LIFE SCIENCE INSTITUTE LLC DBA HEALTHYCELL
ENDORSER CODE OF CONDUCT, RETENTION, AND RELEASE AGREEMENT
This Endorser Code of Conduct, Retention, and Release Agreement (the "Agreement") is entered into on the date of enrollment into Heathycell’s affiliate program hosted on the online Refersion platform, by and between LIFE SCIENCE INSTITUTE LLC DBA HEALTHYCELL a Delaware limited liability company with its principal place of business located at 3 Claridge Drive, Suite 2 Verona, NJ 07044 (herein “Brand” or "Healthycell") and you (“ Endorser” or “you”), and regarding Endorser’s services and grant of rights in accordance with the terms set forth below. The parties agree as follows:
1. Services. Endorser shall provide the following services (which are further described in the Schedule of Work (“SOW”), attached hereto as Exhibit 1 and incorporated by reference):
a. Social Media. Endorser will create content, which may include images, photographs, videos, reviews, messages, posts, and commentary about beauty related topics as detailed in the SOW (the “Provided Content”) and has the rights in and to certain social media accounts, monikers or account handles (referred to as the “Social Media Accounts”). Endorser will at all times act in accordance with the Code of Conduct, Disclosure Guides and Applicable Laws (as they are each defined in this Agreement), as well as the terms of this Agreement and any other related documentation that Brand may provide to you.
2. Term. The term of this Agreement shall begin upon the date set forth above and continue for a period of one (1) year following the date of your first post under this Agreement (the “Term”), and shall automatically renew annually, unless otherwise terminated as set forth herein. It is understood and agreed that any Provided Content may remain on display or in circulation due to reasons beyond Brand’s control following the expiration of the Term and shall not give rise to a claim against Brand. Further, it is understood and agreed that any Provided Content distributed or made available during the Term may be retained by third parties and may be available and accessible online through third party websites or social media pages after the Term; such usage shall not give rise to a claim against Brand and Brand shall not have any obligation to monitor, request, require removal, or cessation of any such availability of or accessibility to the Provided Content.
3. Provided Content.
a. License and Permissions. During the Term you hereby grant Brand and its affiliates and/or related entities an irrevocable, worldwide, royalty-free, non-exclusive, license to use, publicly display, distribute, sub-license, modify, use in print, electronic, online, or any other medium, and otherwise fully exploit, in whole or in part the Provided Content as well as your name, likeness, voice, screen name or social media name or moniker used to post or incorporated into the Provided Content without further approval or compensation to you or any third party. It is understood and agreed that any Provided Content appearing in social media may be retained, reposted or otherwise used by third parties and may be available and accessible online through third party websites and/or services after the Term; such usage shall not give rise to a claim against Brand and Brand shall not have any obligation to monitor, request, require removal, or cessation of any such availability of or accessibility to the Provided Content.
b. Third-Party Rights. To the extent that you do not control all of the foregoing rights to any element of the Provided Content, you represent and warrant that you have obtained written documentation of all necessary consents, waivers and releases to permit the use of such elements, and to grant the rights set forth herein to the Brand. If minors are involved, you represent and warrant that you have obtained the above-mentioned consents, waivers or releases from the minor’s parent or legal guardian. You agree that, upon request from Brand, you will provide evidence of such consents, waivers, and releases to Brand in the form acceptable to Brand.
c. Waiver and Release. You hereby (1) waive any and all rights that you may be afforded by any applicable statute, law or regulation in any way relating to the foregoing, including but not limited to, any right of privacy or publicity, and any copyright or moral right, and (2) release and discharge Brand and their respective parent, subsidiary, and affiliated entities, and each of their licensees, successors, assignees, officers, directors, employees, representatives and agents (collectively "Brand Parties") from any and all claims, actions and liabilities, whether known or unknown, including, but not limited to, claims of publicity or privacy rights violations and libel, that you or your heirs may have by reason of Brand’s exercise of the rights granted in this Agreement.
4. Brand Trademarks and Content. As between you and Brand, any copyrights, materials, trademarks, trade names, logos, service marks and/or other indicia of the Brand (collectively, the “Marks”) and Brand Materials (including, but not limited to, claims, packaging, advertising content, photographs) will remain property of the Brand and shall inure solely to the benefit of Brand. You further agree that you will not claim any right in or to the Marks, or use or modify any Marks without the prior written approval of Brand in each instance.
