SOSHE Beauty
Program Terms
TALENT AGREEMENT
Whereas, Company desires to engage Talent to provide the services set forth in this Agreement (each of Talent and Company are referred to as a “party” and collectively as the “parties”).
Now therefore, in consideration of the mutual covenants in this Agreement, the parties agree as follows:
Talent Services:
Services to be performed by Talent (the “Services”):
USAGE: Brand will have global right to use Talent’s name, likeness, social handles, and Sponsored Content on Brand channels, including Instagram, Facebook, TikTok and YouTube. Brand will have right to re-post and/or use Talent’s content natively on Brand social media channels as long as Talent is credited for content; Brand can trim/alter content as they see fit. Brand can put paid media behind each piece Sponsored Content on Brand-owned channels and Talent’s channel.
Company shall have the right to extend the Deadline and Live Date on the same terms and conditions herein upon prior written notice to Talent (with an email being sufficient).
Non-Exclusivity:
Talent’s Services shall be non-exclusive but rendered on a priority basis, such that Talent’s services to a third-party shall not materially interfere with Talent’s obligations hereunder.
Compensation:
Company agrees to compensate Talent 1 with xx for all Services rendered under this Agreement. Talent shall be responsible for any withholdings, taxes, agency, and/or other fees due on and/or in connection with such total compensation payable hereunder.
Intellectual Property
Talent acknowledges that all work product and allied and ancillary rights resulting from Talent's Services hereunder (“Work Product”) shall be considered “works made for hire” for Company under the U.S. Copyright Act and Company shall be the author and copyright claimant thereof for all purposes and media, now known or hereafter devised, throughout the world. Company shall solely and exclusively own throughout the world in perpetuity, including renewal and extension periods, if any, all rights of every kind and nature whether now or hereafter created in and in connection with the Work Product, including: (i) the copyright and all rights of copyright; (ii) all neighboring rights, trademarks and any and all other ownership and exploitation rights now or hereafter recognized in any territory, including all rental, lending, fixation, reproduction, broadcasting (including satellite transmission), distribution and all other rights of communication by any and all means, devices and technology; (iii) the right to adapt, change, delete from and add to such Work Product, and to use all or any part thereof in new versions, adaptations, and other forms of media; and (iv) all rights generally known as “moral rights.” If any of the Work Product does not qualify as a work for hire under the U.S. Copyright Act, then for the consideration received by Talent under this Agreement, Talent grants and assigns to Company all right, title and interests in such Work Product, including all worldwide copyrights and the right to sue for past, present and future infringements thereof, in perpetuity, free from all restrictions and limitations. Talent shall sign such documents and do such other acts and deeds as may be reasonably necessary to further evidence or effectuate Company’s rights hereunder, and in the event Talent fails to do so, Talent hereby irrevocably appoints Company as his/her attorney-in-fact with full power and authority to do so on and Talent’s behalf, which power is coupled with an interest.
Talent grants to Company the right to use in perpetuity Talent’s name, voice, photograph, image and likeness in connection with the Services rendered hereunder and all authorized uses and exploitation (including advertising and promotion) thereof, provided that Talent shall not be required to give a direct endorsement without written approval.
Except for references to the Company name and trademarks as part of live blogs, tweets and posts as authorized herein, Talent agrees not to use or refer to the Company name or trademark or any other name or trademark of Company or any of its affiliates (collectively, the “Marks”) without Company’s prior written approval on a case-by-case basis. Any approval given hereunder shall apply only to the particular Mark, and for the specific purpose, for which the approval was expressly given. Talent’s use of the Marks shall inure exclusively to the benefit of Company, and Talent shall not acquire any rights therein.
Without limiting Company’s foregoing rights, except for references to the Talent’s name, voice, image, likeness, trademarks, logos and/or business names (collectively, the “Talent IP”) as expressly authorized herein, Company agrees not to use or refer to the Talent IP without Talent’s prior written approval on a case-by-case basis. Any approval given by Talent hereunder shall apply only to the particular Talent IP, and for the specific purpose, for which the approval was expressly given. Company agrees not to use the Talent IP to imply or attribute, directly or indirectly, any endorsement or testimonial to Talent, except as authorized herein. Company’s use of the Talent IP shall inure exclusively to the benefit of Talent, and Company shall not acquire any rights therein.
Each party shall retain all right, title and interest to its own intellectual property, including, without limitation, trademarks, copyrights, and any and all renewals, extensions and revivals thereof, throughout the world in perpetuity in all media now known or hereafter devised.
No Agency
Talent is an independent contractor and is not and shall not be deemed an employee, agent, joint venture or partner of Company. 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.
Representations, Warranties and Covenants
Each party represents and warrants that she/it has the full right, power and authority to enter into and perform her/its obligations under this Agreement, and that this Agreement does not contravene and is not otherwise limited by any other agreement to which she/it is or shall be a party.
