BzzAgent Influencer Agreement

EFFECTIVE: JULY 1, 2022

 

This BzzAgent Influencer Agreement (“Influencer Agreement”) is a legal contract between PowerReviews, Inc. d/b/a BzzAgent (“BzzAgent” (collectively referred to as “BzzAgent”, “our”, “us” or “we”) and you, an individual applying to participate in the BzzAgent program (“you” or “Influencer”). By applying to the BzzAgent program, you accept and agree to this Influencer Agreement, as well as BzzAgent’s Terms of Use and Privacy Policy. This Influencer Agreement constitutes Additional Terms as defined in our Terms of Use.

 

The BzzAgent program is open only to legal residents of the United States who are at least eighteen (18) years old and the legal age of majority in their place of residence. (US residents who are at least sixteen (16) years old may apply to participate in the BzzAgent program, but will not be considered for any Campaign (defined below) until they reach eighteen (18).) By applying to participate in the program, you represent and warrant that you are a US resident who satisfies these eligibility requirements.

1. SERVICES

  1. Those who register for the BzzAgent program may be offered the opportunity to participate in one or more sampling campaigns (any a “Campaign”). BzzAgent and the partners/clients with which we work (any a “Brand”) select potential influencers from the BzzAgent community to participate in a Campaign in our sole discretion. You may be offered the opportunity to participate in one or more Campaign(s) or may not be selected to participate in any Campaign. We have no obligation to invite you to participate in any Campaign and you are free to decline any Campaign invitation you receive. 
     

  2. If you are invited to participate in a Campaign and accept that invitation, the details of the Campaign and the services that you are asked to render (“Services”) will be as described in the invitation and other communications to you from BzzAgent and/or Brand. All text, photographs, videos, audiovisual materials, audio recordings, or other content or materials created by you, as well as any review, social-media post, or similar publication you create in performing the Services, are collectively referred to as your “Content” in this Influencer Agreement. You agree to perform all Services in accordance with this Influencer Agreement, including our Code of Conduct attached as Appendix A.
     

  3. You agree that your Content, including any statements you make regarding a product or service you sample as part of a Campaign, will (i) reflect your honest opinion of that product or service based on your personal experience, (ii) comply with all applicable laws, standards, rules, orders and regulations, including but not limited to the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (the “FTC Endorsement Guides”) and any guidance promulgated by the FTC regarding interpretation of the FTC Endorsement Guides, and (iii) comply with any terms, conditions, policies and guidelines applicable to your use of any social-media or other third-party platform to which you publish such Content. 
     

  4. You will at all times comply with BzzAgent’s Disclosure Guidelines (as they may be updated from time to time in BzzAgent’s sole discretion), which are hereby incorporated by reference and made part of this Influencer Agreement. Without limiting the foregoing, you will clearly and conspicuously disclose your relationship with the Brand (and, where applicable, BzzAgent) in each post, comment, review, response, or other public communication made as part of your participation in a Campaign in accordance with BzzAgent’s Disclosure Guidelines and with all applicable laws.
     

  5. If BzzAgent determines that any of your Content violates the requirements set forth in this Agreement (including BzzAgent’s Disclosure Guidelines), we may delete that Content (or, if you have the ability to edit it, require that you remedy the issue within twenty-four (24) hours of our notice to you). If – where applicable – you do not timely remedy the violation or if BzzAgent observes any repeat violation by you of your obligations under this Agreement, your participation in the BzzAgent program may be terminated and you may be asked to return any Sample(s) (defined below) that you have been provided.

2. OWNERSHIP & RIGHTS

  1. Your Content & Persona. You hereby grant to BzzAgent, any Brand in whose Campaign you participate, and their respective parents, subsidiaries, and affiliates (collectively “Licensees”), and any parties authorized by any of the foregoing Licensees, the irrevocable, royalty-free, sublicensable, transferable, worldwide right – but not the obligation –  to use, reproduce, display, publicly perform, distribute, make derivative works of and otherwise exploit your Content or any portion thereof, in any and all media now known or hereafter devised for Licensees’ advertising, trade, promotional, or other commercial or non-commercial purposes. Without limiting the generality of the foregoing, you understand and agree that the license you are granting here permits BzzAgent and the Brand for the Campaign of which you created the applicable Content to re-post that Content from their own social channels and other online properties. You hereby waive any right to inspect or approve any use of your Content by a Licensee pursuant to this Influencer Agreement and to any right to royalties or other compensation, or any attribution, arising from or related to a Licensee’s use of your Content and you irrevocably waive all so-called moral rights associated with the Content. 

