OHSNAP AFFILIATE MARKETING AGREEMENT
This OhSnap Affiliate Marketing Agreement (“Agreement”), dated [DATE] (“Effective Date”) is entered into by and between OhSnap, Inc., a North Carolina corporation with a business location at 1020 Goodworth Drive, Apex, North Carolina 27539 (“OhSnap”) and [NAME], a resident of [INSERT STATE], with a business address of [INSERT ADDRESS] (“Affiliate”; together with OhSnap, the “Parties”; each individually a “Party”).
For good and valuable consideration including as set forth herein, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. SERVICES.
a. Services and Content. Subject to the terms of this Agreement, Affiliate shall timely provide services to OhSnap (“Services”), including, but not limited to, promotion and marketing of OhSnap’s products via writing informative articles, and/or creating and sharing posts and promotions via blogs, social media, in-person, or other channels as OhSnap deems appropriate (“Content”).
b. Affiliate Marketing Tools. OhSnap may, but is not required to, administer and conduct its affiliate marketing program, including, but not limited to, Affiliate’s provision of the Services and OhSnap’s payment therefor, in full or in part, via a third-party application or tool, such as [IDENTIFY MOST LIKELY PLATFORM] or another provider (“Affiliate Marketing Tool”), in OhSnap’s sole discretion. Affiliate shall comply with the applicable terms of any such Affiliate Marketing Tool.
2. PERFORMANCE OF SERVICES, REPRESENTATIONS AND WARRANTIES.
a. Familiarity with Applicable Laws, Guidelines and Practices. Affiliate shall review, become familiar with, and comply with applicable laws, guidelines, and practices governing affiliate marketing, including but not limited to the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials (the “Guides”) available at https://www.ftc.gov/business-guidance/resources/ftcs- endorsement-guides-what-people-are-asking (updated June 2023), and any terms of use for applicable Affiliate Marketing Tools.
b. Compliance, Representations and Warranties. In rendering the Services, Affiliate shall ensure his or her compliance with all applicable laws, guidelines, and practices, including but not limited to Affiliate’s representations and warranties that:
i. Services and Content are Affiliate’s own creation;
ii. Services and Content are not libelous or otherwise defamatory;
iii. Services and Content provided by Affiliate are truthful, substantiated, and
fairly based on Affiliate’s own recent and personal experiences;
1
iv. Affiliate shall disclose, in a clear and conspicuous manner, that Affiliate is being compensated by OhSnap in exchange for any paid posts, promotions, or other public statements in line with the Guides (including use of hashtags, such as #ad, #sponsored, or #promo, placed at the beginning of any such post, promotion or statement); and
v. Affiliate shall not make unauthorized or unlawful use of third party trademarks, and Services and Content do not infringe or violate third party intellectual property rights, including but not limited to any third party’s trademark rights, right of privacy and/or right of publicity or attribution.
c. Monitoring. OhSnap may monitor Affiliate’s provision of the Services for compliance, and may address non-compliant conduct by taking action including by:
i. Requiring Affiliate to update any posts or other content;
ii. Fixing any posts or other content itself, if feasible and commercially reasonable;
iii. Demanding takedown of non-compliant Content if such content cannot timely be brought into compliance;
iv. Withholding payment; and/or
v. Terminating the Agreement.
3. CUSTOMER TRANSACTIONS, INVOICING AND PAYMENT. OhSnap shall compensate Affiliate for satisfactory delivery of the Services in accordance with the terms of any Affiliate Marketing Tool, or as otherwise agreed upon by the Parties.
4. USE OF INTELLECTUAL PROPERTY, SERVICES AND CONTENT.
a. OhSnap IP. Except for the limited license rights authorized herein, OhSnap retains all right, title and interest in and to OhSnap’s trademarks, trade names, service marks, logos, symbols, images, trade dress (collectively, “OhSnap Marks”), social media handles, social media accounts, inventions, industrial designs, patent rights, product designs, and copyright works created by or for OhSnap and/or that may bear OhSnap’s copyright notice, trade secrets, Confidential Information (as such term is defined below), and any intellectual property rights in and to any of the foregoing (“OhSnap IP”).
i. Affiliate’s Use of OhSnap’s Marks. OhSnap grants to Affiliate for the Term of this Agreement a limited, worldwide, non-exclusive, royalty-free license to use the OhSnap Marks solely as needed to perform the Services as provided in this Agreement and any applicable Order. Affiliate’s use of OhSnap IP shall inure exclusively to OhSnap’s benefit, and Affiliate shall not acquire any rights in OhSnap IP.
