Terms & Conditions
These Real Messengers Patients/HCPs Terms and Conditions (the “Terms and Conditions”) are entered into as of the Effective Date specified in the Scope of Work (as defined below) entered into by and between the influencer specified on the applicable Scope of Work (the “Patients/HCPs”) and Real Messengers, a Delaware corporation with its principal place of business at 840 Bedford Road, New York City New York (the “Company”). Patients/HCPs and the Company may be referred to hereinafter individually as a “Party” or collectively as the “Parties.”
BY ACCEPTING OR EXECUTING A SCOPE OF WORK, ORDER FORM OR ANY RELATED ADDENDUM THAT REFERENCES THIS AGREEMENT, YOU EXPRESSLY AGREE TO BE BOUND BY, AND STRICTLY ADHERE TO, ALL OF THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.
1. Scope(s) of Work.
Company wishes to engage Patients/HCPs to perform certain services set forth in one or more Scope(s) of Work and Patients/HCPs desires to perform the services set forth in such Scope(s) of Work (the “Services”), subject to the terms and conditions of the applicable Scope of Work and these Terms and Conditions (collectively, the “Agreement”). The Company and Patients/HCPs shall enter into one or more written scope(s) of work (each, a “Scope of Work” or “SOW”) detailing (a) the specific Services to be provided by Patients/HCPs, including the scope of each applicable media campaign (each a “Campaign”), including the applicable Advertiser and Social Media Channels, or other media channels, that will be subject to the Campaign, the duration of the Campaign, and the reach of the Campaign, (b) any Content (as defined below) to be created by Patients/HCPs and provided to the Company in connection with the performance of the applicable Services and Campaign, (c) a schedule and dates for performance by the Patients/HCPs of the applicable Services and Campaign, and (d) such other terms as may be mutually agreed to by the Parties. Each Scope of Work shall only be deemed effective upon execution by an authorized representative of each Party, and, if required by the Company, the applicable advertiser that is sponsoring the applicable Campaign (the “Advertiser”). In the event of a conflict between a Scope of Work and these Terms and Conditions, this Scope of Work shall control, but only with regard to the Services described in the applicable Scope of Work. As used herein, “Social Media Channels” include but are not limited to: Facebook, Instagram, Twitter, Tumblr, YouTube, Pinterest, Google+, and website blogs.
2. Development and Approval of Content.
a. Initial Development and Approval. Patients/HCPs shall submit all elements of any and all content, materials, videos, photographs and/or works of a similar nature produced, developed, or created by Patients/HCPs, in whole or in part pursuant to this Agreement (collectively, the “Content”), including any captions relating to the Content or applicable post(s), to the Company for the Advertiser’s prior written approval prior to posting, which may be granted or withheld in the Advertiser’s and the Company’s sole discretion. All Content must be submitted to the Company in accordance with the applicable schedule set forth in the Scope of Work. If, following each submission of Content to the Company for approval by the applicable Advertiser, the Company or the Advertiser requests or requires any edits to the applicable Content, the Patients/HCPs shall make any and all edits as required or requested by the Company or the Advertiser. Following Patients/HCPs’s implementation of such edits, Patients/HCPs shall resubmit the applicable Content to the Company for review and approval by the Advertiser. In the event that Patients/HCPs incorporates applicable edits in a manner reasonably consistent with the applicable requirements provided to Patients/HCPs, but the Content is thereafter not approved by the Advertiser, the Company reserves the right to terminate this Agreement and/or the applicable SOW immediately upon notice to Patients/HCPs, subject to the payment to Patients/HCPs of a termination fee equal to twenty percent (20%) of the total compensation payable to Patients/HCPs by the Company in connection with the Services and/or Campaigns to which the applicable Content relates. In addition, if Patients/HCPs makes any post without having received notice from the Company of the applicable Advertiser’s approval, such unauthorized post shall be deemed a material breach of Patients/HCPs’s obligations under this Agreement and the Company shall have the right to (a) terminate the Agreement and/or the applicable SOW immediately upon notice to Patients/HCPs, (b) require Patients/HCPs to post a makegood that has been approved by the applicable Advertiser, without additional compensation to Patients/HCPs, and/or (c) reduce the compensation payable to Patients/HCPs by the amount that was otherwise payable in connection with the applicable unauthorized post.
