Advertiser Service Agreement
Welcome to FreshPress.Media, a service provided to you by Fresh Press Media, LLC (“The Company”). These terms and conditions (the “Agreement”) apply to this marketplace which enables you (“Advertiser”) to connect with Influencers who wish to participate in promotional activities (the “Service”).
YOUR ACCESS AND USE OF THE SERVICE IS SUBJECT TO YOUR COMPLIANCE WITH: (1) THIS AGREEMENT, (2) THIRD PARTY AGREEMENTS TO WHICH YOU ARE SUBJECT AND (3) ALL APPLICABLE LAWS, RULES AND REGULATIONS.
BY ACCESSING OR USING ANY PART OF THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND ACCEPT THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THIS AGREEMENT, YOU MAY NOT USE ANY PORTION OF THE SERVICE. IF AN INDIVIDUAL IS ACCESSING THE SERVICE ON BEHALF OF A BUSINESS ENTITY, BY DOING SO, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE LEGAL CAPACITY AND AUTHORITY TO BIND SUCH BUSINESS ENTITY TO THE TERMS AND CONDITIONS CONTAINED IN THIS DOCUMENT. THE TERM “ADVERTISER” SHALL REFER TO BOTH THE BUSINESS ENTITY AND THE INDIVIDUAL ACCESSING THE SERVICE ON BEHALF OF SUCH BUSINESS ENTITY.
WE RESERVE THE RIGHT TO UPDATE OR CHANGE THIS AGREEMENT AT ANY TIME BY POSTING SUCH CHANGES ON THE WEB SITE. YOUR CONTINUED USE OF THE SERVICE AFTER WE POST ANY CHANGES SIGNIFIES YOUR AGREEMENT TO ANY SUCH CHANGES. IF YOU DO NOT AGREE TO THESE CHANGES, YOU MUST STOP USING OR ACCESSING THE SERVICE.
Section 1. Overview:
(a) The Service. The Company agrees to provide Advertiser with online access to the Service as further described in this Agreement. This Service enables Advertiser to connect with registered bloggers, podcasters and other content providers (“Influencers”) who wish to participate in promotional activities such as writing a blog post about the Advertiser’s product. The Company facilitates certain aspects of the Advertiser/Influencer relationship including messaging, rate negotiations, participation verification and payment processing. The purpose of employing the Service is to purchase promotional activities from Influencers. Advertiser will receive an online account where they will participate in a marketplace environment where both Advertisers and Influencers have searchable profiles and will connect to collaborate on promotional campaigns (“Campaigns”). Advertisers will create Campaigns, each with descriptions of the content Advertiser seeks (“Opportunities”) with varying placements and payments. Influencers will apply for Opportunities and Advertiser will have the ability to review Influencer applications and profiles and decide whether to accept or decline the Influencer. Advertiser approval connects the individual Influencer to a Campaign for assignment to an Opportunity (a “Gig”). The Gig is the mechanism for communicating, tracking and exchanging funds within the Service for Advertiser’s campaign between Advertiser and an Influencer. Opportunities will contain one Gig for each Influencer approved for the Opportunity. An Influencer’s Gig is complete once the Advertiser accepts proof of completion from the Influencer. Advertisers and Influencers may also engage with one another using “Pitches.” Pitches are a communication mechanism within the Service that allows both Advertiser and Influencers to present ideas for Campaigns, negotiate rates and otherwise approach one another with concepts for promotional activities not covered by Campaigns.
(b) Grant of Rights. Upon Advertiser’s acceptance of proof of completion of a Gig, The Company shall cause Influencer to grant to Advertiser the unrestricted, worldwide, perpetual, irrevocable, fully paid‐up, royalty‐free, fully sub‐licensable and transferable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, display, and perform the results and proceeds of all content created pursuant to a Gig (collectively, “Work”), in whole or in part, in any media, format or technology, whether now known or hereafter discovered, and in any manner including, but not limited to, all promotional advertising, marketing, publicity, and commercial uses and ancillary uses, without any further notice or payment to, or permission needed from, The Company and/or Influencer (except if prohibited by law). The Company shall cause Influencer to grant Advertiser the use of Influencer’s name/likeness/social media handle or channel/blog name and any other Influencer attributes in any manner that Advertiser determines supports the Campaign or the Work, including use in any media that accepts advertising or promotional content or communications (such as, but not limited to, digital, print, television or radio).
Section 2. Permitted Use of the Service: Advertiser may use the Service solely for its own use and in strict compliance with this Agreement. The Company reserves the right to deny participants, data, Campaigns, Opportunities, terms of agreement between Advertiser and Influencers, Gigs, Pitches, Reviews and any other actions, content or communications it deems unsuitable for the marketplace and its viability.
