Terms of service

OVERVIEW
This website is operated by Don Victor Foods. Throughout the site, the terms “we”, “us” and “our” refer to Don Victor Foods. Don Victor Foods offers this website, including all information, tools and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.

By visiting our site and/ or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.

Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.

Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.

Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and services to you.

SECTION 1 - ONLINE STORE TERMS
By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.
You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
You must not transmit any worms or viruses or any code of a destructive nature.
A breach or violation of any of the Terms will result in an immediate termination of your Services.

SECTION 2 - GENERAL CONDITIONS
We reserve the right to refuse service to anyone for any reason at any time.
You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the service is provided, without express written permission by us.
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.

SECTION 3 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.
This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.

SECTION 4 - MODIFICATIONS TO THE SERVICE AND PRICES
Prices for our products are subject to change without notice.
We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time.
We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.

SECTION 5 - PRODUCTS OR SERVICES (if applicable)
Certain products or services may be available exclusively online through the website. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy.
We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.
We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.
We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.

SECTION 6 - ACCURACY OF BILLING AND ACCOUNT INFORMATION
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e‑mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

For more detail, please review our Returns Policy.

SECTION 7 - OPTIONAL TOOLS
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new services and/or features through the website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.

SECTION 8 - THIRD-PARTY LINKS
Certain content, products and services available via our Service may include materials from third-parties.
Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

SECTION 9 - USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS
If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, 'comments'), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.
You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e‑mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.

SECTION 10 - PERSONAL INFORMATION
Your submission of personal information through the store is governed by our Privacy Policy. To view our Privacy Policy.

SECTION 11 - ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.

SECTION 12 - PROHIBITED USES
In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.

SECTION 13 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
We do not guarantee, represent or warrant that your use of our service will be uninterrupted, timely, secure or error-free.
We do not warrant that the results that may be obtained from the use of the service will be accurate or reliable.
You agree that from time to time we may remove the service for indefinite periods of time or cancel the service at any time, without notice to you.
You expressly agree that your use of, or inability to use, the service is at your sole risk. The service and all products and services delivered to you through the service are (except as expressly stated by us) provided 'as is' and 'as available' for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.
In no case shall Don Victor Foods, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the service or any products procured using the service, or for any other claim related in any way to your use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.

SECTION 14 - INDEMNIFICATION
You agree to indemnify, defend and hold harmless Don Victor Foods and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.

SECTION 15 - SEVERABILITY
In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.

SECTION 16 - TERMINATION
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.
These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our site.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).

SECTION 17 - ENTIRE AGREEMENT
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
These Terms of Service and any policies or operating rules posted by us on this site or in respect to The Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).
Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.

SECTION 18 - GOVERNING LAW
These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of United States.

SECTION 19 - CHANGES TO TERMS OF SERVICE
You can review the most current version of the Terms of Service at any time at this page.
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.

SECTION 20 - CONTACT INFORMATION
Questions about the Terms of Service should be sent to us at marketing@padillaism.com.

SECTION 21 - INFLUENCER / AMBASSADOR TERMS AND CONDITIONS

Don Victor Foods Influencer Terms and Conditions (the “Terms and Conditions”) are entered into as of the Effective Date (date of signup) and entered into by and between the influencer (the “Influencer”) and Padilla Innovation (dba Spin 365 Marketing), an Arkansas corporation with its principal place of business at 809 SW A St Ste 215, Bentonville, AR 72712 (the “Company”). Influencer and the Company may be referred to hereinafter individually as a “Party” or collectively as the “Parties.”

BY ACCEPTING OR EXECUTING A SCOPE OF WORK, ORDER FORM OR ANY RELATED ADDENDUM THAT REFERENCES THIS AGREEMENT, YOU EXPRESSLY AGREE TO BE BOUND BY, AND STRICTLY ADHERE TO, ALL OF THE TERMS OF THIS AGREEMENT.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.

