Effective date: February 01, 2019
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCEPTING THE TERMS OF ANY SOCIAL MEDIA CREATOR STATEMENT OF WORK FROM OR THROUGH Evangio.COM, YOU ALSO AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
This Social Media Creator Agreement (“Agreement”) between Mirc Media Audience Measurement Private Limited (“Evangio” or “we” or “us”) and you, or your legally authorized representative on your behalf (“Creator” or “you”) constitutes the terms and conditions for the Creator’s services (“Services”) set forth on the applicable Statement of Work (“SOW”). Each SOW will be subject to the terms and conditions contained in this Agreement.
Actually using the Services.
Evangio calculates a Creator Valuation (“Creator Valuation”) for the Creator based on various factors including but not limited to the Creator’s activity on social networks, number of subscribers/followers, the engagement of the Creator’s subscribers/followers and other data points and metrics (the “Creator Valuation”). The Creator hereby acknowledges and agrees that our calculation of the Creator Valuation is an estimate only and we do not make any guarantees relating to the accuracy or the reliability of such Creator Valuation.
Evangio displays the Creator Valuation and other relevant personal, demographic information which is either derived or shared by Creators, to Advertising agencies and brands (“Company”) to source and present sponsorship opportunities for Creators and thereby facilitate the promotion of the Company’s brand by the Creator (each a “Campaign”). Evangio facilitates the discussion, negotiation and implementation of the SOW on behalf of the Company. The Statement of Work typically describes the Campaign and what is required of the Creator, the duration/timing of the Campaign and the fees associated with the Campaign.
You and Evangio hereby agree as follows:
“Services” means the consulting services specified in each SOW.
Creator will perform the Services set forth in a SOW in a diligent and workmanlike manner. Creator shall not use any subcontractor to provide Services to Evangio without Evangio’s prior written approval. Each party acknowledges that the Agreement and any SOW’s are non-exclusive and Evangio may contract with other parties for the procurement of comparable Services.
Creator agrees to submit each Deliverable for acceptance by the Company in the Campaign in a format specified by Evangio prior to the Campaign Dates specified in the applicable SOW. If a Deliverable is not accepted due to not conforming with the agreed upon brand guidelines or requirements, Evangio will provide Creator with notice of rejection, along with an explanation for the rejection and any revisions to be made to the Deliverables. Upon request by Evangio,
Creator agrees to make reasonable edits in any Deliverable. If Creator does not make the requested revisions in order to conform with the agreed upon brand guidelines or requirements, Evangio has the right to reject the Deliverables and withhold any payment otherwise due to Creator.
Creator understands that Evangio or the Company may also want to promote Creator’s name, likeness, voice, and social media usernames (collectively, “Likeness”) in connection with the Deliverables and other Services that Creator performs under a SOW. Accordingly, you agree that Evangio and Company may each use your Likeness in connection with promoting the Deliverables.
“Deliverables” means each item of social media content, including any photographs, video footage, artwork and written work identified in an SOW that you create (or any portion thereof), including any that you may make alone or jointly with others, in connection with performing Services, whether or not they are eligible for patent, copyright, trademark or other legal protection.
RELATIONSHIP OF PARTIES.
Creator is an independent contractor and is not an agent or employee of Evangio or Company or any of their affiliates or subsidiaries, and has no authority to bind Evangio or Company by contract or otherwise. Creator shall not be entitled to any benefits accorded to Evangio’s or Company’s employees, including without limitation worker’s compensation, disability insurance, or any Evangio or Company sponsored benefits. Creator shall be responsible for providing, at Creator’s expense, and in Creator’s name, as applicable, unemployment, disability, and worker’s compensation. Creator acknowledges and agrees that Creator is not protected by any Evangio insurance policy for any injury or damage that may be sustained by Creator or Creator’s property while rendering Services. Creator will perform the Services as agreed to with Evangio, but Creator will determine, in Creator’s sole discretion, the manner and means by which the Services are accomplished. Evangio has no right or authority to control the manner or means by which the Services are accomplished.
Evangio will pay Creator the fee specified in a SOW for all Deliverable(s) that conform with the agreed upon brand guidelines, requirements and deadlines within forty five (45) business days of Creator posting the Deliverable(s) to the Evangio Dashboard and the social media platform(s), as accepted by the Company. Unless otherwise specified in a SOW, Evangio will not compensate or reimburse Creator for any expenses incurred in connection with performing Services. You agree that any payments made to you for Campaign Posts that are not delivered or not delivered in conformance with the terms of this SOW shall be repaid to Evangio within seven (7) days of Evangio’s request for repayment.