Section 3. Registration and Member Account: In order to use the Service, Advertiser must register to become a member. All information about Advertiser must be truthful, and Advertiser may not use any aliases or other means to mask its true identity. Advertiser may not share member account information with any other party. Advertiser is responsible for the security of its member account and will be solely liable for any use or unauthorized use of the Service under such member account. The Company will presume that all activity under a member account’s user name and password is being conducted by Advertiser. If Advertiser suspects any unauthorized use of its user name and password, Advertiser must notify The Company of such activity immediately.
Section 4. Fees:
(a) Collection of Funds and Fees. In full consideration of The Company’s and Influencer’s performance of the Services and the rights granted herein, Advertiser agrees to pay to The Company the amount Advertiser agrees to pay each Influencer for each Gig, plus fees as outlined on the Service in advance of each Gig. All Company fees are subject to change at any time and will be published on the Service. Advertiser must add funds to their account prior to approving Influencer applications for a Gig. The total funds in the Advertiser account must cover both the Influencer’s payment as well as The Company’s per Gig fee.
(b) Handling of Funds. Funds will be held in a bank account separate from The Company’s operational bank accounts until such time they are applied to a successful Gig. The Company will require Influencers to submit proof that they have successfully completed the requirements of a Gig. The Advertiser may accept or decline the proof supplied, not to be unreasonably withheld or delayed. A declined submission will offer the Influencer the opportunity to meet the requirements time and time again until the Campaign has ended, or the Advertiser removes the Influencer from the Campaign. Approvals will complete the Gig and generate the funds transfer from the Advertiser account to the Influencer and to The Company.
(c) Refunds. Advertiser may have excess funds in their account periodically. Advertiser may use these funds for future Campaigns. Advertiser may also request a refund of funds. Refunds will be paid by check and will incur a fee as described in the current rates on the Service. Excess funds in Advertiser accounts that have had no active campaigns for 12 consecutive calendar months will be forfeited to The Company.
(d) Affiliate Payments / Performance Commissions. With prior approval from the Company, Advertisers may create opportunities that include payment in whole or in part via affiliate commissions. In these cases, The Company will join the Advertiser’s affiliate program and assign sub-IDs to all Influencers that participate in the Campaign. The Advertiser will track the activities through their affiliate tracking platform and will pay The Company as it does its typical affiliates. The Company will pay the Influencers through the marketplace channels. The Company’s fee for these Gigs (or portion of a hybrid Gig) will be extracted from the affiliate commissions (i.e., deducted from amounts The Company will pay the Influencer). Advertiser agrees not to diminish or remove commissions from The Company’s affiliate account, and understands that it is through this affiliate account that Influencers will ultimately be paid.
(e) Product Reviews. With prior approval from the Company, Advertisers may choose to create Opportunities that include a product review. In those instances, Advertiser must submit the value of the product to The Company for tax reporting purposes via the Advertiser account within the Service. The Advertiser is responsible for delivering the product to the Influencer. The Company’s current fees for these Gigs are listed on The Company’s website.
(f) Changes in Structure and Fees. The Company may change the fee structure or minimum fee at any time by providing Advertiser thirty (30) days prior written notice, provided that, Advertiser may terminate this Agreement without liability during such notice period if Advertiser does not accept such changes. Use of the Service after the expiration of the thirty (30) day notice period shall be deemed acceptance of the revised fee terms.
(g) Taxes. Advertiser is responsible for all taxes as a result of its participation in this Agreement and the Services, excluding taxes based upon Company’s net income.
Section 5. Advertiser / Influencer Interactions:
(a) Profile. Advertiser will have a profile, visible in the marketplace environment. The profile is editable including but not limited to the ability to upload a logo, add a description and link to the Advertiser’s website and social profiles. All new profiles and changes to profiles may be inspected manually and/or through automated verification tools, such processes and tools may be performed by The Company’s staff, through tools wholly owned by The Company, or by third party tools or contractors that will be bound by the same privacy and confidentiality terms of this agreement. The Company reserves the right to reject profiles as a whole, or portions of profiles or updates to profiles. Advertiser agrees to only submit truthful information in the profile and when making updates to the profile.
(b) Opportunity Requirements and Restrictions. Advertiser may set unlimited requirements and restrictions for each Opportunity. All such requirements and restrictions must be set prior to accepting applications from Influencers. No changes to requirements and restrictions may be made after Advertiser pushes the Opportunity live. The Company may monitor Advertiser activities within the Service, specifically seeking any attempts to make changes after Influencers have been engaged. Such activities may result in the immediate suspension and possible termination of the Advertiser’s account at The Company’s sole and absolute discretion.
