Sponsored Creator Agreement

OG Tech Sponsored Creator Agreement
Last Modified: April 30, 2020

 
Welcome to the OG Tech Sponsored Creator Agreement. This is an agreement (“Agreement”) between OG Tech, LLC (“OG Tech”), the owner and operator of og.social, the mobile application, software, components, and any associated services offered (collectively the “Platform”) and you (“you”, “your” or “Sponsored Creator”), a Sponsored Creator on the Platform. Throughout this Agreement, the words “OG Tech,”  “us,”  “we,” and “our,” refer to our company, OG Tech, as is appropriate in the context of the use of the words.

By clicking “I agree” you agree to be bound by this Agreement.  We may amend this Agreement from time to time and may notify you when we do so.  PLEASE BE AWARE THAT THERE ARE ARBITRATION AND CLASS ACTION PROVISIONS THAT MAY AFFECT YOUR RIGHTS.  BY ENTERING INTO THIS AGREEMENT YOU REPRESENT THAT YOU ARE EIGHTEEN (18) YEARS OF AGE OR OLDER AND LAWFULLY ABLE TO ENTER INTO LEGALLY BINDING AGREEMENTS.

  1. Purpose.
    1. The purpose of the Agreement is to set forth the terms and conditions of Sponsored Creator’s participation in the OG Tech Sponsored Creator Program (the “Program”).   OG Tech may from time to time change the terms of this Agreement and may notify you in writing of such changes, your continued use of the Program will constitute your acceptance to the changes in the terms of this Agreement.
  2. Defined Terms.
    1. “Commission(s)” means the payments made to Sponsored Creator by OG Tech.
    2. “Paid Follower(s)” means a user of the OG Tech Platform (as defined in the TOU) that has paid a monthly subscription to OG Tech that has selected to follow Sponsored Creator as their designated sponsored creator under this Program.
    3. “Program Policies” means related guidelines, directives, rules and procedures for the Program.
    4. “Program” means the OG Tech Sponsored Creator Program.
    5. “Tracking Report” means the calculation and reporting mechanism employed by OG Tech to track the number of Paid Followers and Commissions due to Sponsored Creator.
    6. “User Content” means User Content as defined in the OG Tech TOU (defined below).
  3. Sponsored Creator Enrollment and Appointment.
    1. Enrollment.  In order to enroll in the Program, Sponsored Creator must: (i) indicate Sponsored Creator’s acceptance of the terms and conditions of this Agreement by executing this Agreement, and (ii) accept OG Tech’s Terms of Use (“TOU”).   Sponsored Creator’s enrollment in the Program is subject to (i) OG Tech’s sole discretionary review and approval (“Approval”).  Approval may be withheld or withdrawn by OG Tech in its sole discretion at any time.
    2. Tax Information.  Unless not required by applicable law, Sponsored Creator must correctly complete, sign and submit to OG Tech, an IRS Form W-9 or any other tax forms as requested by OG Tech.  If Sponsored Creator fails to timely comply with this paragraph, OG Tech will withhold payment of Commissions until Sponsored Creator has done so.  Further, Sponsored Creator agrees to comply with any reasonable requests from OG Tech regarding any tax information requested during and after Sponsored Creator’s participation in this Program. Sponsored Creator shall be responsible to ensure its compliance with all applicable tax and legal obligations that arise from its participation in the Program.
    3. Expenses.  Sponsored Creator is solely responsible for any and all marketing, advertising and other expenses incurred in connection with the Program.
    4. Reservation of Rights.  Except as expressly provided hereunder, OG Tech does not convey any intellectual property rights to Sponsored Creator. For this purpose, intellectual property rights shall mean the intangible legal rights or interests and to any OG Tech content, trademarks, copyrights, or other associate content.
  4. Sponsored Creator Requirements.
    1. Responsibilities of Sponsored Creator.  Sponsored Creator shall ensure that it complies in all respects with applicable law, this Agreement, and the TOU while participating in the Program.  Sponsored Creator represents and warrants that: (i) any User Content created by Sponsored Creator  is accurate, appropriate,  and do not violate or infringe upon the intellectual property or privacy rights of any third party and (ii) any User Content is not libelous, discriminatory, defamatory, obscene or otherwise illegal
    2. Prohibited Content. OG Tech may terminate this Agreement if Sponsored Creator does any of the following while trying to promote itself through the Platform or under this Program.  Sponsored Creator shall not:
      1. promote sexually explicit material,
      2. promote gratuitous violence,
      3. promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age,
      4. promote illegal, misleading, fraudulent, false activities or promote anything that is considered spam,
      5. appear to be explicitly or impliedly state that there is any material connection, endorsement, or recommendation by OG Tech of Sponsored Creator ,
      6. do anything that is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable,
      7. violate the intellectual property rights of any person or entity, or
      8. include a trademark or intellectual property of OG Tech.
  5. Tracking Reports.
    1. Tracking Reports.  Upon Sponsored Creator’s acceptance to the Program, OG Tech shall use Tracking Reports to track any Paid Followers of Sponsored Creator and any Commissions owed to Sponsored Creator.    