    You further grant to the Licensees the right to use your name, image, likeness, voice, social usernames, biographical information, quotes attributable to you, and any other protectable element of your persona (collectively, your “Persona”) in connection with any Licensee’s use of the Content in accordance with the license granted above, without further approval by or payment to you or any third party. 

    Please note that, when you post or submit Content created as part of a Campaign on a another site or service (e.g., on PowerReviews’ review platform or elsewhere on a Brand’s own site or on a social media platform), you are subject to the terms and conditions of that third-party site/platform, which may involve your granting of additional license rights in your Content to other parties.
     

  2. Brand Materials. In the event that BzzAgent or Brand provides or makes available to you any trademarks, logos, text/copy, images, audio, video, packaging design, or other materials (“Brand Materials”) for purposes of performing the Services and/or incorporation into your Content (other than the Samples, defined below), you agree that all right, title and interest in and to the Brand Materials are – as between you and Brand – retained solely by the Brand. Except to the limited extent required to perform the Services, you will not (and will not permit any other person or entity to) access, use, edit, revise or create any derivative works from any Brand Materials. All goodwill arising out of your use of the Brand Materials will inure to the benefit of Brand. If any Brand Materials or Sample is provided to you with any disclosure restrictions or confidentiality obligations (e.g., do not post until a certain date), you will strictly comply with such obligations.
     

  3. Third-Party Rights and Licenses. To the extent that your Content (excluding the Brand Materials incorporated therein) or performance of the Services implicates the rights of any party other than you, you will be solely responsible for obtaining – in a form acceptable to and approved in writing by BzzAgent – any required licenses, permissions or approvals from such third parties, contributors, and/or other affected rights holders, as necessary for the Licensees to exercise all rights granted by you in the Content pursuant to this Influencer Agreement. For example, and without limiting any of the foregoing, if any individual other than you speaks, appears, is depicted, is named, or is otherwise identifiable in any Content, you will secure from such person(s) an executed consent and release agreement (in a form acceptable to BzzAgent) granting to the Licensees all rights necessary for the Licensees to make use of his or her Persona or other contribution to the Content to the same extent as the rights you have granted to Licensees above. In such event, you will provide BzzAgent with copies of such executed consents upon its written request.
     

3. COMPENSATION

In consideration for the Services performed by you and the rights granted in this Influencer Agreement, BzzAgent will provide the sample product(s) described in BzzAgent’s communication with you regarding the applicable Campaign (“Samples”). The selection of Sample(s) will be in BzzAgent’s sole discretion. Except for the BzzAgent provided Sample(s), you will utilize your own equipment, software, and supplies required to perform the Services, unless otherwise agreed upon by the parties in a separately executed agreement. In the event that any Services require your attendance at or participation in any event, you understand and agree that you are solely responsible for any and all travel and other expenses related to participation in such event – unless otherwise agreed to in a separately executed agreement between you and BzzAgent (or a Brand, as applicable).

4. SAMPLES & INSTRUCTIONS

You agree to adhere to the communications and instructions received from BzzAgent regarding the details of the Sample(s) you will receive and the Content you are expected to produce as part of any Campaign. If BzzAgent or Brand specifies that the Sample(s) is/are provided only for use during a limited period and/or under specific conditions, you will take reasonable care to safeguard BzzAgent’s/Brand’s Sample(s) entrusted to your custody or control and abide by any additional secrecy and confidentiality requirements provided to you. You may be required to execute additional confidentiality/non-disclosure agreement(s) and/or to return the Sample(s) upon completion of the Services, all as specified by BzzAgent in its communications to you regarding a Campaign.

5. VIRAL DISSEMINATION

You acknowledge that any posted Content and/or your Persona may be shared, re-posted, and disseminated by consumers and third parties without notice or compensation and separate and apart from the license you have granted to the Licensees above. You approve this viral distribution and acknowledge that BzzAgent will have no liability related to any use, display, distribution, reaction or response to the Content and/or your Persona by consumers or third parties.

