BRAND AMBASSADOR SERVICE AGREEMENT
This agreement (the “Agreement”), by and between THE NEW PRIMAL and ___________________ (“Brand Ambassador”), is effective as of ___________ (the “Effective Date”)
- SERVICES. Brand Ambassador will perform the services (“Services”) specified in Statements of Work in the form attached as Exhibit A (the “SOW”). All content, communications and materials prepared or provided by the Brand Ambassador (collectively, “Content”) must be delivered in accordance with the applicable SOW. Brand Ambassador shall immediately take-down or re-post any of the Content if requested to do so by The New Primal (including for reasons relating to misspelling, incorrect information or non-compliance with this Agreement).
- TERM; TERRITORY. This Agreement begins on the Effective Date and continues until terminated or all SOWs have expired, whichever occurs earlier. Each SOW is effective as of the SOW Effective Date and will continue until the satisfactory completion of its requirements, unless extended by written agreement of the parties or earlier terminated pursuant to Section 7 of this Agreement. The terms and conditions of this Agreement will apply to each SOW, and each SOW is incorporated herein by reference. The territory of this Agreement is worldwide unless otherwise specified in the applicable SOW.
- INCENTIVES. In full consideration for the Services to be provided and rights granted to The New Primal pursuant to this Agreement, and provided that Brand Ambassador has fully performed Brand Ambassador’s obligations pursuant to this Agreement and the applicable SOW, The New Primal shall provide to Brand Ambassador the items specified in the applicable SOW (the “Incentives”). The Incentives will be delivered to Brand Ambassador as specified in the SOW, and no other consideration will be provided. Brand Ambassador is solely responsible for, and shall timely pay and accurately make all filings for, all applicable taxes, withholdings, compensation contributions, levies and other sums that may be due to any governmental entities and other third parties in connection with all consideration Brand Ambassador receives pursuant to this Agreement or in connection with Brand Ambassador’s services pursuant to this Agreement.
- PERFORMANCE STANDARDS.
- Brand Ambassador shall promptly comply with all instructions, guidelines, suggestions and recommendations The New Primal or its agents give Brand Ambassador in connection with the rendering of services. Brand Ambassador shall comply with all applicable laws, rules, orders and regulations and with the terms and conditions of all applicable social media platforms. Brand Ambassador shall comply with the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (“Guides”) and shall make all disclosures (including in each social media message) as are required by such Guides. Simultaneously with execution of this Agreement, Brand Ambassador shall sign and provide to The New Primal the FTC Endorsement Guides Certificate attached as Exhibit B.
- Brand Ambassador shall ensure that the Content and all of Brand Ambassador’s public communications concerning The New Primal are consistent with all creative and technical specifications, talking points and brand messaging provided by The New Primal, do not contain any material that is derogatory of The New Primal or any of The New Primal’s products or services, do not depict violence, nudity or explicit sexual behavior and do not include any profanity or vulgarity. Brand Ambassador shall not disparage or say or do anything that would reflect adversely upon The New Primal as determined solely by The New Primal in its discretion.
- The Content must be the original work of Brand Ambassador. Brand Ambassador shall not include in the Content any material or information that is owned by any third party (e.g., licensed footage, photographs, music, or other copyrightable works) or whose usage by The New Primal as embodied in the Content would require The New Primal to make any payment to or obtain any permission from any third party. Brand Ambassador shall not include in the Content any third-party brand name, logo, trade dress or trademark. Brand Ambassador shall ensure that the Content does not violate, infringe upon or give rise to any adverse claim with respect to any copyright, trademark or other intellectual property, personal, proprietary, contractual or other right of any third party, defame or violate any right of publicity or privacy of any third party or violate any applicable law.
- Brand Ambassador shall timely obtain any and all licenses, releases, consents, permissions and rights (“Clearances”) required for the dissemination of the Content and for The New Primal to exploit the Content. The foregoing will include obtaining Clearances from all persons appearing in the Content whereby each such person consents to the use of his or her name, likeness, biography and voice as such may be included in such Content. All such Clearances shall be evidenced by written documents in a form provided by The New Primal. Brand Ambassador shall provide such Clearances to The New Primal at The New Primal’s request.