1. Scope(s) of Work.

Company wishes to engage Influencer to perform certain services set forth in one or more Scope(s) of Work and Influencer desires to perform the services set forth in such Scope(s) of Work (the “Services”), subject to the terms and conditions of the applicable Scope of Work and these Terms and Conditions (collectively, the “Agreement”). The Company and Influencer shall enter into one or more written scope(s) of work (each, a “Scope of Work” or “SOW”) detailing (a) the specific Services to be provided by Influencer, including the scope of each applicable media campaign (each a “Campaign”), including the applicable Advertiser and Social Media Channels, or other media channels, that will be subject to the Campaign, the duration of the Campaign, and the reach of the Campaign, (b) any Content (as defined below) to be created by Influencer and provided to the Company in connection with the performance of the applicable Services and Campaign, (c) a schedule and dates for performance by the Influencer of the applicable Services and Campaign, and (d) such other terms as may be mutually agreed to by the Parties.  Each Scope of Work shall only be deemed effective upon execution by an authorized representative of each Party, and, if required by the Company, the applicable advertiser that is sponsoring the applicable Campaign (the “Advertiser”). In the event of a conflict between a Scope of Work and these Terms and Conditions, this Scope of Work shall control, but only with regard to the Services described in the applicable Scope of Work. As used herein, “Social Media Channels” include but are not limited to: Facebook, Instagram, Twitter, Tumblr, YouTube, Pinterest, Google+, TikTok and website blogs.

