This SERVICES AGREEMENT (the “Agreement”) is made by and between:
1) Vestergaard Frandsen Inc. at 333 W Ostend Street, Baltimore, MD 21230 (the “Company” or “LifeStraw”)
2) The individual named during the registration, sign-up or agreement execution process (the “Creator”).
The Company and the Creator may be collectively referred to as the “Parties” or individually as a “Party.”
WHEREAS this Agreement relates to the marketing campaign for LifeStraw products for which you have received a Campaign Brief, which will take place during the dates set forth in that document
WHEREAS the Creator has experience in the fields of online/social media publicity.
WHEREAS the Parties wish to agree in writing the general terms and conditions that should apply for the services to be provided from the Creator to the Company.
NOW THEREFORE in consideration of the mutual consents and agreement, it is hereby agreed as follows:
This Agreement shall become effective on the campaign start date and continue until the campaign end date as documented in the Campaign Brief. (the “Term”). The Company may terminate this Agreement at any time upon the written notice to Creator.
2. Services to be performed by the Creator (collectively the “Services”):
A. Content Generation.
The following shall be created in alignment with the directives stated in the Campaign Brief delivered via email.
All content should be submitted to LifeStraw in advance of campaign go-live. There will be one round of feedback and reasonable adjustment to the content unless additional are deemed necessary by LifeStraw team based on fulfillment of the Campaign Brief.
B. Company Content Guidelines.
For each social media post, the following is applicable:
• LifeStraw will provide a packet of brand and product information (“Campaign Brief”) to be used in the formulation of the content
• Each post must be positive in tone.
• Filters may be used but altering the image extensively in any way is prohibited.
• In case of any use of “fake likes” or “fake comments” on the Content, the Company has the right to terminate this Agreement.
• In each social media post, Creator must include a reference to the nature of the paid relationship with the Company in accordance with the FTC guidelines. You can view the full FTC guidelines here;
• Examples of references in posts: #sponsored, #partner, #LifeStrawPartner.
i. To the extent Creator hires subcontractors to assist with the performance of the Services, Creator agrees to execute a written contract with each subcontractor that contains restrictions on the subcontractor at least as restrictive as those contained in this Agreement, including but not limited to confidentiality of Company materials and information, indemnification of Company, use of the Content, ownership and use of Trademarks, morals, and compliance with applicable laws. For clarity, Creator agrees that it shall cause any subcontractor, or other person assisting with the performance with Services or supplying materials for the Services, to acknowledge and be bound by the terms of this Agreement applicable to any subcontractor.
ii. Creator shall provide to LifeStraw a) a list of all proposed subcontractors and/or other persons assisting with the performance of the Services and shall use best efforts to cooperate with any due diligence LifeStraw requests done on any proposed subcontractor and b) copies of all executed subcontracts related to the Services.
iii. A subcontract will not create any contractual relationship between any such subcontractor and Company nor will its obligate Company to pay or see to the payment of any subcontractor. For clarity, Creator shall be solely responsible for the payment of any subcontractor.
iv. Creator will be deemed to have performed any Services actually performed by a subcontractor (in whole or in part) and remains responsible and fully liable for any Services performed by a subcontractor (in whole or part) as if Creator had provided the Services herself.
v. Creator shall a) immediately provide written notice to LifeStraw of any actual or suspected breach by a subcontractor of any of its obligations under their respective subcontract related to the performance of the Services and b) shall fully cooperate with LifeStraw in any legal action LifeStraw decides to pursue related to such actual or suspected breach.
vi. In its sole discretion, LifeStraw may request Creator to remove any subcontractor from its role in assisting with the Services by giving written notice to Creator.
vii. Creator will be solely responsible for any claims made by any subcontractor arising out of Creator’s removal and termination of the subcontractor.
In return for the Creator’s timely and contractual performance of the Services, the Company will pay the Creator the agreed upon fixed fee stated in the Campaign Brief. The Fee specified remains firm and is not subject to adjustments. Company shall pay 100% of the Fee upon the completion of the Services. For each installment, Creator shall invoice Company and Company shall pay such invoice within thirty (30) days after receipt and approval of the respective invoice. Company shall not withhold from payments due to the Creator any amounts for local, state or federal taxes and shall report amounts paid to the Creator to appropriate authorities, such as by filing an IRS Form 1099 misc.
