TERMS & CONDITIONS
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE SUBMITTING YOUR APPLICATION TO PARTICIPATE IN THE TRY ME, REVIEW ME CAMPAIGN!
BY CLICKING “I AGREE” YOU AGREE TO THE TERMS AND CONDITIONS OF THIS TRY ME, REVIEW ME CAMPAIGN AGREEMENT BETWEEN YOU AND ELEMENT MOM (THE “COMPANY”) WHICH WILL GOVERN YOUR RELATIONSHIP WITH THE COMPANY. BY APPLYING FOR AND PARTICIPATING IN THE TRY ME, REVIEW ME CAMPAIGN (THE “CAMPAIGN”), YOU (ON BEHALF OF YOURSELF AND THE BUSINESS YOU REPRESENT) AGREE TO BE LEGALLY BOUND BY AND COMPLY WITH THESE TRY ME, REVIEW ME CAMPAIGN TERMS AND CONDITIONS, INCLUDING ALL APPLICABLE POLICIES.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT CLICK “I AGREE” AND DO NOT SUBMIT THE APPLICATION. AT ANY TIME, YOU NO LONGER WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MUST IMMEDIATELY PROVIDE WRITTEN NOTICE TO THE COMPANY.
As used in these terms and conditions, “You” or “Your” shall mean the individual who is applying to participate in the Company’s Try me, Review Me Campaign, and his/her employees, agents, business affiliates, and permitted successors and assigns.
If selected by the Company, You will become a participating Influencer (“Influencer”) for products offered and sold by the Company. Influencer’s territory shall be within the United States and all U.S. Territories exclusively. Your performance as an Influencer is subject to these terms and conditions, and any separate agreement the Company may require you to execute as well as any Company policies, standard operating procedures or guidelines provided to you from time to time (collectively, the “Influencer Terms”).
- To enroll in the Campaign, You must complete and submit the online application. Initial approval of Your application does not mean that all information or actions set forth in the application comply with the Influencer Terms, and it is Your continuing duty to ensure Your compliance. We may reject Your application and/ or dismiss You from the Campaign at any time at our sole discretion.
- You must provide Your full and accurate legal name, a valid email address, and any other information required to complete the application for the Campaign. You will only provide true and accurate information to the Company, and will update any such information as necessary to ensure that such information is kept complete and accurate. You will not use any “bot” or other automated method to enroll or participate in the Campaign.
- You acknowledge and agree that You meet the following eligibility criteria:
- You have read, understand, and agree to be bound by the Influencer Terms.
- You are eighteen (18) years of age or older.
- You reside in the United States.
- You are authorized to work in the United States (proof of which may be requested by the Company).
- You maintain and actively use an Instagram account, which has been approved by the Company. Your Instagram account is referred to as “Instagram.”
- You are in compliance with all FTC guidelines and the Influencer Terms.
You agree to use Your best efforts to market and promote the Company on Instagram (the “Promotional Services” or the “Services”) in a manner consistent with the authorized use for each product as outlined on product labels. You are required to notify the Company of Your Instagram account and add the Company as a friend/ follower.
You agree to perform the following Promotional Services:
- Leave honest feedback about product in the review section of the Company’s Mega Moisturizing Stretch Mark Cream product page.
- Create and post a photo content on Your Instagram feed of the Company’s Mega Moisturizing Stretch Mark Cream, whereby You are seen enjoying and using the Stretch Mark Cream product. (“Content”).
- You must tag the Company @shopelementmom and including the Company website link, com.
- You must make sure product and brand packaging are clearly visible.
- You must include the following hashtags to your post: #elementmom #bellysbestie #pregnancy #maternityskincare #cleanskincare #sponsored
- YOU MUST DELIVER FINAL POST TO THE COMPANY FOR APPROVAL. DO NOT POST BEFORE APPROVAL.
- In all posts, You must wear proper attire such as sports bras, leggings, pajamas, or other apparel when showcasing our product in post.
- Promptly respond to communications from the Company personnel in a text, email, phone or any other form.
Subject to the terms of this Agreement, You hereby grants the Company on a non-exclusive, worldwide basis, the right to use Your name, likeness, testimonials, and all other related rights and content owned by You, such as photo and/or video content (“Influencer’s Endorsement”), including in all forms of marketing, advertising, and public relations media, whether now known or hereafter discovered including, but not limited to, Internet, television, print, online, and social media pages, in connection with any commercial and business purposes, including without limitation, the marketing, promotion, and advertisement of the Company’s products and/or services endorsed by You per this Agreement (“Endorsed Products”).
