1. General. These Influencer Terms and Conditions (collectively, with any applicable influencer letter agreement, this “Agreement”) govern all services provided by you to Alder Street Marketing Inc. (“Alder”) for the benefit of G Fuel LLC (“G Fuel”).
2. Intellectual Property.
a. In connection with your performance of the services described in the applicable influencer agreement (collectively, the “Services”), Alder may, in Alder’s sole discretion, provide you with certain materials solely to perform your obligations under this Agreement (collectively, the “Campaign Materials”). Any Campaign Material provided by Alder to you is provided on an “as is” basis and each of Alder and G Fuel disclaims all representations and warranties, express or implied, as to the Campaign Materials. Alder and G Fuel (as applicable) own all rights, title and interest arising under all Law (as defined below) throughout the world in and to the Campaign Materials.
b. You hereby grant Alder and G Fuel the worldwide, exclusive, perpetual, irrevocable, transferable and sublicensable, fully paid-up and royalty-free right and license to use the Services (including any of your marks, logos, name, gamer tags, voice, likeness, image, trademarks, appearance, biographical, professional or other identifying information and other content provided by you to G Fuel or Alder incorporated into the Services) (collectively, including all copyrights and other intellectual property rights incorporated therein, “IP Materials”), in each case, for all legitimate Alder or G Fuel business purposes. For purposes of clarity and without limiting the foregoing, you acknowledge and agree that this license gives Alder and G Fuel the right, at all times, to: (i) modify, edit, combine with other materials, translate, include in collective works, and otherwise create derivative works of the Services; and (ii) repost, reproduce, reboot, republish, recirculate, perform (publicly or otherwise), display (publicly or otherwise), and transmit the Services, including any derivative works of the Services, in whole or in part.
c. You hereby grant Alder and G Fuel a worldwide, perpetual, irrevocable, transferable and royalty-free license to use and incorporate into the G Fuel products any suggestion, enhancement request, recommendation, correction or other feedback provided by you relating to the operation of the G Fuel products (collectively, “Feedback”). Any improvements, enhancements or other modifications to the G Fuel products created, prepared, produced, authored, edited, amended, conceived or reduced to practice by Alder or G Fuel (whether alone or together with you or any other third party or parties) arising out of or relating to such Feedback are and will remain G Fuel’s sole and exclusive property.
3. Confidentiality and Non-Disparagement.
a. Confidentiality Obligations.
- i. Confidential Information. You may receive access to, be trusted or become acquainted with, or may acquire knowledge of or learn, observe, hear or otherwise become aware of non-public information, trade secrets or both relating to Alder, G Fuel or their respective affiliates, including information regarding business plans, business practices, products, marketing plans, nutritional information, designs, procedures, agreement terms, employees, specifications, methods, finances, developments or results, policies, marketing, pricing, customer and supplier information, know-how and technology in various forms which may be tangible or intangible (any and all such non-public information is collectively referred to as “Confidential Information”). “Confidential Information” does not include information that, as evidenced by a written document: (A) is or becomes public without breach of this Agreement; or (B) was lawfully received by you from a third party without restriction.
- ii. Duty of Confidentiality. You will at all times: (A) hold the Confidential Information in strict confidence; (B) take all steps necessary to protect the confidentiality of the Confidential Information; (C) use the Confidential Information for the sole purpose of fulfilling your obligations set forth in this Agreement; and (D) restrict disclosure of the Confidential Information to persons or entities to whom you reasonably believe such disclosure of the Confidential Information is necessary and in the best interest of Alder and G Fuel, and then only to the extent that such employees of Alder or G Fuel and other persons authorized by Alder or G Fuel have a need to know such Confidential Information.
- iii. Return of Information. Whenever requested by Alder or G Fuel, you will immediately deliver to Alder or G Fuel (as applicable) (or at Alder’s G Fuel’s request, destroy), all Confidential Information and, as appropriate, all other property in your possession, or under your care and control, belonging to Alder, G Fuel, or their respective affiliates and Representatives (as defined below).
