Last Updated: October 5, 2022
If you are unsure as to the terms of this Agreement, please do not proceed further and contact us at Influencer and Affiliate Contacts here.
PLEASE READ THE TERMS CONTAINED IN THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. PLEASE NOTE THAT THIS AGREEMENT CONTAINS A BINDING AND MANDATORY ARBITRATION PROVISION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS AND LIMITS REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
“Influencer Program” – means the advertisement, publicity, endorsement, and/or other assistance by Influencer in the marketing promotion and sale of Mimiq Products and in turn the license provided by Influencer to Mimiq to use the Influencer’s name and/or likeness in exchange of benefits or compensation provided by Mimiq, subject to the terms and conditions of this Agreement.
“Service Order” – means the Service Order form in materially the form as set out in here which describes, among other things, name of the Influencer, contact details, description of content and audience, compensation and details of the Services to be providing such as posts, contents to be created purchased, and any special terms and conditions. In the event of any conflict between this Agreement and the Service Order, the terms set out under the Service Order shall take precedence.
2. INTRODUCTION TO MIMIQ, INC.
Mimiq, Inc. (formerly Smart Mimic, Inc.), is a Silicon Valley company that develops fifth-generation low-power, long range, connected consumer devices for portable safety, trackers, and other applications – and also builds the gateways needed to connect them. With headquarters in San Francisco and subsidiaries in Turkey and Canada, Mimiq is establishing development centers and building distribution partnerships globally. A growth stage company, Mimiq received founding investments from key Amazon, Apple and Google alumni and executives as well as strategic investments from IoT network providers and security companies.
3. INFLUENCER SERVICES.
Influencer agrees to perform the Services as more specifically set forth in the applicable Service Order Influencer agrees to render any and all such Services to the best of their ability, in a professional manner, and pursuant to the reasonable instructions and good faith approval of Mimiq in all respects (including without limitation with respect to date, time, and location). The following shall apply with respect to:
(a) Non-Exclusivity and Competitors:
Influencer agrees that the Services shall be rendered by the Influencer on a non-exclusive basis; i.e., that Influencer may render similar types of services to any third party at any time during the Term (as defined herein). Notwithstanding the foregoing, during the Term for a three (3) month period commencing immediately after the Term, Influencer will not render any similar type services to any third party if such services are intended to, or serve to, promote, advertise, publicize, endorse, and/or otherwise assist in the marketing of goods and/or services similar to, or competitive with Mimiq’s Products.
All materials created hereunder pursuant to Influencer’s rendition of Services (collectively, the “Deliverables”) shall be created for and owned by Mimiq on a “work for hire” basis. Mimiq shall provide the necessary content and briefing materials to enable the Influencer to perform the Services. As such, Influencer shall not have any ownership rights in and to any such Deliverables at any time, and may only use the Deliverables as required by Mimiq pursuant to the terms hereof.
(c) Creative Control:
Influencer shall have creative control over their rendition of the Services and creation of the Deliverables. Notwithstanding the foregoing, the following shall apply:
Influencer shall follow any and all specific rules and directions set forth by Mimiq in connection with all material aspects of the Services, including the Mimiq’s Brand Rule Guidelines here and without limitation, timing, tone, subject matter, delivery dates, location, specifications and functionality, third party involvement (if any), materials or information which require incorporation in the Deliverables (i.e., photographs, disclaimers, etc.), length, and incorporation of specifically required information.
Influencer agrees and understands that all promotions and Mimiq Products they promote as part of this Agreement are controlled by Mimiq. Influencer shall be responsible for verifying that the campaign materials used by Influencer are approved by Mimiq.
Mimiq shall have acceptance and approval rights with respect to the Services rendered and the Deliverables created hereunder. Mimiq shall have ten (10) business days to reject a Deliverable and notify the Influencer. To the extent that Influencer’s Services do not to meet Mimiq’s expectations as contemplated for by this Agreement, Mimiq agrees to provide Influencer with a detailed description of such non-conformity within ten (10) business days of receipt of work so that Influencer can make the necessary changes or additional amendments to ensure material compliance with Mimiq’s specifications.
Mimiq will monitor the Influencer’s posts and notify the Influencer of any content that is outside of the FTC guidelines that needs immediate correction, removal, or explanation. Should an inappropriate post appear, Mimiq may withhold payment, request reimbursement of already paid fees, and/or terminate this Agreement.