5. Content Ownership. Subject to Sections 3 and 4 hereof, as between you and Brand, the Provided Content shall be owned by you.
6. Consideration and Payment.
a. Fee. As full and complete consideration for your services and obligations hereunder and all the rights granted by Endorser herein, and provided that Endorser fully and completely performs all of the respective services and obligations hereunder, you will receive the compensation outlined in the Refersion program to which you enrolled (“Fee”). You are solely responsible for any taxes that are imposed on you with respect to the Fee, as well as any costs or expenses you incur in providing the services hereunder unless otherwise agreed to in advance and in writing between the Parties.
7. Code of Conduct and Rules of the Road.
In connection with your Services, you agree that you will at all times comply with the following:
a. Code of Conduct:
i. State your honest views regarding Brand’s Products, which must reflect your actual experience, opinions, and beliefs based upon your use of the Products. You will notify Brand if you change your opinion or beliefs about the Products at any time during the Term.
ii. Make clear that your comments are solely yours, not Brand’s. Avoid saying or doing anything that suggests Brand has endorsed or approved you or your statements.
iii. Clearly and conspicuously disclose your connection with Brand any time you make a public statement about Brand, its products and/or services.
iv. For tweets and similar compressed communications, you must include #Ad, #Paid, or #Sponsored. For Facebook and Instagram posts where there is more space than Twitter, you can either use the aforementioned disclosures or be more conversational and use a disclosure like “This post is paid for by Healthycell” or “I worked with Healthycell on this post.”
v. For videos, you must include a disclosure verbal or visual at the beginning of the video in addition to the one at the beginning of the description box.
vi. Depending on the content or post, additional disclosures may be needed to confirm that the disclosure is clear and conspicuous. While we provide additional disclosures, it is your responsibility to ensure that you have clearly and conspicuously disclosed your relationship to the product or service.
b. Rules of the Road
i. Do not make deceptive or misleading claims about the products or services of Brand or the products or services of Brand’s competitors.
ii. Do not disparage, libel, slander, defame, or violate any third party right to privacy.
iii. Do not make hateful or offensive comments or any communication that promotes racism, bigotry, hatred or physical harm against any individual or group.
v. Respect the intellectual property and proprietary rights of others; do not post material unless you have all necessary permissions. Do not use music unless you have obtained all of the necessary clearances from the owners of the sound recording and musical compositions.
vi. Do not post confidential or proprietary information of any party.
vii. Do not make false or unsubstantiated statements about the Brand or its Products.
viii. Do not make any disparaging statements regarding the products or services of Brand’s competitors.
ix. Do not impersonate any other person or entity, actual or fictitious, including by impersonating an employee or consultant of any of the Parties.
x. Do not run ads on Google, Bing, Yahoo, DuckDuckGo (or any of the related properties aforementioned) bid on "Healthycell" branded keywords, use the term "Healthycell" in any PPC ads.
xi. Do not use any terminology in ads or landing pages that are similar to "scam" or "fraud".
xii. Do not creating webpages, social media pages, accounts, media assets (text, images, videos) that falsely represent themselves as the creators or owners of Healthycell products. Any review page and all creative contained therein must include the word 'REVIEW' in the title, the URL, and any graphics used in the cover image or profile image.
xiii. Do not post coupons or discount codes on websites not owned by you the endorser.
x. Do not link to any content that violates any of the foregoing rules of the road.
9. Representations and Warranties. You represent and warrant that: (a) you have the full power and authority to make this Agreement, and neither this Agreement nor your activity hereunder conflicts with any other obligation on your part; (b) you own or have obtained all necessary rights to make the Provided Content available for Brand’s use and to grant the licenses set forth in this Agreement; (c) you have not entered into, and shall not enter into, any agreement that would interfere with the rights granted to Brand herein; (d) the Provided Content does not contain any scandalous, libelous, or unlawful matter, or infringe upon any third party’s intellectual or other proprietary rights, such as the rights of privacy and publicity; (e) all statements made by you reflect your personal experience and honest opinions and belief; and (f) the Provided Content will comply with all Applicable Laws.
