Lotus Sustainables Inc.
Independent Influencer Agreement
This Independent Influencer Agreement (including any schedules, exhibits or addenda attached hereto, the “Agreement”), is made and entered into as of the date identified below (the “Effective Date”), by and between Lotus Sustainables Inc. (“Lotus”), with an address of 1000 Camino De Las Ondas Carlsbad, CA 92011, United States and the influencer identified below (“Independent Influencer” or “you”). In consideration of the mutual promises contained herein, the parties agree as follows:
The Independent Influencer Program. Independent Influencer agrees to provide to Lotus Sustainables under the terms and conditions of this Agreement, services (the “Services”) in connection with Lotus's Independent Influencer Program (the “Program”). As part of the Services, Independent Influencer will generate and post content (including, without limitation, text, videos and images) regarding Lotus Sustainables brand and Lotus products on Independent Influencer’s dedicated Lotus Web page (the “Influencer Page”) and on Influencer's Instagram, Instagram Story, Twitter, Facebook, blog and potentially YouTube and Pinterest (the “Social Channels”) (collectively the “Content”) in an effort to generate sales.
Independent Influencer agrees to:
Devote such of his/her time, resources and best efforts to the Services as is reasonably necessary to perform them in a professional and diligent manner
Comply with all applicable laws and regulations.
Determine, in his /her discretion, the time, place, manner, means, methods and independent/personal resources by which the Services are performed and achieved.
Provide and utilize his/her own equipment, tools and other resources in performing the Services but Lotus will provide to Independent Influencer certain informational materials to facilitate the creation of Independent Influencer's created content to his/her Influencer Page and/or Social Channels (such templates and other materials are collectively referred to as "Lotus Sustainables Materials”).
Will be responsible for (i) creating and editing the Content and (ii) either emailing to Lotus such Content to upload to the Influencer Page or posting such Content on the Social Channels. All such Content that is uploaded to the Influencer Page will be posted to the Influencer Page subject to prior review by Lotus. Lotus has the right to remove any Content from the Influencer Page.
It is understood and agreed that Independent Influencer will be an independent contractor, is not and will not be considered an agent or employee of Lotus (or any of its affiliates or related entities), and shall have no authority to bind Lotus Ssutainables (or its affiliates or related entities) by contract or otherwise.
Independent Influencer agrees that they will not: (i)
Make any derogatory statements about Lotus Sustainables and/or Lotus products
Link to any third-party websites, other than the Social Channels, on the Influencer Page or otherwise redirect visitors of the Influencer Page to third-party websites
Resell or distribute any Lotus Sustainables products, including those received for free or as gifts, for commercial purposes, other than via the Influencer Page
Promote Lotus Sustainables products, the Lotus brand, or the Program and/or the Influencer Page via any paid media channels
Promote Lotus Sustainables products, the Lotus brand, the Program and/or the Influencer Page via any website, media, social media, or electronic presence or resource that may be considered pornographic, lewd, offensive, or discriminate
Engage in any fraudulent transactions, as reasonably determined by Lotus Sustainables, including without limitation making transactions from Influencer's IP addresses or computers under Influencer's control.
In consideration for the Services, Lotus Sustainables will pay to Independent Influencer a percentage of the Net Revenue (as defined below) collected by Lotus in accordance with the Commission Appendix below (the “Commission(s)”). For purposes of this Agreement, “Net Revenue” means gross fees received by Lotus from Qualifying Orders (as defined below), less amounts paid for using store credit or gift certificates, taxes, duties and transaction-based costs and expenses, including but not limited to payment process fees and shipping fees. For purposes of this Agreement, “Qualifying Orders” means purchases of Lotus Sustainables product(s) via the Influencer Page that are made by a method of payment accepted by Lotus. The Commission is also only paid to Independent Influencer if the Qualifying Order is final -any returns will cause that specific Commission to be deducted out of the month payouts. The Commission will be calculated solely based on records maintained by Lotus Sustainables using its standard methodologies. Lotus will pay Independent Influencer its Commission on the 28th day of each month. Commissions due
hereunder will be made by Lotus Sustainables to Independent Influencer through its payment processor (“Payment Processor”), which, as of the Effective Date, is PayPal Holdings, Inc. Independent Influencer is solely responsible for creating and maintaining a Payment Processor account and communicating such account information to Lotus for purposes of receiving the payments set forth herein. Lotus Sustainables is not responsible for making any payments based on any amounts which result from any fraudulent transactions, as reasonably determined by Lotus, including without limitation any transactions originating from Influencer 's IP addresses or computers under Influencer's control.