2
ii. Quality Control. OhSnap retains the right of prior approval of Affiliate’s use of the OhSnap Marks and shall have the right to monitor the quality of the Services and Content using any OhSnap Mark(s).
b. OhSnap’s Use of Services. In addition to the right to use, display, repost, republish, promote, share, market, or otherwise distribute the Services pursuant to the terms of use of any applicable platform, Affiliate grants to OhSnap the right to use, display, repost, republish, promote, share, market, or otherwise distribute any Services without further notice, additional permission or compensation, including (i) on any or all of OhSnap’s social media channels, including but not limited to Facebook, Instagram, Twitter, TikTok and YouTube; (ii) on OhSnap-owned or operated digital property, including, but not limited to, ohsnap.com; and/or (iii) in OhSnap’s direct communications to identifiable consumers, e.g., email blasts, for the Term of this Agreement. Nothing in this Agreement requires or obligates OhSnap to use, display, repost, republish, promote, share, market, or otherwise distribute any Services.
c. Affiliate Persona. Affiliate retains all right, title and interest in and to Affiliate’s Persona, namely, Affiliate’s name, social media handle(s), photograph, voice, picture, likeness, and/or other indicia of Affiliate’s identity (“Affiliate Persona”). Except as set forth in Section 4.b., which permits, inter alia, OhSnap’s use of Affiliate Persona in connection with its sharing of Content or reference to Affiliate’s status as an Affiliate, OhSnap shall not use Affiliate Persona without Affiliate’s prior written consent.
5. CONFIDENTIAL INFORMATION. “Confidential Information” means all information proprietary to OhSnap, its customers, or its suppliers that OhSnap discloses to Affiliate, including but not limited to sales reports, marketing information and plans, traffic numbers, conversion rates, and other information concerning OhSnap’s business. Affiliate will make best efforts to safeguard the confidentiality of Confidential Information and will not disclose any Confidential Information to any third party except as required by a court, government agency, or law, provided that Affiliate notifies OhSnap immediately upon learning of such requirement. Affiliate will not use Confidential Information for any purpose other than the performance of this Agreement. Upon OhSnap’s request and/or upon termination or expiration of this Agreement, Affiliate shall promptly destroy or return the Confidential Information to OhSnap.
6. MUTUAL REPRESENTATIONS, WARRANTIES AND COVENANTS.
a. Each of the Parties represents and warrants that (i) it has full rights and authority to enter, execute, deliver and perform its obligations under this Agreement without violating the law or rights of any third party; and (ii) its performance of this Agreement, and the exercise of its rights and obligations under this Agreement, will not conflict with or result in a breach or violation of any terms or provisions of, or constitute a default under, any agreement by which each is bound or any applicable law, rule or regulation.
3
b. Each of the Parties covenants that (i) it will comply with all applicable federal, state and local laws, regulations, and ordinances, including but not limited to, the FTC Guides, Section 5 of the FTC Act, the Federal CAN-SPAM Act, and federal and state privacy laws in connection with performing its obligations under this Agreement; and (ii) it will perform its obligations diligently and in a professional manner consistent with general industry standards and practice.
c. Each of the Parties hereto covenants that it will not engage in any act or omission that might tend to injure the success of the other for the Term of this Agreement.
7. TERM. This Agreement is effective from the Effective Date and will automatically renew every six (6) months until terminated pursuant to Section 8 of this Agreement.
