Shawn Johnson & Andrew East — Promotion Agreement
TERMS AND CONDITIONS
These Terms and Conditions (“Terms”) describe the terms on which Social Stance
Media, LLC (“Social Stance”) will provide advertising services (the “Services”) to you (the “Advertiser”) under an Order (each an “Order” and collectively, “Orders”). In these Terms, you and Social Stance may be referred to individually as a “Party” and collectively as the “Parties.” These Terms and any Orders entered into by the Parties will be referred to collectively as the “Agreement.”
1. Orders. From time to time, the Parties may enter into an Order under which Social Stance will provide the Services to Advertiser. All Orders are subject to and governed by these Terms. Social Stance reserves the right to refuse any Order, or cancel any Order, at any time without cause. Revisions or modifications to accepted Orders must be agreed on by the Parties in writing.
2. Payment. All amounts due and payable under an Order must be received by
Social Stance by the due date set forth in the Order (the “Due Date”). If payment is not received by the Due Date, the Order will automatically terminate, unless, in Social Stance’s sole discretion, Advertiser is nonetheless included in the Campaign pending receipt of Advertiser’s payment.
3. Description of Services.
a. Your social media profile(s), as set forth in the applicable Order, (each, a “Profile” and collectively, “Profiles”) will be placed on a list of featured profiles on the Campaign Host Account to receive access to new follower growth through fans of the celebrity involved in the applicable promotional campaign (each, a “Campaign” and collectively, “Campaigns”).
b. The Campaign will be posted on the celebrity's social media account on
the commencement date. Followers will be directed to visit the tagged Campaign Host Account to enter a giveaway to win the prize.
c. The Campaign Host Account will be following the Advertiser, together with a range of other businesses taking part in the Campaign.
d. There will be no more than seventy five (75) Advertisers participating in any Campaign.
e. As part of the entry criteria, entrants will be required to follow all businesses the Campaign Host Account is following.
f. Eligibility of entrants will vary by region, in accordance with local laws.
g. Competition terms and conditions will be published online at the Giveaway Administrator’s Website.
h. The Giveaway Administrator will conduct a random draw of all eligible entrants. The winner will be announced online via Giveaway Administrator’s Website approximately 24 to 48 hours after completion of the Campaign (subject to regulatory requirements).
i. You will not receive copies of any Campaign materials and will have no right or license to use such materials in any way, including, without limitation, photos, videos, artwork or advertising copy.
a. In the unlikely event that the Campaign duration is interrupted for any reason, including but not limited to: (1) early deletion of the Campaign post due to Instagram's Artificial Intelligence software; (2) early or accidental deletion of the
Campaign posts by any other person; (3) any outage of the talent or Campaign host account; (4) war, terrorism, state of emergency or disaster (including natural disaster); (5) infection by computer virus, bugs, tampering, unauthorized intervention, technical failures which corrupt or affect the administration, security, fairness, integrity or proper conduct of the campaign; or (6) any alteration to any Instagram terms of service, access or permission in such a way that adversely affects the Campaign, the Campaign duration will be extended by a duration proportionate to the outage time, unless satisfactory results have already been gained by all participants. Any decision in this regard is completely at the sole discretion of Social Stance.
b. In the event of an interruption to the Campaign as referred to in this
clause, Social Stance will: (1) continue to use utilize best practice strategies, industry knowledge and liaise closely with Instagram with an aim to deliver optimum Campaign results; (2) contact the Advertiser by email as soon as practically possible, informing them of the interruption and the chosen course of action; (3) cover any additional cost incurred in extending or boosting the Campaign through the utilization of paid sponsorship, further promotion by the celebrity, introduction of additional sponsors, or any other methods that Social Stance may deem appropriate in the circumstances. In the event of a Campaign interruption as referred to in this clause, the Advertiser agrees that an extension of the Campaign duration will be Advertisers sole remedy and readily and accepts that no further compensation or refund will be offered to Advertiser.
5. Unsolicited offers. Soliciting giveaway participants and members of Social
Stance’s networking groups is strictly prohibited. For a period of thirty (30) days prior to, and thirty (30) days following completion of, this campaign, the Advertiser is not to contact: (i) other participants of this campaign; (ii) representatives of Social Stance; or (iii) the talent, or their representative, with unsolicited offers for personal or business gain.
6. Term. The term of this Agreement will continue until the last Campaign End
Date set forth on an Order.
7. Cancellation and Termination. Social Stance may cancel an Order at any time
for any or no reason; provided, that Social Stance will refund Advertiser’s payment in full within five business days after Social Stance’s cancellation. Either Party may cancel an Order at any time if the other Party is in material breach of its obligations under this Agreement, which breach is not cured within 10 days after receipt of written notice of such breach from the non-breaching Party.
8. No Guaranty. Social Stance does not forecast or guaranty results. To the extent Social Stance provides results from previous campaigns, these are provided for information only and not as a guaranty of any particular outcome.
a. If either Party (the “Receiving Party”) receives Confidential Information from the other Party (the “Disclosing Party”), then the Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than the provision and receipt of Services in accordance with this Agreement. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
b. “Confidential Information” means with respect to each Party, all nonpublic information (including the terms of this Agreement) disclosed or made available under this Agreement that relates to the provision or receipt of Services or either Party’s financial condition, campaign pricing, campaign terms, business or social media strategy, operations, technology, or contact information for Advertisers, vendors, celebrities, or agents, or information that is clearly identified as confidential at the time of disclosure or that, in light of the nature of the information itself or the circumstances surrounding its disclosure, ought in good faith to be deemed confidential.
c. The Receiving Party’s obligations under these Terms with respect to any
Confidential Information of the Disclosing Party will terminate if and when the
Receiving Party can document that such information: (i) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party, (ii) is disclosed to the Receiving Party by a third party that had the right to make such disclosure without any confidentiality restrictions, (iii) is, or through no fault of the Receiving Party has become, generally available to the public, or (iv) is independently developed by the Receiving Party without access to, use of, or reference to the Disclosing Party’s Confidential Information.