b. Ongoing Revisions. In addition, following approval of any Content by the Advertiser, and posting of such Content by Patients/HCPs, the Advertiser shall have the right to (i) require Patients/HCPs to revise any Content to the extent that the information included in a post with regard to the Advertiser is no longer accurate, and (ii) require Patients/HCPs to remove any indicia of the Advertiser from the Content. In the event of any such requirement by the Advertiser, upon request from the Company, Patients/HCPs shall revise the applicable Content which shall be subject to the approval process set forth in Section 2(a).
c. Patients/HCPs Delays. Time is of the essence with regard to Patients/HCPs’s performance under this Agreement. In the event that Patients/HCPs fails to provide the Content for review and approval in accordance with the timing requirements set forth herein or in the applicable SOW or otherwise mutually agreed to by the parties in connection with an applicable SOW, or otherwise fails to perform the Services in accordance with the timelines set forth in the applicable SOW, in addition to any other rights and remedies that the Company or the Advertiser may have hereunder, the compensation owed to Patients/HCPs in connection with the applicable Services and Campaign shall be reduced for each day or instance of delay, as applicable under the circumstances, by ten percent (10%) of the total compensation owed to Patients/HCPs in connection with the applicable Services and/or Campaign.
3. Objectionable Content. Patients/HCPs acknowledges and agrees that he/she will not (a) make any unsubstantiated claims about any third party or its products or services in any Content related to any Campaign; or (b) develop or post any Content that is in any way illegal, obscene or harmful to the reputation, goodwill or interest of the Company or the Advertiser or their respective products, services, associates, employees or affiliates or that is otherwise reasonably objectionable to the Company or the Advertiser.
4. Exclusivity. Patients/HCPs acknowledges and agrees not to include as part of any Content, or otherwise post to any Social Media Channel, or any other media channel set forth in an applicable SOW, in connection or combination with the Content, any reference to any other brand or trademark other than those authorized by the Company on behalf of the Advertiser and shall not post to any Social Media Channel, or any other media channel set forth in an applicable SOW, any information, promotion, endorsement or content related to the brands specified in the applicable SOW for the period of time set forth in the applicable SOW. In addition, Patients/HCPs agrees to only tag Advertiser’s pages on Social Media Channels and/or Advertiser’s social media handles in Patients/HCPs’s post(s) that include the Content.
5. Patients/HCPs Representations and Warranties. Patients/HCPs represents, warrants and covenants that (a) Patients/HCPs shall provide all Services under each applicable SOW with commercially reasonably skill and care in a competent and professional manner and at a level of quality not less than that prevailing in the industry, (b) Patients/HCPs has the proper skills, training and background to enable Patients/HCPs to perform such Services under the SOW in a competent and professional manner and to exercise the diligence ordinarily exercised by members of Patients/HCPs’s industry, (c) Patients/HCPs shall comply with all applicable laws and regulations in connection with the performance of the Services and each applicable Campaign, including, without limitation, laws and regulations concerning advertising and promotional campaigns, including, without limitation, the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, (d) Patients/HCPs shall comply with all terms of use, privacy policies, and other terms, rules or policies that are applicable to any Social Media Channel, (e) subject to the license grants pursuant to Section 8 and Section 9, Patients/HCPs has all consents, permissions or licenses necessary for Patients/HCPs to create the Content as contemplated hereunder; (f) the Content does not violate any copyright, trademark, or other intellectual property or proprietary right of any other party, (g) Patients/HCPs is at least 18 years of age and upon request by the Company at any time during the Term, will provide proper evidence of his or her age in the form of a valid driver’s license, passport or other acceptable government-issued identification as determined by the Company in its sole discretion, and (h) Patients/HCPs shall not engage in any fraudulent activity or other activity that would falsely or artificially increase or affect the number of Patients/HCPs’s followers, “likes” or other indicators of Patients/HCPs’s audience or reach on any applicable Social Media Channel, including, without limitation, with regard to a particular Campaign.