6. REPRESENTATIONS AND WARRANTIES

You represent and warrant that: (i) you are the sole creator of the Content, own all right, title, and interest in and to that Content (excluding any Brand Materials incorporated therein, as applicable), and have the full right and authority to enter into this Influencer Agreement and to grant all licenses contained in this Influencer Agreement; (ii) the execution of this Influencer Agreement and provision of Services under this Influencer Agreement will not violate any agreement, arrangement or commitment with any other party to which you are otherwise bound; (iii) the Services and your Content do not violate, misappropriate, or infringe upon the intellectual property, privacy, or other personal or property rights of any third party (including, without limitation, any copyright, trademark, right of publicity, or right of privacy) and will comply with any applicable laws, rules, and regulations, including without limitation the FTC Endorsement Guides and all other applicable FTC regulations and guidelines; and (iv) you will not refer to this Influencer Agreement, or refer to BzzAgent in publicity releases, marketing or promotional material or advertising (other than your Content) without the prior written consent of BzzAgent. You further represent and warrant that you have reviewed and approved the above-licensed uses and waive any claims that a Licensee’s use of your Content or Persona pursuant to the terms of this Influencer Agreement violate any of your intellectual property rights, rights of publicity or privacy, “moral rights,” or right of attribution or integrity.

7. WAIVER AND RELEASE

  1. You fully and unconditionally release and forever discharge BzzAgent, any Brand, their respective parent, subsidiary, and affiliated companies, licensees, and each of their respective officers, directors, employees, representatives, and agents (the “Released Parties”) from any and all claims, causes of action, expenses (including attorneys’ fees) and demands arising out of or in connection with any party’s use of the Content and/or your Persona as permitted in this Influencer Agreement, including without limitation, any and all claims for false endorsement, misappropriation, misrepresentation, copyright infringement, defamation, violation of your right to publicity, attribution, or invasion of privacy.  You understand that neither BzzAgent nor any other Licensee will have any obligation to use the Content or your Persona in any manner and you will have no right to (i) receive any royalty or additional consideration of any kind; or (ii) inspect or approve any material used or created in connection with the Content or your Persona, regardless of the extent to which a Licensee uses the Content or your Persona. 
     

  2. YOU HEREBY ASSUME ALL OF THE RISKS OF PARTICIPATING IN ANY AND ALL ACTIVITIES ASSOCIATED WITH THE SERVICES UNDER THIS INFLUENCER AGREEMENT. On your own behalf – and that of your executors, administrators, heirs, next of kin, successors, and assigns – you hereby waive, release, and discharge the Released Parties from any and all liability directly or indirectly related to this Influencer Agreement, any Sample(s), your Content or Persona, or your preparing for, traveling to/from, or performing the Services – including, but not limited to, liability arising from (i) the negligence or fault of any Released Party and (ii) death, disability, personal injury, property damage, or accidental loss of any kind. You acknowledge that the Released Parties are NOT responsible for the errors, omissions, acts, or failures to act of any party or entity conducting or providing a specific service on their behalf.
     

  3. In no event will the total liability to you by the Released Parties for any claims, damages, losses, and causes of action exceed the greater of your actual out-of-pocket expenses to participate in the BzzAgent sampling program (if any, and excluding any attorneys’ fees) or $10.00 USD. This limitation on damages is not intended to limit any obligation to pay prevailing party costs or fees as required by law or to limit or exclude liability for personal injury or property damage caused by the Released Parties, or for the gross negligence, fraud, or intentional, willful, malicious, or reckless misconduct by the Released Parties – but only to the extent that such liability cannot be limited or excluded pursuant to applicable law. This limitation is also not intended to restrict any California resident’s right under applicable law (if any) to seek public injunctive relief, otherwise in accordance with the dispute-resolution procedures set out below.
     

  4. By participating in the BzzAgent sampling program and agreeing to this Influencer Agreement, you understand that you may be waiving rights with respect to claims that are at this time unknown or unsuspected, and in accordance with such waiver, you acknowledge that you have read and understand, and expressly waive, the benefits of Section 1542 of the Civil Code of California (and any similar law of any state or territory) which provides as follows: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
     

  5. This Section will be construed broadly to provide a release and waiver to the maximum extent permissible under applicable law.