(c) Reviews. Influencers and Advertisers will have access to a mechanism where they may write reviews regarding their interactions with one another. These reviews will include identifying information about both parties (i.e., no anonymous reviews) and will be made available to all participants in the marketplace pending The Company’s approval. Neither party may submit a review for themselves. The Company will consider any attempts at “gaming” reviews as a cause for immediate termination, in its sole and absolute discretion.
(d) Response Expectations. Advertisers are expected to respond to Influencers in a timely manner. Failure to do so will prompt The Company to force activities to progress. The following actions may occur when Advertisers fail to act in a timely manner:
- The Company may auto decline applications for Opportunities that the Advertiser hasn’t approved or declined within fourteen calendar days of receipt.
- The Company may auto approve submissions of proof of completion of Gig requirements that the Advertiser hasn’t approved or declined within fourteen calendar days of receipt.
- The Company may auto decline Pitches that the Advertiser has not responded to within sixty (60) calendar days of receipt.
- The Company may disable the Advertiser’s ability to accept Pitches on their account or within Campaigns if Advertiser has more than one Pitch left unanswered for more than sixty (60) days.
(e) Disputes. Influencers or Advertisers may submit disputes regarding interactions with one another to The Company for resolution. The Company will strive to arrive at a fair resolution based on the Opportunity requirements and restrictions, facts available and industry standard practices. Both parties agree to accept The Company’s terms of resolution. Failure to comply with The Company’s terms of resolution will constitute a breach of this agreement and will result in termination of the non-complying party/parties.
Section 6. Acceptable Use Policy: Advertiser shall comply with the terms of the Acceptable Use Policy (“AUP”), set forth on Exhibit 1. The Company may update the AUP at any time upon written notice to Advertiser. If Advertiser becomes aware of any violation of the AUP by any user, Advertiser must immediately contact The Company at email@example.com and give The Company as much information as possible regarding such violation. The Company may refer any information on illegal or fraudulent activities, including Advertiser’s identity, to the proper authorities, to Influencers or to other aggrieved parties.
Section 7. Unauthorized Use of the Service:
(a) Access. Except as authorized by The Company, Advertiser may not use spiders, robots, data mining techniques or other automated devices or programs to catalog, download or otherwise reproduce, store or distribute content available on the Service. Further, Advertiser may not use any such automated means to manipulate the Service or attempt to exceed the limited authorization and access granted to Advertiser under this Agreement. Advertiser may not resell use of, or access to, the Service to any third party.
(b) Initiating Offline Connections. The Advertiser may not use the Service to initiate business transactions with Influencers that take place anywhere except for through the Service. The Advertiser may not Pitch Influencers on working outside the marketplace, nor may they use the messaging function within the Gig mechanism to invite Influencers to participate in promotional activities outside of the Service.
Section 8. Term and Termination:
(a) Term. This Agreement shall have an initial term of one (1) year and shall automatically renew for additional one (1) year terms thereafter, unless either party provides thirty (30) days prior written notice of its intention not to renew the Agreement.
(b) Termination for breach. Either party may terminate this Agreement upon ten (10) days prior written notice if the other party breaches this Agreement and does not cure such breach within such time period. In addition to any right or remedy that may be available to The Company under this Agreement or applicable law, The Company may immediately suspend, limit or terminate any Campaign in the event that Advertiser has breached this Agreement or continued use of such Campaign may expose The Company to liability or harm.
(c) Termination without cause. Either party may terminate this Agreement at any time without cause upon ninety (90) days prior written notice to the other party.
(d) Termination for inactivity. Advertiser accounts that remain dormant for twelve consecutive months will be terminated. Accounts will be considered dormant when no new Campaigns have been created and no Gigs have been initiated for 12 consecutive calendar months.
Section 9. Effect of Termination: Upon termination of Advertiser’s account for any reason, Advertiser must cease using the Service. The provisions of the following sections shall survive the termination of this Agreement: Unauthorized Use of the Service; Proprietary Rights; Limitations of Liability; Indemnification; Governing Law; Confidentiality; Severability; Waiver – Remedies; and Assignment. Upon termination, all funds in the Advertiser’s account will be available for a refund or may be forfeited as described in the Fees section of this Agreement.