Definition. “Confidential Information” means all trade secrets and confidential or proprietary information, whether or not in writing, concerning Verb's business technology, business relationships or financial affairs which Lotus has not released to the general public. By way of illustration, Confidential Information includes, but is not limited to, information or material which has not been made generally available to the public, such as: (i) corporate information , including plans, strategies, method, policies, resolutions, negotiations or litigation;(ii) marketing information, including strategies methods, customer identities or other information about customers , prospect identities or other information about prospects, or market analyses or projections; (iii) financial information, including cost and performance data (iv) operational and technological information , including plans, specifications, manuals, forms, templates, software, designs, methods, procedures, formulas, discoveries, inventions improvements, concepts and ideas; and (v) personnel information, including personnel lists, reporting or organizational structure, resumes, personnel data. Confidential Information also includes information received in confidence by Lotus Sustainables from its customers or suppliers or other third parties.
Non-Disclosure and Non-Use Obligations. Independent Influencer will not, at any time, without Lotus 's prior written permission, either during or after the term of this Agreement, disclose any Confidential Information to anyone outside of Lotus, or use or permit to be used any Confidential Information for any purpose other than the performance of the Services for or on behalf of Verb. Independent Influencer will cooperate with Lotus and use best efforts to prevent the unauthorized disclosure or use of any and all Confidential Information. Independent Influencer will deliver to Verb all copies of Confidential Information in Independent Influencer's possession or control upon the earlier of a request by Lotus Sustainables or termination of this Agreement for any reason.
Information of Third Parties. Independent Influencer understands that Lotus is now and may hereafter be subject to non-disclosure or confidentiality agreements with third persons which require Lotus Sustainables to protect or refrain from use of Confidential Information. Independent Influencer agrees to be bound by the terms of such agreements in the event Independent Influencer has access to such Confidential Information.
Intellectual Property Rights.
Independent Influencer hereby grants to Verb and its subsidiaries, affiliates, licensees, agents, representatives, successors and assigns:
Unrestricted, fully-paid, royalty-free, exclusive, transferable and irrevocable rights, power and authority to use, reproduce, publish, print, distribute, transmit, copy or otherwise use any of the Content, worldwide and perpetually, in whole or in part, in any medium known now or later discovered, for the purpose of its advertisements, promotions, marketing activities, public relations, educational and other commercial or non-commercial purposes, subject only to the payment made to Independent Influencer in section 2 hereof.
Independent Influencer shall have the revocable, unlimited, perpetual and worldwide right to use the Content, for Independent Influencer’s promotional purposes, in any and all media now known or hereafter developed.
With respect to Content that portrays Independent Influencer’s face, body and voice (the “Restricted Materials”), Lotus Sustainables shall have the right to use the Restricted Materials upon prior approval from Independent Influencer.
Independent Influencer hereby grants to Lotus and its affiliated companies, successors and assigns, the royalty-free, perpetual, unrestricted, transferable, irrevocable sublicensable, non-exclusive, worldwide right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display any content or other materials, other than the Content, (i) submitted to Verb in connection with the Program or (ii) otherwise created by Independent Influencer in connection with the Services, (collectively, the “Other Developments”)
Lotus Sustainables Materials and Trademark.
Except for Independent Influencer's limited right to use the Lotus Materials solely in connection with performing the Services, Lotus retains all right title and interest in the Lotus Materials, including all related intellectual property rights. Lotus Sustainables hereby grants to Independent Influencer, a limited, non-exclusive, non-transferable license to use and display Lotus's name, website address, logo and trade names, solely in connection with performing the Services.
Federal Trade Commission Requirements.
Independent Influencer acknowledges and agrees that the provisions of the Federal Trade Commission's Guides Concerning Use of Endorsements and Testimonials in Advertising (the “Guides”) apply to Independent Influencer's provision of the Services hereunder. Independent Influencer represents and warrants that he or she has read and understands the Guides and their requirements, and that the Content and Other Developments (including, without limitation, social media communications regarding Lotus products, the Lotus Sustainables brand and/or the Program) will contain clear and prominent disclosures compliant with the Guides.
Independent Influencer Social Channels.
In connection with performing the Services, Independent Influencer may link certain of his or her Social Channels to the Influencer Page. If Independent Influence so elects, Lotus may link to, and stream content from such Social Channels on its websites, social media channels and in other Lotus Sustainables advertising and promotional materials.
Representations and Warranties.
