Last Updated: May 23, 2023
Bond provides an online platform through which it markets and sells selected branded products (each a "Products" and collectively "Products") that are supplied by or on behalf of the owners of such brands (each a "Brand Owner" and collectively the "Brand Owners") to potential customers ("Shoppers"). Bond has agreed to engage Creator to perform the services pertaining to the marketing and sale of certain Products to be mutually agreed as further described in the initial SOW (defined below) and as in such other SOWs, if any, as the parties may hereafter execute from time to time, in each case by incorporating by reference the terms of this Agreement (collectively, the "Services"), and Creator has agreed to provide the Services, on and subject to the terms and conditions set forth this Agreement.
For and in consideration of the mutual agreements and undertakings of the parties set forth herein, and other good and valuable consideration the sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1. The Services:
Bond hereby engages Creator to perform the Services set forth in statements of work entered into pursuant to this Agreement (each a "SOW" and collectively the "SOWs"). Each SOW shall only be effective if signed by both Bond and Creator. The Services shall be performed in a professional manner in accordance with and subject to the terms and conditions of this Agreement and the applicable SOW, and in compliance with all applicable federal, state, and local laws.
In consideration for the provision of the Services, Bond shall compensate Creator as provided in the applicable SOW.
3. Term; Termination:
- A) Term. Subject to the termination provisions set forth herein, the term of this Agreement shall commence on the date of this Agreement and shall terminate upon termination in accordance with the terms of this Section 3 (the "Term").
- B) Termination Upon Prior Written Notice. BOND may terminate this Agreement with or without cause effective upon not less than thirty (30) days prior written notice of termination to the Creator. The termination of this Agreement shall not affect parties’ respective rights and obligations pursuant to SOWs executed by the parties prior to the effective date of termination, which rights and obligations shall survive and remain in full force and effect as provided in Section 3(d)below.
- C) Termination Upon Material Breach. If a party (the "Non-Breaching Party") believes that the other party (the "Breaching Party") has materially breached one or more of its obligations pursuant to this Agreement or a SOW, then the Non-Breaching Party may deliver a notice of termination specifying the nature of the alleged breach in reasonable detail and effective time of termination (a "Termination Notice"); provided, that if such breach is reasonably susceptible to cure and has not reasonably anticipated to have done irreparable material damage to the Non-Breaching Party (or, in the case of breach by Creator, irreparable material damage to any Brand Owner) then such termination shall be effective not earlier than fifteen (15) days following the date of delivery of such Termination Notice and only if such breach is not cured prior to the expiration of such fifteen (15) day period.
- D) Survival. The provisions of this Section 3( c )[Survival] and of Sections 4 [Intellectual Property], 5 [Creator Representations and Warranties], 6 [Indemnification; Limitation of liability], 7 [Confidentiality], 8 [Non-Disparagement], and 9 [Miscellaneous] shall survive the termination of this Agreement.
4. Intellectual Property:
- A) Reservation of Rights. Other than the limited licenses expressly set forth herein, BOND reserves all right, title and interest (including all intellectual property and proprietary rights) in and to, and the Creator will not, by virtue of the Agreement or otherwise, acquire any ownership interest or rights in or to, the BOND online platform and any and all information and materials included therein. Creator shall not take any action that conflicts with our rights in, or ownership of, such work product or content.
- B) Creator’s Likeness License. Subject to Section 2 of the SOW (“Social Media Posts”) which explicitly governs BOND’s rights relating to the reposting of Creator’s social media posts, Creator hereby grants a transferable, sublicensable, worldwide, perpetual, exclusive license to BOND to (i) display, exhibit, edit, modify, broadcast, distribute, and otherwise use all work product and content provided by Creator in connection with provision of the Services in any and all media channels owned or operated by BOND; and (ii) to use Creator’s name, image, likeness, social media handle, biographical information or other personal indicia solely as included in such work product (“Creator’s Likeness”) in all media channels owned or operated by BOND; provided however, that BOND will not alter any Creator’s Likeness from the form provided by Creator (except to re-format or re-size, so long as the relative presentation of the Creator’s Likeness remains the same). BOND may make use of the license granted in this Section 4(b) for promotional and commercial purposes in connection with BOND’s brands, trademarks, products, and services on all media and online channels and platforms owned or operated by BOND, including but not limited to websites and social media channels (excluding paid media / advertising).