6. Compensation. Subject to completion of the Services and applicable Campaign(s) set forth in the applicable SOW, and delivery to the Company of the photographic or other written confirmation reasonably required by the Company to evidence that the Services or Campaign(s) have been completed as required pursuant to the applicable SOW, and provided that Patients/HCPs is not in breach of the terms and conditions set forth herein, the Company shall pay Patients/HCPs the compensation set forth in the applicable SOW. Each such payment shall be made in accordance with the following terms: (a) if payment is via PayPal, on the first Friday following the 30 day period from the date Patients/HCPs fulfills all of its obligations pursuant to the applicable SOW (Net30); provided, however, that for all international (non U.S.) Campaigns, payment will be paid to Patients/HCPs within sixty (60) to ninety (90) days of the date Patients/HCPs completes all applicable obligations, and (b) if payment is via ACH, within thirty (30) days following the Company’s receipt from Patients/HCPs of a valid invoice, following Patients/HCPs’s fulfillment of all of their obligations pursuant to the applicable SOW. Any and all standard transfer fees payable to a financial institution in connection with payments made to Patients/HCPs shall be the responsibility of the Company. The Company shall submit payments to Patients/HCPs using the payment account information provided by Patients/HCPs on the applicable Scope of Work and Patients/HCPs shall be solely responsible for maintaining and/or updating his or her payment account information (including but not limited to financial institution and account number information) (“Patients/HCPs Payment Information”) by contacting the Company. Any failure by Patients/HCPs to provide accurate Patients/HCPs Payment Information, or to timely submit an invoice, or update any changes to Patients/HCPs Payment Information may result in delays in payment of thirty (30) days or more. In addition, if the Company makes a payment to an incorrect account due to Patients/HCPs’s failure to provide accurate Patients/HCPs Payment Information, and the Company is unable to recover the amount of such incorrect payment, the Company shall be deemed to have made such payment in full to Patients/HCPs, and the Company shall have no further obligation to Patients/HCPs with regard to such payment. Further, if Patients/HCPs fails to provide photographic or other written evidence of Patients/HCPs’s successful completion of the Services and/or Campaign(s), the Company shall have the right to (a) require Patients/HCPs to post a makegood that has been approved the applicable Advertiser, and/or (b) withhold the compensation otherwise payable to Patients/HCPs in connection with the applicable Services and/or Campaign(s). Further, any failure by Patients/HCPs to claim or request payment on or before 180 days from the date Patients/HCPs fulfills all of its obligations as set forth in the applicable SOW, whether as a result of Patients/HCPs’s failure to maintain and/or update his or her Patients/HCPs Payment Information or any other reason, shall result in Patients/HCPs forfeiting any and all right, title and interest to any payment due under the applicable SOW with regard to the applicable Campaign.
7. Term: Termination.
a. Term. This Agreement shall be effective as of the Effective Date set forth in the first SOW entered into between the Parties and shall continue in full force and effect through the end date of the last Campaign set forth in any outstanding SOW entered into hereunder, unless this Agreement is otherwise terminated as set forth herein (the “Term”). Notwithstanding the foregoing, the Term of this Agreement shall be concurrent with the insertion order or other written agreement between Company and Advertiser (the “Advertiser Agreement”) to which each applicable Campaign pertains.