10. Acknowledgments. You acknowledge that Brand may at any time and for any reason (a) modify, suspend, or terminate the Program, or your participation in it, (b) use, reject, or edit any Provided Content in any way, including for use in any and all devices, media or modes of communication, whether now known or hereafter created, and (c) take action to remove or disable access to Provided Content, including if such Provided Content is inconsistent with this Agreement.
11. Exclusivity: Endorser shall notify Brand of any agreements she has or enters into regarding a Competitive Product during the Term. In the event that Endorser provides services for a Competitive Product (as hereinafter defined), Endorser shall not make any posts related to a Competitive Product thirty (30) days prior and thirty (30) days after a post for Brand unless agreed to in writing by the Brand. “Competitive Product” means vitamins, gels and nutraceuticals that are manufactured, sold, distributed, advertised or otherwise promoted by any party other than Brand.
12. Indemnification. Each Party shall hold harmless, and indemnify the other party and its directors, officers, agents and employees against any and all loss, liability, damage, or expense, including attorneys’ arising out of or in connection with its (a) acts or omissions, (b) breach of this Agreement, including the representations and warranties set forth herein; or (c) alleged violation of Applicable Laws. Brand shall have sole control over the defense and any settlement negotiation or compromise of any such claims. You agree that you will fully cooperate with Brand in defending any such claims. This provision shall survive expiration or termination of the Agreement.
13. Confidentiality. You acknowledge that Brand may provide confidential and proprietary information to you in connection with your Services, including, but not limited to, new products, services, or initiatives, or other topics of the Provided Content. Except as needed to perform your obligations hereunder, you shall keep confidential and not disclose any information contained in or prepared for the Program hereunder, including, but not limited to, topics, story projects or source information, prior to such information becoming available to the public. You will also keep confidential and not disclose the terms of this Agreement.
14. Independent Contractor. Endorser’s relationship with Brand is that of an independent contractor, and nothing contained in this Agreement shall be construed as establishing an employer/employee relationship between Endorser and Brand. Accordingly,
Endorser understands that she shall not be: (i) entitled to participate in any of Brand’s benefit plans; (ii) covered by Brand’s health insurance or worker’s compensation policies; or (iii) entitled to any unemployment benefits in the event her services are terminated.
15. Notices. All notices, requests, and other communications required or permitted by this Agreement shall be in writing and shall be delivered by hand, first class mail, air courier, fax, e-mail (fax and e-mail to be confirmed by mail or other permitted form of written notice permitted under this paragraph) or sent via registered or certified mail, to the party for whom intended to the address set forth above for Brand, or to such other address as either party, by notice, may specify with respect to its own address:
Any such notice shall be deemed "given" and be effective upon receipt at such address or upon successful fax or e-mail transmission (to be confirmed by other form of written notice under this Section or by first class mail).
16. Misc. (a) No Waiver: No waiver by any party of the breach of any term or condition of this Agreement shall constitute a waiver of, or consent to, any subsequent breach of the same or any other term or condition of this Agreement. (b) Assignment: This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, licensees and assigns, except that Endorser’s obligations hereunder may not be delegated and Endorser may not assign, transfer, pledge, encumber or dispose of any of Endorser’s rights hereunder without Brand's prior written consent. (c) Choice of Law: This agreement shall be governed by the laws of the State of New York, applicable to contracts executed and to be fully performed therein. Any controversies or disputes arising out of or relating to this Agreement shall be resolved exclusively in either the state or federal courts located in the Borough of Manhattan of the City, County and State of New York, and you and Endorser hereby consent to the exclusive personal jurisdiction of such courts. (d) Survival: All obligations under this Agreement that are continuous in nature, including, without limitation, those relating to confidentiality, indemnification, and jurisdiction, shall survive the expiration or termination of this Agreement. (e) Pay or Play: Notwithstanding anything to the contrary set forth in this Agreement, Brand will not be obligated to produce, release or otherwise use the Provided Content or make use of any rights granted herein. Brand’s only obligation to Endorser hereunder shall be to pay Endorser as set forth herein, provided that Endorser is not in material breach of this Agreement. (f) Entire Agreement: This Agreement is the entire agreement of the parties and supersedes all other agreements and understandings of the parties, whether written or oral. No amendment or waiver of this Agreement shall be valid unless signed by both Endorser and Brand.
