Influencer Terms of Service - General constitute the general terms of the Influencer Terms of Service form
(the "Form") accepted by Influencer/Agency on the date of the Agreement and together with the Form
constitute the Agreement between the parties Zulily
Influencer/Agency (as described in the Form).
otherwise defined, capitalized terms used in these Terms of Service shall have the meanings ascribed to
them in the Form.
1.2 In these
Terms of Service, the following words shall have the meanings ascribed to them in these Terms of Service,
unless inconsistent with the context.
means, with respect to an entity, any entity that controls, is controlled by, or is under common control
with such entity, where "control" means the possession, directly or indirectly, of the power to direct or
cause the management, operating policies or direction of the assets of such entity, whether through the
ownership of more than 50% of the assets of such entity or through the ownership of more than 50% of the
assets of such entity. direction of the entity, whether through ownership of more than 50% of the voting
or equity securities or assets, or through contracts, management agreements, voting trusts or otherwise;
provided that the term "affiliate" shall include any variable interest entity, whether or not any variable
interest entity may be, or is required to be, consolidated with the entity under generally accepted
accounting principles. (b) Consolidation.
Law" means, with respect to any person, any and all: (a) laws, ordinances or regulations, (b) codes,
standards, rules, requirements, orders and standards issued pursuant to any law, ordinance or regulation,
(c) rules of any stock exchange or equivalent, (d) applicable data protection laws, (e) judgments, orders,
orders and standards of any and judgments, orders, writs, directives, authorizations, rulings, decisions,
injunctions, decrees, assessments, settlement agreements or awards of all governmental authorities, in
each case applicable to such person or its business or property.
Day" means any day other than a Saturday, Sunday or public holiday in the United States.
Reasonable Efforts" means taking such steps and executing them in a manner that is firm, prudent and
reasonable for a well-managed company to achieve a particular result for its own
Information legal and administrative information; (b) the existence and terms of these Terms of Service
(including any fees paid to influencers/agents and the commercial details set forth in the form) and the
Disclosing Party's position in any dispute relating to these Terms of Service; (c) any copies of
Confidential Information and all information created or derived from Confidential Information by or on
behalf of the Receiving Party Information, provided that Confidential Information shall not include
information that (i) was already in the possession of the Receiving Party or its Representative at the
time of disclosure by or on behalf of the Disclosing Party; (ii) is or becomes part of the public
knowledge, except as a result of any act or omission by the Receiving Party or its Representative in
violation of the confidentiality provisions of these Terms of Service; (iii) was never obtained by the
Receiving Party or its Representative from the Disclosing Party, directly or indirectly, from such third
parties, subject to any obligations of confidentiality; and (iv) developed independently by the Receiving
Party or its Representatives without use or reference to the Disclosing Party's Confidential
Event" means, with respect to a particular Person, any of the following events: (i) the appointment of a
receiver or similar officer to administer all or a significant portion of the assets or business of such
Person; (ii) the adoption of a resolution for winding up (other than a winding up for the purpose of or in
connection with any solvency consolidation or reorganization) or the making of such order by the court or
court making the order for administration (or any equivalent order in any jurisdiction); (iii) entering
into any combination or arrangement with the creditors of such Person (other than in connection with a
Solvency Reorganization); (iv) ceasing to carry on business; (v) being unable to pay the debts of such
Person as they become due in the ordinary course of business; (vi) causing or being subject to any event
by which, under applicable law, the
Content" means all content created and made available by Influencer under these Terms of Service,
including, without limitation, all intellectual property owned by Influencer, such as text, images,
photographs, illustrations, drawings, animations, songs, audio, video and any other works created by
Influencer and made available under these Terms of Service.
Rights" means any and all rights under applicable law protecting the Influencer's name, pseudonym, voice,
likeness, image, likeness, biography, character, role, and all other aspects of his or her right of
publicity, privacy or personality, and all Intellectual Property Rights related to or incidental to any of
Property Rights" means all copyrights, patents, utility innovations, trademarks and service marks,
geographical indications, domain names, layout rights, registered designs, design rights, database rights,
trade names or trade names, rights to protect trade secrets and confidential information, rights to
protect goodwill and reputation, and all other similar or corresponding proprietary rights and all
applications for the same, whether now existing or hereafter created, anywhere in the world, whether
registered or not, and all benefits, privileges, rights of action, and the right to recover damages and
obtain relief or other remedies for any past, present or future infringement, misappropriation or
violation of any of the foregoing rights; and
means a party's Affiliates, as applicable, and their respective officers, directors, employees,
consultants, agents and subcontractors.
