This Influencer Agreement (this “Agreement”) between Kintry Sdn Bhd (“Kintry”), and you, or, if you represent an entity or other organization, that entity or organization (in either case “Influencer”) and provides the terms and conditions under which Influencer may provide creation and distribution of content services (the “Services”).
I. Intellectual Property Rights
1. Retained Rights. Each party will retain all right, title, and interest in and to its own Pre‐Existing Intellectual Property irrespective of any disclosure of such Pre‐ Existing Intellectual Property to the other party, subject to any licenses granted herein.
2. Pre‐Existing Intellectual Property.
a. Influencer will not use any third party Pre‐Existing Intellectual Property in connection with this Agreement unless Influencer has the right to use it for Kintry’s benefit. If Influencer is not the owner of such Pre‐Existing Intellectual Property, Influencer will obtain from the owner any rights as are necessary to enable Influencer to comply with this Agreement.
b. Influencer grants Kintry a non‐exclusive, royalty‐free, worldwide, perpetual and irrevocable license in Influencer and third party Pre‐Existing Intellectual Property, to the extent such Pre‐Existing Intellectual Property is incorporated into any Deliverable, with the license including the right to make, have made, sell, use, reproduce, modify, adapt, display, distribute, make other versions of and disclose the property and to sublicense others to do these things.
c. Influencer will not incorporate any materials from a third party, including Stock Photography, into any Deliverable unless (i) Influencer clearly identifies the specific elements of the Deliverable to contain third party Kintry materials, (ii) Influencer identifies the corresponding third party licenses and any restrictions on use thereof, and (ii) approval is given by Kintry in writing. Influencer represents, warrants and covenants that Influencer has complied and shall continue to comply with all third party licenses (including all open source licenses) associated with any software components that will be included in the Deliverables or any other materials supplied by Influencer. Influencer shall indemnify Kintry against any losses and liability incurred by Kintry due to failure of Influencer to meet any of the requirements in any of the third party licenses.
d. no Influencer Content created or obtained by Influencer and delivered to Kintry or posted by Influencer or Kintry hereunder shall infringe on or violate any applicable laws, including, but not limited to, the Federal Trade Commission Act and all rules and regulations promulgated by the Federal Trade Commission;
e. no Influencer Content delivered or posted by Influencer hereunder shall contain any profanity, scandalous, libelous, defamatory, obscene, pornographic or unlawful matter or material and
f. Influencer Content may not contain malicious code, counters, or other types of code that automatically attach cookies or other devices that track and collect user’s information.
3. Ownership of Deliverables. Influencer shall retain all copyright rights to the Deliverables created for the Campaign. Company retains a royalty-free, perpetual, irrevocable, non-exclusive, transferable license to use, reproduce, publish, translate, create derivative works from, distribute, and display content created by Influencer (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed with proper attribution, such as a link, back to the owner.
4. No Rights to Kintry Intellectual Property. Except for the limited license to use materials provided by Kintry as may be necessary in order for Influencer to perform Services under this Agreement, Influencer is granted no right, title, or interest in any Kintry Intellectual Property.
1. Confidential Information. For purposes of this Agreement, "Confidential Information" shall mean information or material proprietary to a Party or designated as confidential by such Party (the “Disclosing Party”), as well as information about which a Party (the “Receiving Party”) obtains knowledge or access, through or as a result of this Agreement (including information conceived, originated, discovered or developed in whole or in part by Influencer hereunder). Confidential Information does not include: a) information that is or becomes publicly known without restriction and without breach of this Agreement or that is generally employed by the trade at or after the time the Receiving Party first learns of such information; b) generic information or knowledge which the Receiving Party would have learned in the course of similar employment or work elsewhere in the trade; c) information the Receiving Party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; d) information the Receiving Party rightfully knew prior to receiving such information from the Disclosing Party to the extent such knowledge was not subject to restrictions on further disclosure; or (e) information the Receiving Party develops independent of any information originating from the Disclosing Party.
2. Kintry Confidential Information. The following constitute Confidential Information of Kintry and should not be disclosed to third parties: the ss, discoveries, ideas, concepts, software in various states of development, designs, drawings, specifications, techniques, models, data, source code, source files and documentation, object code, documentation, diagrams, flow charts, research, development, processes, procedures, "knowhow", marketing techniques and materials, marketing and development plans, Kintry names and other information related to Kintrys, price lists, pricing policies and financial information, this Agreement and the existence of this Agreement, and any work assignments authorized or issued under this Agreement. Influencer will not use Kintry’s name, likeness, or logo (Kintry’s “Identity”), without Kintry’s prior written consent, to include use or reference to Kintry’s Identity, directly or indirectly, in conjunction with any other clients or potential clients, any client lists, advertisements, news releases or releases to any professional or trade publications.