8. TERMINATION.
a. Affiliate may terminate this Agreement if OhSnap commits a material breach of this Agreement and fails to cure such breach within 15 days of receiving notice of the breach from Affiliate.
b. OhSnap may terminate this Agreement:
i. For any reason, or no reason, in its sole discretion, upon 30 days’ written notice to Affiliate;
ii. If Affiliate commits a material breach of this Agreement and fails to cure the breach within 24 hours of receiving notice of the breach from OhSnap;
iii. Immediately on written notice to Affiliate if:
1. Affiliate commits or is alleged to have committed any criminal act or other act involving moral turpitude or felonious activities;
2. Affiliate commits any act or becomes involved in any situation bringing Affiliate into public disrepute, contempt, scandal, or ridicule, or which shocks or offends the community or any group or class thereof, or which, in OhSnap’s discretion, reflects unfavorably on OhSnap or reduces the commercial value of OhSnap’s association with Affiliate; or
3. OhSnap learns that Affiliate has, in the past, conducted itself as set forth in Sections 8.b.iii.1 or 8.b.iii.2 above.
9. LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT FOR (A) ANY CONSEQUENTIAL, PUNITIVE, RELIANCE, SPECIAL, ENHANCED, TREBLED OR EXEMPLARY DAMAGES OR (B) AGGREGATE DAMAGES IN EXCESS OF THE AMOUNTS PAID TO AFFILIATE UNDER THIS AGREEMENT AT TIME SUCH CLAIM ARISES. THESE LIMITATIONS WILL APPLY EVEN IF A PARTY IS
4
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY PROVIDED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
10. INDEMNIFICATION. Affiliate agrees to indemnify and hold harmless OhSnap and its respective successors, licensees, and affiliated companies and its respective shareholders, officers and directors, employees and agents (the “Indemnified Parties”) from and against any and all claims, demands, damages, liabilities, causes of action, suits, grievances under any collective agreement, arbitrations, obligations, costs, expenses and attorney’s fees, at law or in equity, of every nature, character or description whatsoever, whether now known or unknown, which are based on or arise in connection with the Services, the Content or a breach by Affiliate of this Agreement, including but not limited to any of Affiliate’s representations and warranties.
11. GENERAL.
a. Notices. Notices under this Agreement shall be sent pre-paid by overnight courier service or email with confirmation copy by first class mail and shall be effective upon receipt.
If to OhSnap:
OhSnap, Inc.
1020 Goodworth Drive Apex, North Carolina 27539 Attn: [INSERT]
Email: [INSERT]
If to Affiliate:
[INSERT]
b. Severability. If any provision of this Agreement shall be held unenforceable, then the remainder of this Agreement shall not be affected thereby, unless such provision materially affects the original intent of the Parties, in which case the Parties will work together to replace the unenforceable provision with a provision that is enforceable and that comes closest to expressing the intention of the unenforceable provision, and this Agreement shall be enforceable as so modified.
c. Opt Out and Unsubscribing. Affiliate will comply promptly with all opt out, unsubscribe, “do not call” and “do not send” requests. For the duration of this Agreement, Affiliate will establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, “do not call” and “do not send” requests.
d. Relationship of the Parties. Affiliate is an independent contractor, this Agreement does not create any association, partnership, joint venture, employee,
5
or agency relationship between OhSnap and Affiliate, and neither Party has the authority to bind the other.
e. Non-Exclusivity. This Agreement does not create an exclusive agreement between OhSnap and Affiliate. Subject to the terms of this Agreement, both OhSnap and Affiliate may recommend similar products and services of third parties.
f. Assignment. Affiliate may not assign this Agreement by operation of law or otherwise without the prior written consent of OhSnap.
g. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
h. Governing Law, Jurisdiction. This Agreement will be construed in accordance with, and be governed by, the Federal laws of the United States and/or the laws of the State of [INSERT]. Each Party submits to personal jurisdiction of the Federal or State Courts located in [INSERT] for all disputes arising under this Agreement and/or any Order.
i. Entire Agreement. This Agreement (including all documents referenced herein) is the complete and exclusive statement of the Parties’ agreement concerning the subject matter hereof and supersedes all prior understandings and communications between the Parties relating hereto. This Agreement may be amended only by a subsequent writing that is signed by both Parties. This Agreement is binding on and inures to the benefit of the Parties, their heirs, executors, administrators, successors and assigns.
IN WITNESS WHEREOF, OhSnap and Affiliate have entered into this Agreement as of the Effective Date.
OHSNAP, INC.
By: Name: Title:
[AFFILIATE NAME]
By: Name: Title:
6