Provided that Influencer fully renders the Services and is not otherwise in breach or default hereunder, Mimiq agrees to pay Influencer, as full and complete consideration for the Services, along with any and all rights granted and obligations committed to hereunder by Influencer, as fully described in the applicable Service Order (the “Fee”).
The term of this Agreement (the “Term”) shall commence as of the Effective Date and continue until the Services have been fully rendered and the Deliverables have been delivered to Mimiq (unless terminated sooner as provided for herein).
Notwithstanding the above, either Party may terminate this Agreement at any time upon ten (10) business days’ written notice. In the event of such termination, Influencer shall be paid for any portion of the Services that have been performed prior to the termination. Should either Party default in the performance of this Agreement or materially breach any of its obligations under this Agreement, the non-breaching Party may terminate this Agreement immediately if the breaching Party fails to cure the breach within ten (10) business days after having received written notice by the non-breaching Party of the breach or default.
Each Party agrees to keep confidential any and all proprietary information relating to the other Party’s business, including without limitation, information about contracts, fees, costs, profits, markets, Mimiq Product costing, sales, existing and potential customers, supplies, plans for future development, promotional methods, and any and all other information of a similar nature not generally made available to the public (individually and collectively, “Confidential Information”). The term Confidential Information shall include the terms of this Agreement. Each party may use the Confidential Information of the other party exclusively for the purposes of satisfying its obligations hereunder. Each Party shall use all commercially practicable efforts to safeguard the secrecy and confidentiality of the Confidential Information, and shall not disclose any of the Confidential Information to any third party (other than as required to fulfill its obligations hereunder), during the Term or thereafter, except: (i) information which was known by the recipient prior to the effective date of this Agreement without any obligation of confidentiality; (ii) information which is publicly available or which becomes publicly available through no fault of the recipient; (iii) information which is lawfully acquired from a third party without restriction on disclosure; (iv) information required to be disclosed pursuant to any statutory, regulatory, or judicial requirement, provided that the recipient gives the other Party prior prompt written notice of such requirement to permit the other party to seek a protective order or other appropriate remedy; or (v) with the express prior written consent of the applicable Party.
(a) Publicity: Subject to the terms hereof, Mimiq shall have the right to use Influencer’s name and/or likeness, social media handle or channel/blog name and any other Influencer in connection with publicizing the Deliverables created hereunder including use in any media that accepts advertising or promotional content or communications (such as, but not limited to, digital, print, television or radio), and Mimiq may do so without the advance approval of the Influencer. Influencer , however, may not use the name and/or logo (or other identifying marks) of the Mimiq without Mimiq’s prior written approval in each instance.
Influencer acknowledges and agrees that the primary reason that Influencer is being engaged hereunder to render the Services is to promote the sale of the Mimiq Products. Therefore, it shall be deemed a material breach hereof if Influencer, at any time during the Term or thereafter, makes any disparaging, false, misleading, or otherwise defamatory comment(s) about Mimiq and/or its employees, agents, directors, officers, affiliates, Mimiq Products, and/or services.
8. REPRESENTATIONS AND WARRANTIES.
Each Party represents and warrants to the other Party that:
(a) it has the right to enter into this Agreement and fulfill its obligations as set forth herein without violating any other agreement entered into with any third party;
(b) it will comply with all applicable laws, rules, and regulations in existence applicable to its activities hereunder (including without limitation any and all FTC guidance in connection with advertising and endorsements); and
(c) to the best of such Party’s knowledge, any and all materials or information of any kind that it provides hereunder (whether or not incorporated in the Deliverables): (i) does not infringe upon any third party rights of any kind, including without limitation, any intellectual property rights, unfair competition, dilution, and/or publicity or privacy rights; and (ii) is true and accurate in all respects.
Influencer represents and warrants that: (i) the Deliverables and Mimiq-Related Content will be wholly 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; (ii) the Services rendered by Influencer shall be promptly rendered with due care and shall be of first rate quality; (iii) Influencer will not commit any act which brings Mimiq into public disrepute, contempt, scandal, or ridicule, or which insults or offends the general community to which Mimiq’s advertising materials are directed, or which might tend to harm Mimiq or any of Mimiq’s products or services including, without limitation, disparaging Mimiq or its products or services; (iv) Influencer’s statements, posts and feedback are true and accurately reflect Influencer’s honest opinion and experience with Mimiq, and its competitors’ products and/or services to the extent applicable, (v) Influencer agrees that time is of the essence in connection with this Agreement and all deadlines provided by Mimiq; and (vi) 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 Endorsement and Testimonial Guidelines (“FTC Guides”), in rendering the Services herein.