3. Non-Disclosure. The Parties hereby agree that during the term hereof and at all times thereafter, and except as specifically permitted herein or in a separate writing signed by the Disclosing Party, the Receiving Party shall not use, commercialize or disclose Confidential Information to any person or entity. Upon termination, or at any time upon the request of the Disclosing Party, the Receiving Party shall return to the Disclosing Party all Confidential Information, including all notes, data, reference materials, sketches, drawings, memorandums, documentations and records which in any way incorporate Confidential Information.
4. Right to Disclose. With respect to any information, knowledge, or data disclosed to Kintry by the Influencer, the Influencer warrants that the Influencer has full and unrestricted right to disclose the same without incurring legal liability to others, and that Kintry shall have full and unrestricted right to use and publish the same as it may see fit. Any restrictions on Kintry’s use of any information, knowledge, or data disclosed by Influencer must be made known to Kintry as soon as practicable and in any event agreed upon before the start of any work.
III. Conflict of Interest. Influencer represents that its execution and performance of this Agreement does not conflict with or breach any contractual, fiduciary or other duty or obligation to which Influencer is bound. Influencer shall not accept any work from Kintry or work from any other business organizations or entities which would create an actual or potential conflict of interest for the Influencer or which is detrimental to Kintry’s business interests.
1. Rights to Terminate.
a. Kintry may terminate this Agreement and/or an individual project for its convenience, without liability at any time, upon prior written notice to Influencer.
b. Influencer may terminate this Agreement upon seven days prior written notice provided there are no open projects at the time notice is given.
c. Kintry may terminate this Agreement and/or any open projects immediately for cause if the Influencer fails to perform any of its obligations under this Agreement or if Influencer breaches any of the warranties provided herein and fails to correct such failure or breach to Kintry’s reasonable satisfaction within ten (10) calendar days (unless extended by Kintry) following notice by Kintry. Kintry shall be entitled to seek and obtain all remedies available to it in law or in equity.
2. Upon termination of any project or work given Influencer hereunder, Influencer will immediately provide Kintry with any and all work in progress or completed prior to the termination date. As Kintry’s sole obligation to Influencer resulting from such termination, Kintry will pay Influencer an equitable amount as determined by Kintry for the partially completed work in progress and the agreed to price for the completed Services and/or Deliverables provided and accepted prior to the date of termination
3. Upon termination or expiration of this Agreement or a project performed by Influencer hereunder, whichever occurs first, Influencer shall promptly return to Kintry all materials and or tools provided by Kintry under this Agreement and all Confidential Information provided by Kintry to Influencer.
4. Any provision or clause in this Agreement that, by its language or context, implies its survival shall survive any termination or expiration of this Agreement.
V. Warranties; Indemnity
Influencer warrants that:
1. the Services and Deliverables are original and do not infringe upon any third party’s patents, trademarks, trade secrets, copyrights or other proprietary rights,
2. it will perform the Services hereunder in a professional and workmanlike manner,
3. it will comply with all applicable federal and other jurisdictional laws in performing the Services,
4. it has all rights to enter into this Agreement and there are no impediments to Influencer’s execution of this Agreement or Influencer’s performance of Services hereunder.
5. Influencer agrees to defend, indemnify and hold harmless Kintry and their respective officers, directors, employees, business partners and agents, from and against any and all third party claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) Influencer’s breach of any of its representations and/or warranties hereunder, (ii) the authorized use of the Work Product and other Content or exercise of the rights granted hereunder, (iii) Influencer’s use of third party products or content in performing the Services; and (iv) Influencer’s negligence or willful misconduct.
6. Influencer hereby agrees, for herself, her heirs, executors and administrators, to release, waive, discharge, absolve, agree to hold harmless, and covenants not to sue, Kintry and their respective agents, employees, officers, directors, successors and assigns (collectively, “Released Parties”), from and/or in relation to any and all liability, loss, harm, damage, injury, cost or expense whatsoever which Influencer, his/her heirs, executors, administrators and assigns had, now have or hereafter may have, by reason of any matter connected in any way with the Released Parties’ exercise of their express or implied rights hereunder, including but not limited to the right to use Influencer’s name, voice or likeness, it being understood that the Release Parties shall be free to use Influencer’s name, voice and likeness in any manner in connection with the Content or otherwise in support of the purposes of these Terms.
7. Influencer warrants that Influencer is at least 18 years of age, will adhere to FTC Guides and has the right to contract in Influencer’s own name.
8. Influencer further agrees to indemnify, defend, and hold harmless Kintry and its Advertisers, and their respective affiliates, employees, agents, contractors, assigns, licensees, and successors in interest from and against any and all claims, losses, liabilities, damages, fees, expenses, and costs (including legal fees, court costs, damage awards, and settlement amounts) arising out of resulting from any breach by Influencer of the Kintry Content Policy as attached hereto as Exhibit A.
