Section 1. Overview:
(a) The Service. Motiv agrees to provide Affiliate with online access to the Service as further described in this Agreement. This Service enables Affiliate to connect with Advertisers who wish to participate in promotional activities such as writing a blog post about the Advertiser’s product. Motiv facilitates all aspects of the Affiliate/Advertiser relationship including messaging, rate negotiations, participation verification and payment processing. The purpose of employing the Service is to accept monetary and non-monetary compensation in exchange for promotional activities. Affiliate will receive an online account where they will participate in a marketplace environment where both Affiliates and Advertisers have searchable profiles and will connect to collaborate on promotional campaigns (“Campaigns”). Advertisers will create Campaigns, each with descriptions of the content Advertiser seeks in connection with that Campaign (“Opportunities”) with varying placements and payments. Affiliates will apply for Opportunities and Advertisers will have the ability to review their application and profile and decide whether to accept or decline the Affiliate. Advertiser approval connects the Affiliate to a Campaign for assignment to an Opportunity (a “Gig”). The Gig is the mechanism for communicating, tracking and exchanging funds within the Service. Opportunities will contain one Gig for each Affiliate approved for the Opportunity. An Affiliate’s Gig is complete once the Advertiser accepts proof of completion from the Affiliate. Affiliates and Advertisers may also engage with one another using “Pitches.” Pitches are a communication mechanism within the Service that allows both Affiliate and Advertiser to present ideas for Campaigns, negotiate rates and otherwise approach one another with concepts for promotional activities not covered by Campaigns.
(b) Grant of License. Affiliate grants to Motiv the worldwide license to use the Affiliate Properties in connection with the promotion of the Site and the Products. Upon Advertiser’s acceptance Affiliate’s proof of completion of a Gig, Affiliate shall grant to Advertiser the unrestricted, worldwide, perpetual, irrevocable, fully paid‐up, royalty‐free, fully sub‐licensable and transferable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, display, and perform the results and proceeds of all content created pursuant to a Gig (collectively, “Work”), in whole or in part, in any media, format or technology, whether now known or hereafter discovered, and in any manner including, but not limited to, all promotional advertising, marketing, publicity, and commercial uses and ancillary uses, without any further notice or payment to, or permission needed from Affiliate (except if prohibited by law). Affiliate agrees and grants to Advertiser the use Affiliate’s name/likeness/social media handle or channel/blog name and any other Affiliate attributes in any manner that Advertiser determines supports the Campaign or the Work, including use in any media that accepts advertising or promotional content or communications (such as, but not limited to, digital, print, television or radio).
Section 2. Permitted Use of the Service: Affiliate may use the Service solely for its own use and in strict compliance with this Agreement. Motiv reserves the right to deny participants, data, Campaigns, Opportunities, terms of agreement between Advertiser and Affiliate, Gigs, Pitches, Reviews and any other actions, content or communications it deems unsuitable for the marketplace and its viability.
Section 3. Registration and Member Account: In order to use the Service, Affiliate must register to become a member. All information about Affiliate must be truthful, and Affiliate may not use any aliases or other means to mask its true identity. Affiliate may not share member account information with any other party. Affiliate is responsible for the security of its member account and will be solely liable for any use or unauthorized use of the Service under such member account. Motiv will presume that all activity under an Affiliate’s user name and password is being conducted by Affiliate. If Affiliate suspects any unauthorized use of its user name and password, Affiliate must notify Motiv of such activity immediately.
Section 4. Fees and Payouts:
(a) Collection of Funds. In full consideration of Affiliate’s performance, its obligations and the rights granted herein, Affiliate shall be paid the amount agreed upon between Affiliate and Advertiser for each Gig. Affiliate will otherwise perform the Services at his/her own expense and using his/her own resources and equipment. Affiliate acknowledges that the agreed upon compensation represents Affiliate’s entire compensation with respect to this Agreement and Motiv and Advertiser shall have no other obligation for any other compensation to or expenses or costs incurred by Affiliate in connection with the performance of its obligations under this Agreement. Affiliate acknowledges and agrees that Motiv, in processing payments from Advertiser to Affiliate, will only be liable for payment obligations to the extent Motiv has been paid by Advertiser for any amount payable to Affiliate under this Agreement. For amounts not paid to Motiv by Advertiser, Affiliate will seek payment solely from Advertiser (and not from Motiv).