Independent Influencer represents and warrants that:
He or she is at least 18 year of age and legally allowed to live and work in his/her country of residence
The Services will be performed in a professional, lawful and workmanlike manner, in accordance with any terms and conditions set forth herein and in the Lotus Materials;
The Content and Other Developments are Independent Influencer' s original work
Use of the Content and Other Developments by Lotus Sustainables will not infringe or involve the misappropriation of any third party rights
All clearances and licenses relating to the use of the Content or Other Developments have been obtained by Independent Influencer
Except as expressly set forth herein, no fee, compensation or any other payment whatsoever will be payable by Lotus for any Content or Other Developments or any content or material incorporated therein to any third party;
He or she will comply with all applicable laws, rules and regulations, including the Guides
Independent Influencer shall indemnify and hold Lotus, its affiliates and their respective directors, officers, agents and employees harmless from and against all claims, demands, losses, damages and judgments, including court costs and attorneys' fees, arising out of or based upon the Services and/or Independent Influencer's performance thereof including, but not limited to, (a) any claim that the Services provided hereunder or, any related intellectual property rights or the exercise of any rights in or to any Content, Other Development, Influencer IP or related intellectual property rights infringe on, constitute a misappropriation of the subject matter of, or otherwise violate any patent, copyright, trade secret, or trademark of any person or breaches any person' s contractual rights; and (b) any breach or alleged breach by Independent Influencer of any representation, warranty, certification, covenant, obligation or other agreement set forth in this Agreement.
This Agreement will commence on the Effective Date and continue until terminated as set forth herein. Either party may terminate this Agreement for convenience upon at least seven (7) days' prior written notice thereof to the other party. Lotus may, in addition to any other rights it may have at law or in equity, terminate this Agreement immediately and without prior notice if Independent Influencer refuses to or is unable to perform the Services or is in breach of any material provision of this Agreement. Upon any termination of this Agreement, all rights and duties of the parties toward each other shall cease, except that the following Sections shall survive: 2 (with respect to any Net Revenue accrued during the term of this Agreement but not yet paid); 3, 4(a), 4(b), 4(c) and 5 through 13 (inclusive).
Independent Contractor; No Agency.
Independent Influencer is not and shall not be deemed an employee, agent, joint venture or partner of Lotus Sustainables, and neither party shall have any right or authority to assume or create any obligation on behalf of or bind the other party in any manner whatsoever.
Limitation of Liability.
IN NO EVENT SHALL LOTUS SUSTAINABLES, ITS AFFILIATES, THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS (EACH, A “LOTUS PARTY”) BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) ARISING FROM OR RELATED TO THIS AGREEMENT, THE LOTUS PRODUCTS AND/OR THE PROGRAM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH LOTUS SUSTAINABLES PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. IN SUCH STATES, THE LIABILITY OF THE LOTUS PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Governing Law, Jurisdiction and Venue.
The provisions of this Agreement will be construed and enforced in accordance with, and any dispute arising out of or in connection with this Agreement, including any action in tort, will be governed by, the laws of the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction and venue of the courts within New York City.
All notices or other communications, required or permitted to be given hereunder, shall be in writing and shall be delivered electronically, personally or mailed, certified mail, return receipt requested, postage prepaid, to the parties at their addresses as set forth above. Any notice given electronically shall be deemed received on the business day following transmission. Any notice mailed in accordance with the terms hereof shall be deemed received on the third day
following the day of mailing. Either party may change the address to which such notices to such party may be given hereunder by serving proper notice of such change of address to the other party.
Independent Influencer and Verb agree that it would be impossible or inadequate to measure and calculate Lotus's damages from any breach by Independent Influencer of this Agreement. Accordingly, Independent Influencer and Lotus agree that if Independent Influencer breaches this Agreement; Lotus will have available, in addition to any other right or remedy available and notwithstanding anything to the contrary in Section 10 above, the right to obtain from any court of competent jurisdiction an injunction restraining such breach or threatened breach and specific performance of Sections 3, 4 and Section 8. Independent Influencer and Lotus further agrees that no bond or other security shall be required in obtaining such equitable relief and Independent Influencer and Lotus, hereby consent to the issuances of such injunction and to the ordering of such specific performance.
If any provision of this Agreement is found to be invalid by any court or arbitrator having competent jurisdiction, then the meaning of said provision shall be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement which shall remain in full force and effect. Failure of Lotus to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision of this Agreement. No waiver shall be effective against Lotus Sustainables unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Lotus and Independent Influencer, this Agreement constitutes the entire agreement between Independent Influencer and Lotus with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience, and shall not be given any legal import. Neither this Agreement nor any right hereunder or interest herein may be assigned or transferred by Independent Influencer without the express written consent of Lotus Sustainables. Lotus may assign any or all of its rights and obligations under this Agreement without Independent Influencer's written consent to any affiliate or to another third party affiliate by way of merger, acquisition, consolidation, or sale or transfer of all or substantially all of Lotus's assets or capital stock. Any attempted assignment, delegation or transfer to a third party in violation hereof shall be null and void. Subject to the foregoing, this Agreement shall be binding on the parties and their successors and assigns.