- C) Creator Representations and Warranties. Creator represents and warrants that: (a) Creator has full power and authority to enter into and fully perform its obligations under this Agreement; (b) Creator is not less than 18 years of age; (c) Creator will conduct him or herself in a professional manner at all times, (d) Creator's performance of the Services will not infringe the rights of any third party, including without limitation intellectual property rights and rights of publicity, (e) Creator's performance of the Services will comply with all applicable laws and regulations, including without limitation all U.S. Federal Trade Commission regulations and guidelines, and any requirements of any agreements directly between such Creator and the brands, and (f) Creator's performance of the Services will comply with all requirements stated in this Agreement, including without limitation any SOWs and the most up-to-date version of all Program Policies (as defined below).
5. Indemnification; Limitation of liability.
Creator shall indemnify, defend, and hold harmless BOND, and its owners officers, directors, employees, agents, subsidiaries and affiliates, and its and their successors, and assigns, against all potential or actual claims, expenses, or liabilities of any kind (including attorneys' fees) arising out of or relating to any breach of any of Creator's obligations, representations, or warranties pursuant to this Agreement or any SOW, or otherwise arising out of Creator’s negligence or willful misconduct in connection with performance of the Services. Neither party shall be liable under this Agreement or any SOW for special, punitive, exemplary, indirect, consequential, or incidental losses or damages, including, but not limited to, lost profits, loss of use, loss of data, loss of business opportunity, or loss of goodwill arising from or relating to this Agreement or any SOW, whether in contract, tort (including negligence), products, or strict liability or any other form of action. The foregoing sentence shall not apply in the case of grossly negligent or intentionally wrongful acts or omissions or acts or omissions in violation of applicable law. With the exception of injunctive relief and specific performance, monetary damages shall be each party's exclusive remedy for any claims in respect of this Agreement or any SOW, regardless of the form of action, and shall be limited to actual losses or damages. Except for breaches of Section 7 [Confidentiality], or grossly negligent or intentionally wrongful acts or omissions, in no event shall either party's liability exceed the total amount paid or due for its services under this Agreement, including all SOWs.
Creator shall not use or disclose any Confidential Information of BOND made available to Creator in connection with performance of the Services except as may hereafter authorized in writing by BOND for disclosure or use in connection with performance of the Services. For purposes of this Agreement, "Confidential Information" means all confidential or proprietary information furnished to Creator or Creator’s representatives by or on behalf of BOND including, without limitation, information relating to BOND’s business plans, relationships or business strategy, if such information is so identified by BOND in writing as confidential or proprietary (which identification may be made via email) or if it is of such a nature that it would normally be considered confidential or proprietary. Notwithstanding the foregoing, Confidential Information shall not include information that: (a) is or becomes a matter of public knowledge through no fault of Creator or Creator’s representatives; (b) was rightfully in Creator's or Creator’s representative’s possession free of any obligation of confidence before it was communicated to Creator by or on behalf of BOND or otherwise obtained by Creator; (c) is rightfully disclosed to Creator by a third party not subject to restriction as to its use or disclosure; or (d) is independently developed by Creator without use of or reference to Confidential Information. In the event Creator is required by law, regulation, or court order or other legal process to disclose Confidential Information, to the extent permitted by applicable law Creator will promptly notify BOND and cooperate with BOND’s reasonable requests, at BOND’s sole cost and expense, in connection with efforts to seek protective orders limiting such disclosure.
Creator shall not make disparaging statements or remarks about BOND, any of the Products marketed or promoted by Creator pursuant to the Services or the brands of such Products, or any other statements reasonably anticipated to be damaging or otherwise harmful to BOND, any of the Products marketed or promoted by Creator pursuant to the Services or the brands of such Products.
- A) Amendment; Waiver. No amendment or modification of this Agreement or any SOW, and no waiver of any provision of this Agreement or any SOW, shall be effective unless it is in writing and signed by each of the parties or the party providing the waiver (as the case may be).
- B) Notices. All notices, requests, demands, or other communications required or permitted by this Agreement or any SOW subject hereto shall be given in writing and delivered by the sending party to the recipient party at the applicable address set forth below:
For BOND: firstname.lastname@example.org
or to such other address for a party of which such party may from time to time notify the other, and will be deemed to be properly delivered upon sending of notification via email (or on the next business day in the case of notifications sent outside of business hours of any recipient).
- C) Independent Contractor. Creator is an independent contractor, and neither it nor any of its employees is an employee of BOND, and neither it nor any of its employees will be entitled to participate in health or disability insurance, retirement benefits, or other welfare or pension benefits to which employees of BOND may be entitled. Neither party will hold itself out as a partner, agent, or joint venture partner of the other party.