(b) Affiliate agrees that Motiv has not guaranteed a minimum amount of work or number of Gigs, nor has it guaranteed that Affiliate will be engaged to perform specific services or a specific amount of services during the Term of this Agreement.
(c) Payouts. Affiliates may transfer funds from their accounts once they reach a minimum $100 in earnings. Affiliates must have a current W-9 (or regionally-specified document) on file with Motiv before payouts will be made. All un-paid funds will be held until the sum is equal to or greater than $100. Option available to receive payment by check for a $5 processing fee. The fee will be deducted from Affiliate’s payout.
(d) Product Reviews. Advertisers may choose to create Opportunities that include a product review. In those instances, Affiliate must report the value of the product received from Advertiser to Motiv for tax reporting purposes.
(e) Uncollected payouts. Affiliate may have uncollected funds in his/her account periodically. These may reflect amounts earned under the payout threshold, or amounts earned and paid by checks that Affiliate did not deposit/cash. Affiliate may request a payment via check or PayPal for all uncollected Payouts at any time. These payouts will incur a $5 processing fee. Note: if you choose PayPal regular processing fees for receiving funds will apply. Excess funds in Affiliate accounts that have had no active Gigs for 12 consecutive calendar months will be forfeited to Motiv.
(f) Changes in Structure and Fees. Motiv may change the fee structure or minimum fee at any time by providing Affiliate thirty (30) days prior written notice, provided that, Affiliate may terminate this Agreement without liability during such notice period if Affiliate does not accept such changes. Use of the Service after the expiration of the thirty (30) day notice period shall be deemed acceptance of the revised fee terms.
(g) Taxes. Affiliate is responsible for all taxes as a result of its participation in this Agreement and the Services, excluding taxes based upon Company’s net income.
Section 5. Affiliate / Advertiser Interactions:
(a) Profile. Affiliate will have a profile, visible in the marketplace environment. The profile is editable including but not limited to the ability to upload a logo, add a description and link to the Affiliate’s website and social profiles. All new profiles and changes to profiles may be inspected manually and/or through automated verification tools, such processes and tools may be performed by Motiv’s staff, through tools wholly owned by Motiv, or by third party tools or contractors that will be bound by the same privacy and confidentiality terms of this agreement. Motiv reserves the right to reject profiles as a whole, or portions of profiles or updates to profiles. Affiliate agrees that all information submitted in the profile and any updates will be truthful.
(b) Reviews. Affiliates and Advertisers will have access to a mechanism where they may write reviews regarding their interactions with one another. These reviews will include identifying information about both parties (i.e., no anonymous reviews) and will be made available to all participants in the marketplace pending Motiv’s approval. Neither party may submit a review for themselves. Motiv will consider any attempts at “gaming” reviews as a cause for immediate termination, in its sole and absolute discretion.
(c) Response Expectations. Affiliates are expected to respond to Advertisers in a timely manner. Failure to do so will prompt Motiv to force activities to progress. The following actions may occur when Affiliates fail to act in a timely manner:
Motiv may auto decline Pitches that the Affiliate has not responded to within ten (10) days of receipt.
Motiv may disable the Affiliate’s ability to accept Pitches on their account or within Campaigns if Affiliate has more than one Pitch left unanswered for more than thirty (30) days.
(d) Disputes. Affiliates or Advertisers may submit disputes regarding interactions with one another to Motiv for resolution. Motiv will strive to arrive at a fair resolution based on the Opportunity requirements and restrictions, facts available and industry standard practices. Both parties agree to accept the terms of resolution issued by Motiv. Failure to comply with the terms of the resolution will constitute a breach of this agreement and will result in termination of the non-complying party/parties.