- iv. Legally Required Disclosures. In the event that you are requested or required by Law to disclose any of the Confidential Information, you will provide Alder and G Fuel with prompt notice of such request or requirement, and you will cooperate with Alder and G Fuel in seeking to legally avoid such disclosure. If, in the absence of a protective order, you are legally compelled, in the opinion of your counsel, to disclose any of the Confidential Information, Alder and G Fuel (as applicable) will either seek and obtain appropriate protective orders against such disclosure or will be deemed to waive your compliance with the provisions of this Agreement to the least extent necessary to satisfy such request or requirement, in which event you will use all reasonable efforts to assure confidential treatment of the disclosed information.
- v. Acknowledgements. You acknowledge and agree that the Confidential Information and all copies and manifestations of the Confidential Information, (A) are, and will remain at all times, the exclusive property of Alder and G Fuel (as applicable); and (B) are special and unique assets or trade secrets of Alder and G Fuel (as applicable), created or obtained by Alder and G Fuel (as applicable) at considerable time and expense, from which Alder and G Fuel (as applicable) may, will or does derive independent economic value from not being generally known to the public or third parties. Except as otherwise expressly set forth in this Agreement, you acknowledge and agree that nothing in this Agreement will constitute a license or transfer of ownership of any intellectual property rights of Alder or G Fuel to you.
b. Non-Disparagement. You will not, directly or indirectly, at any time, make, publish or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments or statements concerning Alder, G Fuel or any of their respective affiliates or employees, managers, members, officers, agents, contractors, representatives and existing, prospective and former customers, vendors, investors, financial resources or any other associated third party with Alder or G Fuel (collectively, “Representatives”). The previous sentence does not, in any way, restrict you from exercising protected rights by speaking the truth to the extent that such rights cannot be waived by agreement or from complying with any Law or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by Law. You will promptly provide written notice of any such order to an authorized officer of Alder.
4. Representations and Warranties. You represent and warrant, at all times, that:
a. you have the full right and legal authority to enter into and fully perform this Agreement, including all intellectual property rights to perform under this Agreement and to grant Alder and G Fuel the rights and licenses set forth in this Agreement, and no separate consents or approvals are required;
b. your performance under this Agreement does not and will not violate or breach any duty or obligation owed to any other person or entity;
c. this Agreement has been duly and validly executed and delivered by you and constitutes your valid and legally binding obligation, enforceable in accordance with its terms;
d. you will comply with all applicable federal, state, and local statutes, laws, regulations, rules, judgments, orders, and decrees (collectively, “Laws”), and will not violate any third-party rights, including any copyright, trademark, patent, rights of privacy or publicity, trade secrets, moral rights or other intellectual property rights;
e. you will comply with the Federal Trade Commission’s Guides Concerning Endorsements and Testimonials (http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf) and G Fuel’s social media endorsement policies in effect from time to time;
f. no Service or other deliverables will contain any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information;
g. there are no pending or imminent actions, suits or proceedings against you or which relate to the IP Materials;
h. you will discharge your duties under this Agreement diligently, in good faith, in a professional manner and in accordance with industry standards, and will otherwise conduct business in a manner that reflects favorably at all times on the good name, goodwill and reputation of Alder and G Fuel;
i. you will otherwise comply with the obligations set forth in this Agreement;
j. you will not take any action or inaction, that, in Alder’s or G Fuel’s sole discretion, (i) reflects poorly on Alder or G Fuel or their respective affiliates or businesses; or (ii) brings Alder or G Fuel or their respective affiliates or businesses negative publicity;
k. you have reviewed this Agreement and has had a reasonable opportunity to review the same with your counsel;
