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TERMS AND CONDITIONS
[ REVISED DECEMBER 2017 ]
Aceable believes in following industry best practices, including full, fair and effective disclosures of material facts relating to your relationship with Aceable in accordance with the Federal Trade Commission’s Guides Concerning Endorsements and Testimonials in Advertising (“FTC Guides”). As such, we require that all bloggers, influencers and similar persons (“Influencer” or “You”) adhere to the guidelines set forth below (the “Guidelines”) and in Aceable’s Influencer Terms and Conditions (the “Terms”) when blogging, tweeting or otherwise publishing content about Aceable’s products or services.
Respect Intellectual Property Rights – Intellectual Property is the group of legal rights to works that people create or invent. Intellectual property rights typically include copyright, trademark, and trade secret rights, as well as the right to use someone’s name, likeness, image, or voice. Examples include photographs, videos, music (including song lyrics), trademarks/logos (e.g. Nike), brand names or brand packaging (e.g. Coca-Cola, McDonald’s), personal names/likenesses (including celebrities’ names/likenesses), quotes and writings. You should never post or share any content including these elements without obtaining written permission to do so from the third party who owns the rights, as this would constitute a violation or infringement of their intellectual property.
a. You should not post or share any works that You do not own or have a proper license to use or have not been authorized by Aceable for usage.
b. You should get permission from any third parties featured in photos and other content that You post – for example, a signed release, waiver, or other form of written permission from those third parties – even if You took the photo yourself, know the individuals involved and/or obtained verbal consent.
c. If You are unsure about a work, particularly in instances where a work includes a third-party’s trademark/logo (e.g. a Coke can or Louis Vuitton bag), or music, film or television clips, or a celebrity’s name, photo or image, You should check with Aceable before using the work. A good rule of thumb is, if in doubt, do not post it.
Disclose Your Connection to Aceable – As set forth in the Terms, when blogging or posted about Aceable or Aceable’s products or services, You must clearly disclose your “material connections” with Aceable, (i.e. the fact that your post is “sponsored by Aceable”) and include any hashtags requested by Aceable (such as #ad or #sponsored). “Material connections” may be defined as any connection between an Influencer and a marketer that could affect the credibility consumers give to that Influencer’s statements. Important examples of “material connections” include consideration (i.e., benefits or incentives such as monetary compensation, loaner products, free products or services, in-kind gifts, or special access privileges) provided by a marketer to a You. Note that while Aceable may provide recommendations and options for disclosures, Aceable will not be responsible for any failure by You to comply with the FTC Guides or any failure by You to obtain all third party clearances and permissions with respect to content You post.
Maintain Clear and Prominent Disclosure – The above disclosure should be made in close proximity to any statements that You make about Aceable’s products. This disclosure should be clear and prominent enough for consumers to view it when they are reading your posts. This means that the disclosure should not be buried behind links or in terms and conditions (or in similar documents). In addition, the consumer should not be required to click on, scroll down or mouse over a link in order to view the disclosure. Please note that this disclosure is required regardless of any space limitations of the medium (e.g., Twitter), where the disclosure can be made via hashtags, such as #sponsored, #paid or #ad (preferably at the beginning of the tweet).
Give Your Honest and Truthful Opinions – Your statements should always reflect your honest and truthful opinions and actual experiences. If a statement is not your opinion, but rather something that Aceable has asked You to say, this fact should be made clear to readers.
Only Make Factual Statements That Are Truthful and Can Be Verified – Only make a factual statement about Aceable or Aceable’s product/service’s characteristics or quality which You know for certain is true and can be verified. For example, do not make statements about the performance of a product unless You have support for such claims. Remember that even if You do not expressly state a fact, it may be implied, and these Guidelines apply to both express and implied messages.
Do Not Send E-mail Messages on Aceable’s Behalf Unless Expressly Requested To Do So – Unless expressly requested to do so by Aceable, You are not permitted to send any e-mails on Aceable’s behalf, nor will Aceable provide You any compensation if You send any emails on its behalf.