1. Content
   a. Posting. If the Company or the Advertiser requests or requires any edits to the applicable Content, the Influencer shall make any and all edits as required or requested by the Company or the Advertiser. In the event that Influencer incorporates applicable edits in a manner reasonably consistent with the applicable requirements provided to Influencer, but the Content is thereafter not approved by the Advertiser, the Company reserves the right to terminate this Agreement and/or the applicable SOW immediately upon notice to Influencer.  
2. Objectionable Content.  Influencer acknowledges and agrees that he/she will not (a) make any unsubstantiated claims about any third party or its products or services in any Content related to any Campaign; or (b) develop or post any Content that is in any way illegal, obscene or harmful to the reputation, goodwill or interest of the Company or the Advertiser or their respective products, services, associates, employees or affiliates or that is otherwise reasonably objectionable to the Company or the Advertiser.
3. Exclusivity.  Influencer acknowledges and agrees not to include as part of any Content, or otherwise post to any Social Media Channel, or any other media channel set forth in an applicable SOW, in connection or combination with the Content, any reference to any other brand or trademark other than those authorized by the Company on behalf of the Advertiser and shall not post to any Social Media Channel, or any other media channel set forth in an applicable SOW, any information, promotion, endorsement or content related to the brands specified in the applicable SOW for the period of time set forth in the applicable SOW. In addition, Influencer agrees to only tag Advertiser’s pages on Social Media Channels and/or Advertiser’s social media handles in Influencer’s post(s) that include the Content.
4. Influencer Representations and Warranties. Influencer represents, warrants and covenants that (a) Influencer shall provide all Services under each applicable SOW with commercially reasonably skill and care in a competent and professional manner and at a level of quality not less than that prevailing in the industry, (b) Influencer has the proper skills, training and background to enable Influencer to perform such Services under the SOW in a competent and professional manner and to exercise the diligence ordinarily exercised by members of Influencer’s industry, (c) Influencer shall comply with all applicable laws and regulations in connection with the performance of the Services and each applicable Campaign, including, without limitation, laws and regulations concerning advertising and promotional campaigns, including, without limitation, the FTC’s  Guides Concerning the Use of Endorsements and Testimonials in Advertising, (d) Influencer shall comply with all terms of use, privacy policies, and other terms, rules or policies that are applicable to any Social Media Channel, (e) subject to the license grants pursuant to Section 8 and Section 9, Influencer has all consents, permissions or licenses necessary for Influencer to create the Content as contemplated hereunder; (f) the Content does not violate any copyright, trademark, or other intellectual property or proprietary right of any other party, (g) Influencer is at least 18 years of age and upon request by the Company at any time during the Term, will provide proper evidence of his or her age in the form of a valid driver’s license, passport or other acceptable government-issued identification as determined by the Company in its sole discretion, and (h) Influencer shall not engage in any fraudulent activity or other activity that would falsely or artificially increase or affect the number of Influencer’s followers, “likes” or other indicators of Influencer’s audience or reach on any applicable Social Media Channel, including, without limitation, with regard to a particular Campaign.
5. Compensation. Per information provided in the sign up link, Influencer will be paid for orders that are: Paid in full (by customer), Fulfilled & delivered for at least 30 days. Payments will not be made on orders that are refunded or cancelled. Any and all standard transfer fees payable to a financial institution in connection with payments made to Influencer shall be the responsibility of the Influencer. The Company shall submit payments to Influencer using the Paypal payment account information provided by Influencer during the initial sign up process and Influencer shall be solely responsible for maintaining and/or updating his or her payment account information (including but not limited to financial institution and account number information) (“Influencer Payment Information”).   Any failure by Influencer to provide accurate Influencer Payment Information, or update any changes to Influencer Payment Information may result in delays in payment of thirty (30) days or more. In addition, if the Company makes a payment to an incorrect account due to Influencer’s failure to provide accurate Influencer Payment Information, and the Company is unable to recover the amount of such incorrect payment, the Company shall be deemed to have made such payment in full to Influencer, and the Company shall have no further obligation to Influencer with regard to such payment. 
6. Term: Termination.
7. Term. This Agreement shall be effective as of the Effective Date set forth in initial sign up and entered into between the Parties and shall continue in full force and effect through the end date as determined by the Company.
   b. Termination.  In addition to any termination rights otherwise set forth herein, the Company shall have the right to terminate this Agreement, including any and all outstanding SOW’s, (i) at any time, without prior notice to Influencer, and (ii) upon notice to Influencer if Influencer materially breaches any of its obligations hereunder and fails to cure any such breach within twenty-four (24) hours. A material breach by Influencer shall include any breach of Section 3 or Section 5. In the event that the Company reasonably suspects that Influencer is in breach of Subsection 5(h), the Company shall notify Influencer, and, unless Influencer is able to provide reasonable evidence to the Company that Influencer has not fraudulently or falsely increased or affected the applicable number(s) within twenty-four (24) hours of receipt of such notice, the Company shall have the right to terminate this Agreement and/or the applicable SOW, immediately upon notice to Influencer, without any compensation or liability to Influencer, and subject to Influencer’s indemnification obligations set forth in Section 11(a)(3). (iv) immediately upon written notice to Influencer if Influencer, its representatives and/or agents, act in any way that causes it or them to undergo material adverse publicity or scandal, or fall into disrepute, including, without limitation if Influencer personally commits any act that results in a conviction of a felony, or any misdemeanor of moral turpitude (by way of example only, a misdemeanor involving a controlled substance, fraud, embezzlement, assault, and battery) or the neglect of others or self-harm.
8. Additional Remedies of the Company.  In the event Influencer materially breaches this Agreement, in addition to the termination rights hereunder, the Company shall be entitled to recover all costs (including attorney’s fees) in the enforcement of the Company’s rights hereunder and, if Influencer shall have been paid in advance pursuant to the terms of this Agreement, the Company shall be entitled to a refund of any monies advanced to Influencer under this Agreement.  In addition, if Influencer fails to perform any of the Services and/or Campaign(s) as required pursuant to the applicable SOW, Influencer shall pay to the Company as liquidated damages an amount equal to thirty percent (30%) of the compensation payable to Influencer under the applicable SOW to which such Services and/or Campaign(s) relate.
9. License to Use Advertiser Trademarks and Content. The Company, on behalf of the Advertiser,  hereby grants to Influencer, a non-exclusive, non-transferable, revocable, limited license to use and display Advertiser’s name, logo and trademarks, and any other content provided to Influencer by the Company or the applicable Advertiser in connection with an SOW, in the form and manner specifically described in the applicable SOW, or otherwise approved for use as part of the Content in accordance with Section 2 hereof (collectively, the “Advertiser Works”), solely as necessary to perform its obligations hereunder and only during the Term hereof, unless otherwise expressly authorized herein.  For the avoidance of doubt, Influencer may only use the Advertiser Works in the form and format provided or approved by the Company or Advertiser, as applicable. Influencer acknowledges the Advertiser’s exclusive right, title and interest in and to the Advertiser Works and the goodwill pertaining thereto, that any use of the Advertiser Works by Influencer does not create any ownership, license or other right or interest in or to the Advertiser Works by Influencer except as specifically set forth in this Agreement, and that all use of the Advertiser Works by Influencer shall inure to the benefit of the Advertiser.  Influencer agrees that it shall not, challenge, or assist in any challenge to, the validity or exclusivity of the Advertiser’s ownership of the applicable Advertiser Works.
10. Licenses to Content.
11. Influencer hereby grants to the Advertiser a worldwide, non-exclusive, royalty-free right and license, during the applicable posting periods and subject to any other limitations set forth in the applicable SOW, to (A) feature any and all Content generated by Influencer (including Influencer’s name and likeness) on all Social Media Channel accounts and websites owned, controlled or licensed by the Advertiser, and (B) repost any and all Content generated by Influencer (including Influencer’s name and likeness) in one or more sponsored posts distributed through Social Media Channels or other media channels mutually agreed to by the parties and set forth in the applicable SOW. Advertiser agrees to use Influencer social media handles specified in the applicable SOW (e.g. @[Influencer] or #[Influencer] in connection with the use of applicable Content, or otherwise credit Influencer in the event Advertiser re-posts any Content. In addition, Influencer hereby grants to the Advertiser a worldwide, non-exclusive, perpetual, irrevocable, royalty-free right and license to continue to use and display the applicable Content in the manner originally featured or used by the Advertiser during the permitted posting period specified in the applicable SOW, as well as for all internal uses of the Advertiser, and in any reviews of the Advertiser’s products or services to which such Content relates.
12. Influencer hereby grants to the Company a limited, worldwide, non-exclusive, royalty free, perpetual and irrevocable right and license to use the Content (including Influencer’s name and likeness) for the purpose of marketing on the Social Media Channel accounts owned, controlled or licensed by the Company, as well as such third party digital and print platforms as the Company may elect in its sole discretion, which shall include but not be limited to internet rights, publication rights, white paper rights, newspapers, magazines, e-mail
13. Third Party Licenses.  Influencer shall be solely  responsible for obtaining, in a form acceptable to and approved in writing by the Company,  any required licenses, permissions or approvals from third parties, contributors, and/or other affected rights holders with regard to third party content incorporated into the Content by Influencer, as necessary for the Company and/or the Advertiser to make full and unrestricted use of the Content as set forth herein, including  by way of example and without limitation, requiring all individuals appearing in the Content, to sign an authorization, consent and release form and granting to the Company and the Advertiser all license and publicity rights necessary for the Company or the Advertiser to make use of the name, likeness, image, biography, statements, avatar,  and/or social media name and handle and other indicia of such individual contained in the Content. Influencer will provide the Company with copies of such consents upon its written request.