Section 10. Content Verification: Advertiser understands that all content, promotions and links generated through the Service are controlled by the Influencers. The Company is not responsible for the practices, acts or omissions of the Influencers or the content of such other web sites or services. The Company will require Influencers to submit proof of meeting Gig requirements and following restrictions. Advertisers have the opportunity to decline to accept the proof. The Advertiser assumes all responsibility for verifying the proof. The Company makes no guarantees or warranties that the Influencer will create or maintain links or promotions.
Section 11. Proprietary Rights: The Company is the exclusive owner or authorized licensor of The Company web site and the Service, including all copy, software, graphics, designs and all copyrights, trademarks and other intellectual property or proprietary rights contained therein. Except as set forth herein, Advertiser agrees not to copy, distribute, modify or make derivative works of any materials without the prior written consent of the owner of such materials. The Service may not be reverse engineered, decompiled or modified, nor may derivative works be created based on the Service, without the prior written consent of The Company. All rights not granted under this Agreement are reserved by The Company.
Section 12. Service Warranty: The Company warrants that the Service shall operate substantially as set forth on the web site by The Company. However, Advertiser acknowledges that The Company does not and cannot guaranty that the operation of the Service will be completely uninterrupted, error free or that the Service and the information it stores will be entirely free from viruses, hackers, intrusions, unscheduled downtime or other failures. For any breach of the foregoing warranty, Advertiser’s exclusive remedy, and The Company’s sole liability, is to fix the deficiency or terminate this Agreement and refund any pre-paid fees to Advertiser for Services not yet provided by The Company. Advertiser expressly assumes the risk of such problems by using the Service. except as set forth herein, the service, including all software, content, operations and materials, are provided “as is” and The Company makes no representations or warranties of any kind whatsoever for the operation of the service. further, The Company expressly disclaims all warranties of any kind, whether express or implied, including, without limitation, non-infringement, title, merchantability, fitness for a particular purpose, quality, performance, non-interference with information, accuracy of informational content and any warranties arising out of course of dealing, usage or trade.
The Company makes no warranty that the information or results that may be obtained from the use of the Services will be accurate or reliable, or that the quality of any products, services, information or other material purchased or obtained by Advertiser through the Services will meet Advertiser’s expectations. Any material obtained through the use of the Services is done at Advertiser’s sole discretion and risk and Advertiser will be solely responsible for its use of the Services and any such material.
Section 13. Limitations of Liability: excluding an obligation of indemnification or breach of confidentiality, (i) in no event will either party be liable under any theory of tort, contract, strict liability or other legal or equitable theory for any lost profits, lost data, lost opportunities, costs of cover, exemplary, punitive, personal injury/wrongful death, special, incidental, indirect or other consequential damages, each of which is hereby excluded by agreement of the parties regardless of whether or not it has been advised of the possibility of such damages and (ii) in no event shall The Company’s liability for any direct damages exceed the amounts actually paid under this agreement during the most recent six (6) months. Advertiser acknowledges that The Company has entered into this Agreement relying on the limitations of liability stated herein and that The Company would not offer Advertiser the Service without those limitations, which are an essential basis of the bargain.
Section 14. Indemnification:
(a) By The Company. The Company agrees to indemnify, defend and hold Advertiser and Advertiser’s representatives and agents harmless from and against any and all third party claims, demands, liabilities, costs or expenses, including attorney’s fees and costs, arising from, or related to, a claim that the Service infringes upon the intellectual property rights of any third party.
(b) By Advertiser. Advertiser agrees to indemnify, defend and hold The Company and The Company’s representatives and agents harmless from and against any and all third party claims, demands, liabilities, costs or expenses, including attorney’s fees and costs, arising from, or related to, (i) Advertiser’s use of the Service, including but not limited to, fraudulent or deceptive acts or transactions through Advertiser’s use of the Service (except to the extent that The Company has breached this Agreement), (ii) Advertiser’s web sites, products or services or (iii) a violation by Advertiser of the AUP or any applicable law, rule or regulation.
(c) Procedure. The indemnifying party’s obligations are conditioned upon the indemnified party: (i) giving the indemnifying party prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity; (ii) granting complete control of the defense and settlement to the indemnifying party, provided that the indemnifying party will not acquiesce to any judgment or settlement which may have a material adverse effect upon the indemnified party without that party’s consent; and (iii) reasonably cooperating with the indemnifying party, at the indemnifying party’s expense, in defense and settlement of such claim. The indemnifying party shall provide the indemnified party to the option to engage separate counsel, at the indemnified party’s expense, to participate in any claim giving rise to indemnification hereunder.