Terms of Service shall apply to the Influencer/Agents as of the date of the Agreement (as set forth in the
Form) and shall survive the Initial Term (as set forth in the Form) in the event of early termination in
accordance with the terms of these Terms of Service.) Upon expiration of the Initial Term or any
then-current Renewal Term, as the case may be, Zulily
renew the Initial Term for a period to be determined in writing by Zulily
shop to the
Influencer/Agent (the "Renewal Term"). The Initial Term and the Renewal Term, as applicable, shall be
collectively referred to as the "Term."
Influencer/Agency acknowledges and agrees that it shall provide the services set forth in the Form
("Services") independently to Zulily
the Term in accordance with these Terms of Service and Zulily
shop' needs, and
shall consider (at its reasonable discretion, using its technology and expertise) feedback from
time to time. The Services shall include such other tasks, services, functions, activities and obligations
not set forth in these Terms of Service but reasonably required (in the reasonable discretion of the
Influencer/Agency, after consultation, using its technology and expertise) with Zulily
shop) for the
Influencer/Agency's performance of the Services; and shall: (X) be provided with at least the same degree
of accuracy, completeness and quality as provided by the same degree of care, skill and diligence used by
personnel, Influencers and other social media personalities of similar stature to Influencers; and (Y) in
accordance with applicable law.
from time to time place orders in writing with Influencers/Agents for additional services, as determined
such Order shall form part of these Terms of Service and the terms of these Terms of Service shall apply
to each Order. In the event of: (i) a conflict between the Form and these Terms of Service (collectively,
the "Master Terms"); and (ii) any Order, such conflict will be resolved by giving precedence to the Master
Terms, unless otherwise expressly provided in the Order.
Influencer/Dealer shall acknowledge receipt of each Order to Zulily
two (2) business days of receipt of the Order, after which Influencer/Dealer shall be deemed to have
accepted the Order.
have the right to amend, modify or terminate an order immediately by written notice to the
Influencer/Dealer prior to the Influencer/Dealer delivering the Services to Zulily
to the order.
providing the Services, the Influencer shall, and the Agent shall, cause the Influencer to.
the activities (including the creation and delivery of Influencer Content) specified in the Form and/or
Order, as applicable.
original, carefully created and edited Influencer Content of at least the same overall quality as the
original Influencer Content published prior to Zulily
Independently produce Netflix Content, provided that it shall consider (at its reasonable discretion and
using its technology and expertise) any feedback and/or requests (including creative briefs) that
provide from time to time.
applicable) participate in events hosted, promoted or supported by Zulily
Events"), provided that the invitation is submitted in advance by Zulily
least five (5) days after the date of the Company Event. Influencers shall also respond to Zulily
within forty-eight (48) hours of receipt.
that the performance of their services does not involve any attempt to defraud Zulily
shop or any
other person and that the information provided to Zulily
shop is not
false, inaccurate or misleading.
publish, authorize or otherwise make any statements or representations or other communications (whether
through social media platforms, or during live broadcasts) that defame, disparage, disparage or otherwise
shop or its
affiliates or their respective products, the Services, officers, directors, employees or shareholders
("Corporate Entities ").
that it does not contain any abusive or prohibited content (including, without limitation: (i)
inappropriate language, defamatory, abusive or infringing material, (including content that promotes
bigotry, racism, discrimination based on race, gender, religion), nationality, disability, sexual
orientation or age); and (ii) content related to prohibited tobacco; counterfeiting or infringement of
intellectual property rights; illegal drugs, medicines or supplements (iii) the creation and posting of
influencer content and any other material referenced or associated with a Company entity while gambling or
lotteries, money lending operations or pornography); and
subcontract or delegate any of its obligations under these Terms of Service to a third party without
have the right to.