l. you will not cross promote G Fuel and its products or services with any other product or service in any of the Services, without first obtaining prior written approval from Alder or G Fuel; and
m. the Services and other branded content and deliverables included in the Services:
- i. are your sole and original creation;
- ii. have not been, and prior to such publication of them will not be, published or otherwise made publicly available, in whole or in part;
- iii. are not libelous or otherwise defamatory;
- iv. do not promote bigotry, racism, or discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age, and do not use ethnic slurs, personal insults, obscenity, or other offensive language;
- v. do not, and will not, infringe or otherwise violate any right of any third party, including any copyright, trademark, patent, trade secret, or other intellectual property right, or any right of publicity or privacy;
- vi. do not make offensive comments that have the purpose or effect of creating an intimidating or hostile environment;
- vii. do not promote unsafe activities that could lead to an unsafe situation involving G Fuel’s consumers or other individuals;
- viii. only include factual statements about G Fuel and G Fuel’s products that are known for certain are true and can be proven or verified; and
- ix. clearly and conspicuously disclose the “material connection” with G Fuel, making it clear that you are a paid influencer and have received compensation. For the avoidance of doubt, you will place the disclosure in plain sight in close proximity to any audio or visual communications that you make about G Fuel, G Fuel’s brand or G Fuel’s products.
5. Products for Personal Use. Alder may provide you with G Fuel products for personal use only. Such G Fuel products may not be used for any commercial purpose whatsoever. The amount, type and frequency will be determined in Alder’s sole discretion. TO THE GREATEST EXTENT PERMITTED BY LAW, ALDER AND G FUEL DISCLAIM ALL WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED.
a. Indemnification. Subject to Section 6.b below, you will indemnify, defend and hold harmless Alder, G Fuel, their respective affiliates, and their respective Representatives from and against any and all losses, damages, liabilities, claims, demands, suits, judgments, penalties, fines, costs and expenses, including attorneys’ fees, court costs, sales and use taxes and all expenses even if not taxable as court costs (collectively, “Losses”), incurred or sustained by, or imposed upon, Alder, G Fuel, their respective affiliates, or their respective Representatives based upon, arising out of, with respect to or by reason of any: (i) IP Materials; (ii) breach of any representation, warranty, covenant or obligation under this Agreement; (iii) action or inaction in connection with this Agreement or otherwise; or (iv) any withholding taxes, FICA taxes, federal unemployment taxes, and any other federal, state or local taxes, payments or filings required to be paid, made or maintained in connection with any payments made to you by Alder.
b. Indemnification Procedures. Alder or G Fuel (as applicable) will provide you with prompt written notice of any claim, action or proceeding for which indemnification is sought, but in any event not later than 30 days after Alder or G Fuel (as applicable) becomes aware of such claim, action or proceeding. The failure to give such prompt written notice will not, however, relieve you of your indemnification obligations. You will not enter into any settlement or compromise of any such claim without Alder’s and G Fuel’s prior written consent, which consent may be withheld in Alder’s and G Fuel’s sole discretion. Alder and G Fuel may, in Alder’s and G Fuel’s sole and absolute discretion, assume control of the defense, appeal or settlement of a claim that is reasonably likely to give rise to an indemnification claim under this Section 6 by providing written notice to you. Subject to Section 6.a above, and without limiting the foregoing, you will pay any and all Losses (even if incident to any appeals) awarded against or otherwise incurred by Alder or G Fuel in connection with or arising from any such indemnified claim, action or proceeding.
a. Interpretation. This Agreement will not be construed more strongly against any party regardless of who is responsible for its preparation. You and Alder acknowledge each contributed and is equally responsible for its preparation. The headings contained in this Agreement are for convenience of reference only, are not to be considered a part of this Agreement and will not limit or otherwise affect in any way the meaning or interpretation of this Agreement. For purposes of this Agreement, (i) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) all fees and amounts set forth in this Agreement are in U.S. Dollars (USD).
b. Independent Contractor Relationship.