9. INTELLECTUAL PROPERTY RIGHTS.
(a)Except to the extent necessary to provide your Services and expressly granted by Mimiq, nothing in this Agreement grants any title or ownership interest in or to any copyrights, patents, trademarks, trade secrets or other proprietary rights in or relating to Mimiq’s Website, App or Products whether expressly, by implication, estoppel, or otherwise. Mimiq and its licensors and service providers reserve and will retain their entire right, title, and interest in and to our Website, App or Products including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
(b)If any of the posts/published content or Deliverables may not, by operation of law or otherwise, be considered “work made for hire” by Influencer for Mimiq or otherwise the intellectual property of Mimiq, or if ownership of all right, title and interest of the intellectual property rights therein shall not otherwise vest exclusively in Mimiq, pursuant to Section 3(b) above, Influencer agrees to irrevocably waive and assign without further consideration, and upon creation thereof automatically assign irrevocably and in perpetuity, without further consideration, all rights, title, claims and interest in any work product and other intellectual property rights therein, including moral rights, to Mimiq, its successors and assigns. Influencer agrees to perform, upon the reasonable request of Mimiq, and upon reimbursement for out-of-pocket costs by Mimiq, during or after termination of this Agreement, such further acts as may be necessary or desirable to assign, transfer, perfect and defend Mimiq’s ownership of the work product, including but not limited to the following:
(i)Executing, acknowledging, and delivering any requested affidavits and documents of assignment and conveyance;
(ii)Obtaining and aiding in the enforcement of copyrights and, if applicable, patents with respect to the work product in any countries;
(iii)Providing testimony in connection with any proceeding affecting the right, title, or interest of Mimi q in any work product; and
(iv)Performing any other acts deemed necessary or desirable to carry out the purposes of this Agreement.
( c)Influencer grants Mimiq the irrevocable, sub-licensable, perpetual, worldwide right and permission to use any work product or other video, photo, written or verbal content Influencer shares pursuant to the Services (collectively, “Mimiq-Related Content”) in any manner, in whole or in part, and for the purpose of publicizing Mimiq-Related Content or otherwise in connection with this Agreement and in any and all media, including and without limitation, on Mimiq owned or controlled websites and platforms, social media, any advertising materials, publications, marketing materials, and/or presentations, and in any and all other media. Any statements, posts and/or feedback that Influencer provides may be paraphrased, amplified, shortened and/or put into conversational form. Influencer further agrees that Mimiq may contact (including by means of messages on public social media platforms) Influencer about any Deliverables or Mimiq-Related Content.
You agree to indemnify, defend, and hold Mimiq and our officers, employees, managers, directors, customers, and agents (the “Indemnitees”) harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against Indemnitees arising from any of the following: (i) a breach of this Agreement; (ii) the negligence, fraud, or willful misconduct of you or your employees, agents, or contractors; (iii) incorrect information provided by you in your account or elsewhere; (iv) from the use of Deliverables or Mimiq-Related Content by reason of any matter connected in any way with the Indemnitees’ 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 Indemnitees shall be free to use Influencer’s name, voice and likeness in any manner in connection with the Deliverables or Mimiq-Related Content or otherwise in connection with this Agreement; or (v) a failure by you or your employees, agents, contractors or invitees to comply with applicable laws and regulations.
11.LIMITATION OF LIABILITY.
EXCEPT FOR THE PARTIES’ RESPECTIVE INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THIS AGREEMENT WILL BE LIMITED TO AN AMOUNT EQUAL TO THE SUM OF THE FEES PAID BY MIMIQ TO INFLUENCER HEREUNDER WITHIN THE PREVIOUS TWO (2) MONTHS. ANY CLAIMS MADE PURSUANT TO THIS SECTION MUST BE MADE WITHIN ONE YEAR OF THE INCIDENT TO WHICH THEY RELATE OR FOREVER BE BARRED.