b. Termination. In addition to any termination rights otherwise set forth herein, the Company shall have the right to terminate this Agreement, including any and all outstanding SOW’s, (i) immediately upon written notice to Patients/HCPs if the applicable Advertiser Agreement is terminated for any reason, (ii) at any time upon five (5) business days prior notice to Patients/HCPs, and (iii) upon notice to Patients/HCPs if Patients/HCPs materially breaches any of its obligations hereunder and fails to cure any such breach within twenty-four (24) hours. A material breach by Patients/HCPs shall include any breach of Section 3 or Section 5. In the event that the Company reasonably suspects that Patients/HCPs is in breach of Subsection 5(h), the Company shall notify Patients/HCPs, and, unless Patients/HCPs is able to provide reasonable evidence to the Company that Patients/HCPs has not fraudulently or falsely increased or affected the applicable number(s) within twenty-four (24) hours of receipt of such notice, the Company shall have the right to terminate this Agreement and/or the applicable SOW, immediately upon notice to Patients/HCPs, without any compensation or liability to Patients/HCPs, and subject to Patients/HCPs’s indemnification obligations set forth in Section 11(a)(3). (iv) immediately upon written notice to Patients/HCPs if Patients/HCPs, its representatives and/or agents, act in any way that causes it or them to undergo material adverse publicity or scandal, or fall into disrepute, including, without limitation if Patients/HCPs personally commits any act that results in a conviction of a felony, or any misdemeanor of moral turpitude (by way of example only, a misdemeanor involving a controlled substance, fraud, embezzlement, assault, and battery) or the neglect of others or self-harm.
c. Additional Remedies of the Company. In the event Patients/HCPs materially breaches this Agreement, in addition to the termination rights hereunder, the Company shall be entitled to recover all costs (including attorney’s fees) in the enforcement of the Company’s rights hereunder and, if Patients/HCPs shall have been paid in advance pursuant to the terms of this Agreement, the Company shall be entitled to a refund of any monies advanced to Patients/HCPs under this Agreement. In addition, if Patients/HCPs fails to perform any of the Services and/or Campaign(s) as required pursuant to the applicable SOW, Patients/HCPs shall pay to the Company as liquidated damages an amount equal to thirty percent (30%) of the compensation payable to Patients/HCPs under the applicable SOW to which such Services and/or Campaign(s) relate.
d. Termination Fees. In the event that the Company terminates the Agreement or an applicable SOW pursuant to Section 7(b)(ii), the Company shall pay Patients/HCPs the following termination fees (i) if such termination occurs one month or more from the Services or Campaign start date set forth in the applicable SOW (the “Start Date”), an amount equal to any documented costs or expenses incurred by Patients/HCPs in connection with any work completed by Patients/HCPs prior to the date of termination, (ii) if such termination occurs less than one month prior to the Start Date, but at least two weeks prior to the Start Date, an amount equal to ten percent (10%) of the overall compensation payable by the Company to Patients/HCPs in connection with the terminated Services and/or Campaign(s), (iii) if such termination occurs less than two weeks prior to the Start Date, an amount equal to twenty percent (20%) of the overall compensation payable by the Company to Patients/HCPs in connection with the terminated Services and/or Campaign(s), and (iv) if such termination occurs after Patients/HCPs has posted approved Content, but prior to the completion of all Services and/or Campaign(s) under the applicable SOW, the amount of any compensation payable in connection with the applicable post, as well as any documented costs or expenses incurred by Patients/HCPs in connection with any work performed by Patients/HCPs prior to the date of termination in connection with the uncompleted Services and/or Campaign(s).
8. License to Use Advertiser Trademarks and Content. The Company, on behalf of the Advertiser, hereby grants to Patients/HCPs, a non-exclusive, non-transferable, revocable, limited license to use and display Advertiser’s name, logo and trademarks, and any other content provided to Patients/HCPs by the Company or the applicable Advertiser in connection with an SOW, in the form and manner specifically described in the applicable SOW, or otherwise approved for use as part of the Content in accordance with Section 2 hereof (collectively, the “Advertiser Works”), solely as necessary to perform its obligations hereunder and only during the Term hereof, unless otherwise expressly authorized herein. For the avoidance of doubt, Patients/HCPs may only use the Advertiser Works in the form and format provided or approved by the Company or Advertiser, as applicable. Patients/HCPs acknowledges the Advertiser’s exclusive right, title and interest in and to the Advertiser Works and the goodwill pertaining thereto, that any use of the Advertiser Works by Patients/HCPs does not create any ownership, license or other right or interest in or to the Advertiser Works by Patients/HCPs except as specifically set forth in this Agreement, and that all use of the Advertiser Works by Patients/HCPs shall inure to the benefit of the Advertiser. Patients/HCPs agrees that it shall not, challenge, or assist in any challenge to, the validity or exclusivity of the Advertiser’s ownership of the applicable Advertiser Works.