Talent further represents, warrants and covenants that:
(i) the Services will be performed in a professional and workmanlike manner consistent with the degree of care and skill ordinarily exercised under similar circumstances of the same profession;
(ii) neither the Services nor the Work Product (excluding any content provided by the Company) shall violate, infringe upon or misappropriate any third party’s intellectual property or other rights, including without limitation with respect to the Work Product and any other property or content created or supplied by Talent in connection with performing the Services;
(iii) all Work Product shall be wholly original with Consultant (or shall be in the public domain);
(iv) she/it shall at all times comply with all applicable federal, national, state, provincial, local and other laws, rules, regulations and guidelines, including without limitation all FTC regulations and guidelines (including, without limitation the FTC's Revised Endorsement Guidelines);
(v) she/it is under no obligation or disability, which will in any manner prevent or restrict Talent from entering into this Agreement and freely performing the Services;
(vi) the Services shall not be subject to any union and/or guild jurisdiction, and it is not necessary for Company to pay any fees to any collective bargaining organization in connection with the Services; and
(vii) Talent shall comply with Company’s Social Media Policy, annexed hereto as Exhibit A, as such may be modified by Company from time to time.
(c) Talent expressly releases Company and its affiliates, successors, assigns and licensees, and each of their respective officers, directors, employees and agents and their assigns, from, and agrees not to sue in law or equity for, any and all claims Talent has or may have for defamation, invasion of privacy, personality or publicity, or any other cause of action arising out of or in connection with the Services or Company’s exercise of any rights granted herein.
Confidentiality
Talent acknowledges and agrees that by reason of Talent’s relationship to Company under this Agreement (and Talent’s Services hereunder), Talent will have access to non-public information, material, data, systems and/or other content concerning the operation, business, financial affairs, business and marketing plans, products, productions, customers and/or intellectual property of Company that may not be accessible or known to the general public, including but not limited to the terms of this Agreement (collectively, “Confidential Information”). The Confidential Information shall remain the sole and exclusive property of Company. Company has strict policies with respect to the disposal, distribution and/or dissemination of its Confidential Information. Talent agrees not to make and/or authorize any unauthorized use, reproduction, publication, sale, exploitation, disclosure and/or distribution of any kind, and Talent further agrees to hold confidential, and not disclose at any time to the public, the media or to any person or entity, any and all such Confidential Information. For the avoidance of doubt, Talent agrees to use Confidential Information solely for the purposes of rendering Services as set forth in this Agreement. Talent acknowledges that any breach by Talent with respect to this Section 7 may cause irreparable injury to Company, not readily measurable in money, and for which Company, without waiving any other rights or remedies, shall be entitled to seek injunctive relief without the need to post a bond or other security. At Company’s request, Talent agrees to return promptly to Company any and all Confidential Information. Notwithstanding the foregoing, Talent shall not be in breach of this Agreement if Talent discloses any of the foregoing information to Talent’s legal, accounting or agency representatives who are under an existing duty of confidentiality or as otherwise required by law. In the event Talent is required to disclose any Confidential Information by reason of applicable laws or regulations, or pursuant to a subpoena or other lawful legal process, Talent shall promptly notify Company to allow Company an opportunity to seek a protective order or other preclusion or limitation on such disclosure, and Talent shall fully cooperate with Company with respect thereto.
Indemnification
Each party will defend, indemnify and hold harmless the other party, its affiliates and each of their respective officers, employees, affiliates and agents from and against all third party claims, suits, judgments, losses, damages, fines or costs (including reasonable outside attorney’s fees and expenses) related to, concerning or arising out of this Agreement, a breach of either party’s respective representations, warranties and covenants set forth in this Agreement, and the parties’ performance under or breach of this Agreement. The parties’ obligations under this paragraph will survive the expiration and/or termination of this Agreement.
Term and Termination/Remedies
(a) Generally. The term of this Agreement shall commence on the Effective Date and, unless terminated, shall expire on the date that Talent completes all Services hereunder. Either party may terminate this Agreement upon written notice to the other party in the case of any material breach by such other party, including without limitation any failure to make payment when due, that remains uncured fifteen (15) days after written notice from the other party specifying such breach in reasonable detail.
(b) Talent’s Remedies. If Company breaches its obligations hereunder and does not cure such breach, the damage, if any, caused Talent shall not be irreparable or sufficient to entitle Talent to injunctive or other equitable relief. Consequently, Talent’s rights and remedies shall be limited to the right, if any, to obtain damages at law and Talent shall not have any right in such event to terminate, suspend or rescind this Agreement, or any of the rights granted to Company hereunder, or to enjoin or restrain the development, production, advertising, promotion, distribution, exhibition or exploitation of the Services, Company’s use of the Work Product, and/or any of Company's rights hereunder. Company's payment of any compensation or performance of any obligation hereunder shall not constitute a waiver by Company of any breach by Talent or of any rights or remedies which Company may have as a result of such breach.