Creator shall be solely responsible for any and all central, state, local, and transaction taxes (including sales, use, consumption, value-added and similar taxes), disability insurance, unemployment taxes, and other payroll type taxes applicable to the compensation earned hereunder. Creator hereby indemnifies and holds Evangio harmless from, any claims, losses, costs, fees, interest, penalties, liabilities, damages or injuries suffered or arising out of Creator’s failure with respect to its obligations in this Section. Evangio may deduct or withhold any withholding taxes that Evangio may be legally obligated to deduct or withhold from any amounts payable to Creator under the Agreement, and payment to Creator as reduced by such deductions or withholdings will constitute full payment and settlement of amounts payable to Creator under the Agreement. If a tax authority subsequently finds that Evangio’s withholding tax payment was insufficient and requires additional payments, Evangio will make such payments and Creator will reimburse Evangio for such additional withholding tax payments. Within a reasonable period, Evangio will provide Creator with documentation evidencing its withholding tax payments.
Ownership of Deliverables.
Creator will retain all ownership rights in the Deliverables, subject to the terms of a license provided to Company Materials (as defined below) and any other third party materials incorporated therein, unless otherwise specified in any SOW.
Evangio may provide you with materials owned by the Company or another third party (“Company Materials”), for use by you solely in connection with the Deliverable(s). Company Materials shall remain the sole and exclusive property of the respective third party, as applicable, including all intellectual property rights therein. You will not do anything nor cause anything to be done to encumber any right of a third party in the Company Materials. Evangio hereby grants or will cause to be granted to Creator a non-exclusive, royalty-free, worldwide license to use, copy, distribute, display, perform and transmit the Company Materials solely as incorporated in the Deliverables. The Creator agrees that the Deliverables may not be publicly displayed by Creator or any third party other than as specified in an SOW without the prior written consent of Evangio.
Creator will be solely responsible for obtaining, at its expense, all third-party rights, licenses, clearances, authorizations, permissions and releases (including those relating to copyrights, trademarks, or privacy and publicity rights) necessary in order for: (a) Creator to perform, produce and create the Deliverables; and (b) Evangio and the Company to use any Deliverables, including any third-party materials included within or embodied by the Deliverables. If persons appearing in any Deliverables are under the age of majority in their state, province, or country of residence, a release signed by their parent or legal guardian is required. Creator shall provide each release on the Evangio dashboard at or prior to the time of submitting the Deliverables for acceptance. Deliverables must not contain any personally identifiable information (such as license plate numbers, personal names, email addresses or street addresses) of any person other than Creator. In the event that such material of the Creator is included, Creator acknowledges and agrees that such information will be disclosed publicly and Creator is solely responsible for any consequences thereof.
“Confidential Information” means the proprietary information exchanged between each of the parties and the Company, which includes, without limitation, non-public information (tangible or intangible) regarding a party’s or the Company’s products and services, Campaign, technology, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information, which (a) may or may not be marked “confidential” or “proprietary” or “secret” or “non-public” at the time of disclosure by the disclosing party; or (b) by its nature or content is reasonably distinguishable as confidential or proprietary to the receiving party. Each party agrees to hold Confidential Information in confidence and to not use or disclose it to a third party for a period of five (5) years from the date of termination or expiration of the last SOW entered into. The receiving party shall protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care (including reasonable security measures), to prevent the unauthorized use, dissemination or publication of Confidential Information as the receiving party uses to protect its own confidential information of like nature. If either party authorizes the other to make copies of Confidential Information, the other party’s proprietary rights notices shall be reproduced in the same manner as the original Confidential Information. The receiving party may disclose the Confidential Information to its employees, agents, financial advisers and independent contractors with a need-to-know, only as necessary to fulfill the Services and provided such parties have executed a written non-disclosure agreement substantially as protective of Confidential Information as this Agreement. The receiving party shall promptly notify the disclosing party of any actual or suspected misuse or unauthorized disclosure of the disclosing party’s Confidential Information. Confidential Information shall not include information that (a) is made generally available in the public domain prior to time of disclosure; (b) is or becomes publicly available through no act or omission by the receiving party; (c) was already in the receiving party’s possession without restriction before receipt from the disclosing party and was not subject to a duty of confidentiality; (d) is rightfully disclosed to the receiving party by a third party without confidentiality restrictions; or (e) that the receiving party independently developed without use of or reference to Confidential Information. The receiving party may disclose the disclosing party’s Confidential Information as required by law or court order provided: (i) the receiving party reasonably notifies the disclosing party in writing of the requirement for disclosure, unless notice is prohibited by law; and (ii) discloses only that portion of the Confidential Information legally required. Any such disclosure of Confidential Information shall not otherwise relieve receiving party of any of its obligations hereunder.