and approve all Influencer Content or any other public announcements or content posted by Influencers in
connection with these Terms of Service prior to posting or publishing; and
that any Influencer Content be removed, moved, restricted or otherwise removed from public circulation
(including to the extent that such Influencer Content violates any requirements of Zulily
time to time).
consideration for the services provided by Influencer, Zulily
pay Influencer a fee ("Fee") calculated in accordance with the Form and/or Order, as
Influencer acknowledges and agrees that: (i) it will not pay Influencer or any third party any other fees,
royalties, payments, amounts, expenses or consideration for the Services received by Zulily
than the Fees; and (ii) it shall be solely responsible for any costs of providing materials, tools and
equipment necessary to provide the Services (including any loss or damage as described above).
Influencer acknowledges and agrees that Zulily
are the sole, final and conclusive evidence of Influencer's performance under these Terms of Service and
of any and all fees payable and shall be binding on Influencer for all purposes related to these Terms of
pay the undisputed Fees to the Influencer in accordance with the Form and/or Order, as applicable, but may
refuse to pay Fees that are disputed in good faith by Zulily
if the disputed Fees have been paid, Zulily
withhold an equal amount from subsequent payments), including disputes relating to invoicing errors or
of the Fees shall be made by wire transfer to the Affected Person's bank account (see form for details).
For the avoidance of doubt, the Influencer shall ensure that the Influencer's bank account details are
accurate and valid in order for Zulily
shop to pay
the Fees to the Influencer. In the event of any bank-related penalties resulting from the Influencer's
bank account information being inaccurate and/or invalid, such penalties shall be the sole responsibility
of the Influencer.
parties acknowledge and agree that Zulily
have the right to set off and use any amounts due or owing by Zulily
its Affiliates to Influencer and/or its Affiliates (as applicable) under these Terms of Service against
any amounts due under these Terms of Service or any other transaction, agreement, contract or debit order,
including, without limitation, any amounts due to Zulily
its Affiliates, and that Influencer and/or its Affiliates shall pay to Zulily
its Affiliates and/or its Affiliates (as applicable) due, owing or claiming from, pending claims, demands,
losses or damages.
purposes of these Terms of Service, "Taxes" means any tax, including, without limitation, service tax,
excise tax, value added tax, goods and services tax, sales tax and any similar local sales tax,
withholding tax, indirect tax, personal income tax or corporate income tax.
(b) All fees
and other amounts payable under these Terms of Service are inclusive of taxes. To the extent required or
permitted by applicable law, Zulily
deduct any applicable taxes through a reverse charge or similar mechanism, and Zulily
promptly remit any deducted taxes to the relevant governmental agency and shall provide Affected Persons
with written evidence of such remittance acceptable to Affected Persons.
party shall be solely responsible for the payment of taxes arising from these Terms of Service as required
by the applicable laws of the relevant tax jurisdiction. Notwithstanding any other provision of these
Terms of Service, if Zulily
any withholding obligations with respect to any amounts payable under these Terms of Service, such
payments are deemed to be inclusive of all taxes and Zulily
be entitled to deduct and withhold from such amounts. Payment of any taxes required to be deducted and
withheld in making such payments under any provision of applicable law. To the extent amounts are so
withheld and deducted under these Terms, such withheld amounts shall be deemed to be paid to the authority
making such deductions and withholdings for all purposes of these Terms of Service, and Zulily
have no further obligation to pay the equivalent of such withheld amounts, or any portion thereof, to the
provide the Affected Person with a receipt or other government copies of certificates evidencing all taxes
withheld from such payments. The parties shall cooperate and endeavor to comply with all applicable
documentation and registration requirements in order to minimize the amount of withholding taxes, if any,
imposed. Without prejudice to the generality of the foregoing
Intellectual Property Rights
Influencer Content Rights. Influencer acknowledges and agrees that the Influencer Content was created by
Influencer as a work made under applicable law and that any and all right, title and interest in and to
the Influencer Content, including all intellectual property rights, are owned exclusively by Zulily
shop. If any
right, title or interest in the Influencer Content does not belong to Zulily
shop as a