9. Unified Ownership Rights and Licenses
a. Ownership of Content.
Except as otherwise explicitly stipulated, Patients/HCPs hereby acknowledges and agrees that all Content, copyrightable material, and any and all related patents, copyrights, trademarks, trade names, and other industrial and intellectual property rights generated, conceived, made, or discovered by Patients/HCPs, solely or in collaboration with others, during and in connection with the performance of the Services or the implementation of the Campaign, shall be the sole and exclusive property of the Advertiser. This ownership lasts for a minimum duration of 12 months from the posting date and extends throughout the universe, and in any and all languages. To the extent allowable under applicable law, all such Content shall constitute a “work made for hire” as defined in 17 U.S.C. Section 101, made solely for the benefit of the Advertiser.
b. Licenses to Content.
Patients/HCPs hereby grants to the Advertiser and the Company, a worldwide, non-exclusive, perpetual, irrevocable, royalty-free right, and license, during the 12-month period following the posting date, and unbounded by other limitations, to:
(A) Feature, use, and distribute any and all Content generated by Patients/HCPs (including Patients/HCPs’s name and likeness) on all Social Media Channel accounts and websites owned, controlled, or licensed by the Advertiser and the Company,
(B) Repost, feature, use, modify, transform, and distribute any and all Content generated by Patients/HCPs in one or more sponsored posts distributed through any media channels agreed upon by the parties, including but not limited to digital, print, and social media channels, and paid media,
(C) Utilize the Content (including Patients/HCPs’s name and likeness) for marketing purposes on any media or platforms chosen by the Advertiser and the Company in their sole discretion, including but not limited to Social Media Channels, internet rights, publication rights, newspapers, magazines, e-mail marketing, and brochures,
(D) Continue to use and display the applicable Content as originally featured or used by the Advertiser during any permitted posting period and for all internal uses of the Advertiser, and in any reviews of the Advertiser’s products or services to which such Content relates.
Patients/HCPs agrees that the Advertiser and the Company may use Patients/HCPs’s social media handles specified in any applicable SOW or otherwise credit Patients/HCPs in connection with the use of applicable Content.
c. Moral Rights and Further Assistance.
Patients/HCPs hereby waives any and all moral rights in the Content to the extent allowable under applicable law and agrees to provide all reasonable assistance to enable, and execute all documents necessary to assist with enabling, Advertiser to prosecute, perfect, register, or record its rights in any Content.
d. Representations and Warranties.
Patients/HCPs represents and warrants that it has secured all necessary assignments from its personnel to convey ownership of the Content as contemplated herein and that it is authorized to grant the rights and licenses set forth above.
e. In the Absence of Explicit SOW Directions.
In the event that any SOW fails to expressly identify the Advertiser’s usage rights or the duration of said rights with respect to the Content, the Parties agree that the rights and licenses provided herein shall be applicable, allowing Advertiser full utilization of the Content for any and all purposes without temporal limitation.
f. Patients/HCPs Post Duration and Account Accessibility
Post Duration: Patients/HCPs agrees to keep the sponsored post(s) published on their social media account(s) for a minimum duration of one (1) year from the date of initial publication, unless otherwise agreed upon in writing by both parties.
Account Accessibility: Throughout the one-year period, Patients/HCPs’s social media account(s) associated with the sponsored post(s) must remain publicly accessible and visible to all users. Patients/HCPs shall not change their account(s) to private or restrict access in any manner that would prevent public viewing of the sponsored content.
Engagement Visibility: Patients/HCPs agrees not to conceal, restrict, or manipulate the engagements (including, but not limited to, likes, comments, shares, and views) on the sponsored post(s) during the one-year duration. This includes refraining from using deceptive practices, such as hiding or artificially inflating engagement metrics.
Failure to comply with these terms may result in the termination of the agreement and any associated compensation or benefits.