(c) Services Unique: Talent acknowledges that the Services and the rights herein granted are of a special, unique, unusual, extraordinary and intellectual character giving them a peculiar value, the loss of which may not be able to be reasonably or adequately compensated in damages in an action at law, and that a breach by Talent may cause Company irreparable injury and damage. Company shall be entitled to seek injunctive and other equitable relief to prevent any breach by Talent.
Dispute Resolution
Any and all controversies, claims or disputes arising out of, concerning or relating to this Agreement or the interpretation, performance or breach thereof (each a “Dispute”), including, but not limited to, alleged violations of state or federal statutory or common law rights or duties, and the determination of the scope, applicability, enforceability and validity of this agreement to arbitrate to the extent permitted by law (except as set forth herein), shall be resolved according to the procedures set forth in this Section 9, which shall constitute the sole dispute resolution mechanism applicable to any Dispute. All Disputes not mutually resolved between the parties shall be submitted to final and binding arbitration before JAMS or its successor (“JAMS”) in the State and County of New York, according to either the JAMS Streamlined (for claims under $250,000) or the JAMS Comprehensive (for claims over $250,000) Arbitration Rules and Procedures, in effect at the time the request for arbitration is made (the “Arbitration Rules”). The parties agree that the costs of the arbitration will be shared equally among the parties to the arbitration (with related entities being considered a single party for purposes of this sentence) to the extent permitted by law. The arbitration shall be conducted before a single neutral arbitrator appointed in accordance with the Arbitration Rules. The arbitrator shall follow New York substantive law in adjudicating the Dispute. The arbitrator will provide a detailed written statement of the final decision, which will be part of the arbitration award (“Award”) and admissible in any judicial proceeding to confirm, correct or vacate the Award. Any party seeking enforcement of the final Award shall be entitled to an award of all costs, fees and expenses, including, without limitation, reasonable attorneys’ fees, incurred in enforcing the Award, to be paid by the party against whom enforcement is ordered. The parties and the arbitrator shall maintain the confidential nature of the arbitration proceeding and the Award, including the arbitration hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits or as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an Award or its enforcement, or unless otherwise required by law or judicial decision; in all such cases, the parties shall use reasonable efforts to maintain the confidential nature of the proceedings.
Governing Law, Jurisdiction and Venue
The provisions of this Agreement will be construed, applied and enforced in accordance with the laws of the State of New York, without regard to conflicts of law principles. Subject the dispute resolution provisions of Section 9 herein, the parties agree that the exclusive jurisdiction and venue for any proceedings in aid of arbitration, including any temporary or preliminary injunctive or other equitable relief, shall be the state and federal courts having subject matter jurisdiction thereof within the State and County of New York , and the parties irrevocably submit to the exclusive personal jurisdiction and venue of such courts, and waive any objection or defense based on inconvenient forum.
Notices
All payments and notices under this Agreement shall be in writing and shall be delivered to the other party at the addresses set forth above or such other address as the party may advise in writing from time to time. Notices shall be delivered by hand, sent by U.S. Express mail or certified mail with return receipt, or by recognized overnight courier service (such as Federal Express or DHL) and shall be deemed delivered upon receipt.
Miscellaneous
This Agreement, inclusive of Exhibit A, supersedes all prior oral or written representations or communications between the parties and constitutes the entire understanding of the parties, regarding the subject matter of this Agreement. This Agreement may not be changed, modified, waived or amended except by express written agreement of the parties executed by their authorized representatives. This Agreement may not be assigned in whole or in part by Talent without the prior written approval of the Company. The provisions of this Agreement are severable and the invalidity of any provision of this Agreement shall not affect the validity of the remainder of the provisions hereof. In the event any provision contained herein shall be deemed unenforceable or contrary to law, such provision shall be curtailed and limited, but only to the extent necessary to bring it within the legal requirements, and all other provisions herein shall remain in full force and effect.
Exhibit A – Influencer Social Media Policy
Any person or entity (“You”) creating social media posts at the request of or on behalf of SOSHE Beauty (d.b.a. Rheya Incorporated) or any of their affiliates (“Company”) is required to abide by the following Influencer Social Media Policy (the “Policy”) when making such posts. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Agreement to which this Policy is attached.
1. Do Not Use Third Party Trademarks.
Do not mention third party trademarks such as “Academy Awards” or “Super Bowl.” Instead, please be creative in referring to an “award show” or the “Big Game.”