Solely in connection with the Endorsed Products, You grant to the Company an non-exclusive, worldwide license and right to maintain, use, and display Influencer’s Endorsement and any related work(s) created under this Agreement in perpetuity and on a non-revocable basis. During the Term hereof, You will not, directly or indirectly, use or license the Influencer’s Endorsement in connection with the marketing, sales, or promotion of any products that are the same or similar to the Endorsed Products.
All content, copy, tagging, and required disclosures (i.e., #Ad, #Sponsored, #PaidPartnershipWith, etc.) for Your Instagram account utilized under this Agreement will be reviewed prior to Your posting of any such content. Once all such elements have been approved by the Company, You will in no event modify, alter, or adjust the approved posts in any manner whatsoever without the prior consent of the Company.
You agree that the Company may post, re-post, upload, and otherwise re-use any of Your Content at any time, without compensation other than what is provided in the Influencer Terms. You acknowledge and agree that You are responsible for:
- Any and all activity undertaken in connection with Your participation in the Campaign;
- Maintaining Your Instagram account to ensure compliance with all applicable laws, rules, regulations and policies (collectively, the “Law”), including providing any notifications to followers as necessary to effect compliance with Law;
- Conducting Yourself at all times with the highest degree of professionalism, behaving in a legal, ethical and business-like manner and maintaining the highest standards of integrity, honesty and responsibility in Your dealings with the Company, its staff, customers and sales representatives;
- Presenting and demonstrating the Company in a positive, truthful and sincere manner and not engaging in any activity or action that may damage the Company's reputation or the reputation of its products or services;
- Not using the Company or any trademarks, copyrighted materials, or other Intellectual Property of the Company in any advertising, social media, or in literature other than material published by the Company, without first obtaining the express written permission of the Company; and
The Influencer agrees and understands that if any Content posted by or associated with Influencer is deemed offensive or inappropriate, that Influencer will be deemed, at the sole discretion of the Company, ineligible to participate in the Campaign. The Influencer will then be disqualified from receiving any further, recognition, communication or sponsored gifts from the Company. Influencer will also be disqualified in the event it takes any of the following actions, each a material breach of the Influencer Terms:
- Makes any representations or warranties on behalf of the Company, other than the ones contained in the Company’s marketing and promotional information;
- Fails to comply with any of the Influencer Terms;
- Promotes the Company through unsolicited or spam emails or otherwise violates any Laws regulating electronic communications;
- Engages in, promotes, or contributes to, or creates a platform for, the publishing, hosting, or promotion of sexually explicit materials, scantily clad images or video, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, or of any content that is unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable to the Company in the Company’s sole discretion;
- Transmits messages or images inconsistent with the positive images and/ or good will with which the Company wishes to associate;
- Engages in, promotes, or contributes to any illegal activity or violates the Company’s or any third party’s legal rights, and/ or intellectual property rights;
- Engages in “spam” advertising, sends unsolicited commercial email, posts commercial messages to any forum that prohibits such messages, or engages in any other advertising or marketing practices that are deceptive, misleading, fraudulent, or otherwise objectionable in the Company’s sole discretion. You may not present the Company’s banners, images or videos as if they are Your own or any other site’s (which is usually referred to as copyright or trademark infringement, and is illegal) as it may cause a customer to opt-in thinking they are signing up to receive the Company’s communications rather than Yours;
- Creates or links to a website that copies, resembles, has the look and feel of or creates the impression that it is the Company website or any other platform of the Company;
- Reads, intercepts, records, redirects, interprets or fills in the contents of any electronic form or other materials submitted to the Company by any person or entity;
- Uses any promotional coupon or code that is not provided to Influencer by the Company for the Campaign, or runs any ad with any of the Company’s URLs offering Influencer commissions;
- Sells or re-sells any of the Company’s products, or offers a cash incentive or discount on the Company products as a means of promotion; or
- Takes any action (or fail to take an action), that is deemed to be unsuitable to the Company, in its sole discretion.
Rights of the Company
The Company reserves the right to preview Influencer’s Content from time to time upon request and reserves the right to request changes to and/or removal of Content in its sole discretion. We have the right to monitor Your Accounts at all times to ensure that Your Accounts comply with the Influencer Terms, the Law, and any other requirements. We may notify You of any changes to Your Content or Accounts that we feel should be made. Without limiting our rights as stated herein, we may terminate Your participation in the Campaign if You do not make any changes to Your Account that we feel are necessary or appropriate. We reserve the right to terminate Your participation in the Campaign immediately and without notice to You should we suspect that You have violated the Influencer Terms.