VI. Limitation of Liability
1. EXCEPT AS SET FORTH IN THIS SECTION BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES NOR FOR LOSS OF DATA, PROFITS OR REVENUE, COST OF CAPITAL OR DOWNTIME COSTS, NOR FOR ANY EXEMPLARY OR PUNITIVE DAMAGES, ARISING FROM ANY CLAIM OR ACTION, INCIDENTAL OR COLLATERAL TO, OR DIRECTLY OR INDIRECTLY RELATED TO OR IN ANY WAY CONNECTED WITH, THE SUBJECT MATTER OF THE AGREEMENT, WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT, STATUTE, IMPLIED DUTIES OR OBLIGATIONS, OR OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
2. NOTWITHSTANDING THE FOREGOING, ANY PURPORTED LIMITATION OR WAIVER OF LIABILITY SHALL NOT APPLY TO CONTRACTOR’S OBLIGATION UNDER THE INDEMNIFICATION OR CONFIDENTIAL INFORMATION SECTIONS OF THIS AGREEMENT OR EITHER PARTY’S LIABILITY TO THE OTHER FOR PERSONAL INJURY, DEATH OR PHYSICAL DAMAGE TO PROPERTY CLAIMS.
VII. Inspection and Acceptance
1. Non-Conforming Services and Deliverables. If any of the Services performed or Deliverables delivered do not conform to specified requirements, Kintry may require the Influencer to perform the Services again or replace or repair the non-conforming Deliverables in order to bring them into full conformity with the requirements, at Influencer’s sole cost and expense. When the defects in Services and/or Deliverables cannot be corrected by re-performance, Kintry may: (a) require Influencer to take necessary action, at Influencer’s own cost and expense, to ensure that future performance conforms to the requirements and/or (b) reduce any price payable under the applicable project to reflect the reduced value of the Services performed and/or Deliverables delivered by Influencer and accepted by Kintry.
2. If Influencer fails to promptly conform the Services and/or Deliverables to defined requirements or specifications, or take action deemed by Kintry to be sufficient to ensure future performance of the project in full conformity with such requirements, Kintry may (a) by contract or otherwise, perform the services or subcontract to another Influencer to perform the Services and reduce any price payable by an amount that is equitable under the circumstances and charge the difference in re-procurement costs back to Influencer and/or (b) terminate the project and/or this Agreement for default
1. Assignment. Influencer shall not assign any rights of this Agreement or any other written instrument related to Services and/or Deliverables provided under this Agreement, and no assignment shall be binding without the prior written consent of Kintry. Subject to the foregoing, this Agreement will be binding upon the Parties’ heirs, executors, successors and assigns.
2. Governing Law. The Parties shall make a good-faith effort to amicably settle by mutual agreement any dispute that may arise between them under this Agreement. The foregoing requirement will not preclude either Party from seeking injunctive relief as it deems necessary to protect its own interests. This Agreement will be construed and enforced in accordance with the laws of Malaysia, excluding its choice of law rules.
3. Severability. The Parties recognize the uncertainty of the law with respect to certain provisions of this Agreement and expressly stipulate that this Agreement will be construed in a manner that renders its provisions valid and enforceable to the maximum extent possible under applicable law. To the extent that any provisions of this Agreement are determined by a court of competent jurisdiction to be invalid or unenforceable, such provisions will be deleted from this Agreement or modified so as to make them enforceable and the validity and enforceability of the remainder of such provisions and of this Agreement will be unaffected.
4. Independent Contractor. Nothing contained in this Agreement shall create an employer and employee relationship, a master and servant relationship, or a principal and agent relationship between Influencer and Kintry. Kintry and Influencer agree that Influencer is, and at all times during this Agreement shall remain, an independent contractor.
5. Force Majeure. Neither Party shall be liable for any failure to perform under this Agreement when such failure is due to causes beyond that Party’s reasonable control, including, but not limited to, acts of state or governmental authorities, acts of terrorism, natural catastrophe, fire, storm, flood, earthquakes, accident, and prolonged shortage of energy. In the event of such delay the date of delivery or time for completion will be extended by a period of time reasonably necessary by both Influencer and Kintry. If the delay remains in effect for a period in excess of thirty days, Kintry may terminate this Agreement immediately upon written notice to Influencer.
6. Entire Agreement. This document and all attached or incorporated documents contains the entire agreement between the Parties and supersedes any previous understanding, commitments or agreements, oral or written. Further, this Agreement may not be modified, changed, or otherwise altered in any respect except by a written agreement signed by both Parties.