2. Disclose Your Connection to Company.
You need to make your connection to Company clear to readers in a manner that conspicuously discloses that your content is a marketing message or communication. This connection must be disclosed regardless of space limitations and in every communication about Company, its brands, its products and/or its services. The disclosure must be prominent enough for consumers to view and understand it easily when they are reading your posts. Disclosures should be placed at the beginning of the post (or “above the fold”) and as close as possible to the ads to which they relate. Ensure that the size, color and graphic treatment of the disclosure are easy to read in relation to the other parts of the post, and that the disclosure is clear and visible on all devices, including mobile devices. Ensure that the disclosure remains intact when your posts are republished or reposted. Repeat disclosure as necessary on lengthy websites and/or in connection with repeated claims.
For posts on social media sites with character restrictions, identify the material connection using “#ad,” “#paid” or “#sponsored” (never just “#spon”) at the beginning of the post. Never shorten or abbreviate any hashtag disclosure or use any hyperlink disclosure without Company’s written consent. For any YouTube® or other video posts, disclosures should be made within the video itself and need to remain on screen long enough to be noticed and read - a disclosure in the description box alone is not enough. If disclosure is necessary to prevent a posting from being deceptive or otherwise violative of laws, and it is not possible to clearly and conspicuously make such disclosure on a particular platform, then the posting should not be made on that platform.
3. Give Your Honest and Truthful Opinions.
Statements must always reflect honest, truthful opinions and actual experiences. Clearly state that the views expressed are yours alone and do not represent the views of the Company. You are encouraged to form your own opinions, and are free to comment in a positive, negative or neutral fashion or not at all, but remember that the Company expects that you will not make statements that might lessen Company’s association with positive images and/or goodwill. This includes linking to, or including content that is sexual, violent, political, hate speech, religious, offensive or otherwise inappropriate for the audience for which it is intended, all of which are prohibited.
If a statement is not your opinion, but rather something that Company has asked you to say, this fact must be made clear to your readers and you should only post content provided by Company to the extent it is consistent with your own views and opinions.
4. Only Make Factual Statements That Are Truthful and Can Be Verified.
Only make a factual statement about a product’s or service’s characteristic or quality that you know is true and can be verified. Remember that even if you don’t expressly state a fact, it may be implied. Be especially careful about making any false statements about Company’s competitors or their products or services, as Company does not support any false or misleading statements or comparisons.
5. Respect Intellectual Property Rights.
Intellectual property is the group of legal rights that attach to people’s creations or inventions. Intellectual property rights typically include copyrights, trademarks, publicity rights (the right to use someone’s name, image, likeness, voice and in some states a signature), and trade secrets. Examples of materials including intellectual property rights are those that reproduce or incorporate others’ photographs, videos, music, trademarks/logos, personal names/likenesses, social media postings, news articles, etc. Only use Company’s intellectual property with express written permission, and do not alter or modify any of Company’s intellectual property. Only use third-party owned intellectual property with express permission or when such use has been cleared by Company.
6. Ask Client and Agency To Review Content Before Posting.
All content requires Company’s prior review before you post the content on any website or social media platform.
7. Do Not Send E-mail Messages, Text Messages or Post Content on Client's Behalf Unless Expressly Requested.
Unless expressly requested, Company does not want you to send any e-mails, text messages or post content on any website or social media platform on Company’s behalf, nor will Company provide you any compensation if you do.
8. You Are Personally Responsible For Your Actions.
All blogging and posting must comply with applicable laws. You are personally liable under federal, state and/or local laws for your actions and omissions with respect to your blog or posts, which makes following this Policy, as well as all other applicable laws and regulations, particularly important.
9. Client and Agency Reserve the Right To Ask You To Remove Content
By blogging or posting at the request of Company, or by accepting any incentive from Company to blog or post, you agree that you will immediately remove any content on your blog(s) or social media platforms relating to Company, its products, its brands or its services, or those of its competitors, upon notice that Company finds the content objectionable. Even if Company does not notify you, you must promptly remove any content for which you receive a legitimate complaint or which you later become aware may be in violation of the law or otherwise violate any third party’s rights.
10. Comply with Site-Specific Terms of Use.
Remember that, in addition to Company’s policies and applicable laws, each social media site has its own terms of use that must be complied with. These terms may, for example, restrict how you conduct a contest on that site or how you interact with site users.
11. Respect Individual Privacy Rights.
Unless expressly requested by Company, Company is not engaging you to collect or use any names, phone numbers, emails, addresses, geographic location, date of birth, user activity or other personally identifiable information (PII), and Company shall not compensate you for these activities. You are personally responsible for ensuring that all of your blogging and posting activities comply with applicable data privacy policies and laws worldwide. This includes the way you collect, share, store, provide access to, or use that PII.
12. Company may Monitor Your Compliance with this Policy.
Company may monitor compliance with these Policy requirements, including regularly reviewing your postings. For monitoring purposes, you shall keep reasonable records of your posts about Company and its products, brands and services. Company will hold you directly responsible for any claims that arise from your violation of this Policy.