Comply with other policies and laws – You should comply with the terms, conditions, guidelines and policies of any service that You use and all applicable laws. For instance, if a service says it may not be used for commercial purposes, then You should not promote Aceable or Aceable’s products or services on such a site.
Protect Your Personal Information – Protect your privacy by keeping in mind that your posts are public. Don’t share personal or sensitive information about You or your family that You may not want to make available to the public.
Respect Others’ Privacy – Do not include personal information about any third party that has not been voluntarily made available by them for You to share in your posts. This includes any information that may make it possible for someone to reasonably identify another person.
These Influencer Terms and Conditions (the “Terms”) are entered into by and between Aceable and the individual specified in the applicable Term Sheet executed by the parties (“Influencer”), with regard to Influencer’s performance of spokesperson, influencer, public relations, and social media services for Aceable effective as of the date of the Term Sheet (the “Effective Date”).
In exchange for certain compensation, products and/or experiences, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Aceable engages Influencer to perform, and Influencer agrees to perform, the services specified on one or more Term Sheets entered into by Influencer and Aceable (the “Services”) for the fees and compensation set forth in the Term Sheet. Except as otherwise expressly provided herein, Influencer will perform the Services at its own expense and using its own resources and equipment.
I. Work Product. Influencer shall perform the Services and develop any work product hereunder for Aceable as a “work made for hire” according to U.S. Copyright law, and such work product, including all copyrights, trademarks and other intellectual property rights embodied therein (collectively, the “Work Product”) shall be owned exclusively by Aceable. In the event any portion of the Work Product is not considered “work made for hire” or as otherwise necessary to ensure full ownership of the Work Product by Aceable, Influencer hereby assigns to Aceable all right, title, and interest in and to such Work Product. Influencer will sign any additional documents that may be reasonably necessary to effect such assignment.
II. Intellectual Property Rights. No license or other right of any kind is granted by Aceable to Influencer, except as expressly provided in these Terms. Influencer shall not use Aceable’s copyrights, trademarks, trade names, or other intellectual property in any way except to the limited extent as may be expressly agreed in the Term Sheet.
III. Influencer’s Content and Attributes. For the Services which Influencer is providing under these Terms and without limiting Aceable’s ownership of the Work Product as specified above, Influencer gives Aceable the irrevocable, sublicenseable, worldwide right and permission to use any Work Product or other video, photo, written or verbal content Influencer shares or provides related to the Services (collectively, “Aceable-Related Content”) in any manner, in whole or in part, and for any purpose in any and in any and all media, including and without limitation, on Aceable owned or controlled websites and platforms, social media, any advertising materials, publications, marketing materials, and/or presentations, and in any and all other media, in perpetuity. Any statements, posts and/or feedback that Influencer provides may be paraphrased, amplified, shortened and/or put into conversational form. Influencer further agrees that Aceable may contact (including by means of messages on public social media platforms) Influencer about any Aceable-Related Content. Influencer acknowledges that participation in the Services means Aceable can use Influencer’s Aceable-Related Content and include Influencer’s name/likeness/social media handle or channel/blog name and any other Influencer attributes in any manner that Aceable determine supports the purposes of these Terms, including use in any media that accepts advertising or promotional content or communications (such as, but not limited to, digital, print, television or radio). Influencer agrees that Influencer will not hold Aceable or Aceable’s licensees responsible for any liability resulting from their use of Influencer’s Aceable-Related Content in accordance with the terms hereof. Aceable shall not be liable for any indirect, consequential, exemplary damages (including but not limited to lost profits) and the combined, aggregate liability of Aceable hereunder shall not exceed the fees payable to Influencer under the Term Sheet.
