Captiv8 Influencer Terms

(a)     Trademarks, trade names, service marks, artwork, designs, copy or other marketing-related materials that belong to the Brand or its affiliates or to us or our affiliates (as applicable, the “IP Owner”) may be made available to you through the Campaign Platform or the Affiliate Platform (each, a “Platform”) or otherwise, including any of the foregoing that are incorporated into or a part of any Processed Links (as defined below) (the “Licensed IP”). Your use of any Licensed IP must comply with any requirements that are published on the applicable Platform or of which IP Owner otherwise notifies you.  All uses of the Licensed IP (other than as part of your Processed Links) will be subject to IP Owner’s prior review and approval, which IP Owner may grant or withhold in the exercise of its sole discretion.

(b)     You will not modify the Licensed IP or do anything that might impair IP Owner’s rights in the Licensed IP or damage the reputation for quality inherent in the Licensed IP. You will not contest the Licensed IP or IP Owner’s sole ownership thereof, nor will you register or attempt to register in any jurisdiction any Licensed IP or any confusingly similar trademark, trade name or service mark.  You will identify the Licensed IP by including appropriate symbols and notices as specified on the Platform or in any notice to you from IP Owner. 

(c)     Your use of any Licensed IP or Processed Link must not imply that IP Owner operates, endorses or sponsors your Site (as defined below) or business.  Without limiting the generality of the foregoing, your branding must be substantially more prominent than any branding included in the Licensed IP on your Site or on any email or other communication.  Your use of any branding included in the Licensed IP, including all goodwill associated with such use, shall inure solely to IP Owner’s benefit.

(d)     You may not use any Licensed IP or any variation of any Licensed IP in any manner not expressly authorized by these Terms. In particular, you may NOT post any of the Brand’s sales, promotions or coupons on your site without the Brand’s prior written consent; you may NOT purchase domain names that use any Licensed IP or any variations or misspellings of any Licensed IP in them; you may NOT use any framing technology that frames the Brand Site or any page thereof; you may NOT create sub-affiliate accounts under the original approved affiliate account, unless each such sub-account is approved by the Brand; you may NOT use any Licensed IP, or any variation thereof, in hidden text or source code; and you may NOT use any Licensed IP, or any variation thereof, in your domain or sub-domain.  We may, in our sole discretion, suspend your account and/or withhold Commissions (as defined below) or other amounts if, it in our sole judgment, we determine you are in violation of any of the prohibitions or conditions contained herein. 

(a)     You are solely responsible for the content and manner of marketing activities related to your obligations and activities under these Terms. All of your activities under these Terms must be professional, tasteful, respectful, honest, accurate, up-to-date and appropriate and must comply with applicable rules, regulations and  laws, including any relating to the content and nature of any advertising or marketing and to any related guidelines (including, but not limited to, the Endorsement and Testimonial Guidelines and any similar guidelines, requirements and regulations published by the United States Federal Trade Commission, as the same may be revised, amended, modified and/or otherwise updated from time to time). You will ensure that none of your statements, posts or activities of any type in any way harm or impair our goodwill or reputation or the goodwill or reputation of the Brand.

(b)     Without limiting the generality of the foregoing, (i) you will not post or link to, or otherwise be associated in any way with, any site, group or content that (A) is violent, pornographic, obscene or otherwise offensive, (B) infringes or otherwise violates any intellectual property rights, rights of publicity or other rights of any person or entity, (C) is libelous, (D) is unlawful, (E) is untruthful or misleading, (F) may be construed as political or religious content or propaganda, (G) promotes or can be construed to promote drugs, alcohol, predation of minors, illegal or inappropriate activities, or dangerous behavior that may result in harm to anyone reading the post or any content linked to the post; or (H) disparages any person or group, including, but not limited to, on the basis of his/her/their race, nationality, gender, gender identity, sexual orientation, age, weight, disability or otherwise, and (ii) you will not in connection with your Site or business or the promotion of the Brand Site (as defined below) or Products: (A) use any software that gathers information through any person’s Internet connection without his or her knowledge; (B) install spyware (or cause spyware to be installed) on another person’s computer, (C) use a context based triggering mechanism to display an advertisement that partially or wholly covers or obscures paid advertising or other content on a website in a way that interferes with a user’s ability to view the website, (D) use any opt-out downloads (i.e., any software, program, script, tool or element that would automatically download to a user’s computer or that would become operative when the user accesses the Internet unless the user takes affirmative action to prevent the download), or (E) generate, manipulate or otherwise produce or induce followers, clicks, impressions, likes, comments, views or shares (collectively, “Engagements”) by purchasing such Engagements from any source or through any means or by using scripts, spyware, robots or other automated tools and/or computer generated requests to generate Engagements.

(c)     We disclaim all liability for the matters addressed in this Section 4.  