Influencer’s rendition of Services hereunder for Mimiq is in his or her capacity as an independent contractor. Accordingly, nothing contained in this Agreement shall be construed as establishing an employer/employee, a partnership, or a joint venture relationship between the parties. As such, Influencer shall not have the right to bind Mimiq to any commitment or obligation of any kind, and any such attempted commitment shall be deemed null and void. Influencer may, at Influencer’s own expense, employ or engage the services of such employees, subcontractors, partners or agents, as Influencer deems necessary to perform the Services (collectively, the “Assistants”). The Assistants are not and shall not be employees of Mimiq, and Influencer shall be wholly responsible for the professional performance of the Services by the Assistants such that the results are satisfactory to the Mimiq.
We reserve the right, at our sole discretion, to change or modify this Agreement at any time. In the event, we modify the terms of this Agreement, such modifications shall be binding on you only upon your acceptance of the modified Agreement. We will inform you about the modifications via email, or by posting a modified version of this page, or by a comparable means within a reasonable time period. Your continued use of our Website, App, or Mimiq Products and participation in the Influencer Program shall constitute your consent to such changes.
14. FORCE MAJEURE.
Neither Party will be liable for, or will be considered to be in breach of or default under, this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any event of force majeure occurs, the affected party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact and length of the force majeure event.
15. GOVERNING LAW.
This Agreement shall be governed in accordance with the laws of the State of Delaware without regard to its conflict of laws principles. All disputes under this Agreement shall be resolved by litigation in the courts of the State of California, County of San Francisco including the federal courts therein and the parties hereto consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
16. DISPUTE RESOLUTION AND ARBITRATION
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH MIMIQ AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Mimiq agree (a) to waive your and Mimiq’s respective rights to have any and all Disputes arising from or related to this Agreement, use of our Website, App, or Mimiq Products resolved in a court, and (b) to waive your and Mimiq’s respective rights to a jury trial. Instead, you and Mimiq agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or a jury in court).
b.No Class Arbitrations, Class Actions or Representative Actions
You and Mimiq agree that any Dispute arising out of or related to this Agreement or use or access of our Website, App, or Mimiq Products is personal to you and Mimiq and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Mimiq agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Mimiq agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
c.Federal Arbitration Act
You and Mimiq agree that this Agreement affect interstate commerce and that the enforceability of this Section shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
d.Notice; Informal Dispute Resolution
You and Mimiq agree that each Party will notify the other Party in writing of any arbitral or small claims Dispute within thirty (30) days of the date it arises, so that the Parties can attempt in good faith to resolve the Dispute informally. Notice to Mimiq shall be sent by certified mail or courier to Mimiq at the street address provided at Informal Dispute Resolution here. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Mimiq account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with this Agreement and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Mimiq cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable Party, then either you or Mimiq may, as appropriate and in accordance with this Section, commence an arbitration proceeding.
EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND MIMIQ AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR MIMIQ WITHIN (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND MIMIQ WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE).
You and Mimiq agree that (a) any arbitration will occur in Santa Clara County, California, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section, and (c) that the state or federal courts of the State of California, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
f.Authority of Arbitrator
As limited by the FAA, this Agreement and the applicable AAA Rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitral, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by this Agreement. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual. Notwithstanding anything to the contrary herein or the applicable AAA Rules, discovery in the arbitration shall be limited to one set of interrogatories, one set of requests for admissions, and one set of requests for production of documents.
The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Mimiq and you agree that the prevailing party in the arbitration will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
g.Rules of AAA
The AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879. By agreeing to be bound by this Agreement you either (a) acknowledge and agree that you have read and understand the rules of AAA, or (b) waive your opportunity to read the rules of AAA and any claim that the rules of AAA are unfair or should not apply for any reason.
If any term, clause or provision of this Section is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section will remain valid and enforceable. Further, the waivers set forth herein are severable from the other provisions of this Agreement and will remain valid and enforceable, except as prohibited by applicable law.
YOU HAVE THE RIGHT TO OPT OUT OF BINDING ARBITRATION WITHIN THIRTY (30) DAYS OF THE DATE YOU FIRST ACCEPTED THE TERMS OF THIS SECTION BY WRITING TO MIMIQ AT THE STREET ADDRESS PROVIDED AT ARBITRATION OPT-OUT HERE. IN ORDER TO BE EFFECTIVE, THE OPT OUT NOTICE MUST INCLUDE YOUR FULL NAME AND CLEARLY INDICATE YOUR INTENT TO OPT OUT OF BINDING ARBITRATION. BY OPTING OUT OF BINDING ARBITRATION, YOU ARE AGREEING TO RESOLVE DISPUTES IN ACCORDANCE WITH SECTION 13.