Influencer represents and warrants that:
a. (i) Influencer has the right to assign the Work Product to Aceable as set forth in Section 2; (ii) the Work Product and other Aceable-Related Content will be original and will not infringe upon any copyright, patent, trademark, right of publicity or privacy, or any other proprietary or other right of any person, whether contractual, statutory or common law; (iii) the Services rendered by Influencer shall be promptly rendered with due care and shall be of first rate quality; (iv) Influencer shall not, during the term of these Terms, render any services of any kind directly or indirectly for any company competitive with Aceable or conduct or participate in any program, promotion or other project that would detract from the Services Influencer is providing hereunder; (iv) Influencer will not commit any act which brings Aceable into public disrepute, contempt, scandal, or ridicule, or which insults or offends the general community to which Aceable’s advertising materials are directed, or which might tend to harm Aceable or any of Aceable’s products or services including, without limitation, disparaging Aceable, its products or services, or its competitors; (vi) Influencer’s statements, posts and feedback are true and accurately reflect Influencer’s honest opinion and experience with Aceable and its competitors’ products and/or services to the extent applicable, (vii) Influencer agrees that time is of the essence in connection with these Terms and all deadlines provided by Aceable, and (vii) Influencer will comply with all applicable federal, state and local laws, regulations, administrative guidelines, orders and ordinances, including without limitation, all privacy and data security laws and the terms and conditions of all applicable third party web sites, platforms or applications, including by making disclosures in accordance with the FTC Guides as further detailed in 3(b) below, in rendering the Services herein.
Further, Aceable and its licensors retain all ownership rights in their proprietary platforms, software, websites and technology, including any updates, enhancements, modifications thereto or any back-end technology associated therewith (“Aceable Platforms”). Influencer agrees not to:
b. i) copy, rent, lease, sell, distribute, or create derivative works based on the Aceable Platforms in whole or in part, by any means, except as expressly authorized in writing by Aceable; (ii) use any Aceable trademarks without prior written permission; (iii) use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” to send messages to the Aceable Platforms or systems; (ii) use the Aceable Platforms in any manner that damages, disables, overburdens, or impairs any of Aceable’s websites or interferes with any other party’s use of the Aceable Platforms; (iii) attempt to gain unauthorized access (or exceed any authorized access) to Aceable Platforms; (iv) access the Aceable Platforms other than through the Aceable interface; or (v) use the Aceable Platforms for any purpose or in any manner that is unlawful or prohibited by these Terms. Aceable hereby grants Influencer a limited, non-exclusive, non-transferable license to access and use the Aceable Platforms solely as necessary in connection with the provision of Services hereunder. EXCEPT AS OTHERWISE SET FORTH HEREIN, TO THE EXTENT PERMITTED BY LAW, THE ACEABLE PLATFORMS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. EXCEPT AS OTHERWISE SET FORTH HEREIN, ACEABLE DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE ACEABLE PLATFORMS INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
Aceable believes in full transparency and in full, fair and effective disclosures of material facts relating to Influencers’ relationship with Aceable. Because Influencer has a relationship with Aceable as a Influencer, in accordance with FTC Endorsement and Testimonial Guidelines (“FTC Guides”), Influencer will include a disclaimer with all Aceable-Related Content Influencer shares publically stating that Influencer has a material connection Aceable and was compensated or otherwise incentivized to post the Aceable-Related Content. Aceable reserves the right to specify the form and content of such disclaimers. Notwithstanding the termination provisions set forth in Section 7, Aceable reserves the right to immediately terminate these Terms if Influencer fails to make social media or other disclosures in the manner set forth in the FTC Guides and/or as instructed by Aceable, which failure shall be deemed a material breach of the Terms that is not capable of cure. Aceable shall have the right to inspect and/or approve the topics and content of blogs and/or social media posts and other Aceable-Related Content prior to posting by Influencer and to request revisions if such materials are not approved, such request to be made to Influencer within two (2) business days of Influencer’s submission of such materials. Influencer agrees to submit revised materials within two (2) day(s) of receiving a request for revision from Aceable.
Influencer agrees to defend, indemnify and hold harmless Aceable and its respective officers, directors, employees, business partners and agents, from and against any and all third party claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) Influencer’s breach of any of its representations and/or warranties hereunder, (ii) the authorized use of the Work Product and other Aceable-Related Content or exercise of the rights granted hereunder, (iii) Influencer’s use of third party products or content in performing the Services; and (iv) Influencer’s negligence or willful misconduct.