- GRANT OF RIGHTS/TRADEMARKS
- Brand Ambassador hereby grants to The New Primal a royalty-free, fully-paid up, exclusive, unconditional, irrevocable, worldwide right, in perpetuity to exhibit, display, promote and use the Content (including any social media posts, photographs and video footage created or provided by Brand Ambassador) during the Term, throughout the Territory, (i) to incorporate the Content, in whole or in part, into advertising, marketing, and promotional materials and communications relating to The New Primal and/or The New Primal’s products and/or services (“Marketing Materials”) (ii) into via websites and social media channels owned or operated by The New Primal including via paid media); (iii) in any form of advertising in any medium or format, including print, digital or other paid advertising and (iv) for public relations and publicity purposes via any and all media and formats whether now or later known or developed, and to authorize third parties to do any of the foregoing. Without limitation of the foregoing, The New Primal also has the right to “like,” re-post, link to, share, distribute and promote (e.g. “whitelisting”) any or all of Brand Ambassador’s social media communications and to authorize third parties to do the same.
- Brand Ambassador irrevocably grants to The New Primal the exclusive right and license to use (and authorize others to use) Brand Ambassador’s name(s) (whether real or fictitious), nickname(s), autograph, signature, voice, biographical information, image and likeness and any other means of personal identification or indicia of Brand Ambassador (collectively, “Persona”): (i) in the Content and/or Marketing Materials and (ii) in connection with the production, use, exhibition, distribution, publication, promotion and publicizing of the Content, the Marketing Materials, The New Primal’s products and services, commercial/promotional tie-ins, partnership marketing campaigns, and The New Primal, in the media, manner and formats set forth in Section 5.a and 5.c. The foregoing includes the right for The New Primal to tag Brand Ambassador (and allow others to tag Brand Ambassador) on social media using Brand Ambassador’s social media handles. Nothing in this Agreement restricts any use by The New Primal or anyone authorized by The New Primal of any Content or other material or communication that does not incorporate Brand Ambassador’s name, likeness, voice or image.
- The New Primal and/or subsidiaries as applicable, exclusively own each of their respective trademarks, trade names, service marks, logos and symbols (the “Trademarks”). Brand Ambassador does not and will not acquire (by operation of law, this Agreement or otherwise), any right, title or interest in any of the Trademarks. Brand Ambassador recognizes the value of the goodwill associated with the Trademarks and acknowledge that all rights therein belong exclusively to The New Primal. Any and all goodwill and rights under trademark law, and all other intellectual property rights, with respect to the Trademarks will inure to the sole and exclusive benefit of The New Primal. Brand Ambassador will not, during or after the Term, do anything that could in any way conflict with the use or ownership of the Trademarks by The New Primal and will not dispute or challenge The New Primal’s right, title and interest in and to any of the Trademarks or assist others in so doing.
- REPRESENTATION AND WARRANTIES. Brand Ambassador represents and warrants that (a) Brand Ambassador possesses the right and authority to enter into this Agreement and to grant to The New Primal the rights granted in this Agreement, (b) Brand Ambassador is not a party to, and will not, during the Term enter into, any endorsement contract, or any contract or agreement similar to this Agreement, whether formal or informal, with any Competitor or respect to any Competitive Product, (c) Brand Ambassador is free of any contractual obligation that would prevent Brand Ambassador from entering into or performing his obligations under this Agreement or from granting the rights granted to The New Primal herein or that would interfere with the full use by The New Primal of the rights granted and services to be provided pursuant to this Agreement and SOWs, and (d) there are no claims, litigation or other proceedings pending or threatened that would adversely affect The New Primal’s rights under this Agreement. “Competitive Product” means any product or service that competes with any of The New Primal’s products or services. “Competitor” means the manufacturer of any Competitive Product.
- BREACH; TERMINATION.
- If Brand Ambassador breaches any term of this Agreement and fails to cure such breach (if capable of cure) within five days following written notice of the breach, The New Primal will have the right to terminate this Agreement and/or any SOW immediately by written notice to Brand Ambassador to that effect.
- If during the Term Brand Ambassador commits or is found to have committed or is indicted for any act or offense of moral turpitude under federal, state or local laws, or that is likely to bring Brand Ambassador or The New Primal into public disrepute, contempt, scandal or ridicule, or that is reasonably likely to insult or offend the community at large or any substantial organized group thereof, or is likely to injure the success of The New Primal or its products and services, then at the time of any such act or at any time after The New Primal learns of such act, The New Primal will have the right, at its sole option, to terminate this Agreement and all SOWs immediately by written notice to Brand Ambassador to that effect.