10. Intellectual Property.
a. Social Stance owns and will continue to own all intellectual property rights in and related to Social Stance and the Services, including, without limitation, Social Stance’s brand names, social media handles, email lists and payment and contact information for advertisers, vendors, celebrities, or agents, tradenames, graphics, logos, symbols, technical know-how, concepts, inventions, processes, techniques, documentation, domain names, website designs, product designs, all improvements and modifications to any of the foregoing, and all patent, trade secret, copyright, trademark, and other proprietary rights worldwide embodied in each of the preceding. Social Stance does not own the images of the celebrity and conveys no rights to Advertiser to use such images.
b. You own and will continue to own all intellectual property rights in and
related to your company and Profiles, including, without limitation, your brand names, social media handles, tradenames, graphics, logos, symbols, domain names, website designs, product designs, all improvements and modifications to any of the foregoing, and all patent, trade secret, copyright, trademark, and other proprietary rights worldwide embodied in each of the preceding.
11. Representations and Warranties.
a. Each Party represents and warrants to the other Party that (i) such Party
has all necessary right, power, and authority to enter into this Agreement and perform the acts required of such Party hereunder, and (ii) such Party’s entry into this Agreement and performance of its obligations and duties hereunder do not and will not violate any agreement of such Party or by which such Party is bound.
12. Disclaimer. Neither Party makes any other warranty, express or implied, with
respect to this Agreement or the Services, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, title, or non- infringement, or any warranties arising out of a course of dealing or course of performance. All aspects of Social Stance’s performance and Services are “as is,” “with all faults,” and “as available.” Without limiting the foregoing, Social Stance does not warrant that (a) the Services will meet Advertiser’s requirements or expectations, (b) the Services will be uninterrupted or error-free, or (c) Advertiser will obtain any particular results by use of the Services, including, without limitation, any increase in followers of Advertiser’s Profiles or any engagement of such followers.
13. Limitation of Liability.
a. Excluding damages that result from a breach of Section 10 (Confidentiality), Section 12 (Representations and Warranties), or intentional misconduct or gross negligence, in no event will either Party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, without limitation, damages for loss of profits, business interruption, loss of information and the like, incurred by the other Party arising out of this Agreement, even if such Party has been advised of the possibility of such damages. The total cumulative liability of each Party in connection with this Agreement will in no event exceed the amount of any payments actually received by Social Stance from Advertiser under this Agreement.
b. Notwithstanding the foregoing, if Social Stance fails to launch a Campaign set forth in an accepted Order or fails to include any of Advertiser’s Profiles in such Campaign, then Advertiser’s sole remedy for such shall be to request that Social Stance include Advertiser’s Profile in a comparable Campaign of Social Stance’s choosing within 90 days after the Campaign Start Date set forth in the applicable Order.
14. Governing Law. This Agreement will be governed by, and construed and
enforced in accordance with, the substantive laws of the State of Utah, without reference to the laws of any other state or jurisdiction.
15. Arbitration. Each Party expressly and irrevocably consents and submits to
resolving any dispute, controversy, or claim arising out of or related to this Agreement, or any breach or termination of this Agreement, exclusively through binding arbitration before a single arbitrator in Davis County, Utah. Arbitration will be administered exclusively by the American Arbitration Association (the “AAA”) and will be conducted consistent with the AAA’s rules, regulations, and requirements. Any arbitral award determination will be final and binding on the
Parties. Arbitration will proceed only on an individual basis. The Parties waive the right to assert, participate in, or receive money or any other relief from any class, collective, or representative proceeding. Each Party will only submit such Party’s own individual claims against the other and will not seek to represent the interests of any other person. Notwithstanding anything to the contrary in the AAA’s rules, no arbitrator will have jurisdiction or authority to compel any class or collective claim, to consolidate different arbitration proceedings, or to join any other party to an arbitration between the Parties. Notwithstanding the above, both Parties retain the right to seek or obtain, and will not be prohibited, limited, or in any other way restricted from, seeking or obtaining equitable relief to enforce Section 6 (Confidentiality) from any court having jurisdiction over the Parties.
16. Miscellaneous. Each Party is an independent contractor to the other and has no authority to act on behalf of or bind the other, and this Agreement does not create any other relationship (e.g., employment, partnership, agency, or franchise). Failure to enforce any part of this Agreement is not a waiver; only signed waivers are effective. The waiver of a breach of any provision will not operate or be interpreted as a waiver of any other or subsequent breach. Advertiser will not assign this Agreement in whole or part without Social Stance’s consent, and any assignment in violation of this section is null and void. This Agreement will bind and benefit the Parties’ successors and permitted assigns. The language in all parts of this Agreement will be construed, in all cases, according to fair meaning. If any part of this Agreement cannot be enforced as written, then the unenforceable portion will be replaced with similar terms to the extent enforceable under applicable law, and the rest of this Agreement will not be affected. All
rights and remedies under this Agreement are cumulative. This Agreement is the Parties’ entire agreement on this subject, merges all prior and contemporaneous communications, and supersedes all prior agreements between the Parties regarding this subject.