Affiliate Terms & Conditions
- Term. The term of this Agreement shall commence as of the Effective Date and shall continue for the length of active membership in The Box by Dr Ava affiliate program, unless earlier terminated as set forth herein (the “Term”).
- Non-Disparagement. During and after the Term, Affiliate shall not make any public statements that defame or disparage the business reputation, practices, or conduct of Company, the Company’s products or services, or any representatives or affiliates of the Company.
- Intellectual Property Rights.
- Company hereby grants to Affiliate a non-exclusive, non-transferable, non-assignable, non-sublicensable, limited, revocable, terminable license during the Term to use the trademarks and copyrighted material provided by Company to Affiliate hereunder (collectively, the “Company IP”), solely as necessary to fulfill Affiliate’s obligations hereunder. Affiliate acknowledges and agrees that: (i) as between the parties, Company IP is and shall be the sole and exclusive property of Company; (ii) this Section 5 does not convey any right, title or ownership interest in or to Company IP to Affiliate; and (iii) use by Affiliate of Company IP shall inure solely to the benefit of Company.
- Affiliate hereby grants to Company and its affiliates during the Term the royalty-free, irrevocable, exclusive, transferable, worldwide right and license to use, reuse, post, repost, share, link, reproduce, and exhibit Affiliate’s name, signature, likeness, photograph, biography, statements, and endorsements of Company or Company’s products and/or services, in connection with the Posts and in connection with the advertising, promotion, distribution and sale of Company’s products and/or services, in all cases in any and all manner and media now known or hereafter devised in perpetuity, including, without limitation, on Company’s social media channels, website, and in any other owned, controlled or paid media.
- In addition, Affiliate hereby grants to Company a royalty-free, irrevocable, perpetual, exclusive (except as to Affiliate), transferable, worldwide license to use, sell, copy, distribute, modify, create derivative works based on, commercialize and otherwise exploit the Posts in connection with the advertising, promotion, distribution and sale of Company’s products and/or services, in all cases in any and all manner and media now known or hereafter devised, including, without limitation, on Company’s social media channels, website, and in any other owned, controlled or paid media.
- Notwithstanding the termination of the license granted by Affiliate in Section 5(b), following the Term, (i) Company and its affiliates will continue to have the right to use, in perpetuity, the Posts published during the Term, without further consideration, in any and all manner and media now known or hereafter developed in perpetuity, including, without limitation, on Company’s social media channels, website, and in any other owned, controlled or paid media outlets, provided such usage is consistent with this Section 5, and (ii) Company and its affiliates will not be obligated to remove any Posts published or republished during the Term, whether on Company’s social media channels, website, or in any other owned, controlled or paid media. Affiliate hereby waives any and all moral rights in and to the Posts and any rights to inspect or approve Company’s use of the Posts.
- Representations, Warranties, and Covenants. Affiliate hereby represents, warrants, and covenants to Company that: (a) Affiliate has the right, power and capacity to enter into this Agreement and perform its obligations hereunder; (b) Affiliate has not made, and will not make, any other agreement, grant or assignment which conflicts with or materially impairs the complete enjoyment of the rights and privileges granted to Company hereunder; (c) Affiliate will not infringe upon the intellectual property, publicity, or other personal or proprietary rights of any person or entity in performance of the Services; and (d) Affiliate will fully comply with all Company policies and guidelines regarding public statements made about Company or Company’s products and/or services, as well as all Applicable Law in rendering the Services required of Affiliate herein, including, without limitation, the FTC Guides Concerning the Use of Services and Testimonials in Advertising (which require, among other things, Affiliate to disclose its relationship with Company as set forth therein).
- Termination. Company shall have the right to terminate this Agreement: (a) in the event Affiliate materially breaches this Agreement and fails to cure such breach (if curable) within three business (3) days of Company’s written notice to Affiliate detailing such breach; (b) for any reason or for no reason, upon thirty (30) days’ written notice to Affiliate; or (c) upon written notice to Affiliate at any time if Affiliate becomes the subject of public disrepute, contempt, or scandal, such that Company determines in good faith that the continued association with Affiliate may adversely affect Company’s reputation or goodwill. Upon any termination of this Agreement, Affiliate shall immediately cease making Posts, and if directed by Company, agree to delete any Posts.
- Indemnification. Affiliate shall indemnify, defend, and hold harmless Company and its employees, officers, directors, shareholders, agents, affiliates, and assigns of each of the foregoing from and against any and all third-party claims, causes of action, suits, and proceedings (including any and all liability, damages, costs, expenses (including reasonable attorneys’ fees and court costs) resulting from the foregoing) arising out of: (a) any material breach of this Agreement by Affiliate; or (b) any negligent act/omission or act of willful misconduct by Affiliate.
- Further Assurances. Affiliate shall, from time to time at the request of Company, furnish such further information or assurances, execute and deliver such additional documents, instruments, and conveyances, and take such other actions as may be reasonably necessary to carry out the intents and purposes of this Agreement.