Section 6. Acceptable Use Policy: Affiliate shall comply with the terms of the Acceptable Use Policy (“AUP”), set forth on Exhibit 1. Motiv may update the AUP at any time upon written notice to Affiliate. If Affiliate becomes aware of any violation of the AUP by any user, Affiliate must immediately contact Motiv at [email protected] and give Motiv as much information as possible regarding such violation. Motiv may refer any information on illegal or fraudulent activities, including Affiliate’s identity, to the proper authorities, to Affiliates or to other aggrieved parties.
Section 7. Representations and Warranties:
(b) Guidelines. Affiliate represents and warrants that Affiliate will comply with all applicable laws, rules and regulations in its performance of any Gig under this Agreement, including, but not limited to, the Federal Trade Commission’s “Guides Concerning the Use of Endorsements and Testimonials” (http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf) (“FTC Endorsement Guides”). In accordance with the FTC Endorsement Guides, Affiliate hereby agrees not to speak about or refer to Advertiser’s products or services, directly or indirectly, without disclosing that Advertiser paid for the Affiliates’ Work, including, but not limited to when blogging or speaking about Advertiser or Advertiser’s Products on Affiliate’s personal blog or social media sites (e.g., Facebook, Twitter, Instagram etc.) or if asked to speak in an editorial or expert capacity (including though live appearances or through any media) in any situation in which it is not obvious that the Affiliate is acting on behalf of Advertiser. Affiliate’s statements will reflect Affiliate’s honest views and personal experiences with the Advertiser and/or its product(s) and service(s). The form of any such disclosure may be mutually agreed by the Advertiser and Affiliate but, at a minimum, will appear clearly and conspicuously and in close proximity to any statements Affiliate makes about Advertiser.
(c) No Spam. With the exception of Pitches, as defined in Section 1 herein, Affiliate may not transmit any unsolicited messages (whether through email, SMS, social media or any other electronic medium) to any recipient from whom Affiliate has not received prior demonstrable consent or in a manner that violates any law or obligation regarding the transmission of email messages. Further, Affiliate shall ensure compliance with the Can Spam Act of 2003. In addition, Affiliate may not use or develop any automated process to transmit messages through use of the Service or the Campaigns.
Section 8. Unauthorized Use of the Service:
(a) Access. Except as authorized by Motiv, Affiliate may not use spiders, robots, data mining techniques or other automated devices or programs to catalog, download or otherwise reproduce, store or distribute content available on the Service. Further, Affiliate may not use any such automated means to manipulate the Service or attempt to exceed the limited authorization and access granted to Affiliate under this Agreement. Affiliate may not resell use of, or access to, the Service to any third party.
(b) Initiating Offline Connections. The Affiliate may not use the Service to initiate business transactions with Advertisers that take place anywhere except for through the service. The Affiliate may not Pitch Advertiser on working outside the marketplace, nor may they use the messaging function within the Gig mechanism to request Advertisers participate in promotional activities outside of the Service.
Section 9. Term and Termination:
(a) Term. This Agreement shall have an initial term of one (1) year and shall automatically renew for additional one (1) year terms thereafter, unless either party provides thirty (30) days prior written notice of its intention not to renew the Agreement.
(b) Termination for breach. Either party may terminate this Agreement upon ten (10) days prior written notice if the other party breaches this Agreement and does not cure such breach within such time period. In addition to any right or remedy that may be available to Motiv under this Agreement or applicable law, In addition, in the event that Affiliate has breached this Agreement, Motiv may (i) immediately suspend, limit or terminate Affiliate’s account and/or (ii) instruct Affiliate to cease all promotional activities or make clarifying statements, and Affiliate shall immediately comply.
(c) Termination without cause. Either party may terminate this Agreement at any time without cause upon sixty (60) days prior written notice to the other party. If Motiv terminates Affiliate’s account without cause, then Motiv will refund to Affiliate any pre-paid portion of Affiliate’s membership fees that have not yet been used. No refunds will be permitted if Affiliate has violated this Agreement.