- D) Additional Provisions. This Agreement incorporates, and the Creator agrees to comply with, the most up-to-date versions of all policies, appendices, specifications, guidelines, schedules, requirements, and other rules made available to the Creator through the BOND online platform in connection with the Services (collectively, the “Program Policies”), as in effect from time to time.
- E) Entire Agreement. This Agreement (including the Program Policies), the SOWs and the agreements and documents referenced therein, constitute the entire agreement between the parties with respect to the subject matter hereof and thereof, and supersede all prior and contemporaneous agreements, representations and understandings of the parties.
- F) Severability. If any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect, and to the maximum extent permitted by applicable laws such remaining provisions shall be interpreted in a manner consistent with the intent of the parties as reflected in the provisions held to be invalid or unenforceable.
- G) Governing Law; Construction. This Agreement and the SOWs executed by the parties pursuant hereto shall be governed by and construed and enforced in accordance with the laws of the State of New York without regard to conflict of law principles thereunder. The terms of this Agreement and the SOWs executed pursuant hereto have resulted from the negotiations of the parties and each of the parties has had an opportunity to obtain and consult with its own counsel. The language of all parts of this Agreement and such SOWS shall in all cases be construed as a whole, according to their fair meaning, and not strictly for or against either of the parties.
- H) Arbitration; Injunctive Relief. Any controversy arising out of or relating to this Agreement and/or the SOWs executed pursuant hereto, their enforcement or interpretation, or because of an alleged breach, default, or misrepresentation in connection with any of their provisions, or any other controversy arising out of or related to this Agreement, shall be submitted to arbitration before a sole arbitrator selected from Judicial Arbitration and Mediation Services, Inc. or its successor ("JAMS"), or if JAMS is no longer able to supply the arbitrator, such arbitrator shall be selected from the American Arbitration Association, and shall be conducted in accordance with applicable law as the exclusive forum for the resolution of such dispute; provided, however, that provisional injunctive relief may, but need not, be sought by either party to this Agreement and/or the SOWs executed pursuant hereto, in a court of law while arbitration proceedings are pending, and any provisional injunctive relief granted by such court shall remain effective until the matter is finally determined by the arbitrator. Final resolution of any dispute through arbitration may include any remedy or relief which the arbitrator deems just and equitable, including any and all remedies provided by applicable state or federal statutes. At the conclusion of the arbitration, the arbitrator shall issue a written decision that sets forth the essential findings and conclusions upon which the arbitrator's award or decision is based. Any award or relief granted by the arbitrator hereunder shall be final and binding on the parties hereto and may be enforced by any court of competent jurisdiction. The parties acknowledge and agree that they are hereby waiving any rights to trial by jury in any action, proceeding or counterclaim brought by either of the parties against the other in connection with any matter whatsoever arising out of or in any way connected with any of the matters referenced in the first sentence above. The parties agree that each of BOND and Creator shall be responsible for the payment of fifty percent (50%) of the forum costs of any arbitration hereunder, including the arbitrator's fee. The parties further agree that in any proceeding with respect to such matters, each party shall bear its own attorney's fees and costs (other than forum costs associated with the arbitration) incurred by it or him or her in connection with the resolution of the dispute.
- I) Assignment; Binding Effect. This Agreement and the Services contemplated hereunder are personal to Creator and Creator shall not have the right or ability to assign, transfer, or subcontract any obligations under this Agreement without the written consent of BOND. Any attempt to do so shall be void. This Agreement and the SOWs shall be binding on, and shall inure to the benefit of the parties hereto and their permitted successors and assignees.
- J) Section and Other Headings. Section and other headings in this Agreement and any SOW are for reference purposes only and shall not be used in any way to govern, limit, modify, construe, or otherwise affect this Agreement or any SOW.
- K) Counterparts; Delivery. This Agreement and/or any SOW may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same agreement. This Agreement and any SOW and any amendments of either, to the extent signed and delivered by means of a facsimile machine or email or DocuSign or a similar service, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version delivered in person. No party to this Agreement or any SOW shall raise the use of a facsimile machine or email or the use of DocuSign or a similar service to deliver a signature or document or the fact that any signature or document was transmitted or communicated through the use of a facsimile machine or email or using DocuSign or a similar service as a defense to the formation of a contract and each such party forever waives any such defense.