- Confidentiality. All non-public, confidential or proprietary information of Company (“Confidential Information”) disclosed by Company to Affiliate, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement is confidential and may not, during or after the Term, be disclosed or copied unless prior authorized by Company in writing. Upon expiration or termination of this Agreement or upon Company’s request, Affiliate shall promptly return or destroy, at Company’s option, all documents and other materials embodying the Confidential Information received from Company. Company shall be entitled to seek injunctive relief without the necessity of posting a bond or making other deposits for any violation of this Section 10.
- General. This Agreement represents the entire agreement between the parties with respect to the subject matter hereof, and supersedes any previous or contemporaneous agreements between the parties with respect to the subject matter hereof. This Agreement may not be changed or amended except by a writing executed by both parties and may not be waived, except by a writing executed by the waiving party. If any portion of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect any other portion of this Agreement. The obligations of Affiliate hereunder are personal, and Affiliate shall not assign this Agreement, in whole or in part, without the prior written consent of Company. Affiliate’s relationship with Company is that of an independent contractor, and nothing herein shall be deemed to create the relationship of principal-agent, employer-employee, joint venture or partner between Company and Affiliate. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without reference to its provisions regarding conflicts of law. The parties hereby agree to bring any dispute arising out of or relating to this Agreement solely in the state and federal courts located in Los Angeles, California and the parties hereby waive the right to object to the exercise of personal jurisdiction by or to venue in any such court or to make a claim of forum non conveniens. Company’s liability hereunder shall be limited to the value of the Consideration. Company shall not be liable for any consequential, special, or exemplary damages, including lost profits. Any remedies Affiliate may have against Company in connection with this Agreement shall be limited to the right to recover damages, if any, in an action at law, and Affiliate hereby waives any right or remedy in equity, including, without limitation, the right to seek injunctive relief or the right to enjoin the distribution, advertising or exploitation of the Posts. Any term of this Agreement that expressly extends, or by its nature should extend, beyond termination or expiration of this Agreement, including, without limitation, Sections 4-6, and 8-11, shall survive termination of this Agreement. All notices required or permitted under this Agreement shall be in writing and delivered via overnight mail, overnight courier service, signature proof of receipt required, or email or facsimile transmission. Notices shall be directed to the addresses as set forth below or such other addresses as specified in writing by a party and shall be deemed effective upon receipt. This Agreement may be executed in counterparts, including by e-mail and with electronic signatures, each of which will be deemed an original, and all of which taken together shall constitute one single agreement.
1. Any Post Affiliate makes in connection with this Agreement must reflect Affiliate’s honest opinions, findings, beliefs, or experiences with Company and any Company products and/or services mentioned in the Post, and may not contain any statements or representations about Company that are not true or are deceptive or misleading. Affiliate must make statements about Affiliate’s experience with Company once Affiliate is a bona fide user of Company products and/or services. If Affiliate’s opinions, findings, or experiences mentioned in a Post change, Affiliate is responsible for notifying Company regarding updating such Post.
2. Affiliate must not impersonate another person or pretend Affiliate is someone else when making a Post.
3. Posts must comply with the Federal Trade Commission’s Guides Concerning Use of Endorsements and Testimonials in Advertising, Applicable Law and industry best practices. Affiliate must clearly and conspicuously disclose its relationship with Company. In order to be “clear and conspicuous”, disclosures must:
(a) Be located at the beginning, on top of, or next to any related communication;
(b) Be understandable for the intended audience;
(i) Affiliate’s audience should readily understand that Affiliate is not posting about or reviewing Company products and/or services independently.
(c) Be clearly visible to anyone who visits Instagram and reads or sees the Post, meaning:
(i) disclosures must be prominently presented and easy to understand, in a font, size and format that is easy to see;
(ii) Affiliate’s followers, readers, or audience must not have to scroll or search to find the disclosure;
(iii) for compressed communications, Affiliate should describe the relationship in the Post either in the text of the communication or by prominently placing disclosures such as “#ad, #paid, or #sponsored” within the communication;
(iv) disclosures may need to be repeated throughout Affiliate’s Posts, for example, in every individual Post and comments thereto; and
(v) generally, the disclosure must appear on the face of the communication and not in a hyperlink.
4. The Posts must be Affiliate’s own original work (other than any materials or content provided by Company), created solely by Affiliate, and must not infringe the copyright, trademark, privacy, publicity, or other personal or proprietary rights of any person or entity.
5. During the Term, Affiliate may not make posts that are lewd, obscene, sexually explicit, pornographic, disparaging, defamatory, libelous, or obscene, or that otherwise contains inappropriate content or objectionable material. Company may, in its sole and unfettered discretion, require that Affiliate remove such Posts.
6. The Posts must not contain any personally identifiable information (such as license plate numbers, personal names, e-mail addresses, or street addresses) of any person other than Affiliate. Should Affiliate include personally identifiable information about himself/herself in the Posts, Affiliate acknowledges and agrees that such information will be disclosed publicly and that Affiliate is solely responsible for any consequences thereof.
7. The Posts must not contain trademarks or other registered marks owned by others without written permission.
8. The Posts must not defame, misrepresent, or contain disparaging remarks about other people, companies, or products.
9. Affiliate must be especially cautious when making superlative, conclusory or comparative statements about Company products and/or services (e.g., “best” or “better than”) in the Posts.