- The New Primal and/or Brand Ambassador may terminate this Agreement and/or any SOW for any reason upon five days’ prior written notice to the other party.
- 4. Upon delivery to The New Primal of any notice of termination, Brand Ambassador shall immediately cease rendering services unless otherwise directed by The New Primal. Nothing in this Agreement will be deemed to waive or limit any other right or remedy that The New Primal may have at law or in equity with respect to any termination event or breach.
- 8. INDEMNITY. Brand Ambassador shall defend (at The New Primal’s request), indemnify and hold harmless The New Primal, the successors and assigns of each of the foregoing, the agents of each of the foregoing, and the officers, directors and employees of each of the foregoing, from and against any and all claims, demands, lawsuits or proceedings asserted or commenced by a third party (each a “Claim”), and all damages, liabilities, costs and expenses arising therefrom, including reasonable outside counsel fees, to the extent the Claim results from (i) any breach by Brand Ambassador of this Agreement or any representation or warranty made by Brand Ambassador in this Agreement or any allegation that, if proven, would constitute such a breach or (ii) any negligent act or omission or willful misconduct by Brand Ambassador.
- 9. ASSIGNMENT. Brand Ambassador shall not assign this Agreement in whole or in part or delegate any of Brand Ambassador’s duties without the prior written consent of The New Primal. Any assignment by Brand Ambassador in contravention of this Section 9 will be deemed null and void.
- 10. NO OBLIGATION TO USE MATERIALS. The New Primal has no obligation to use Brand Ambassador’s Services, Content, or the Marketing Materials (in whole or in part) or cause the materials permitted to be produced pursuant to this Agreement to be disseminated. The New Primal’s obligations to Brand Ambassador will be fully discharged by providing the Incentives.
- 11. CONFIDENTIALITY. Brand Ambassador may be exposed to and be furnished with certain confidential, non-public and/or proprietary information and material relating to The New Primal or its business plans or activities (“Confidential Information”). Brand Ambassador shall keep confidential and not reveal or disclose any Confidential Information or the terms of this Agreement during the Term or thereafter to any third party, except to Brand Ambassador’s attorneys, accountants and other professional representatives with a bona fide need to know such information and who agree to use such information only as necessary in rendering services to Brand Ambassador and not to disclose any such information to any third party. Brand Ambassador shall ensure that each such representative does not use any such information other than as necessary in rendering services to Brand Ambassador and does not disclose any such information to any third party.
- 12. NOTICES. Notices (not including communications in the ordinary course of business) must be given in writing and sent by registered or certified mail, return receipt requested, or internationally recognized express carrier, as follows:
IF TO BRAND AMBASSADOR:
IF TO THE NEW PRIMAL:
The New Primal
297 Seven Farms Drive, Suite 201
Daniel Island, SC 29492
Any notice pursuant to this Agreement will be deemed to have been given on the day it is received. Either party may change its address for notification purposes by giving the other party notice of the new address.
13. GOVERNING LAW. This Agreement is governed by South Carolina law (disregarding conflicts principles that require applying the law of another jurisdiction), and the parties consent to exclusive jurisdiction and venue in the state and federal courts in Charleston County, South Carolina, and each party waives all defenses of lack of personal jurisdiction and forum non conveniens in these courts.
14. MISCELLANEOUS. Each party is an independent contractor to the other and has no authority to act on behalf of or bind the other, and this Agreement does not create any other relationship (e.g., employment, partnership, agency, or franchise). When performing this Agreement, each party will comply with Law. Each party will pay its own costs to perform (and neither party has any expectation of payment from the other related to this Agreement). All rights and remedies under this Agreement are cumulative. All referenced Exhibits are deemed incorporated. No waiver of any breach will waive any other breach, and only written waivers are effective. This Agreement may be executed: (i) in counterparts, each of which will be deemed an original and all of which together will constitute one instrument; and (ii) by fax (or other means of accurately transmitting an image) or by electronic signature service, and neither party will contest the Agreement’s validity solely because a signature was faxed or otherwise transmitted electronically. Each party will deliver to the other an original executed copy of the Agreement promptly after execution. A copy in PDF or other electronic format of a manually signed copy of this Agreement will be deemed an original.
15. SURVIVAL. The provisions of this Agreement that, by their terms, require performance after, or have application to events that may occur after, termination or expiration of this Agreement, will survive such termination or expiration. Without limiting the foregoing, all confidentiality and indemnity obligations will survive such termination or expiration.