(a)     In addition to your rights and obligations stated in these Terms, your rights and obligations with respect to any Applicable Campaign (including, but not limited to, with respect to the term of the Applicable Campaign, your compensation and your commitments regarding exclusivity (if any), posts and reporting) will be set forth in a separate agreement or work order relating to the Applicable Campaign between you, on the one hand, and either us or the Brand, on the other hand (the “Campaign Agreement”).

(b)     If the Campaign Agreement is between you and the Brand, we will not be a party to that Campaign Agreement and will have no liability or obligation whatsoever under that agreement.

(c)     If the Campaign Agreement is between you and us, you acknowledge and agree that (i) our ability to perform our obligations under that agreement may depend on the Brand’s activities and cooperation and (ii) we will not be deemed to be in breach of that agreement as a result of, and will have no liability of any type or nature for, any delay or failure of performance that results from or relates to the Brand’s breach of any agreement with us or any of our affiliates or its failure to act or cooperate as we reasonably expected with respect to the Applicable Campaign.  Without limiting the generality of the foregoing, we will have no obligation to pay you any amounts with respect to any Applicable Campaign at any time that that the Brand is in default of any of its payment obligations to us or otherwise fails to pay us any amounts that it had agreed to pay in connection with that Applicable Campaign, regardless of whether that payment obligation is discharged in bankruptcy or otherwise.

(a)     To permit accurate tracking, reporting and commission accrual, we will give you access to links to pages on the website that the Brand uses for online sales of its products (the “Brand Site”).   You will be able to process those links for use in the Applicable Program (the “Processed Links”).  For so long as you continue to participate in the Applicable Program, you may post Processed Links on any website that the Brand approved as part of application process (your “Site”) and may transmit Processed Links to potential Purchasers (as defined below) via email or otherwise, provided that you comply with all applicable laws and regulations relating to unsolicited emails or other communications and with the terms of service of any social media or other websites or services.

(b)     You acknowledge and understand that if you do not use the Processed Links correctly, we will not be able to track sales attributable to your efforts, so you will not receive any Commissions.

(c)      The Processed Links may include text and images, including the Brand’s or our branding.  You must not change any Processed Link in any way.  

(a)     You and the Brand may enter into a separate agreement or work order relating to any Applicable Program (a “Program Agreement”). We will not be a party to any Program Agreement and will have no liability or obligation whatsoever under any Program Agreement.

(b)     The following terms relating to any right you might have to receive commissions hereunder (“Commissions”), if and as applicable, will have the meanings indicated:

(c)     Subject to the other provisions of these Terms (including, but not limited to, Sections 9(d) and 9(e)), we will pay you a Commission on behalf of the Brand for each Qualifying Product Sale equal to the Net Revenue generated by such sale multiplied by the Commission Rate, less any taxes that we or the Brand are required by law to withhold. Payment of each Commission will be due within the Affiliate Payment Term after the Return Period with respect to the applicable Qualifying Product Sale expires. Notwithstanding the foregoing, no payments will be made until: (i) you have earned a minimum of fifty U.S. dollars ($50 USD) in Commission; and (ii) you have entered complete and accurate payment information as requested by us so that we may transfer payment to you. In the event either or both of these requirements are not satisfied, your status will be marked as “unpayable” until both of the foregoing requirements have been satisfied. Notwithstanding the foregoing, no payments will be made until you have earned Commission equal to or greater than fifty (50) units of the currency in which you are being paid. To illustrate, if you are being paid in U.S. Dollars, you must earn Commission in an amount equal to or greater than $50 USD before any payments are made. If you are being paid in Euros, you must earn Commission in an amount equal to or greater than €50 before any payments are made. In addition, you must enter complete and accurate payment information as requested by us so that we may transfer payment to you. In the event either or both of the foregoing requirements are not satisfied, your status will be marked as “unpayable” until both have been satisfied. in U.S. Dollars, you must earn Commission in an amount equal to or greater than $50 USD before any payments are made. If you are being paid in Euros, you must earn Commission in an amount equal to or greater than ;€50 before any payments are made. In addition, you must enter complete and accurate payment information as requested by us so that we may transfer payment to you. In the event either or both of the foregoing requirements are not satisfied, your status will be marked as “unpayable” until both have been satisfied. Commencing on the date of termination of any Marketing Initiative in which you are participating, you will have a period of thirty (30) days to satisfy the foregoing requirements in order to bring your status to “payable.” In the event you remain “unpayable” at the end of such thirty (30) day period, you release Captiv8 from any and all liability arising from or related to any Commission derived from such Marketing Initiative. Should you become “payable” after such thirty (30) day period has ended, you acknowledge and agree that you will look solely to the Brand for any Commission you may be owed with respect to such Marketing Initiative.