EXHIBIT 1: STATEMENT OF WORK
i. Overview. Endorser will provide Services to Life Science Institute LLC d/b/a/ Healthycell, in connection with producing, directing, posting and promoting content as specified in below that features brand products and other aspects of Healthycell Program (the “Program’”).
2. Services, Deliverables, & Delivery Schedule. Endorser shall provide the services and other rights described below to Brand:
a. Social Media. Endorser will create content, which may include images, photographs, videos, reviews, messages, posts, and commentary as detailed below (the “Provided Content”).
b. Deliverables. Endorser will produce ten (10) original posts distributed on all of your social media platforms during the first 30 days, and four (4) original posts thereafter.
c. Provided Content. All Provided Content must each include #Ad or# Sponsored and tag @healthycell in accompanying copy.
d. In addition:
i. There should be no mention of competitive products or companies in the Provided Content.
ii. No brands or copyrighted materials, other than the Healthycell products, should be present in the background or foreground of the
AS OF THE DATE OF ENROLLMENT INTO HEALTHYCELL’S REFERSION PROGRAM, YOU VERIFY THE ACCURACY OF THIS STATEMENT OF WORK AND AGREE TO THE TERMS CONTAINED HEREIN.
EXHIBIT 2: DISCLOSURE GUIDES
IN KEEPING WITH THE U.S. FEDERAL TRADE COMMISSION (FTC) GUIDES CONCERNING THE USE OF ENDORSEMENTS AND TESTIMONIALS, WE ARE PROVIDING YOU WITH THE FOLLOWING DISCLOSURE GUIDANCE.
DISCLOSURES SHOULD BE USED BY YOU IF YOU RECEIVED ANY “CONSIDERATION” FROM A BRAND IN RELATION TO PHOTOGRAPHS, REVIEWS, VIDEOS OR OTHER FORMS OF SOCIAL MEDIA CONTENT PROVIDED OR POSTED BY YOU.
CONSIDERATION INCLUDES GIFTS, EDITORIAL REVIEW SAMPLES OR MATERIALS, PAYMENT, TICKETS FOR AN EVENT OR EXPERIENCE.
DISCLOSURES SHOULD NOT BE DELETED WHEN RE-POSTING CONTENT AND SHOULD APPEAR IN EVERY POST ABOUT A BRAND IF YOU WERE PROVIDED CONSIDERATION.
DISCLOSURES SHOULD NOT BE BURIED BUT RATHER CLEARLY AND PROMINENTLY DISPLAYED. IF DISCLOSURES ARE NOT PROPERLY ADDED, WE MAY REQUEST THAT THE CONTENT BE REMOVED OR CORRECTED.
PLEASE USE THE APPROPRIATE DISCLOSURE FROM FOLLOWING EXAMPLES OR FOR THE APPROPRIATE MEDIA. YOU MAY ALSO DISCLOSE ANY CONSIDERATION IN THE BODY OF YOUR POST, E.G. “I PARTNERED WITH [BRAND] ON THIS POST”:
GIFT OR FREE PRODUCT: “I RECEIVED COMPLIMENTARY PRODUCT”, “GOT IT FREE” OR “PRODUCT COURTESY OF [BRAND]”
PAID ENDORSER: #SPONSORED, #AD, #PAID
PAID TRIP OR EXPERIENCE: “[BRAND] SPONSORED MY TRIP TO [LOCATION] TO LEARN ABOUT ITS PRODUCTS”
PR MATERIALS AND PRODUCT SAMPLING: I WAS PROVIDED PRODUCT FOR REVIEW PURPOSES
VIDEOS DISCLOSURES SHOULD BE INCLUDED PROMINENTLY VIA AUDIO DISCLOSURE “I AM PARTNERING WITH [BRAND]”.
FOR MORE INFORMATION, PLEASE CONSULT THE FTC GUIDES CONCERNING ENDORSEMENTS AND TESTIMONIALS.
AS OF THE DATE OF ENROLLMENT INTO HEALTHYCELL’S REFERSION PROGRAM, YOU ACKNOWLEDGE YOU HAVE READ AND WILL COMPLY WITH THESE DISCLOSURE GUIDES.