(d) Termination for inactivity. Affiliate accounts that remain dormant for twelve consecutive months will be terminated. Accounts will be considered dormant when no new no Gigs have been completed for 12 consecutive calendar months.
Section 10. Effect of Termination: Upon termination of Affiliate’s account for any reason, Affiliate must cease using the Service. The provisions of the following sections shall survive the termination of this Agreement: Unauthorized Use of the Service; Proprietary Rights; Limitations of Liability; Indemnification; Governing Law; Confidentiality; Severability; Waiver – Remedies; and Assignment. Upon termination, all funds in the Affiliate’s account will be available for a refund or may be forfeited as described in the Fees section.
Section 11. Content Origination: Affiliate understands that all promotions and products promoted through the service are controlled by the Advertisers. Motiv is not responsible for the Advertiser practices or the content of other web sites or services. The Affiliate assumes all responsibility for verifying an Advertiser or an Advertiser’s campaign meets their approval.
Section 12. Proprietary Rights: Motiv is the exclusive owner or authorized licensor of Motiv web site and the Service, including all copy, software, graphics, designs and all copyrights, trademarks and other intellectual property or proprietary rights contained therein. Except as set forth herein, Affiliate agrees not to copy, distribute, modify or make derivative works of any materials without the prior written consent of the owner of such materials. The Service may not be reverse engineered, decompiled or modified, nor may derivative works be created based on the Service, without the prior written consent of Motiv. All rights not granted under this Agreement are reserved by Motiv.
Section 13. Service Warranty: Motiv warrants that the Service shall operate substantially as set forth on the web site by Motiv. However, Affiliate acknowledges that Motiv does not and cannot guaranty that the operation of the Service will be completely uninterrupted, error free or that the Service and the information it stores will be entirely free from viruses, hackers, intrusions, unscheduled downtime or other failures. For any breach of the foregoing warranty, Affiliate’s exclusive remedy, and Motiv’s sole liability, is for Affiliate to cease using the Service and be paid all undisputed fees. Affiliate expressly assumes the risk of such problems by using the Service. except as set forth herein, the service, including all software, content, operations and materials, are provided “as is” and Motiv makes no representations or warranties of any kind whatsoever for the operation of the service. further, Motiv disclaims any express or implied warranties, including, without limitation, non-infringement, title, merchantability, fitness for a particular purpose and any warranties arising out of course of dealing, usage or trade.
Section 14. Limitations of Liability: excluding an obligation of indemnification or breach of confidentiality, (i) in no event will Motiv be liable under any theory of tort, contract, strict liability or other legal or equitable theory for any lost profits, lost data, lost opportunities, costs of cover, exemplary, punitive, personal injury/wrongful death, special, incidental, indirect or other consequential damages, each of which is hereby excluded by agreement of the parties regardless of whether or not Motiv has been advised of the possibility of such damages and (ii) in no event shall Motiv’s liability for any direct damages exceed the amounts actually paid under this agreement during the most recent six (6) months. Affiliate acknowledges that Motiv has entered into this Agreement relying on the limitations of liability stated herein and that Motiv would not offer Affiliate the Service without those limitations, which are an essential basis of the bargain.
Section 15. Indemnification: Affiliate agrees to indemnify, defend and hold Motiv and Motiv’s representatives and agents harmless from and against any and all third party claims, demands, liabilities, costs or expenses, including attorney’s fees and costs, arising from, or related to, (i) Affiliate’s use of the Service, including but not limited to, fraudulent or deceptive acts or transactions through Affiliate’s use of the Service (except to the extent that Motiv has breached this Agreement), (ii) Affiliate’s web sites, products or services, (iii) Affiliate’s breach of this Agreement and/or any of its representations and/or warranties contained herein, and/or (iv) a violation by Affiliate of the AUP or any applicable law, rule or regulation.