10. License to Work Product
a. Subject in each case to the Advertiser’s prior review and written approval in each instance in accordance with Section 2, during the Term of this Agreement, on behalf of the Advertiser, the Company hereby grants to Patients/HCPs a limited, revocable, non-exclusive, royalty-free, license to use the Work Product only as required for Patients/HCPs to perform the Services and implement the Campaign to which such Work Product relates. Upon any expiration or termination of this Agreement, the rights and licenses granted to Patients/HCPs hereunder will automatically terminate and Patients/HCPs shall immediately cease any and all use of the Work Product; provided, that the Advertiser hereby grants to Patients/HCPs a worldwide, non-exclusive, perpetual, irrevocable, royalty-free right and license to continue to use and display the applicable Work Product in the manner originally featured or used by Patients/HCPs during the permitted posting period specified in the applicable SOW, as well as for all internal uses of Patients/HCPs.
b. To the extent that any copyrighted materials of Patients/HCPs that were developed or created by Patients/HCPs prior to the Effective Date of the applicable SOW (collectively “Patients/HCPs Intellectual Property”), are incorporated into the Work Product, Patients/HCPs hereby grants to the Company, for the Company itself and to the Company for the Advertiser’s benefit, and each of the Company’s and the Advertiser’s respective agents, employees, licensees, vendors, and representatives a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, fully sub-licensable and transferable unrestricted right and license to use, reproduce, distribute, transmit, publicize, display, modify, adapt, translate, create derivative works from, and exploit, in whole or in part, edited or otherwise modified, alone or with other materials, in whatever form or medium, the Patients/HCPs Intellectual Property incorporated into the Work Product.
11. Third Party Licenses. Patients/HCPs shall be solely responsible for obtaining, in a form acceptable to and approved in writing by the Company, any required licenses, permissions or approvals from third parties, contributors, and/or other affected rights holders with regard to third party content incorporated into the Content by Patients/HCPs, as necessary for the Company and/or the Advertiser to make full and unrestricted use of the Content as set forth herein, including by way of example and without limitation, requiring all individuals appearing in the Content, to sign an authorization, consent and release form and granting to the Company and the Advertiser all license and publicity rights necessary for the Company or the Advertiser to make use of the name, likeness, image, biography, statements, avatar, and/or social media name and handle and other indicia of such individual contained in the Content. Patients/HCPs will provide the Company with copies of such consents upon its written request.
12. Indemnification; Limitation of Liability.
a. Indemnification. Patients/HCPs agrees to indemnify, defend and hold harmless the Company and the Advertiser, and their respective parents, subsidiaries and affiliates, and each of their officers, directors, agents and employees, from and against any and all claims, demands, liabilities, fees, costs or expenses (including reasonable attorneys’ fees) arising out of or related to, in whole or in part, (i) the Content (excluding any Advertiser Works incorporated therein if used as permitted hereunder) and/or any act or omission of Patients/HCPs or its employees, agents, trustees, partners, officers or directors, (ii) the content or operation of Patients/HCPs’s digital properties or any Patients/HCPs webpages or digital properties on Social Media Channels (e.g. YouTube channels or social media posts) on which Content appears, and (iii) Patients/HCPs’s performance of, or failure to perform, its obligations under this Agreement; including, without limitation, any claims, actions or proceedings for libel, slander, invasion of privacy, infringement of trademark, copyright, license, or other intellectual property rights, unfair or improper trade practices or other wrongful business conduct, including, without limitation, claims relating to Patients/HCPs’s fraudulent activity or other activity that would falsely or artificially increase or affect the number of Patients/HCPs’s followers, “likes” or other indicators of Patients/HCPs’s audience or reach, or claims for bodily injury, death or property damage, or loss or employment claims.
b. Limitation of Liability. The Company shall not be liable for Patients/HCPs’s misconduct. Content created by Patients/HCPs(s) in connection with any Campaign is the sole responsibility of Patients/HCPs, and the accuracy of such Content is not endorsed or guaranteed by the Company. The Company and its affiliates, successors, assigns, employees, agents, directors, and officers assume no responsibility or liability which may arise from the Content, including, but not limited to, claims for defamation, libel, slander, infringement, invasion of privacy and publicity rights, obscenity, pornography, profanity, fraud, or misrepresentation.
