only that portion of the Confidential Information which it is legally required to disclose.  The Influencer shall not issue or authorize publication of any news story or publicity relating to the Influencer’s Services and/or any rights hereunder, unless in each instance approved in advance and in writing by Company (at their sole discretion).

 

Non-Solicitation.  The Influencer also hereby agrees not to solicit the Company or other third parties engaged in contract with the Company directly or indirectly, or otherwise attempt to interfere with Company’s business relationships during the term of the agreement and for 1 (one) year following the end of the relationship between the Parties.

Remedies. The Parties acknowledge and agree that remedy at law for a breach or threatened breach of any of the provisions under this Section VIII would be inadequate.  In recognition of this fact, and without limiting any other rights or remedies available to Company hereunder, in the event of a breach or threatened breach by the Influencer of any of the provisions contained in this Section VII, Company shall be entitled to obtain provisional equitable relief in the form of temporary restraining order and/or temporary injunction or any other provisional equitable remedy which may then be available, and Influencer hereby agrees not to contest same.

IX. Indemnification.

Indemnification.  The Influencer shall defend, indemnify and hold Company, including without limitation, any licensee of any subsidiary, and their respective officers, directors, agents, and employees (collectively, “Indemnified Parties”) harmless from and against any and all costs, liabilities, demands, claims, suits, actions, damages, losses, judgments and expenses, including without limitation, attorneys’ fees (collectively, “Damages”) arising out of or related to: (a) any breach or alleged breach of this Agreement by the Influencer; and/or (b) Influencer’s Services or the Influencer Content.  Company may, at its election, assume the defense, settlement or other resolution of such claim with counsel of its own choosing, at Influencer’s cost and expense.

 

X. Miscellaneous.

Services Unique.  It is expressly understood and agreed that the Services and the rights and privileges granted to Company hereunder are of a special, unique, unusual, extraordinary, and intellectual character, giving them a peculiar value the loss of which cannot be reasonably or adequately compensated in damages in an action at law, and that the Influencer’s failure or refusal to perform its obligations hereunder would cause irreparable harm or damage to Company.  Should the Influencer fail or refuse to perform such obligations, Company shall be entitled to seek injunctive or other equitable relief against the Influencer to prevent the continuance of such failure or refusal or to prevent the Influencer from performing services for or granting rights to others in violation of this Agreement.

Assignment.  This Agreement may not be assigned by the Influencer, or any of the Influencer's duties hereunder delegated to any other person or entity, without the prior written consent of the Company, and any such purported assignment or delegation shall be null and void from the outset.

Further Assurances.  Each of the Parties agrees to execute such further documents and other instruments and perform such further acts as may be reasonably required or desirable to carry out the provisions hereof and the transactions contemplated hereby.

Binding Effect.  This Agreement shall be binding upon, shall inure to the benefit of, and shall be enforceable by Company, the Influencer and their respective permitted successors and assigns.  Nothing expressed or implied herein is intended to confer upon any person, other Company, the Influencer and their respective permitted successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.

 

Severability.  If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and the other provisions hereof shall be unaffected.

 

Entire Agreement.  This Agreement, together with the applicable Campaign Invitations, is intended to embody the final, complete and exclusive agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings and representations, whether written or oral, with respect thereto, and may not be contradicted by evidence of any prior or contemporaneous agreement, understanding or representation, whether written or oral.

 

Amendment Modification and Waiver.  This Agreement may not be amended or modified or any provision hereof or obligation arising hereunder waived except in a writing signed by both the Influencer and Company.

 

Governing Law.  Except as otherwise prohibited by law, this Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflicts of laws principles.

Dispute Resolution and Venue.  Any dispute arising out of or relating to this Agreement shall be brought exclusively in state or federal courts sitting in New York State, Manhattan County, with the parties hereto waiving any claim or defense that such forum is inconvenient or improper.  Each party agrees that such court shall have in personam jurisdiction over such party, consents to service of process in any manner authorized by New York law, and agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner specified by law.  If either party shall bring an action against the other by reason of any alleged breach of any covenant or provision hereof, or otherwise arising out of or relating to this Agreement, the unsuccessful party shall pay to the prevailing party all reasonable attorneys' fees and costs actually incurred by the prevailing party, in addition to any other relief to which such party may be entitled.

 

Interpretation.  The section headings of this Agreement are for convenience of reference only and shall not be deemed to alter or affect any provision hereof.

 

Consent.  This Agreement shall be executed by the Influencer’s consent to the Campaign Invitation.  By entering his/her personal information, opting into the Campaign and consenting to this Agreement, the Influencer has committed to the terms of this Agreement.

 

Force Majeure. The parties to this Agreement shall not be liable to the other for any loss, cost, or damages arising out of, or resulting from, any failure to perform in accordance with the terms of this Agreement, where such failure shall be beyond the reasonable control of such party, which, as employed in this Agreement, shall be deemed to mean, but not be limited to, acts of God, strikes, lockouts, or other industrial disturbances, wars, whether declared or undeclared, blockades, insurrections, terrorist  attacks, riots, governmental actions, explosions, fire, floods, or any other cause not within the reasonable control of either party.