8. CONFIDENTIALITY

During the performance of the Services under this Influencer Agreement, you may have access to and acquire knowledge, materials, data and other information concerning the BzzAgent, a Brand, either of their affiliates or partners, or a Campaign that may not be known to the general public (“Confidential Information”). Confidential Information will not include information that: (a) was available to you on a non-confidential basis prior to it being furnished by BzzAgent, Brand, or their affiliate/partner; (b) is or becomes available to the public through no act or failure to act of yours; or (c) becomes available to you on a non-confidential basis from a source other than the BzzAgent, Brand, or our affiliates/partners (provided that such source is not known to you to be bound by an obligation of confidentiality to the disclosing party in respect of such information). You will not use any Confidential Information in any manner, other than in connection with performing the Services and will use reasonable care to protect the Confidential Information from unauthorized use or disclosure. If you are instructed of particular confidentiality obligations with regard to a Sample or Campaign, you will strictly adhere to all such obligations. In the event that you are directed to disclose any portion of the Confidential Information in conjunction with a legal proceeding or arbitration, your will immediately notify us and will provide us with reasonable cooperation and assistance in obtaining a suitable protective order and in taking other steps to preserve confidentiality.  Upon the termination of this Influencer Agreement or upon our reasonable request, you will immediately destroy (or, if requested by BzzAgent or Brand, return) all Confidential Information.

9. INDEMNIFICATION

You agree to indemnify, reimburse, defend and hold harmless the Released Parties from and against any and all damages, losses, liabilities, costs, expenses (including attorney’s fees), claims, or injuries (“Claims”) arising from or in connection with any breach or alleged breach of your representations, warranties or obligations under this Influencer Agreement. Without limiting the foregoing, you will indemnify, defend and hold harmless the Released Parties from any and all Claims, actions, or investigations by governmental or self-regulatory agency for actual or alleged infringement, violation, or misappropriation of any applicable law – including, without limitation, the FTC Endorsement Guides – or any third party’s intellectual property, personal, privacy, or other proprietary rights. 

 

BzzAgent, in its sole discretion, reserves the right, but not the obligation, to control the defense of any such action with counsel of its own choosing and you will fully cooperate with BzzAgent in connection therewith. In any event, you will not agree to any settlement without the prior written approval of BzzAgent.

10. TERMINATION

You may terminate this Influencer Agreement at any time upon written notice to us, provided that you are not currently participating in any active Campaign to which you have accepted an invitation.  We may terminate this Influencer Agreement at any time upon notice to you, including, without limitation in the event that you (i) breach any representation, warranty, or obligation under this Influencer Agreement or (ii) commit, or have committed, any act that (as determined by BzzAgent in its sole discretion) brings BzzAgent or any Brand into public disrepute, contempt, scandal, or ridicule, or which insults or offends the general community, or which might tend to harm BzzAgent, any Brand, or any of their respective products or services. BzzAgent may also terminate this Influencer Agreement without notice to you in the event that it discontinues the BzzAgent program or any successor thereto. Upon any termination, you will, if requested by BzzAgent, immediately remove all posts that include any Content from your social media and/or website(s).

 

Sections 1(c), 2, 5-15, and any other provision of this Influencer Agreement which, by its terms and context is intended to survive the termination or expiration of this Influencer Agreement, will do so.

11. MISCELLANEOUS

  1. Notices: Any and all notices, elections, offers, acceptances, and demands permitted or required to be made under this Influencer Agreement will be in writing. Notice to BzzAgent must be sent to legal@powerreviews.com with the subject line “BzzAgent Written Notice under Influencer Agreement.” BzzAgent will provide notice to you via email to the email address then associated with your BzzAgent account. 
     

  2. Severability: In the event any provision of this Influencer Agreement is held to be invalid or unenforceable by a court or arbitrator of competent jurisdiction, such invalidity or unenforceability will not affect the validity or enforceability of the remainder of the Influencer Agreement.
     

  3. Relationship of Parties: Your relationship with BzzAgent is that of an independent contractor and you agree that, as an independent contractor, you will not be considered an employee of BzzAgent for any purpose, including tax obligations, and will not be eligible to participate in any of BzzAgent’s medical, benefit or health plans.
     

  4. Entire Agreement: This Influencer Agreement (including any exhibits hereto, if any) constitutes the entire understanding and agreement between you and BzzAgent hereto and supersedes any and all prior or contemporaneous representations, understandings and agreements between you and BzzAgent with respect to the subject matter hereof.
     

  5. Assignment: You may not assign this Influencer Agreement or delegate the performance of the Services or obligations under this Influencer Agreement to any third party without BzzAgent’s prior written consent. 

