"Sway": Sway Group LLC, an Illinois limited liability company
This Influencer Agreement (“Agreement”) is entered into by and between You and Sway. All defined terms in this Agreement also apply to the Influencer Agreement Terms and Conditions, attached hereto as Exhibit A.
1. Sway Services. Sway will use reasonable efforts to present You with opportunities to monetize your internet presence and social network following. Sway will present opportunities to You through our proprietary influencer portal (“Dashboard”) which will allow You to leverage your online following to promote, on behalf of brands and agencies (each a “Client” and collectively “Clients”), various products and services (“Projects”).
2. Agreements with Employees and Contractors. Sway understands and agrees that You may work with employees or contractors ("Staff") in your business and, therefore, in the course of performing this Agreement. You agree that any Staff working for You will be bound by this Agreement. You will be fully responsible for the acts or omissions of your Staff.
Sway understands that your Staff may include contributors to your blog or social media channels ("Contributors"). By providing any Contributor access to Dashboard with your login credentials, you authorize your Contributor to apply for Projects and receive payment for such Projects.
3. Influencer Services. Upon signing this Agreement, You will have access to Dashboard and You agree to log-in and register as Dashboard directs. You agree to keep current with all requests and Projects though Dashboard and provide Sway with all information and materials we may reasonably request (e.g. biographical info, social network profile names, etc.) so that we may best market your Internet presence and social network following. You further agree not to share your Dashboard log-in with anyone other than your Staff, not to log in to Dashboard as anyone other than yourself, and to immediately report any suspected misuse of Dashboard via the Contact Us link. If accepted for a Project, You agree to perform the services as specified with each Project that you accept (“Services”) and in accordance with the Sway Guidelines posted on Dashboard. In particular, Your performance will be within such time limits as Sway may require, and consistently with (i) the best interests of Sway and its Clients, (ii) standards of good faith and reasonable diligence, and (iii) all applicable legal requirements. You will, at no additional charge to Sway or its Clients, correct any defects, failures, malfunctions and/or nonconformities related to Your performance under this Agreement.
4. Compensation and Expenses. Upon completion of a Project, all Services will be reviewed by Sway's Quality Assurance team to ensure compliance with all Project requirements and Sway Guidelines. Services deemed as compliant will be considered successfully completed and eligible for payment. Upon successful completion of the Project, as defined herein, Sway will pay You the fees for Services as specified for each Project. You agree to pay for all expenses related to the performance of the Services unless otherwise specified in Dashboard for a particular Project. Sway will only make payment to You once you have submitted your W-9 and required payment information to Sway.
You understand that Clients will also pay Sway for coordinating each Project, so there will be no charge to you for participating in the Sway network.
5. Non-Exclusivity. This Agreement is not exclusive and You may work with other parties to monetize your Internet presence and social network following.
6. Terms and Conditions. You agree that this Agreement is subject to our Influencer Agreement Terms and Conditions, which may be amended from time to time in good faith at Sway’s sole discretion. Our most current Terms and Conditions will be posted on Dashboard and are incorporated by reference in this Agreement.
This Agreement is effective as of the date of your electronic signature below. Welcome to Sway!
Company name (if applicable)
Title (if applicable)
SWAY GROUP LLC
Danielle Wiley, CEO
Exhibit A – Influencer Agreement Terms and Conditions (effective 1/29/2014)
1. Appointment and Independent Contractor Status. Sway grants and You accept an appointment as an independent contractor providing Services to Sway as set forth in the Agreement. It is the express intention of the parties that You are an independent contractor and not an employee, agent, joint venture or other partner of Sway. Nothing in this Agreement shall in any way be interpreted or construed as creating or establishing the relationship of employer and employee between the parties. You have the right to: (a) control and direct the means, manner and method by which the Services are performed and shall assume responsibility for the quality, scope, and accuracy of the Services, and (b) perform the Services at any place or location and at such time as You may reasonably determine, but in accordance with any and all specifications for the relevant Project on Dashboard, pursuant to the Sway Guidelines, and as Sway and its Clients may reasonably direct from time to time.
2. Taxes. As an independent contractor, You will be solely responsible for paying all required government taxes and making contributions to government sponsored benefit programs. Specifically, Sway will not: (i) withhold FICA (Social Security) from your payments, (ii) make state or federal unemployment insurance contributions on your behalf, (iii) withhold state and federal income tax from your payments, and (iv) obtain worker’s compensation insurance on your behalf.
3. Confidential Information. All information disclosed to You in connection with this Agreement, Your use of Dashboard, and during the performance of the Services relating to Sway, its Clients, Client products, and the related business operations and marketing plans of Sway and its Clients shall be maintained by You in confidence, shall not be used by You for any purpose other than those purposes related directly to the performance of Your duties under this Agreement, and shall not be disclosed to any third party without the prior written consent of Sway. Such obligation shall not be binding to the extent any such information is already public or becomes public without fault on Your part or breach of these obligations.