 

 

1. Indemnification; Limitation of Liability.
2. Indemnification.  Influencer agrees to indemnify, defend and hold harmless the Company and the Advertiser, and their respective parents, subsidiaries and affiliates, and each of their officers, directors, agents and employees, from and against any and all claims, demands, liabilities, fees,  costs or expenses (including reasonable attorneys’ fees) arising out of or related to, in whole or in part, (i) the Content (excluding any Advertiser Works incorporated therein if used as permitted hereunder) and/or any act or omission of Influencer or its employees, agents,  trustees, partners, officers or directors, (ii) the content or operation of Influencer’s digital properties or any Influencer webpages or digital properties on Social Media Channels (e.g. YouTube channels or social media posts) on which Content appears, and (iii) Influencer’s performance of, or failure to perform, its obligations under this Agreement;  including, without limitation, any claims, actions or proceedings for libel, slander, invasion of privacy, infringement of trademark, copyright, license, or other intellectual property rights, unfair or improper trade practices or other wrongful business conduct, including, without limitation, claims relating to Influencer’s fraudulent activity or other activity that would falsely or artificially increase or affect the number of Influencer’s followers, “likes” or other indicators of Influencer’s audience or reach, or claims for bodily injury, death or property damage, or loss or employment  claims.
3. Limitation of Liability.  The Company shall not be liable for Influencer’s misconduct.  Content created by Influencer(s) in connection with any Campaign is the sole responsibility of Influencer, and the accuracy of such Content is not endorsed or guaranteed by the Company.  The Company and its affiliates, successors, assigns, employees, agents, directors, and officers assume no responsibility or liability which may arise from the Content, including, but not limited to, claims for defamation, libel, slander, infringement, invasion of privacy and publicity rights, obscenity, pornography, profanity, fraud, or misrepresentation.