- i. This Agreement is intended to create an independent contractor relationship between Alder and you, and will be interpreted to effectuate such intent. This Agreement will not be interpreted as a joint venture, franchise or partnership between Alder and you, and no party to this Agreement will have authority to contract for or bind the other party in any manner whatsoever.
- ii. Alder is not responsible for withholding or paying any income, payroll, social security, or other taxes, making any insurance contributions, including unemployment or disability, or obtaining worker’s compensation insurance on behalf of you. You are solely responsible for all such taxes and contributions, including penalties and interest. For the avoidance of doubt, you are not eligible under this Agreement to participate in any of employee benefits, such as time off, medical, profit sharing, or retirement benefits.
- iii. For the avoidance of doubt, you acknowledge and agree that (A) Alder will only be responsible for payment of any fee to you, subject to the terms and conditions set forth in this Agreement, and neither Alder, G Fuel nor their respective affiliates will be responsible for any other payment or compensation whatsoever; and (B) notwithstanding anything to the contrary, G Fuel and its respective affiliates (other than Alder, in such case, as expressly provided in this Agreement and on the terms and conditions set forth in this Agreement) will not make or be responsible for any payments to you under this Agreement or otherwise.
c. Third Parties. You agree and acknowledge that this Agreement confers rights and remedies upon G Fuel, its affiliates and their respective Representatives and that such parties are intended third-party beneficiaries of this Agreement. Except for G Fuel, its affiliates and their respective Representatives, and except as otherwise expressly stated in this Agreement to the contrary, nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than Alder and you and their respective legal representatives, successors and permitted assigns. Nothing in this Agreement is intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement, nor will any provision give any third persons any right of subrogation or action over or against any party to this Agreement.
d. Amendments. The provisions of this Agreement may not be amended, supplemented, waived or changed orally, but only by a writing signed by you, Alder and G Fuel to this Agreement and making specific reference to this Agreement.
e. Waivers. The failure or delay of a party to this Agreement at any time to require performance by the other party to this Agreement of any provision of this Agreement, even if known, will not affect the right of such party to require performance of that provision or to exercise any right, power or remedy under this Agreement. Any waiver by a party to this Agreement of any breach of any provision of this Agreement should not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right, power or remedy under this Agreement. No notice to or demand on a party to this Agreement in any case will, of itself, entitle such party to any other or further notice or demand in similar or other circumstances.
f. Assignment; Binding Effect. You may not assign or otherwise transfer (voluntarily, by operation or law or otherwise) this Agreement or any right, interest or benefit under this Agreement without the prior written consent of Alder and G Fuel. Alder may assign this Agreement to a directly or indirectly owned subsidiary or a direct or indirect parent entity of Alder, or to any acquirer of all or substantially all of the assets or equity interests of Alder, without your consent. Any attempt to assign, delegate, or transfer in violation of this Section 7.f is void ab initio. All of the terms and provisions of this Agreement will be binding upon, inure to the benefit of, and be enforceable by the parties to this Agreement and their respective legal representatives, successors and permitted assigns, whether so expressed or not.
g. Severability. If any provision of this Agreement is contrary to, prohibited by or deemed invalid under applicable law or regulation, such provision will be inapplicable and deemed omitted to the extent so contrary, prohibited or invalid, but the remainder of this Agreement will not be invalidated thereby and will be given full force and effect as far as possible. If any provision of this Agreement may be construed in two or more ways, one of which would render the provision invalid or otherwise voidable or unenforceable and another of which would render the provision valid and enforceable, such provision will have the meaning which renders it valid and enforceable.
h. Notices. All notices, consents and other communications under this Agreement to any party to this Agreement will be deemed to be sufficient if contained in a written instrument delivered in person or sent by email, nationally-recognized overnight courier or first class registered or certified mail, return receipt requested, postage prepaid, at the addresses set forth in the applicable influencer letter agreement (or such other addresses of which a party to this Agreement will notify the other from time to time in compliance with the provisions of this Section 7.h). Any such notice will be deemed to have been duly given (i) if delivered in person, when delivered; (ii) when received by the addressee if sent by a nationally-recognized overnight courier; (iii) on the date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by first class registered or certified mail, return receipt requested, postage prepaid.