Section 15. Governing Law:
(a) The laws of the State of Texas shall govern this Agreement. EACH PARTY HEREBY EXPRESSLY CONSENTS TO EXCLUSIVE JURISDICTION AND VENUE IN THE COURTS LOCATED IN TRAVIS COUNTY, TEXAS FOR ALL MATTERS ARISING IN CONNECTION WITH THIS AGREEMENT. The prevailing party in any action herein shall be entitled to recover its reasonable attorney’s fees and expenses.
(b) Each party agrees that any and all disputes, controversies and claims relating in any way to the Service or this Agreement (including the arbitration of any claim or dispute and the enforceability of this paragraph) shall be submitted to and resolved by means of a confidential arbitration before a single arbitrator administered by the American Arbitration Association under its then current Commercial Arbitration Rules and conducted in Travis County, Texas. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an action involving any other current or former user of the Service, whether through class action proceedings or otherwise. Advertiser further agrees not to join in any lawsuit with another person or serve as a class representative of any class action lawsuit against The Company. Advertiser must raise any dispute within one (1) year after the date the cause of action arose, and failure to comply with this timeframe will render all claims related to the dispute null and void. Notwithstanding the foregoing, The Company shall not be prohibited from initiating an action in court without proceeding to arbitration to collect unpaid fees or protect its intellectual property rights.
Section 16. Confidentiality:
(a) Information. In connection with this Agreement, each party may disclose, or may learn of or have access to, certain confidential proprietary information owned by the other party (“Confidential Information”). Confidential Information means any data or information, oral or written, that relates to a party, or any of its business activities, technology, developments, inventions, processes, trade secrets, know how, plans, financial information, forecasts, and projections. Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the receiving party; (iii) is rightfully communicated to the receiving party by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the receiving party’s possession free of any confidentiality obligations with respect thereto; (v) can be demonstrated was independently developed by a party without use of any Confidential Information of the other party; or (vi) is approved for release or disclosure by the disclosing party without restriction.
(b) Obligations. Each party shall maintain the Confidential Information of the other party in strict confidence and shall not disclose, publish or copy any part of such Confidential Information except as authorized and as necessary in connection with this Agreement. Each party shall use the Confidential Information of the other party solely for the purpose of performing obligations under this Agreement and only disclose the Confidential Information on a need-to-know basis, provided that, such party shall be liable for the acts of any third party who obtains the Confidential Information from such party. Each party shall take all necessary precautions in handling the Confidential Information of the other party and limit disclosures on a strict need-to-know basis. However, a party may disclose Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that such party gives reasonable prior notice to the other party to contest such order or requirement. Upon the termination or expiration of this Agreement, each party shall return to the other party, or certify the destruction of, all Confidential Information of the other party, provided that, neither party shall be obligated to purge information archived pursuant to their normal document retention procedures if the provisions of this section otherwise continue to be observed.
Section 17. Severability: If any part of this Agreement shall be held or declared to be invalid or unenforceable for any reason by any court of competent jurisdiction, such provision shall be ineffective but shall not affect any other part of this Agreement.
Section 18. Waiver – Remedies: The failure by either party to partially or fully exercise any rights or the waiver of any breach of this Agreement by the other party, shall not prevent a subsequent exercise of such right by such party or be deemed a waiver by such party of any subsequent breach by the other party of the same or any other term of this Agreement. Each party’s rights and remedies under this Agreement shall be cumulative, and the exercise of any such right or remedy shall not limit its right to exercise any other right or remedy.
Section 19. Assignment: Advertiser may not assign this Agreement, or any rights or remedies hereunder, to any third party without The Company’s prior written consent. This Agreement shall inure to the benefit of a party’s permitted successors and assigns.
Exhibit 1 – Acceptable Use Policy
Advertiser may not use the Service or include in any Campaigns any content which is reasonably objectionable or content which is illegal. In addition, Advertiser may not use any means or device to manipulate, modify or interfere with the proper operation of the Service.
Solely by way of example, Advertiser may not:
- violate the terms, conditions, policies or guidelines of any affected third party service or website;
- violate or infringe upon the intellectual property, personal or proprietary rights of any third party, including but not limited to, copyrights, trademarks, patents, trade secrets or confidentiality obligations;
use anything threatening, libelous, defamatory, obscene, scandalous or inflammatory or that could otherwise violate any other applicable law;
- act in any manner that violates the FTC Endorsement Guides;
provide content which may be adult in nature (such as pornography), gambling related, nutraceutical related (i.e., acai berry) or “get rich quick” schemes.
- do anything which may be false, misleading or deceptive;
- engage in any other illegal or fraudulent, misleading or deceptive business practice under the laws of any jurisdiction where Advertiser is located or the Campaign is intended to be implemented.