Whereas, Company desires to engage Talent to provide the services set forth in this Agreement (each of Talent and Company are referred to as a “party” and collectively as the “parties”).
Now therefore, in consideration of the mutual covenants in this Agreement, the parties agree as follows:
Talent Services:
Services to be performed by Talent (the “Services”):
USAGE: Brand will have global right to use Talent’s name, likeness, social handles, and Sponsored Content on Brand channels, including Instagram, Facebook, TikTok and YouTube. Brand will have right to re-post and/or use Talent’s content natively on Brand social media channels as long as Talent is credited for content; Brand can trim/alter content as they see fit. Brand can put paid media behind each piece Sponsored Content on Brand-owned channels and Talent’s channel.
Company shall have the right to extend the Deadline and Live Date on the same terms and conditions herein upon prior written notice to Talent (with an email being sufficient).
Non-Exclusivity:
Talent’s Services shall be non-exclusive but rendered on a priority basis, such that Talent’s services to a third-party shall not materially interfere with Talent’s obligations hereunder.
Compensation:
Company agrees to compensate Talent 1 with xx for all Services rendered under this Agreement. Talent shall be responsible for any withholdings, taxes, agency, and/or other fees due on and/or in connection with such total compensation payable hereunder.
Intellectual Property
Talent acknowledges that all work product and allied and ancillary rights resulting from Talent's Services hereunder (“Work Product”) shall be considered “works made for hire” for Company under the U.S. Copyright Act and Company shall be the author and copyright claimant thereof for all purposes and media, now known or hereafter devised, throughout the world. Company shall solely and exclusively own throughout the world in perpetuity, including renewal and extension periods, if any, all rights of every kind and nature whether now or hereafter created in and in connection with the Work Product, including: (i) the copyright and all rights of copyright; (ii) all neighboring rights, trademarks and any and all other ownership and exploitation rights now or hereafter recognized in any territory, including all rental, lending, fixation, reproduction, broadcasting (including satellite transmission), distribution and all other rights of communication by any and all means, devices and technology; (iii) the right to adapt, change, delete from and add to such Work Product, and to use all or any part thereof in new versions, adaptations, and other forms of media; and (iv) all rights generally known as “moral rights.” If any of the Work Product does not qualify as a work for hire under the U.S. Copyright Act, then for the consideration received by Talent under this Agreement, Talent grants and assigns to Company all right, title and interests in such Work Product, including all worldwide copyrights and the right to sue for past, present and future infringements thereof, in perpetuity, free from all restrictions and limitations. Talent shall sign such documents and do such other acts and deeds as may be reasonably necessary to further evidence or effectuate Company’s rights hereunder, and in the event Talent fails to do so, Talent hereby irrevocably appoints Company as his/her attorney-in-fact with full power and authority to do so on and Talent’s behalf, which power is coupled with an interest.
Talent grants to Company the right to use in perpetuity Talent’s name, voice, photograph, image and likeness in connection with the Services rendered hereunder and all authorized uses and exploitation (including advertising and promotion) thereof, provided that Talent shall not be required to give a direct endorsement without written approval.
Except for references to the Company name and trademarks as part of live blogs, tweets and posts as authorized herein, Talent agrees not to use or refer to the Company name or trademark or any other name or trademark of Company or any of its affiliates (collectively, the “Marks”) without Company’s prior written approval on a case-by-case basis. Any approval given hereunder shall apply only to the particular Mark, and for the specific purpose, for which the approval was expressly given. Talent’s use of the Marks shall inure exclusively to the benefit of Company, and Talent shall not acquire any rights therein.
Without limiting Company’s foregoing rights, except for references to the Talent’s name, voice, image, likeness, trademarks, logos and/or business names (collectively, the “Talent IP”) as expressly authorized herein, Company agrees not to use or refer to the Talent IP without Talent’s prior written approval on a case-by-case basis. Any approval given by Talent hereunder shall apply only to the particular Talent IP, and for the specific purpose, for which the approval was expressly given. Company agrees not to use the Talent IP to imply or attribute, directly or indirectly, any endorsement or testimonial to Talent, except as authorized herein. Company’s use of the Talent IP shall inure exclusively to the benefit of Talent, and Company shall not acquire any rights therein.
Each party shall retain all right, title and interest to its own intellectual property, including, without limitation, trademarks, copyrights, and any and all renewals, extensions and revivals thereof, throughout the world in perpetuity in all media now known or hereafter devised.
No Agency
Talent is an independent contractor and is not and shall not be deemed an employee, agent, joint venture or partner of Company. 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.
Representations, Warranties and Covenants
Each party represents and warrants that she/it has the full right, power and authority to enter into and perform her/its obligations under this Agreement, and that this Agreement does not contravene and is not otherwise limited by any other agreement to which she/it is or shall be a party.