IN ADDITION, INFLUENCER ACKNOWLEDGES AND AGREES THAT THE COMPANY SHALL NOT BE LIABLE TO INFLUENCER, ITS PARENTS, SUBSIDIARIES, OR AFFILIATES, AND/OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, UNDER THIS AGREEMENT OR IN ANY WAY RELATED TO THIS AGREEMENT, FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST WAGES AND SAVINGS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF THE COMPANY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL PAYMENT BY THE COMPANY TO INFLUENCER FOR THE APPLICABLE CAMPAIGN OR SERVICES TO WHICH SUCH CLAIM RELATES.
13. Confidentiality. Patients/HCPs hereby acknowledges that the Company’s privacy, and that of the Advertiser, is highly valued and that all efforts are made to maintain confidentiality with respect to Confidential Information (as defined below). Patients/HCPs shall hold in confidence using commercially reasonable measures, and not directly or indirectly divulge to any third party, any Confidential Information. For purposes of this Agreement, “Confidential Information” means any financial information, the identity of the Advertiser and/or any Advertiser lists or Advertiser contact information, or any brand strategy, marketing plans, technical data, intellectual property, content or know how relating to ideas, discoveries, inventions, concepts, software, equipment, designs, drawings, specifications, techniques, processes, models, data, documentation, diagrams, research, development, business plans or opportunities, business strategies, future projects or products, projects or products under consideration, procedures, and information related to finances, influencers, costs, prices, contractors and employees that are provided to Patients/HCPs by the Company in connection with the applicable Campaign or Services or otherwise with regard to the relationship contemplated hereunder. For the avoidance of doubt, the nature and content of this Agreement and whether or how much the Patients/HCPs has been paid in connection with it is considered Confidential Information and may not be disclosed publicly without prior written permission by Company. All of the foregoing information is proprietary, and disclosure of such information to third parties or unauthorized use of such information would cause substantial and irreparable harm and injury to the Company’s and/or the Advertiser’s ongoing business for which there would be no adequate remedy at law. Accordingly, in the event of any breach or attempted or threatened breach of any of the terms of this Section, the Company shall be entitled to receive injunctive and other equitable relief without need of posting a bond, and without limiting the applicability of any other remedies.
14. Non-circumvention. Patients/HCPs agrees that during the Term of this Agreement and for ninety (90) days from the expiration or termination of this Agreement it will not, either directly or indirectly, contact the Advertiser for the purpose of entering into, or attempting to enter into, any negotiations or contractual obligations with the Advertiser which could reasonably be construed to circumvent the efforts of Company under this Agreement, without the Company’s prior written consent.
15. Miscellaneous.
a. Severability. If any provision of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision shall be modified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be deemed excised from this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law, as if such provision had been originally incorporated herein as so modified or restricted or as if such provision had not been originally incorporated herein, as the case may be.
b. Independent Contractor. In providing services to the Company, Patients/HCPs will act as an independent contractor, and it is expressly understood and agreed that this Agreement is not intended to create, and does not create, any partnership, agency, joint venture or similar relationship.
c. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements between the parties with respect to such matters.
d. Modification or Assignment. This Agreement may be modified or amended only with the written consent of both Parties. Patients/HCPs may not assign, transfer, or delegate any duty or obligation to perform such Services under the SOW or this Agreement. Any such attempted assignment shall be null and void.
e. Waiver. Neither the failure nor any delay on the part of either party to exercise any right, remedy, power, or privilege under this Agreement shall operate as a waiver thereof.
f. Notice. All notices required by this Agreement must be in writing and must be delivered by certified mail, return receipt requested.
g. Governing Law; Jurisdiction; Venue. The laws of the State of California applicable to contracts made or to be wholly performed there (without giving effect to choice of law or conflict of law principles) shall govern the validity, construction, performance, and effect of this Agreement. The Parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in the City and County of New York City, New York for any dispute arising out of this Agreement.