Section 16. Release: Affiliate hereby agrees, for him/herself, his/her heirs, executors and administrators, to release, waive, discharge, absolve, agree to hold harmless and covenant not to sue Motiv from and against any and all claims, suits, actions, demands, liabilities and damages of any kind whatsoever arising out of or in connection with the use of the Work by Advertiser, including, without limitation, any and all claims for copyright infringement, invasion of privacy, violation of the right of publicity or of moral rights, and/or defamation. Without limitation of the foregoing, in no event will Affiliate be entitled to, and Affiliate waives any right to, enjoin, restrain or interfere with use of the Work or the exploitation of any of Advertiser’s rights as provided herein.
Section 17. Relationship of Parties: Affiliate’s relationship with Motiv and Advertiser is that of independent contractors, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Affiliate will not be entitled to any of the benefits that Motiv or Advertiser may make available to its employees. Affiliate is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of fees under this Agreement.
Section 18. Governing Law: The laws of the State of California shall govern this Agreement. EACH PARTY HEREBY EXPRESSLY CONSENTS TO EXCLUSIVE JURISDICTION AND VENUE IN THE COURTS LOCATED IN LOS ANGELES COUNTY, CALIFORNIA FOR ALL MATTERS ARISING IN CONNECTION WITH THIS AGREEMENT. The prevailing party in any action herein shall be entitled to recover its reasonable attorney’s fees and expenses.
Section 19. Confidentiality: Unless authorized by Advertiser or Motiv, Affiliate agrees to hold all Confidential Information in strict confidence, not to disclose Confidential Information to any third parties, and to use Confidential Information solely for the purpose of fulfilling its obligations under this Agreement or in connection with a Gig. Confidential Information means any data or information, oral or written, disclosed by Advertiser or Motiv that relates to the current, future, and proposed business activities, technology, developments, inventions, processes, trade secrets, know how, plans, financial information, forecasts, projections, products and services of Advertiser or Motiv and/or anything labeled Confidential Information by Advertiser or Motiv. Notwithstanding the foregoing, Confidential Information is deemed not to include information that is publicly available or in the public domain at the time disclosed.
Section 20. Severability: If any part of this Agreement shall be held or declared invalid or unenforceable for any reason by any court of competent jurisdiction, such provision shall be ineffective but shall not affect any other part of this Agreement.
Section 21. Waiver – Remedies: The failure by either party to partially or fully exercise any rights or the waiver of any breach of this Agreement by the other party, shall not prevent a subsequent exercise of such right by such party or be deemed a waiver by such party of any subsequent breach by the other party of the same or any other term of this Agreement. Each party’s rights and remedies under this Agreement shall be cumulative, and the exercise of any such right or remedy shall not limit its right to exercise any other right or remedy.
Section 22. Assignment: Affiliate may not assign this Agreement, or any rights or remedies hereunder, to any third party without Motiv’s prior written consent. This Agreement shall inure to the benefit of a party’s permitted successors and assigns.
Exhibit 1 – Acceptable Use Policy
Affiliate may not use the Service or include in any Campaigns any content which is reasonably objectionable or content which is illegal.
Solely by way of example, Affiliate may not:
- generate, manipulate or otherwise produce or induce fraudulent clicks, impressions or transactions, including but not limited to using scripts, spyware, robots or other automated tools and/or computer generated requests;
- violate the terms, conditions, policies or guidelines of any third party service or website;
- act in any manner that violates the FTC Endorsement Guides or puts Advertiser of Motiv in violation of the foregoing.
- violate or infringe upon the intellectual property, personal or proprietary rights of any third party, including but not limited to, copyrights, trademarks, patents, trade secrets or confidentiality obligations;
- use anything threatening, libelous, defamatory, obscene, scandalous or inflammatory or that could otherwise violate any other applicable law;
- use anything adult in nature (such as pornography), gambling related, nutraceutical related (i.e., acai berry) or “get rich quick” schemes.
- use or do anything which may be false, misleading or deceptive;
engage in any other illegal or fraudulent, misleading or deceptive business practice under the laws of any jurisdiction where Affiliate is located or the content is displayed or any other conduct that Motiv or Advertiser determines may otherwise result in legal liability.