EXHIBIT A KINTRY CONTENT POLICY
The following Kintry Content Policy applies to each Influencer who has entered into a Influencer Agreement with Kintry. Terms used but not defined herein will have the definitions ascribed in the Influencer Agreement.
Influencers shall comply with the most recent Federal Trade Commission Guides Concerning the Use of Testimonials and Endorsements in Advertising (“FTC Guides”), including any updates, additions, modifications, or supplemental guidance to the FTC Guides, in connection with their performance hereunder.
Originality of Content. All portions of Influencer Content must be the original creative work of the Influencer or the Influencer must be the sole owner of the Influencer Content pursuant to the Influencer Agreement.
Use of Quotes. Influencers should adhere to the following steps if using quotes:
quotes should be short; (b) Influencers should credit the source; and (c) Influencers should use the quote in the same context as when the quote was originally made. If Influencer has a question about whether he/she can use a quote, Influencer must ask the writer for written permission to use the quote in an email and keep the email.
Linking. Influencer must use “no follow” links in Influencer Content.
Influencer may embed a hyperlink in the Influencer Content that links to the specific webpage where the third party content is located. Influencers are also responsible for not linking to sites containing content that would not be permitted under the Master Influencer Agreement.
Third Party Content. In order to avoid potential infringement of IPR, Influencers should not endorse, copy, or adopt third party content.
Statements About Third Parties. Influencer Content shall not contain any defamatory, libelous, or slanderous material. Influencer Content shall not be harassing, abusive, unlawful, tortious, threatening, harmful, pornographic, sexually explicit, obscene, patently offensive, or otherwise promote racism, bigotry, hatred, or physical harm of any kind.
Making Claims. Influencer Content shall be true and accurate to the best of the Influencer’s knowledge and shall not hold out opinion as fact. Influencer Content shall not be intentionally misleading, deceptive, untrue, or fraudulent. Influencer is responsible for checking his/her facts before he/she makes any claims about third parties or products.
Third Party Rights. Influencer Content shall not violate any third party privacy right, right of publicity.
Cheating. Cheating is prohibited, and will result in immediate action and termination without compensation.
No Advertising. Influencers shall not, as a part of the Influencer Content produced for any Kintry program advertise, market, or otherwise promote any other product or service in which Influencer or any Influencer affiliates have an ownership interest or other financial interest, directly or indirectly.
General. Influencer may only provide the types of Influencer Content authorized in the Program Details and such Influencer Content may only be used in the manner specified in the Master Influencer Agreement. Influencer may not use any music on any web property on which he/she is publishing content without express permission from the copyright or other rights owner(s) for Influencer’s specific intended use in each instance. Influencer must obtain any required permissions or releases where necessary. In accordance with the Digital Millennium Copyright Act and other applicable laws, Kintry has adopted a policy of terminating, in appropriate circumstances and within Kintry’s sole discretion, Influencers who infringe upon the IPR of Kintry or any third party.
Embedded Video Players. Influencer is permitted to embed video players from third party sites in Influencer Content only through publicly available APIs that do not prohibit use by commercial entities in accordance with the API owner’s terms of service, as applicable. Influencer should not copy content and post it on a Content Platform
such that Influencer hosts the content;instead, showing third party videos in video
players using third party APIs ensures that the third party, and not Influencer, is hosting that content such that if the third party site removes that content from its site at the request of a copyright owner, that content will automatically be removed from the Content Platform as well, since the content is hosted on the third party’s server, and not Influencer’s server.
Use of Images or Other Media. An image or other multi-media element may involve layers of rights. The photographer/creator owns the copyrights in his/her photograph or other media (e.g., the artistic expression of his/her vision). A person depicted in the photograph, video, or other applicable media owns the right to control the use of his/her image (or, in the case of a minor, a parent or guardian may exercise control or grant permission on behalf of the minor). If a trademark or a product in its trade dress (e.g., a Coke® can) appears, the owner of the trademark may have rights in how its
product or trademark is depicted. Influencers must analyze each image or other media element to be sure that he/she has the appropriate permission from all rights owners to use the image or media in accordance with this policy and the Master Influencer Agreement.
No Modifications to Third Party Images or Other Media. Influencer should not modify any third party images or other media in any way that would change its nature or context, unless Influencer is certain that he/she has the right from the copyright owner to create a derivative work. If Influencer has a question about whether he/she can create a derivative work, Influencer must ask the copyright owner for written permission to create the derivative work in an email and keep the email.
Credit and Attribution. Credit or attribution to the source of the image (e.g., Getty Images) is always necessary for a full size photograph. Credit should be used for thumbnail images where space allows. Similarly, attribution should be provided for other media according to its accompanying license terms.
Purchased Engagement. Influencer shall be fully responsible for the fulfilment of all promises and promotions offered by Influencer.
Password Protection. Influencer Content shall not be placed behind any passwords.