Talent further represents, warrants and covenants that:
(i) the Services will be performed in a professional and workmanlike manner consistent with the degree of care and skill ordinarily exercised under similar circumstances of the same profession;
(ii) neither the Services nor the Work Product (excluding any content provided by the Company) shall violate, infringe upon or misappropriate any third party’s intellectual property or other rights, including without limitation with respect to the Work Product and any other property or content created or supplied by Talent in connection with performing the Services;
(iii) all Work Product shall be wholly original with Consultant (or shall be in the public domain);
(iv) she/it shall at all times comply with all applicable federal, national, state, provincial, local and other laws, rules, regulations and guidelines, including without limitation all FTC regulations and guidelines (including, without limitation the FTC's Revised Endorsement Guidelines);
(v) she/it is under no obligation or disability, which will in any manner prevent or restrict Talent from entering into this Agreement and freely performing the Services;
(vi) the Services shall not be subject to any union and/or guild jurisdiction, and it is not necessary for Company to pay any fees to any collective bargaining organization in connection with the Services; and
(vii) Talent shall comply with Company’s Social Media Policy, annexed hereto as Exhibit A, as such may be modified by Company from time to time.
(c) Talent expressly releases Company and its affiliates, successors, assigns and licensees, and each of their respective officers, directors, employees and agents and their assigns, from, and agrees not to sue in law or equity for, any and all claims Talent has or may have for defamation, invasion of privacy, personality or publicity, or any other cause of action arising out of or in connection with the Services or Company’s exercise of any rights granted herein.
Confidentiality
Talent acknowledges and agrees that by reason of Talent’s relationship to Company under this Agreement (and Talent’s Services hereunder), Talent will have access to non-public information, material, data, systems and/or other content concerning the operation, business, financial affairs, business and marketing plans, products, productions, customers and/or intellectual property of Company that may not be accessible or known to the general public, including but not limited to the terms of this Agreement (collectively, “Confidential Information”). The Confidential Information shall remain the sole and exclusive property of Company. Company has strict policies with respect to the disposal, distribution and/or dissemination of its Confidential Information. Talent agrees not to make and/or authorize any unauthorized use, reproduction, publication, sale, exploitation, disclosure and/or distribution of any kind, and Talent further agrees to hold confidential, and not disclose at any time to the public, the media or to any person or entity, any and all such Confidential Information. For the avoidance of doubt, Talent agrees to use Confidential Information solely for the purposes of rendering Services as set forth in this Agreement. Talent acknowledges that any breach by Talent with respect to this Section 7 may cause irreparable injury to Company, not readily measurable in money, and for which Company, without waiving any other rights or remedies, shall be entitled to seek injunctive relief without the need to post a bond or other security. At Company’s request, Talent agrees to return promptly to Company any and all Confidential Information. Notwithstanding the foregoing, Talent shall not be in breach of this Agreement if Talent discloses any of the foregoing information to Talent’s legal, accounting or agency representatives who are under an existing duty of confidentiality or as otherwise required by law. In the event Talent is required to disclose any Confidential Information by reason of applicable laws or regulations, or pursuant to a subpoena or other lawful legal process, Talent shall promptly notify Company to allow Company an opportunity to seek a protective order or other preclusion or limitation on such disclosure, and Talent shall fully cooperate with Company with respect thereto.
Indemnification
Each party will defend, indemnify and hold harmless the other party, its affiliates and each of their respective officers, employees, affiliates and agents from and against all third party claims, suits, judgments, losses, damages, fines or costs (including reasonable outside attorney’s fees and expenses) related to, concerning or arising out of this Agreement, a breach of either party’s respective representations, warranties and covenants set forth in this Agreement, and the parties’ performance under or breach of this Agreement. The parties’ obligations under this paragraph will survive the expiration and/or termination of this Agreement.
Term and Termination/Remedies
(a) Generally. The term of this Agreement shall commence on the Effective Date and, unless terminated, shall expire on the date that Talent completes all Services hereunder. Either party may terminate this Agreement upon written notice to the other party in the case of any material breach by such other party, including without limitation any failure to make payment when due, that remains uncured fifteen (15) days after written notice from the other party specifying such breach in reasonable detail.
(b) Talent’s Remedies. If Company breaches its obligations hereunder and does not cure such breach, the damage, if any, caused Talent shall not be irreparable or sufficient to entitle Talent to injunctive or other equitable relief. Consequently, Talent’s rights and remedies shall be limited to the right, if any, to obtain damages at law and Talent shall not have any right in such event to terminate, suspend or rescind this Agreement, or any of the rights granted to Company hereunder, or to enjoin or restrain the development, production, advertising, promotion, distribution, exhibition or exploitation of the Services, Company’s use of the Work Product, and/or any of Company's rights hereunder. Company's payment of any compensation or performance of any obligation hereunder shall not constitute a waiver by Company of any breach by Talent or of any rights or remedies which Company may have as a result of such breach.