(d)     We have entered into an agreement with the Brand which requires the Brand to pay to us any Commission that is owed to you hereunder and requires us to transmit that payment to you. We do not guarantee that the Brand will pay all Commissions that it agreed to pay. We will have no obligation to pay you any Commission at any time that that the Brand is in default of any of its payment obligations to us or otherwise fails to pay us any amounts that it had agreed to pay, regardless of whether that payment obligation is discharged in bankruptcy or otherwise.

(e)     If, within the Purchase Window Period of the time that a Product Purchaser purchases any Product from the Brand Site, such Product Purchaser navigated to a Product Page one or more times using your Processed Link and one or more times using a link posted or transmitted by another Applicable Program participant, the Commission associated with that purchase will be paid to the Applicable Program participant (i.e., you or such other Applicable Program participant) that posted or transmitted the link used by such Product Purchaser most recently before such purchase. For example, if a Product Purchaser links to any Product Page using your Processed Link, then one hour later links to any Product Page using a link posted by another Applicable Program participant, and then one hour after that purchases Products at the Brand Site, the entire commission for such purchase will be paid to the other Applicable Program participant.

(a)     To participate in any of the Brand’s Affiliate Programs, you need to submit a complete application to that Brand at https://captiv8.i0/[*] to participate in such Affiliate Program.  The Brand will evaluate your application and will notify you through the Affiliate Platform and via email of your acceptance or rejection.  

(b)     The Brand may have eligibility criteria that preclude certain persons (such as the Brand’s employees or persons under the age of majority) from participating in its Marketing Initiatives.  You acknowledge and understand that the Brand may require you to accept additional terms as a condition to your participation in any Marketing Initiative and may in any event reject your application for or otherwise exclude you from any Marketing Initiative for any reason, in its sole discretion.

(a)     You, we or the Brand may immediately terminate your participation in any Marketing Initiative at any time, for any reason, with or without cause, upon notice.

(b)     The term of these Terms will begin when you submit an application to participate in the Applicable Initiative and will terminate (i) if the Brand rejects your application or (ii) when your participation in the Applicable Initiative terminates.  If these Terms terminate based upon the Brand’s rejection of your application, the Brand subsequently accepts your application and you thereafter elect to participate in the Applicable Initiative, or if these Terms terminate based on the termination of your participation in the Applicable Initiative and your participation in the Applicable Initiative later resumes (whether based on a new application or otherwise), then these Terms will be promptly reinstated and in full force and effect.

(c)     The provisions of these Terms that, by their sense and context, are reasonably intended to survive the termination of these Terms shall remain effective and enforceable thereafter.  Those provisions include, but may not be limited to, Sections 1, 3, 4(d), 5, 7, 11, 12(d), and 13 – 26.  

(d)     Upon termination of these Terms, you will immediately remove any Processed Links or Licensed IP from your Site or other online presence.  Our obligation to pay Commissions or other amounts based on Qualifying Product Sales or other things that occurred during the term of these Terms will survive termination of these Terms, provided that we may withhold Commissions or other amounts at termination as otherwise provided in these Terms or if we, in our sole discretion, believe that you have breached these Terms and that such Commissions or other amounts were earned in violation of these Terms.

(a)     This Section 22 will apply only if you reside in the United States.  If you do not reside in the United States, this Section 22 will not apply and will not be binding on you, us or the Brand.

(b)     You, we and the Brand mutually agree that any past, present and future dispute, claim, or controversy between you and us, you and the Brand, or you, us and the Brand that arises out of or relates to (i) these Terms, (ii) the breach, termination, enforcement, interpretation or validity hereof, including the determination of the scope or applicability of the agreement to arbitrate hereunder, (iii) any Marketing Initiative, (iv) any Platform or any (v) Campaign Agreement (collectively, “Disputes”) shall be determined by arbitration, unless the Dispute is subject to an exception to this agreement to arbitrate set forth below. You, we and the Brand further agree that any arbitration pursuant to this Section 22 shall not proceed as a class, group or representative action.  The award of the arbitrator may be entered in any court having jurisdiction.

(c)     The Brand and Captiv8 each wants to address your concerns without the need for a formal legal dispute. 

(i)            Before filing a claim against the Brand or Captiv8, you agree to try to resolve the Dispute informally by notice to the Brand or Captiv8 of the actual or potential Dispute.  Similarly, the Brand or Captiv8 will provide notice to you of any actual or potential Dispute to endeavor to resolve any claim they or either of them may possess informally before taking any formal action. The party(ies) that provides the notice of the actual or potential Dispute (the “Notifying Party”) will include in that notice (a “Notice of Dispute”) your name, the Notifying Party’s contact information for any communications relating to such Dispute, and sufficient details regarding such Dispute to enable the other party(ies) (the “Notified Party(ies)”) to understand the basis of and evaluate the concerns raised.  If the Notified Party(ies) (or either of them) responds within 10 business days after receiving the Notice of Dispute that it is ready and willing to engage in good faith discussions in an effort to resolve the Dispute informally, then each party to the Dispute shall promptly participate in such discussions in good faith.