Influencer hereby agrees, for herself, her heirs, executors and administrators, to release, waive, discharge, absolve, agree to hold harmless, and covenants not to sue, Aceable and its respective agents, employees, officers, directors, successors and assigns (collectively, “Released Parties”), from and/or in relation to any and all liability, loss, harm, damage, injury, cost or expense whatsoever which Influencer, his/her heirs, executors, administrators and assigns had, now have or hereafter may have, by reason of any matter connected in any way with the Released Parties’ exercise of their express or implied rights hereunder, including but not limited to the right to use Influencer’s name, voice or likeness, it being understood that the Release Parties shall be free to use Influencer’s name, voice and likeness in any manner in connection with the Aceable-Related Content or otherwise in support of the purposes of these Terms.
Influencer warrants that Influencer is at least 18 years of age, will adhere to FTC Guides and has the right to contract in Influencer’s own name.
Influencer’s relationship with Aceable is that of an independent contractor, and nothing in these Terms is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Influencer will not be entitled to any of the benefits that Aceable may make available to its employees. Influencer is not authorized to make any representation, contract, or commitment on behalf of Aceable unless specifically requested or authorized in writing to do so by an authorized officer of Aceable, as applicable. Influencer is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of the Services and receipt of fees under these Terms and will hold Aceable harmless from and against any tax liability associated with fees hereunder. No part of Influencer’s compensation will be subject to withholding by Aceable for the payment of any social security, federal, state, or any other employee payroll taxes.
Unless authorized by Aceable, Influencer agrees to hold all Confidential Information in strict confidence, not to disclose Confidential Information to any third parties, and to use Confidential Information solely for the purpose of fulfilling its obligations under these Terms. “Confidential Information” shall mean all information, excluding information available from the public domain, disclosed by Aceable to Influencer related to these Terms or the current, future, and proposed business, products, and services of Aceable.
Influencer is not subject to, and will not accept, and within the 12 months prior to the Effective Date has not performed, any obligation that is inconsistent or incompatible with Influencer’s obligations under these Terms, including any obligation to perform services for any company whose goods and services compete with those of Aceable. Further, Influencer acknowledges and agrees that Aceable’s relationships with its customers, agencies and entities that use Aceable’s services (“Customers”) are of great value to Aceable. Accordingly, Influencer agrees that during the term of this Agreement and for one (1) year thereafter, Influencer will not directly or indirectly solicit or engage any Customer to purchase services similar to those provided by Aceable, other than through Aceable.
(a) Term.The initial term of these Terms shall commence on the Effective Date and continue in full force and effect until terminated as set forth herein or until completion of all Services specified in the Term Sheet, whichever is sooner. (b) Termination. Aceable may terminate these Terms and/or the Services under any Term Sheet: (i) immediately in the event of a material breach by Influencer or (ii) for convenience at any time. Influencer must return any materials supplied under these Terms upon termination.(c) Survival. The rights and obligations contained in Sections 2 (“Intellectual Property Rights”), 3 (“Representations and Warranties”), 5 (“Confidential Information”), 7(c) (“Survival”), and 8 (“Miscellaneous”) will survive any termination or expiration of these Terms.
Influencer will not be entitled to, and hereby waives any right to seek, injunctive relief to enforce the provisions of these Terms, and Influencer’s sole remedy for any breach by Aceable shall be to recover monetary damages, if any, subject to the terms and conditions herein.
Influencer may not subcontract or otherwise delegate Influencer’s obligations under these Terms without Aceable’s prior written consent. Subject to the foregoing, these Terms shall benefit and bind the parties’ successors and permitted assigns. These Terms shall be governed in all respects by the laws of the State of Texas and Influencer agrees that unless otherwise indicated by Aceable any action arising from or relating to these Terms shall be brought exclusively in a state or federal court located in Austin, Texas. Should any provisions of these Terms be held by a court of law to be illegal, invalid, or unenforceable, the legality, validity and enforceability of the remaining provisions of these Terms shall not be affected or impaired thereby. The waiver by either party of a breach of any provision of these Terms by the other party shall not operate or be construed as a waiver of any other or subsequent breach by the other party. These Terms (including the applicable Term Sheet) constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. These Terms may only be changed by mutual agreement of authorized representatives of the parties in writing.