(c) Services Unique: Talent acknowledges that the Services and the rights herein granted are of a special, unique, unusual, extraordinary and intellectual character giving them a peculiar value, the loss of which may not be able to be reasonably or adequately compensated in damages in an action at law, and that a breach by Talent may cause Company irreparable injury and damage. Company shall be entitled to seek injunctive and other equitable relief to prevent any breach by Talent.
Dispute Resolution
Any and all controversies, claims or disputes arising out of, concerning or relating to this Agreement or the interpretation, performance or breach thereof (each a “Dispute”), including, but not limited to, alleged violations of state or federal statutory or common law rights or duties, and the determination of the scope, applicability, enforceability and validity of this agreement to arbitrate to the extent permitted by law (except as set forth herein), shall be resolved according to the procedures set forth in this Section 9, which shall constitute the sole dispute resolution mechanism applicable to any Dispute. All Disputes not mutually resolved between the parties shall be submitted to final and binding arbitration before JAMS or its successor (“JAMS”) in the State and County of New York, according to either the JAMS Streamlined (for claims under $250,000) or the JAMS Comprehensive (for claims over $250,000) Arbitration Rules and Procedures, in effect at the time the request for arbitration is made (the “Arbitration Rules”). The parties agree that the costs of the arbitration will be shared equally among the parties to the arbitration (with related entities being considered a single party for purposes of this sentence) to the extent permitted by law. The arbitration shall be conducted before a single neutral arbitrator appointed in accordance with the Arbitration Rules. The arbitrator shall follow New York substantive law in adjudicating the Dispute. The arbitrator will provide a detailed written statement of the final decision, which will be part of the arbitration award (“Award”) and admissible in any judicial proceeding to confirm, correct or vacate the Award. Any party seeking enforcement of the final Award shall be entitled to an award of all costs, fees and expenses, including, without limitation, reasonable attorneys’ fees, incurred in enforcing the Award, to be paid by the party against whom enforcement is ordered. The parties and the arbitrator shall maintain the confidential nature of the arbitration proceeding and the Award, including the arbitration hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits or as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an Award or its enforcement, or unless otherwise required by law or judicial decision; in all such cases, the parties shall use reasonable efforts to maintain the confidential nature of the proceedings.
Governing Law, Jurisdiction and Venue
The provisions of this Agreement will be construed, applied and enforced in accordance with the laws of the State of New York, without regard to conflicts of law principles. Subject the dispute resolution provisions of Section 9 herein, the parties agree that the exclusive jurisdiction and venue for any proceedings in aid of arbitration, including any temporary or preliminary injunctive or other equitable relief, shall be the state and federal courts having subject matter jurisdiction thereof within the State and County of New York , and the parties irrevocably submit to the exclusive personal jurisdiction and venue of such courts, and waive any objection or defense based on inconvenient forum.
Notices
All payments and notices under this Agreement shall be in writing and shall be delivered to the other party at the addresses set forth above or such other address as the party may advise in writing from time to time. Notices shall be delivered by hand, sent by U.S. Express mail or certified mail with return receipt, or by recognized overnight courier service (such as Federal Express or DHL) and shall be deemed delivered upon receipt.
Miscellaneous
This Agreement, inclusive of Exhibit A, supersedes all prior oral or written representations or communications between the parties and constitutes the entire understanding of the parties, regarding the subject matter of this Agreement. This Agreement may not be changed, modified, waived or amended except by express written agreement of the parties executed by their authorized representatives. This Agreement may not be assigned in whole or in part by Talent without the prior written approval of the Company. The provisions of this Agreement are severable and the invalidity of any provision of this Agreement shall not affect the validity of the remainder of the provisions hereof. In the event any provision contained herein shall be deemed unenforceable or contrary to law, such provision shall be curtailed and limited, but only to the extent necessary to bring it within the legal requirements, and all other provisions herein shall remain in full force and effect.
Exhibit A – Influencer Social Media Policy
Any person or entity (“You”) creating social media posts at the request of or on behalf of SOSHE Beauty (d.b.a. Rheya Incorporated) or any of their affiliates (“Company”) is required to abide by the following Influencer Social Media Policy (the “Policy”) when making such posts. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Agreement to which this Policy is attached.
1. Do Not Use Third Party Trademarks.
Do not mention third party trademarks such as “Academy Awards” or “Super Bowl.” Instead, please be creative in referring to an “award show” or the “Big Game.”