REPRESENTATIONS AND WARRANTIES.
Creator represents and warrants that: (a) the Deliverables are an original work (other than any incorporated Company Materials); (b) Creator has not previously granted anyone any right or license in the Deliverables; (c) the Deliverables have not been previously published; (d) the Deliverables are factually accurate; (e) the Deliverables will not be libelous, obscene, disparaging, nor will it violate the right of privacy or publicity of any person; (f) in gathering information for and creating the Deliverables, Creator did not and will not invade the privacy or otherwise violate the rights of any person; and (g) the Deliverables will not infringe any intellectual property or other proprietary rights of any third party (including copyright, trademark, service mark, trade secret, contract, privacy or right of publicity rights) or contain any material that, if relied upon, might cause harm or injury to any person or property. Creator agrees to inform Evangio immediately if Creator discovers any factual inaccuracy in a Deliverables submitted for approval or posted, or if Creator receives any communication at any time claiming that a Deliverable is inaccurate, libelous, obscene, disparaging or that the Deliverables or the process of creating the Deliverables invaded the privacy or otherwise violated the rights of any person or entity.
Compliance with Laws and Guidelines.
Creator agrees to adhere to any policies and brand guidelines that Evangio makes available to Creator. In addition, Creator acknowledges and agrees that the value of the Services is based in large part on the goodwill and positive publicity generated by Creator and the Deliverables. Accordingly, Creator will not engage (or fail to engage) in any activity or cause or permit any action (including inaction) that will reflect unfavorably on any of the Deliverables, Evangio, the Company or any purchaser of Company products or services. Creator also agrees to perform the Services in compliance with applicable laws, rules and regulations, including but not limited to the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising. You agree that: (a) nothing in the Deliverables is misleading or deceptive; (b) verbal and visual statements made are truthful and substantiated; (c) any opinions, findings or experiences depicted with respect to the Company’s products or services are honest and accurate; and (d) you will appropriately disclose the connection between you and the Company.
Pre-existing Obligations; Conflicting Activities.
You represent and warrant that you have no pre-existing obligations or commitments (and will not assume or otherwise undertake any obligations or commitments) that would be in conflict or inconsistent with, or that would hinder the performance of your obligations under this Agreement. Creator shall not, without Evangio’s prior consent in writing, assume any obligation or restriction that would in any way interfere with or be inconsistent with, or present a conflict of interest concerning, the performance of Services under this Agreement or any SOW.
You will at your sole cost, indemnify, defend and hold Evangio and Company, and each of their parent companies and affiliates, officers, directors, employees and representatives, harmless from any and all claims, damages, losses, liabilities, actions, judgments, costs and expenses (including reasonable attorneys’ fees and expenses) brought by a third party arising out of or in connection with: (a) any act or omission by Creator in connection with Creator’s performance of the Services, including but not limited to any inherently dangerous activity in connection therewith; (b) infringement or alleged infringement of a third party’s intellectual property rights by or as a result of the performance of the Services; (c) Creator’s breach or claimed breach of Section 5 (Confidential Information) or Section 6 (Representations and Warranties); or (d) any obligation imposed by law on Evangio to pay any tax imposed by central, state or foreign government on payrolls or compensations of its employees. Evangio will have the right to approve any counsel retained to defend against any claim in which Evangio or its affiliates are a named a defendant, and will not unreasonably withhold such approval. Additionally, Evangio will have the right to control and participate in the defense of any such claim concerning matters that relate to Evangio. Creator will not settle any such claim without Evangio’s reasonable consent. In addition to Evangio’s rights and Creator’s other obligations hereunder including, without limitation, the indemnity obligations set forth herein, in the event the Deliverables, or any part thereof, are held or may be held to constitute, or become the subject of any claim or suit for infringement, Evangio may terminate the relevant SOW in whole or in part and Creator shall promptly refund to Evangio all fees paid for the affected Service.
TERM AND TERMINATION.
This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect for as long as Creator is performing Services pursuant to a SOW.
Termination for Breach.
Either party may terminate this Agreement (including all SOW’s) if the other party breaches any material term of this Agreement or SOW and fails to cure such breach (if curable, in the reasonable determination of the non-breaching party) within ten (10) days following written notice thereof from the non-breaching party.
Termination for Convenience.