The parties agree and acknowledge that the relationship of the parties is in the nature of independent contractors. This Agreement will not be deemed to create a corporate partnership or joint venture and neither party is the other’s agent, partner, employee, or legal representative. Each party agrees to assume complete responsibility for its own employees with regard to federal or state employers’ liability and withholding tax, worker’s compensation, social security, unemployment insurance, and Occupational Safety and Health Administration requirements and other federal, state and local laws.
Compensation for Services. In consideration of the Promotional Services and rights granted to the Company with respect to Content, Influencer will be compensated as follows:
- Influencer will receive one (1) free Element Mom Mega Moisturizing Stretch Mark Cream, valued at $36.
All the Company trade names, trademarks, logos, slogans, domain names, trade dress, coupons, hypertext links, promotional codes, designs, works of authorship, and other advertising and marketing material (collectively, the “the Company Intellectual Property”) is the property of the Company , and You will not use such the Company Intellectual Property except in the form provided to You through the Campaign, and solely for the purpose and in the manner specifically authorized by the Company.
- Unless and only to the extent explicitly authorized by the Company , You will not modify any of the Company’s Intellectual Property or use any modified or derivative version of any the Company’s Intellectual Property.
- Unless and only to the extent explicitly authorized by the Company , You will not purchase, use or register any domain name, or any social media profile name, handle, or moniker, that comprises or incorporates any the Company’s Intellectual Property or any variations, derivatives or misspellings thereof.
- You will not publish, host, or promote any the Company’s Intellectual Property or other material that misrepresents Your relationship with the Company or implies that You are an official site, authorized dealer, or otherwise specially connected with or sponsored by the Company. Without limiting the foregoing, You will not publish, host, or promote any press releases, print advertising, or co-branding items that reference the Company or make use of any the Company’s Intellectual Property or any variations or derivatives thereof, except to the extent expressly authorized by the Company .
- You agree that any and all content, photos, videos, verbiage, pictures, writings, other work product and/ or works of authorship generated as part of the content or otherwise related to the work that You do for the Company (collectively, the “Content”) shall be sole and exclusive property of the Company , and You irrevocably assign to the Company all right, title and interest in any Content that You create, or to which You contribute, including all intellectual property rights contained therein. You acknowledge and agree that the Company is expressly authorized to use Your name, likeness, voice, signature, photograph, image, distinctive appearance, gestures or mannerisms as part of any Content, such use will not constitute an infringement of any of Your rights, and all Your rights relating to or embodied in any Content are hereby waived.
- The Company may post any and all of the Content on social media outlets (including but not limited to YouTube, Facebook and Instagram) at its discretion, in perpetuity, at no charge. You acknowledge and agree that all Content was specially requested by the Company , and further agree that it shall be considered a work made for hire within the meaning of the copyright laws of the United States (together with any modifications, improvements or enhancements). The Company may use and/or re-use the Content, alone or with other material, in its sole discretion, without any obligation to give You any ownership, credit or remuneration.
Ownership and Use
Each party hereto shall retain ownership of, and neither party will acquire any right, title or interest in, all trademarks, logos, designs, copyrights, trade names and all other intellectual property rights which it owns or has rights to and which are used in any way in advertisements, materials, or other content in connection with this Agreement (collectively, the “Marks”). Subject to the terms hereof, any materials developed, provided, or contributed by any party in connection with this Agreement shall be owned by the party that developed, provided or contributed them, subject to the other parties’ rights in and to any of its trademarks, copyrights, or other intellectual property contained therein. Neither party shall directly or indirectly take or participate in any way in any action contesting or impairing the rights of the other party in and to its respective intellectual property rights. Furthermore, neither party is granted any right or license under this Agreement to sell, or otherwise distribute for sale, any of the promotional or advertising materials bearing the other party’s Marks.
The parties acknowledge and agree that the release or unauthorized use or disclosure of the terms of this Agreement or any proprietary or confidential information of another party, will have a detrimental effect on the other parties hereto. Accordingly, each party agrees to keep confidential and not to disclose the terms of this Agreement or any proprietary or confidential information disclosed to or learned by it during the Term of this Agreement or the negotiations leading to its execution, including proposals, financial information, plans with respect to advertising, marketing, sales, and any other proprietary, non-public, or confidential information relating to the business of the other party, provided that each party may disclose such terms and information to their respective affiliates and related companies, accountants, and legal, financial, and marketing advisers, provided that such entities/persons agree to treat such terms and information as confidential. In no event will confidential information be deemed to include information or materials that are in the public domain at the time of disclosure (through no fault of the disclosing party), are discovered independently and lawfully by a party, or when necessary to be used by a party in judicial or other legal proceedings involving the parties (but such disclosing party must provide advance written notice thereof so that a protective order or similar protection can be obtained or agreed upon).