4. Intellectual Property.
A. Company and its subsidiaries, affiliates, assignees, licensees and designees shall have exclusive, royalty free, irrevocable global distribution rights to the Content from date of first publication to use, distribute, transmit, exhibit, license, advertise, duplicate, promote, perform, telecast, stream, reproduce, or otherwise exploit the Content and/or still excerpts of the Content on owned and operated social media channels in an organic capacity, provided the Company shall not be obligated to use the Content.
B. Creator shall cooperate with Company in any controversy which may arise or litigation which may be instituted relating to Company's rights under this Agreement.
C. If Creator subcontracts any Services hereunder to a third party, Creator shall obtain written assignments to Company of all applicable rights (including, without limitation, the copyright and all renewals and extensions thereof) in the results and proceeds of such third party's services and otherwise cause such third party to grant to Company all of the rights in the results and proceeds of such third party's services as Creator grants to Company in the Content.
D. Company shall retain all rights to any materials provided by Company to Creator for purposes of performing the Services and no rights to such materials shall inure to or to the benefit of Creator as a result of Creator’s performance of the Services.
E. Without limiting the foregoing, and for the avoidance of doubt, no rights in or to any trademarks owned or controlled by Company, including, without limitation, the goodwill therein and thereto (“Trademarks”) are or shall be deemed granted herein to Creator. Creator may not use any Trademarks without the specific written approval of Company in each instance. In the event that Company’s approval is so given, Creator shall make no use of any Trademark other than as necessary for the rendition of the Services, and Creator shall use the Trademarks only so long as such use is in accordance with standards and quality approved by Company. Creator further agrees to display the Trademarks only as approved by Company.
F. Creator recognizes Company’s title to the Trademarks and shall not at any time do or suffer to be done anything which will in any way impair the rights of Company in or to any Trademarks. It is understood that Creator shall not acquire and shall not claim any title to any Trademarks adverse to Company by virtue of any use of any Trademark approved by Company, or through Creator’s use of any Trademarks, it being the intention of the parties that all use of the Trademarks by Creator shall at all times inure to the benefit of Company.
G. To the fullest extent allowable under any applicable law, the Creator hereby irrevocably waives their so-called “moral rights” or “droit moral” in relation to the Services. The Creator expressly acknowledges that many parties will contribute to the Services. Accordingly, if under any applicable law the above waiver or assignment by the Creator of “moral rights” or “droit moral” is not effective, then Creator agrees to exercise such rights in a manner, which recognizes the contribution of and will not have a material adverse effect upon such other parties.
H. The Creator hereby grants the Company the perpetual, royalty free right to use Creator’s name, voice, likeness, social media handle(s), biography and other identifying information of Creator in connection with and for the production, use or public exhibition of the Content and of any other results and proceeds related to Services.
If Creator and/or any subcontractor should, prior to or during the Term hereof or thereafter, commit any act which brings Creator and/or any subcontractor into public disrepute, scandal or which shocks, insults or offends a portion or group of the community or reflects unfavorably on Creator, subcontractor or Company (as determined by Company in Company’s sole discretion), then Company may, in addition to and without prejudice to any other remedy of any kind or nature set forth herein: (i) terminate this Agreement at any time after the occurrence of any such event; (ii) with or without terminating this Agreement, delete any credit theretofore given to Creator in connection with the Services; and (iii) require a refund of the pro-rated portion of the Fee for those Services that were rejected as result of a breach of this Section.
6. Creator Representations and Warranties.
Creator represents and warrants the following:
• No part of the Creator’s contribution related to the Services will violate or infringe upon the copyright, literary, dramatic, photoplay or any other rights of third party, nor constitute a libel or slander against any person, firm or entity, nor contain any matter which to the Creator’s knowledge is obscene or in any other way unlawful;
• Creator has not done anything, whether by act, omission, agreement or other means, to conflict with this Agreement or to impair the rights granted to Company hereunder or to interfere with the full enjoyment by the Company of such rights;
• To the best of the Creator’s knowledge, information and belief, there are no claims, litigation or other proceedings pending or threatened which could impair, limit or diminish the rights granted to Company under this Agreement;
• Creator is not a member of any guild or union having jurisdiction over the delivery of the services to be provided hereunder, and Creator further represents and warrants that the Services hereunder in relation thereto fall outside of the scope of application of any collective agreement;
• Creator will comply with all applicable laws including but not limited to obligations established by the Federal Trade Commission regarding endorsements, testimonials or disclosures;
• In the period of sixty (60) days after the expiration of the Term, Creator will perform any services related to on-line/social media publicity exclusively for the Company. During the Term of the Agreement and for a period of six (6) months thereafter, Creator will not enter into any agreement with any competitors of Company, including but not limited to companies of the water filtration sector, neither will she/he promote any water filtration products or initiatives on his/her blog or social media channels. For clarity, during the Term and for a period of six (6) months thereafter, Creator will not perform any services for and will not cooperate with any companies related to brands/trademarks including but not limited to Sawyer, Katadyn, Brita, ZeroWater, Grayl and Soma. Creator acknowledges the preceding list is not exhaustive.