i. Equitable Relief. You acknowledge that money damages may be both incalculable and an insufficient remedy for a breach of this Agreement by you and that any such breach may cause Alder or G Fuel irreparable harm. Accordingly, Alder or G Fuel, in addition to any other remedies provided for in this Agreement, at law or in equity, may be entitled, without the requirement of posting of bond or other security, to equitable relief, including injunctive relief and specific performance, in connection with a breach of this Agreement by you.
j. Setoff Permitted. Notwithstanding anything to the contrary in this Agreement, and without prejudice to any other right or remedy it has or may have, Alder may, at Alder’s option and without notice to you, set off or recoup against any liability it owes to you (including any fees) against any liability for which you are liable to Alder or G Fuel pursuant to this Agreement (including pursuant to Section 6 of this Agreement), whether such liability is liquidated or unliquidated or matured or unmatured. The setoff or recoupment by Alder of any liability it owes to you will operate for all purposes as a complete discharge (to the extent of such liability) of Alder’s obligation to pay such liability from which such liability was set off or recouped.
k. Remedies Cumulative. No remedy in this Agreement conferred upon Alder or G Fuel is intended to be exclusive of any other remedy, and each and every such remedy will be cumulative and will be in addition to every other remedy given under this Agreement or existing at law or in equity or by statute or otherwise now or after the Effective Date. No single or partial exercise by Alder or G Fuel of any right, power or remedy under this Agreement will preclude any other or further exercise of any such right, power or remedy.
l. Governing Law. This Agreement and all transactions contemplated by this Agreement will be governed by, and construed and enforced in accordance with, the internal laws of the State of New York, without regard to principles of conflicts of laws.
m. Jurisdiction and Venue. Any civil action or legal proceeding arising out of or relating to this Agreement will be brought exclusively in the state or federal courts in Suffolk County, New York. Each party to this Agreement consents to the jurisdiction of such New York court in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such New York court. Service of any court paper may be effected on such party to this Agreement by mail, or in such other manner as may be provided under applicable laws, rules of procedure or local rules.
n. JURY WAIVER. IN ANY CIVIL ACTION, COUNTERCLAIM, OR PROCEEDING, WHETHER AT LAW OR IN EQUITY, WHICH ARISES OUT OF, CONCERNS, OR RELATES TO THIS AGREEMENT, ANY AND ALL TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE PERFORMANCE OF THIS AGREEMENT, OR THE RELATIONSHIP CREATED BY THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, TRIAL WILL BE TO A COURT OF COMPETENT JURISDICTION AND NOT TO A JURY. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY. ANY PARTY MAY FILE, AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT, AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THIS AGREEMENT OF THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. NO PARTY HAS MADE OR RELIED UPON ANY ORAL REPRESENTATIONS TO OR BY ANY OTHER PARTY REGARDING THE ENFORCEABILITY OF THIS SECTION 7.n. EACH PARTY HAS READ AND UNDERSTANDS THE EFFECT OF THIS SECTION 7.n. EACH PARTY ACKNOWLEDGES THAT SUCH PARTY HAS BEEN ADVISED BY SUCH PARTY’S OWN COUNSEL WITH RESPECT TO THE TRANSACTION GOVERNED BY THIS AGREEMENT AND SPECIFICALLY WITH RESPECT TO THE TERMS OF THIS SECTION 7.n.
o. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Delivery of an executed signature page by facsimile, electronic mail in portable document format (.pdf) or by any other electronic means intended to preserve the original pictorial appearance of a document will have the same effect as delivery of an executed original of this Agreement.