12. NO UNION/GUILD

You represent and warrant that neither you (nor any other person appearing in your Content, if any) are a member of any union or guild, including without limitation, the Screen Actors Guild-American Federation of Television and Radio Artists (“SAG-AFTRA”), and that neither BzzAgent, nor any other Licensee, will be responsible for payment to any union or guild in connection with the Services or re-use of the Content or your Persona as permitted under this Influencer Agreement. You will indemnify and hold the Released Parties harmless against any claimed or actual obligation or payment to any union or guild in connection with the Services or permitted reuse of your Content or Persona.

13. GOVERNING LAW

This Influencer Agreement will be governed by and construed in accordance with the laws of the State of Illinois applicable to agreements made and entirely to be performed within the State of Illinois, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to this Influencer Agreement shall be filed only in state or federal court located in Cook County, Illinois, and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts.

14. USE OF BZZAGENT TRADEMARKS

Except to identify yourself as a participant in the BzzAgent program and make the disclosures necessary to comply with your obligations under our Disclosure Guidelines, the FTC Endorsement Guides, and any other applicable laws, you may not use any BzzAgent trademark (including logos) or other intellectual property without our express written permission in each instance.

15. CHANGES TO THIS AGREEMENT

To the maximum extent allowed by applicable law, BzzAgent reserves the right to change or modify this Influencer Agreement or any other terms or policies related to your participation in the BzzAgent sampling program (including, without limitation, the Disclosure Guidelines) at any time and in its sole discretion. (Any such revised agreement or policy is referred to as the “Updated Terms”). If BzzAgent modifies this Influencer Agreement or any other applicable terms/policies, it will post the Updated Terms on the BzzAgent.com site and update the effective date set forth above. We may also, in our discretion, notify you of material changes to this Influencer Agreement or other applicable terms/policies by emailing you at the address then associated with your BzzAgent account. Any changes or modifications will be effective upon posting of the revisions (or at a later date as we may specify in the Updated Terms). Unless we expressly specify otherwise in the Updated Terms (or any notice you regarding the Updated Terms), your continued participation in the BzzAgent sampling program, including any Campaign, after the effective date constitutes your acceptance of the Updated Terms. You should frequently review this Influencer Agreement, the Disclosure Guidelines, and any other applicable policies to understand the terms and conditions that apply to your participation in the BzzAgent sampling program.

Appendix A – Code of Conduct

Your Content must meet all of the following requirements, as determined by BzzAgent in its sole discretion. If your Content does not comply with the below requirements, we may remove the Content ourselves, may ask you to edit or remove the Content (if you have the ability to do so), and/or may not invite you to participate in future Campaigns.  

 

  • Your Content must be original to you (or in the public domain) and no other person or entity may have rights to your Content. Your Content must not infringe, misappropriate, or violate any rights of any third party including, without limitation, copyright, trademark, trade secret, or rights of privacy or publicity.

    • Note that content being “in the public domain” means that it is no longer subject to copyright protection, typically because of its age. It does not mean that the content is publicly accessible (e.g., because someone else posted it online).

    • Do not include any music in your Content unless the work is original to and performed by you alone and you have all rights to the musical work and performance.
       

  • Don’t include or mention any other person in your Content unless they’re an adult and you have their permission or they’re your own child/ward. In either case, you agree to provide us with proof that you have that person’s permission to include them in your Content and grant the rights you grant in that content under this Influencer Agreement (or, for your own child/ward, can legally grant such permission) in writing upon our request.
     

  • Your Content must be suitable for viewing by the general public. No profanity, violence, nudity, or obscene material is allowed. Do not include any deceptive, disparaging, defamatory, harassing, or hateful material in your Content. 
     

  • Your Content cannot encourage dangerous or illegal activities and must not in any way violate applicable law. 
     

  • Any Content posted to a social-media platform must comply with the terms and policies applicable to that platform. 
     

  • If you’ve been told by BzzAgent or Brand that certain information you’re provided as part of a Campaign is confidential (or confidential until a certain date), do not disclose that information. 

 

In addition, you may not do any of the following when participating in the BzzAgent program: 

 

  • If you’re invited to a Campaign, do not share your invitation or any links included therein. 
     

  • Do not sell or trade the samples you receive through BzzAgent. 
     

  • Do not create multiple BzzAgent accounts, whether for yourself or in order to “run” an account for a friend, family member, or other third party.