2. Disclose Your Connection to Company.
You need to make your connection to Company clear to readers in a manner that conspicuously discloses that your content is a marketing message or communication. This connection must be disclosed regardless of space limitations and in every communication about Company, its brands, its products and/or its services. The disclosure must be prominent enough for consumers to view and understand it easily when they are reading your posts. Disclosures should be placed at the beginning of the post (or “above the fold”) and as close as possible to the ads to which they relate. Ensure that the size, color and graphic treatment of the disclosure are easy to read in relation to the other parts of the post, and that the disclosure is clear and visible on all devices, including mobile devices. Ensure that the disclosure remains intact when your posts are republished or reposted. Repeat disclosure as necessary on lengthy websites and/or in connection with repeated claims.
For posts on social media sites with character restrictions, identify the material connection using “#ad,” “#paid” or “#sponsored” (never just “#spon”) at the beginning of the post. Never shorten or abbreviate any hashtag disclosure or use any hyperlink disclosure without Company’s written consent. For any YouTube® or other video posts, disclosures should be made within the video itself and need to remain on screen long enough to be noticed and read - a disclosure in the description box alone is not enough. If disclosure is necessary to prevent a posting from being deceptive or otherwise violative of laws, and it is not possible to clearly and conspicuously make such disclosure on a particular platform, then the posting should not be made on that platform.
3. Give Your Honest and Truthful Opinions.
Statements must always reflect honest, truthful opinions and actual experiences. Clearly state that the views expressed are yours alone and do not represent the views of the Company. You are encouraged to form your own opinions, and are free to comment in a positive, negative or neutral fashion or not at all, but remember that the Company expects that you will not make statements that might lessen Company’s association with positive images and/or goodwill. This includes linking to, or including content that is sexual, violent, political, hate speech, religious, offensive or otherwise inappropriate for the audience for which it is intended, all of which are prohibited.
If a statement is not your opinion, but rather something that Company has asked you to say, this fact must be made clear to your readers and you should only post content provided by Company to the extent it is consistent with your own views and opinions.
4. Only Make Factual Statements That Are Truthful and Can Be Verified.
Only make a factual statement about a product’s or service’s characteristic or quality that you know is true and can be verified. Remember that even if you don’t expressly state a fact, it may be implied. Be especially careful about making any false statements about Company’s competitors or their products or services, as Company does not support any false or misleading statements or comparisons.
5. Respect Intellectual Property Rights.
Intellectual property is the group of legal rights that attach to people’s creations or inventions. Intellectual property rights typically include copyrights, trademarks, publicity rights (the right to use someone’s name, image, likeness, voice and in some states a signature), and trade secrets. Examples of materials including intellectual property rights are those that reproduce or incorporate others’ photographs, videos, music, trademarks/logos, personal names/likenesses, social media postings, news articles, etc. Only use Company’s intellectual property with express written permission, and do not alter or modify any of Company’s intellectual property. Only use third-party owned intellectual property with express permission or when such use has been cleared by Company.
6. Ask Client and Agency To Review Content Before Posting.
All content requires Company’s prior review before you post the content on any website or social media platform.
7. Do Not Send E-mail Messages, Text Messages or Post Content on Client's Behalf Unless Expressly Requested.
Unless expressly requested, Company does not want you to send any e-mails, text messages or post content on any website or social media platform on Company’s behalf, nor will Company provide you any compensation if you do.
8. You Are Personally Responsible For Your Actions.
All blogging and posting must comply with applicable laws. You are personally liable under federal, state and/or local laws for your actions and omissions with respect to your blog or posts, which makes following this Policy, as well as all other applicable laws and regulations, particularly important.
9. Client and Agency Reserve the Right To Ask You To Remove Content
By blogging or posting at the request of Company, or by accepting any incentive from Company to blog or post, you agree that you will immediately remove any content on your blog(s) or social media platforms relating to Company, its products, its brands or its services, or those of its competitors, upon notice that Company finds the content objectionable. Even if Company does not notify you, you must promptly remove any content for which you receive a legitimate complaint or which you later become aware may be in violation of the law or otherwise violate any third party’s rights.
10. Comply with Site-Specific Terms of Use.
Remember that, in addition to Company’s policies and applicable laws, each social media site has its own terms of use that must be complied with. These terms may, for example, restrict how you conduct a contest on that site or how you interact with site users.
11. Respect Individual Privacy Rights.
Unless expressly requested by Company, Company is not engaging you to collect or use any names, phone numbers, emails, addresses, geographic location, date of birth, user activity or other personally identifiable information (PII), and Company shall not compensate you for these activities. You are personally responsible for ensuring that all of your blogging and posting activities comply with applicable data privacy policies and laws worldwide. This includes the way you collect, share, store, provide access to, or use that PII.
12. Company may Monitor Your Compliance with this Policy.
Company may monitor compliance with these Policy requirements, including regularly reviewing your postings. For monitoring purposes, you shall keep reasonable records of your posts about Company and its products, brands and services. Company will hold you directly responsible for any claims that arise from your violation of this Policy.