Evangio may immediately terminate this Agreement (including all SOW’s) at any time, for any reason or no reason, by providing ten (10) days prior written notice to Creator of its intent to terminate the Agreement. In such event, Creator shall be paid for any Services performed by Creator that were approved and posted to the social media platform(s) prior to its receipt of such notice of termination.
Effect of Termination.
Upon the expiration or any termination of this Agreement or any SOW for any reason, Creator will promptly deliver to Evangio all Deliverables, including all work in progress on any Deliverables.
Upon the expiration or any termination of this Agreement, Evangio will pay Creator any amounts that are due and payable for any Services performed by Creator that were approved and posted to the social media platform(s) prior to the effective date of expiration or termination, unless termination is pursuant to breach by Creator.
Upon the expiration or termination of this Agreement for any reason, Creator will promptly return or certify to Evangio that all Confidential Information in Creator’s possession or control has been destroyed, at Creator’s expense and in accordance with Evangio’s instructions.
Those terms that by their nature should survive either expiration or termination of this Agreement, shall survive including but not limited to the parties obligations with respect to Confidential Information, ownership, indemnification and limitation of liability.
LIMITATION OF LIABILITY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTION 5 (CONFIDENTIAL INFORMATION) AND SECTION 7 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY SOW, INCLUDING WITHOUT LIMITATION DAMAGES ASSOCIATED WITH ANY LOSS OF USE, BUSINESS, PROFITS, OR GOODWILL AND ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN ANY CASE, Evangio’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES DUE TO CREATOR FOR SERVICES RENDERED IN CONNECTION WITH THE CAMPAIGN GIVING RISE TO THE CLAIM.
Neither party will be liable for any delay or failure of or in performance of its obligations under this Agreement due to causes beyond its reasonable control, including but not limited to acts of God, acts of the public enemy, government acts, fire, floods, epidemics, quarantine restrictions, strikes, civil commotions, or freight embargoes (“Force Majeure Event”) provided that the affected party has taken reasonable precautions, including, where appropriate, the installation, maintenance and operation of suitable back-up systems, consistent with industry standards in order to guard against the event causing such delay. If a Force Majeure Event delays, disrupts or interrupts performance of Services, then Evangio shall not be required to continue to pay the fees for the affected period and Creator will use its best efforts to restore Services at its expense. If Creator fails for any reason to restore substantially all Services within five (5) days after a Force Majeure Event, Evangio may terminate the Agreement or affected Services, at its option, in the same manner as for any convenience termination and any prepaid Fee intended for Services after the notice of termination shall be returned to Evangio within fifteen (15) days from the termination date.
Creator may not assign or transfer any of Creator’s rights or delegate any of Creator’s obligations under this Agreement, in whole or in part, without Evangio’s express prior written consent. Any attempted assignment, transfer or delegation, without such consent, will be void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties permitted successors and assigns.
This Agreement and each SOW will be governed by and construed in accordance with the Laws of India,and Parties hereby agree to submit to the jurisdiction of the Courts of Mumbai.
If an arbitrator or court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
All notices required or permitted under this Agreement and all SOW’s will be in writing and delivered: (a) by courier or overnight delivery service; (b) by certified mail; or (c) in the case of Evangio, via email to [email protected], and in each instance will be deemed delivered upon receipt. All notices will be sent to the addresses set forth in the applicable SOW or to such other address as may be specified by either party to the other in accordance with this Section.
The waiver of any breach of any provision of this Agreement will not constitute a waiver of any subsequent breach of the same other provisions hereof.
This Agreement, together with all SOW’s, constitutes the complete and exclusive understanding and agreement of the parties with respect to the subject matter hereof and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof. In the event of a conflict between the provisions of this Agreement and those of any SOW, the provisions of such SOW shall control (with respect to such SOW only); provided, however, that the terms and conditions set forth herein shall always control with respect to limitations of liability, indemnification obligations, representation and warranties, confidentiality and governing law.
INFORMATION COLLECTION AND USE
A Note About How Evangio Works:
Evangio analyzes data that is made available publicly through the Internet in order to measure influence for Internet users, including, but not limited to, our registered users. Evangio presents some of this data on the Site and our mobile application(s), such data may also be available on other websites and Evangio may share this data with our third party partners (as described in more detail below). Evangio does not analyze non-public data from private networks (in other words, networks that are password-protected) unless you authorize us to access such data.
Information Collected Upon Registration:
If you desire to have access to certain restricted sections of the Services and/or to have access to or use of certain parts of the Services, you will be required to become a registered user, and to submit certain Personal Information to Evangio. Personal Information that we may collect in such instances may include but not be limited to your full name, password, email address, city, time zone, telephone number, and other information that you decide to provide us with, or that you decide to include in your public profile.