7. Limitation of Liability.
Save and except for any liability arising, directly or indirectly, from gross negligence, willful misconduct and/or fraud, in no event will either Party be liable to the other under or in connection with this Agreement for any incidental, consequential, special, exemplary, punitive or indirect damages of any nature, for any reason whatsoever, including a breach of this Agreement, whether that liability is asserted on the basis of indemnity, contract, tort or otherwise, even if the indemnifying or breaching Party has been warned of the possibility of such damages.
Creator agrees to indemnify and hold harmless Company and its affiliated companies, and its and their officers, directors, employees and consultants from and against any and all actions, claims, losses, damages, judgments, reasonable legal fees (including outside attorneys’ fees) and disbursements and any other liabilities and expenses that may be incurred in consequence of a breach of any of the warranties, representations and obligations of the Creator contained in this Agreement and/or related to any subcontractor.
Either Party shall have the right to terminate this Agreement at any time with written notice. If termination of this Agreement occurs while the Services are ongoing, then the Creator shall only be entitled to payment for the Services rendered up to the date of termination and, to the extent that payments made by Company as of the date of termination exceed the value of such Services delivered, then Company shall be entitled to a reimbursement of the Fee paid in excess of the amount representing the Services delivered by Creator as of the date of termination. Termination of this Agreement shall not limit, impair or diminish any of Company’s rights or remedies hereunder, or any of Creator’s representations, warranties and indemnities, all of which shall survive. Termination of this Agreement shall not limit, impair or diminish either Party’s indemnities or insurance obligations, which shall survive termination hereof.
A. Assignment. Company shall have the right to assign this Agreement without the prior written consent of the Creator – provided that the Company shall bind the assignee to all terms and conditions of this Agreement. This Agreement is personal to Creator, and Creator shall not assign or otherwise transfer any of its rights or obligations under this Agreement to any third party without Company’s express prior written consent.
C. Independent Consultant. Creator is an independent contractor and shall not be deemed an employee, agent, or representative of Company for any purpose. Thus, Creator will not receive any benefits received by Company employees and shall be solely responsible for the payment of all income taxes, self-employment, and other taxes payable in connection with the Services and the Fee.
D. Remedies. All rights and remedies hereunder shall be cumulative and in addition to such rights and remedies as may be available to a Party at law or equity. Notwithstanding the preceding sentence or anything else to the contrary contained in this Agreement, in no event shall the Creator be entitled or seek to enjoin, interfere or inhibit the production, distribution or exploitation of any Content, nor shall be entitled to rescind this Agreement or seek any injunctive or equitable relief.
E. Headings. The section headings herein are for the convenience of the Parties only and shall not be used to interpret the present Agreement.
F. Integration. This Agreement constitutes the entire understanding between the Parties. Nothing herein contained shall constitute a partnership between, or joint venture by, the Parties hereto or constitute from either of the Parties the agent or the employee of the other.
G. Amendments. The terms of this Agreement can be modified only by an instrument in writing and signed by both Parties.
H. Severability. The Parties agree that each section of this Agreement shall be construed as separate and divisible from every other section and that the enforceability of any one provision shall not limit the enforceability, in whole or in part, of any other provision hereof.
I. Further Instruments. The Parties shall execute any and all further instruments consistent herewith which may be necessary to give meaning and effect to the present Agreement.
J. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. Delivery of an executed copy of this Agreement by facsimile or electronic means (e.g. e-mail, PDF) shall be effective to the same extent as if such Party had delivered a manually executed counterpart.
11. Governing Law and Dispute Resolution.
This Agreement shall be governed by the laws of the State of Delaware, without regards to the conflicts of law provisions or principles of such jurisdiction. Any action or proceeding arising out of or relating to this Agreement shall be commenced and litigated to conclusion only in a state or federal court located in Baltimore, MD and the Parties agree that such courts shall have exclusive jurisdiction over all actions arising under this Agreement.