The term of the Influencer Terms shall begin upon submission of Your application and continue until terminated. The Influencer Terms may be terminated by the Company immediately at any time, with or without cause, upon the Company’s written notice to You; and by You upon thirty (30) days written notice by You to the Company. Influencers who do not follow the applicable requirements can be subject to termination, suspension, or their commissions being held until all requirements are followed. The obligations related to Confidential Information will continue perpetually after the termination of the Influencer Terms.
(i) Mutual. Each party will indemnify, defend and hold the other party, and their respective shareholders, officers, directors, employees, agents and assignees harmless from and against any third party claims, liabilities, fines, penalties, or actions that may be brought against the other party arising out of or related to: (i) any breach by the indemnifying party of its representations, warranties, or covenants set forth in this Agreement; and/or (ii) any gross negligence or willful misconduct by the indemnifying party.
(ii) Process. If either party seeks indemnity from the indemnifying party pursuant to this Section 6, the indemnified party shall promptly notify the indemnifying party in writing, specifying the nature of the action and the total monetary amount sought or other such relief as is sought therein and shall permit the indemnifying party to control the disposition thereof; provided, however, that the failure to give timely notice shall relieve the indemnifying party of its obligations only to the extent untimely notice materially impairs its ability to defend. The indemnified party shall have the right, but not the obligation, to participate at its expense in any such suit through counsel of its choosing. Neither party will, without the prior written consent of the other party, settle any pending or threatened proceeding in respect to which the other party is a party and indemnity is being sought under this Agreement unless such settlement includes an unconditional release of such other party from all liability on all claims that are the subject matter of such proceeding.
Neither party will be liable for any delay or failure in performance under this Agreement, or for any interruption of services rendered hereunder, which result directly or indirectly from acts of God, civil or military authority, act of public enemies, war, terrorism, accidents, pandemics/epidemics, fires, explosions, earthquakes, floods, hurricanes, or any other similar or different unforeseeable cause (collectively, “Force Majeure Event”) beyond the reasonable control of the obligated party; provided that the non-performing party gives prompt notice of the Force Majeure Event to the other party and makes all reasonable efforts to perform. The obligations and rights of the party so excused will be excluded on a day-to-day basis for a period of time equal to that of the underlying cause of the Force Majeure Event; provided that if such Force Majeure Event continues for a period of six (6) consecutive weeks, effective as of the date of the commencement of the Event, then either party may terminate this Agreement without liability to the other except for monetary obligations then due.
Limitation of Liability
THE COMPANY WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE INFLUENCER TERMS, IN NO EVENT SHALL THE COMPANY’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THE INFLUENCER TERMS, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSIONS PAID TO YOU UNDER THE INFLUENCER TERMS.
Representations and Warranties
Each party represents and warrants to the other, that to the best of their knowledge and belief and/or ability: (i) all information provided by one party to the other is true and correct in all material respects at the time such information is provided; (ii) the performance of each party’s respective obligations under this Agreement will be in compliance with all applicable federal, state and local laws, regulations, rules, guidelines, court orders, ordinances and standards throughout the United States; and (iii) each party has the authority, standing, and all vested rights in order to enter into this Agreement perform their respective obligations and not violate or breach any terms of agreement or understanding with any individual, entity, or other third parties.
THE COMPANY MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THE COMPANY’S WEBSITE(s) OR ANY OTHER WEBSITES MAINTAINED AND OPERATED BY THE COMPANY OR THE PRODUCTS OR SERVICES PROVIDED THEREON OR OTHERWISE OFFERED BY THE COMPANY, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, THE COMPANY MAKES NO REPRESENTATION THAT THE OPERATION OF ANY OF THE COMPANY’S WEBSITES WILL BE UNINTERRUPTED OR ERROR FREE, AND THE COMPNAY IS NOT LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
The Company may change the Influencer Terms in the future. Unless the Influencer Terms or Law specify/(ies) otherwise, we will give You thirty (30) days prior notice of any significant change to the Influencer Terms. If You find the change unacceptable, You have the right to terminate the Agreement. However, if You continue to receive the benefits of the Agreement after the end of the notice period of the change, You will be considered to have accepted the changes. You may not modify the Influencer Terms by making any typed, handwritten, or any other changes to them for any purpose.
In the event a dispute arises out of or in connection with this Agreement, the Parties will attempt to resolve the dispute through friendly consultation. If the dispute is not resolved within a reasonable period, then any or all outstanding issues may be submitted to mediation in accordance with any statutory rules of mediation. If mediation is unavailable or is not successful in resolving the entire dispute, any outstanding issues will be submitted to final and binding arbitration in accordance with the laws of the State of California. The arbitrator's award will be final, and judgment may be entered upon it by any court having jurisdiction within the State of California.