With respect to the Evangio Service specifically, providing additional information beyond what is required at registration is entirely optional, but enables you to better identify yourself and find opportunities in the Evangio system.
Evangio receives location information from the Social Media Services (as defined below) that you enable within the Services and also (with your permission) from your mobile device (“Geo-location Data”). We use Geo- location Data to:
complete your Evangio profile (for example, to indicate that you are located in Mumbai);
customize the Services to make them more relevant to you (for example, to show you topics in your area)
When you interact with the Site or use our Services, our servers automatically receive and store certain personally non-identifiable information (“Log Data”). This Log Data is collected passively and may include information such as your IP address, browser type or the domain from which you are visiting, the Site pages you visit, the search terms you use, and any advertisements on which you click. For most users accessing the Internet from an Internet service provider, the IP address will be different every time you log on. We use Log Data to provide you with the Services (for example, to provide push notifications on your mobile device) and pool it with other information to monitor the use of the Services, and for the technical administration of the Services. We identify and use your IP address to help diagnose problems with our server, and to administer our Website. Your IP address is also used to help identify you and to gather broad demographic information.
USE OF INFORMATION
In an ongoing effort to better understand and serve the users of our Services, Evangio also often conducts research on its customer demographics, interests and behavior based on the Personal Information and other information provided to us. This research may be compiled and analyzed on an aggregate basis, and Evangio may share this aggregate data with its affiliates, agents, advertisers and business partners. This aggregate information does not identify you personally. Evangio may also disclose aggregated user statistics in order to describe our Services to current and prospective business partners, and to other third parties for other lawful purposes (including providing advertising use cases to actual or potential advertisers).
INFORMATION SHARING AND DISCLOSURE
We consider your information to be a vital part of our relationship with you. There are, however, certain circumstances in which we may share your Personal Information with certain third parties without further notice to you, as set forth below.
We engage certain trusted third parties to perform functions and provide services to us, including, without limitation, hosting and maintenance, customer relationship, database storage and management, and direct marketing campaigns. We will share your Personal Information with these third parties, but only to the extent necessary to perform these functions and provide such services.
Furthermore, in connection with the operation, promotion, advertising or marketing of our Services, we may provide certain of our partners (e.g., Microsoft; Apple, etc.) with Personal Information (e.g., your name or Evangio username) and other content or information related to you (e.g., your profile picture), or provide certain of our partners with access to our application programming interfaces (“APIs”) in order to access such information using information (such as Evangio handles) already in their possession.
Furthermore, we may share your Personal Information to our customers, clients, contractors, service providers, and other third parties whom we use to support our business and who are bound by contractual obligations to keep personal information confidential and use it only for the purposes for which we disclose it to them.
Social Media Services:
Evangio may sell, transfer or otherwise share some or all of its assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets or in the event of bankruptcy.
Disclosures for Legal Purposes:
Evangio may disclose your Personal Information if required to do so by law or in the good faith belief that such action is necessary to (i) comply with a legal obligation, (ii) protect and defend the rights or property of Evangio, (iii) act in urgent circumstances to protect the personal safety of users of the Services or the public, or (iv) protect against legal liability.
Primary and related Business Purpose:
Furthermore, we may share your Personal Information with our subsidiaries and affiliates, which are entities under common ownership or control of our ultimate parent company Mirc Media Audience Measurement Private Limited.
Evangio is very concerned about the security of your Personal Information. We employ administrative, physical and electronic measures designed to protect your information from unauthorized access. However, no Internet or email transmission is ever fully secure or error-free. We will make any legally- required disclosures of any breach of the security, confidentiality, or integrity of your unencrypted electronically stored Personal Information to you via email or conspicuous posting on this Site in the most expedient time possible and without unreasonable delay, consistent with (i) the legitimate needs of law enforcement or (ii) any measures necessary to determine the scope of the breach and restore the reasonable integrity of the data system.
LINKS TO OTHER WEBSITES
Our Services contain links to other websites. The fact that we link to a website is not an endorsement, authorization or representation of our affiliation with that third party. We do not exercise control over third party websites. These other websites may place their own cookies or other files on your computer, collect data or solicit personally identifiable information from you. Other sites follow different rules regarding the use or disclosure of the personally identifiable information you submit to them. We encourage you to read the privacy policies or statements of the other websites you visit.
OUR POLICY TOWARDS CHILDREN