4. Your Representations. You represent and warrant to Sway that:
(a) You (or Your Staff, as applicable), are fully qualified to perform the Services and will personally perform the Services described for each Project,
(b) You will perform in a competent and professional manner,
(c) You will ensure that all Services will be performed in accordance with reasonable industry standards,
(d) no Services delivered hereunder will infringe on or violate:
(i) any intellectual property right,
(ii) any other proprietary or other right of any third party, including but not limited to any third party rights to privacy or publicity, or any music performing or other music-related right,
(iii) any state, federal, or local consumer protection or advertising laws, including, but not limited to, the Federal Trade Commission ("FTC") Act and all rules and regulations promulgated by the FTC,
(iv) any other applicable law or regulation; and
(v) no Services delivered hereunder will contain any profanity, scandalous, offensive, libelous or other unlawful matter or material, ;
(e) You have secured any required licenses or permission, and have paid any clearance costs or third-party license fees necessary to enable You to perform the Services;
(f) You will perform the Services in accordance with Sway's written instructions, as provided in Dashboard or any other form of communication, which will be verified by Sway's Quality Assurance team;
(g) You agree to update your Dashboard profile with any changes to the information contained therein, including, but not limited to, changes in personal information, links to your social channels and blog, and tax information.
(h) You have the full and unrestricted right, power and authority to enter into this Agreement, and to fulfill Your obligations hereunder (i.e., there are no restrictions, agreements or understandings whatsoever to which You are a party which would prevent or make unlawful Your execution or performance of this Agreement, neither Your execution nor performance of this Agreement shall constitute a breach of any contract, agreement or understanding, oral or written, to which You are a party or by which You are bound, and Your performance of this Agreement will not cause You to disclose or use any confidential or proprietary information belonging to any other person or entity).
5. Client Relationship. You recognize that Sway’s client relationships are a valuable asset for Sway. You agree to be respectful of Sway's relationship with the Client at all times, even after the performance of the Services, the payment for such Services, and, if applicable, the termination of this Agreement. You will not, either as Yourself or under any pseudonym or assumed identity, post any negative comments regarding any Client in any media at any time. You will not to reveal information regarding the Client or any proposed Project until the specified time. If You have a concern with respect to a Client's instructions or needs, You will consult with Sway and not contact the Client directly. In addition, and for so long as this Agreement is in effect, You may not have direct contact with any Client whose Project(s) you promote pursuant to this Agreement without advance written authorization of Sway.
6. Ownership of Services.
Unless otherwise stated in Dashboard, You shall retain all copyright rights to all creative work produced as part of the Services for a Project (the "Content"). Unless otherwise stated in Dashboard, Sway and its Clients retain an irrevocable, non-exclusive, worldwide, royalty-free, limited license to use, publish, distribute, translate, and copy such Content for digital or social media publication for one (1) year following Content publishing, provided there is proper attribution to You via an “@” tag or active URL back to the original Content. After one (1) year, the license to use Content will be limited to archival use only.
You are not permitted to delete or modify the Content after publication without express written consent from Sway.
7. Termination. Either party may terminate this Agreement for any reason by providing seven (7) days prior written notice to the other party so long as all Services have been performed and all payments have been made. Sway may terminate this Agreement immediately if You breach this Agreement. Terms of this Agreement that by their nature are meant to survive shall survive the expiration or termination of this Agreement.
8. Indemnification. You agree to defend, indemnify and hold Sway, its members, employees, officers, directors, managers and agents harmless from and against any and all losses, claims, suits, actions, liabilities, obligations, costs and expenses (including reasonable attorneys' fees and expenses) which Sway suffers as a result of third party claims based on: (i) Your negligence or intentional misconduct, (ii) Your breach of any provision of the Agreement or these Terms and Conditions (including any representation or warranty or any additional project requirements you agree to via Dashboard or otherwise); (iii) materials prepared or provided by You including, but not limited to, any claims of infringement, or misappropriation of copyright, trademark, patent, trade secret, or other intellectual property or proprietary right, infringement of the rights of privacy or publicity, or defamation or libel; or (iv) death, personal injury or property damage arising out of, or relating to, Your obligations hereunder.
9. Limitation on Liability. EXCEPT FOR AN INDEMNIFICATION CLAIM, OR ANY OF THE INTELLECTUAL PROPERTY RIGHTS PROVISIONS HEREIN, NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SWAY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT(REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE FEES DUE TO BE PAID TO YOU HEREUNDER.
10. Miscellaneous. The Agreement and these Terms and Conditions will be governed and construed in accordance with the laws of the State of California. Any controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of any such arbitration shall be in or near Sacramento, California. The parties also agree that the AAA Optional Rules for Emergency Measures of Protection shall apply to the proceedings. If any provision(s) of the Agreement or the Terms and Conditions is held to be invalid, illegal or unenforceable the remaining provisions shall be severable and enforceable. If a provision is excessively broad, such provision shall be limited or reduced in scope so as to be enforceable. The Agreement may not be assigned by You without Sway’s prior written consent, however, this Agreement may be assigned by Sway in its sole discretion. The Agreement and these Terms and Conditions are the final, complete and exclusive agreement of the parties with respect to Programs offered by Sway. This Agreement may not be altered or modified except by prior written agreement by the parties. All notices with respect to this Agreement must be in writing and may be via email to email@example.com for Sway and to Your email address as indicated in Dashboard or such other mailing address as noted in Dashboard. The Agreement may be executed electronically or in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.