IN ADDITION, INFLUENCER ACKNOWLEDGES AND AGREES THAT THE COMPANY SHALL NOT BE LIABLE TO INFLUENCER, ITS PARENTS, SUBSIDIARIES, OR AFFILIATES, AND/OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, UNDER THIS AGREEMENT OR IN ANY WAY RELATED TO THIS AGREEMENT, FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES  (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST WAGES AND SAVINGS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF THE COMPANY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL PAYMENT BY THE COMPANY TO INFLUENCER FOR THE APPLICABLE CAMPAIGN OR SERVICES TO WHICH SUCH CLAIM RELATES.

1. Confidentiality. Influencer hereby acknowledges that the Company’s privacy, and that of the Advertiser, is highly valued and that all efforts are made to maintain confidentiality with respect to Confidential Information (as defined below). Influencer shall hold in confidence using commercially reasonable measures, and not directly or indirectly divulge to any third party, any Confidential Information.  For purposes of this Agreement, “Confidential Information” means any financial information, the identity of the Advertiser and/or any Advertiser lists or Advertiser contact information, or any brand strategy, marketing plans, technical data, intellectual property, content or know how relating to ideas, discoveries, inventions, concepts, software, equipment, designs, drawings, specifications, techniques, processes, models, data, documentation, diagrams, research, development, business plans or opportunities, business strategies, future projects or products, projects or products under consideration, procedures, and information related to finances, influencers, costs, prices, contractors and employees that are provided to Influencer by the Company in connection with the applicable Campaign or Services or otherwise with regard to the relationship contemplated hereunder. All of the foregoing information is proprietary, and disclosure of such information to third parties or unauthorized use of such information would cause substantial and irreparable harm and injury to the Company’s and/or the Advertiser’s ongoing business for which there would be no adequate remedy at law. Accordingly, in the event of any breach or attempted or threatened breach of any of the terms of this Section, the Company shall be entitled to receive injunctive and other equitable relief without need of posting a bond, and without limiting the applicability of any other remedies.
2. Non-circumvention. Influencer agrees that during the Term of this Agreement and for ninety (90) days from the expiration or termination of this Agreement it will not, either directly or indirectly, contact the Advertiser for the purpose of entering into, or attempting to enter into, any negotiations or contractual obligations with the Advertiser which could reasonably be construed to circumvent the efforts of Company under this Agreement, without the Company’s prior written consent.
3. Miscellaneous.
4. Severability.  If any provision of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision shall be modified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be deemed excised from this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law, as if such provision had been originally incorporated herein as so modified or restricted or as if such provision had not been originally incorporated herein, as the case may be.
5. Independent Contractor.  In providing services to the Company, Influencer will act as an independent contractor, and it is expressly understood and agreed that this Agreement is not intended to create, and does not create, any partnership, agency, joint venture or similar relationship.
6. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements between the parties with respect to such matters.
7. Modification or Assignment.  This Agreement may be modified or amended only with the written consent of both Parties. Influencer may not assign, transfer, or delegate any duty or obligation to perform such Services under the SOW or this Agreement.  Any such attempted assignment shall be null and void.
8. Waiver. Neither the failure nor any delay on the part of either party to exercise any right, remedy, power, or privilege under this Agreement shall operate as a waiver thereof.
9. Notice.  All notices required by this Agreement must be in writing and must be delivered by certified mail, return receipt requested.
10. Governing Law; Jurisdiction; Venue. The laws of the State of Arkansas applicable to contracts made or to be wholly performed there (without giving effect to choice of law or conflict of law principles) shall govern the validity, construction, performance, and effect of this Agreement.  The Parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in the City and County of Benton County, Bentonville, Arkansas for any dispute arising out of this Agreement.