work for hire, Influencer hereby unconditionally and irrevocably assigns to Zulily
perpetuity all such right, title and interest worldwide, and at any time at the request of Zulily
shall execute any document in a form acceptable to Zulily
full effect to Zulily
of the foregoing Netflix ownership of the Content in full force and effect. If, at any time, at the
request of Zulily
fails or is unable to execute any such document within fourteen (14) days, Influencer hereby irrevocably
designates and appoints Zulily
shop or its
duly authorized officers and agents to act as Influencer's agents and attorneys - in fact, to act for the
benefit of Influencer. Execute and file any and all such documents on behalf of, and perform all other
legally permissible acts with the same legal force and effect as if executed or performed by the
the exclusive right to use, reproduce, modify, adapt, prepare derivative works, publish, distribute,
publicly display, transmit to the public, publicly perform, stream, broadcast, and otherwise exploit in
perpetuity, worldwide Influencer Content in its absolute discretion, without payment of any royalties,
accounting or other amounts to the Influencer or any third party To the extent permitted by applicable
law, Influencer hereby waives, on behalf of itself and its employees, contractors and agents, all moral
and economic rights (or the equivalent) arising under the laws of any jurisdiction in connection with
Influencer Content. If such rights cannot be waived under applicable law, Influencer agrees not to assert
such rights against Zulily
Influencer's Personal Rights. Influencer hereby grants to Zulily
non-exclusive, worldwide, irrevocable, transferable, sublicensable and royalty-free license to use the
Personal Rights to promote and market Zulily
the related services it provides for the maximum period permitted by applicable law. subordinates from
time to time.
Influencer acknowledges and agrees that: (i) Zulily
the purposes of these Terms of Service (including any customizations, enhancements, changes or derivative
works) and the Zulily
logo and trademarks (collectively, the "Zulily
(ii) it shall not at any time acquire any right, title or interest in the Zulily
shop IP or
any part thereof; and (iii) it shall not at any time seek to register, claim or assert any right, title or
interest in the Zulily
shop IP or
any part thereof.
grants Influencer a non-exclusive, revocable, non-transferable, non-sublicensable and royalty-free license
during the Term to use the Zulily
Services (including the provision of the Services) only to the extent necessary for Influencer to perform
its obligations hereunder, provided that Netflix's use of any Zulily
trademarks and other branded All use of the Equipment requires the prior written consent of Zulily
such use is consistent with the Terms of Service or Zulily
instructions in these Terms.
Influencers/agents shall provide the Services to Zulily
its affiliates, and references to Zulily
these Terms of Service will include Zulily
to the extent they receive the Services, unless the context requires otherwise.
party may, without prejudice to its other rights and obligations under these Terms of Service, terminate
these Terms of Service at any time upon written notice of termination to the other party
other party commits a material breach of any of its obligations, representations or warranties under these
TOS and fails to cure such breach within fourteen (14) days after written notice from the terminating
other Party commits a series of breaches that (i) may not be material in and of themselves; (ii) are
notified to the other Party; and (iii) are not cured within fourteen (14) days after notice, if such
uncured breaches constitute, in the aggregate, a material breach.
occurrence of an event of insolvency of the other Party; or
terminate these Terms of Service or any order, as applicable, at any time without cause by providing only
seven (7) days prior written notice to the Affected Person/Agent.
Termination or expiration of these Terms of Service shall be without prejudice to the rights and
liabilities of the parties that may have arisen prior to such expiration or termination, unless waived in
writing by the party entitled thereto.
termination by Zulily
to Section 7.1 or Section 7.2, unless otherwise agreed in writing by the parties, the Influencer/Agent
shall promptly refund to Zulily
fees paid by Zulily
these Terms of Service in the event of a material breach by the Influencer/Agent of these Terms of
Service, and the Influencer/Agent has not provided services to the absolute satisfaction of Zulily
shop as of
the date of termination
expiration or termination of these Terms of Service shall not affect the effectiveness or continuation of,
or the termination of, any provision of these Terms of Service that is expressly or impliedly intended to
be effective or continue in effect on or after the expiration date (including, without limitation,
Sections 5, 7, 9, 10, 11, 12 and 13).