(ii)           If, notwithstanding the Notifying Party’s(ies’) compliance with all of its obligations under the preceding paragraph, a Dispute is not resolved within 30 days after the Notice of Dispute is sent (or if the Notified Party(ies) fails to respond to the Notice of Dispute within 10 business days), the Notifying Party(ies) may initiate an arbitration proceeding as described below.  If any party purports to initiate arbitration without first providing a Notice of Dispute and otherwise complying with all of its obligations under the preceding paragraph, then, notwithstanding any other provision of these Terms, the arbitrator(s) will promptly dismiss the claim with prejudice and will award the other party(ies) to such Dispute all of its costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred in connection with such Dispute. 

(d)     We all agree to arbitrate.  

(i)            You, the Brand and Captiv8 each agrees to resolve any Disputes that are not resolved informally as described above through final and binding arbitration as discussed herein, except as set forth under “Exceptions to Agreement To Arbitrate” below.

(ii)           You, the Brand and Captiv8 agree that the American Arbitration Association (“AAA”) will administer the arbitration under its Commercial Arbitration Rules (the “Rules”). The Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration.) Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within 14 days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitrator(s) shall be authorized to award any remedies, including injunctive relief, that would be available in an individual lawsuit, subject to any effective and enforceable limitations of liability or exclusions of remedies set forth herein.  Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential.

(iii)          You, the Brand and Captiv8 further agree that the arbitration will be held in the English language in San Francisco, California, or, if you so elect, all proceedings can be conducted via videoconference, telephonically or via other remote electronic means. Filing costs and administrative fees shall be paid in accordance with the AAA Rules; provided that the prevailing party will be entitled to recover its reasonable attorneys’ fees, expert witness fees, and out-of-pocket costs incurred in connection with the arbitration proceeding, in addition to any other relief it may be awarded.  This agreement to arbitrate shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in these Terms. 

(e)     You, the Brand and Captiv8 agree that, notwithstanding anything to the contrary in the Rules, the arbitration of any Dispute shall proceed on an individual basis, and neither you, the Brand nor Captiv8 may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). 

(i)            Without limiting the generality of the foregoing, a claim to resolve any Dispute against us or the Brand will be deemed a Collective Arbitration if (i) 2 or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.

(ii)           TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU, THE BRAND NOR CAPTIV8 SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY DISPUTE, ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. Without limiting the foregoing, any challenge to the validity of this paragraph shall be determined exclusively by the arbitrator.  

(f)      Notwithstanding your, the Brand’s and Captiv8’s agreement to arbitrate Disputes, you, the Brand and Captiv8 each retains the right to bring an individual action in small claims court. Further, except as otherwise required by applicable law or provided in these Terms, in the event that the agreement to arbitrate is found not to apply to you or any Dispute, you, the Brand and Captiv8 agree that any judicial proceeding may only be brought in accordance with Section 23(a). 

(g)     With the exception of the provisions of this agreement to arbitrate that prohibit Collective Arbitration, if a court decides that any part of this agreement to arbitrate is invalid or unenforceable, then the remaining portions of this agreement to arbitrate shall nevertheless remain valid and in force. In the event that a court finds the prohibition of Collective Arbitration to be invalid or unenforceable, then the entirety of this agreement to arbitrate shall be deemed void (but no provisions of these Terms unrelated to arbitration shall be void), and any remaining Dispute must be litigated in court pursuant to the preceding paragraph. 

(h)     The existence of and all information regarding any Dispute will be held in strict confidence by the parties thereto and will not be disclosed by any party except as reasonably necessary in connection with the conduct of the arbitration or the confirmation or enforcement of any arbitral award.  Any such permitted disclosure will, to the maximum extent reasonably practicable, be made subject to obligations of confidentiality at least as stringent as the provisions of this paragraph.  If any disclosure of information regarding any Dispute is required under applicable law, the parties thereto shall reasonably cooperate with one another to obtain protective orders or otherwise to preserve the confidentiality of such information.

(i)      We warrant that the Brand has authorized us to enter into this agreement to arbitrate on the Brand’s behalf, and that the Brand will be bound by this Section 22.

(a)     Subject to Section 22, any action nor proceeding arising out of or in connection with these Terms will be brought in a court of competent jurisdiction in the city of San Francisco, state of California. Both your and we irrevocably consent to venue and personal jurisdiction there; provided that either party may bring any action to confirm an arbitral award in any court having jurisdiction.

(b)     These Terms will be construed and enforced in accordance with the laws of the United States and the State of California applicable to contracts entered into and performed in California by residents thereof.