    2. Sponsored Creator hereby acknowledges and agrees that the Tracking Reports provided by OG Tech are not error-free and that there may be Commissions un-credited to Sponsored Creator due to:  (i) deliberate and/or accidental acts by any Paid Followers that cause the disabling of the  Tracking Reports; (ii) bugs, glitches, errors or crashes of the Tracking Reports that render them unable to accurately track sales or leads for a period of time; and (iii) actions beyond the control of OG Tech that cause irretrievable data loss on computers and back-up disk media that store Commission information, and that OG Tech shall not be liable for any lost Commissions due to the foregoing.  OG Tech reserves the right to modify any Tracking Reports at its sole discretion.
  6. Commissions and Payments.
    1. Commissions.  Subject to the terms and conditions stated herein, Sponsored Creator shall be entitled to a Commission of one dollar ($1) per month for each Paid Follower exceeding four hundred and nine hundred and ninety nine (499) Paid Followers.  For example, if Sponsored Creator has six hundred Paid Followers in a calendar month, Sponsored Creator shall be entitled to a Commission of $600 dollars for that monthly period.  Notwithstanding anything set forth herein or in any policies to the contrary, Sponsored Creator shall not be eligible to receive Commissions resulting from actual or alleged fraud, misrepresentation, illegal action or any of the prohibited actions set forth in this Agreement or the TOU. If OG Tech determines in its sole discretion that Sponsored Creator has participated in any prohibited activities or if OG Tech believes that Sponsored Creator’s actions may harm OG Tech’s business interests, OG Tech may, without limiting any other available rights and remedies, withhold the payment of Commissions payable under this Agreement and/or terminate this Agreement with immediate effect.  OG Tech reserves the right at all times to modify any Commissions owed and may withhold all Commissions from Sponsored Creator in the event of a dispute. NOTWITHSTANDING ANYTHING SET FORTH HEREIN TO THE CONTRARY, SPONSORED CREATOR ACKNOWLEDGES AND AGREES THAT: (I) SPONSORED CREATOR MAY NOT REALIZE ANY BUSINESS, REVENUE OR OTHER ECONOMIC BENEFIT AS A RESULT OF SPONSORED CREATOR’S PARTICIPATION IN THIS PROGRAM; AND (II) NOTHING CONTAINED IN THIS AGREEMENT, IN ANY POLICIES OR ON THE PROGRAM SITES SHALL BE CONSTRUED AS ANY GUARANTEE OF ANY MINIMUM AMOUNT OF COMMISSIONS OR ANY MINIMUM AMOUNT OF OTHER PAYMENTS, INCOME, REVENUE OR OTHER ECONOMIC BENEFIT IN ANY FORM WHATSOEVER.
    2. Payment of Commissions. Commissions for Paid Followers will accrue on a monthly basis with the final day of any calendar month acting as the cut off period for purposes of calculating the number of Paid Followers and Commissions due for Sponsored Creator’s Tracking Report for that calendar month. A Paid Follower account must be active for a minimum of thirty (30) days prior to the accrual of any Commission. Within thirty (30) days following the end of each calendar month and pursuant to the payment method selected by Sponsored Creator, OG Tech will pay to Sponsored Creator the Commissions earned by Sponsored Creator during that month, less any applicable taxes and fees (including payment processing or other charge fees) deducted by OG Tech; provided, however, that if the Commissions payable to Sponsored Creator for any given month are less than $100 (one-hundred dollars), OG Tech may withhold payment until the total Commissions owed to Sponsored Creator exceed $100.
    3. Miscellaneous. In no event shall OG Tech have any liability under this Agreement for any Commissions not received by Sponsored Creator as a result of an error in any way attributable to: (a) any bank or financial institution; or (b) any other person, entity or occurrence outside of OG Tech’s direct control.
    4. Compliance with Policies.  Sponsored Creator shall strictly comply with any and all instructions from OG Tech concerning the Program, including without limitation those set forth in the OG Tech program policies or other documents found on the OG Tech Platform.
  7. Sponsored Creator Obligations.
    1. Compliance with Applicable Laws.   Sponsored Creator shall comply with all applicable laws, codes, directives, ordinances, rules, regulations, and other requirements now or hereafter in effect, of governmental or quasi-governmental authorities having jurisdiction over Sponsored Creator that govern marketing via the Internet and email, including but not limited to, the CAN-SPAM Act of 2003 and all other anti-spam laws and the FTC Guidelines Concerning the Use of Testimonials and Endorsements.
  8. Prohibited Activities.
    1. Abuse of the Platform. Sponsored Creator shall not use or attempt to use the Platform with the intent to interrupt, disrupt, damage, disable, overburden, or impair the Platform’s performance, or interfere with any person’s use and enjoyment of the Platform, including without limitation (i) sending mass unsolicited email messages, (ii) flooding servers with requests, or (iii) the use of spyware or similar programs that materially interfere with the Platform.  Sponsored Creator shall not attempt to gain access to the computer systems of OG Tech or any third party through the Platform.  Sponsored Creator shall not engage in “spidering,” “screen-scraping,” “database scraping,” harvesting of email addresses, wireless addresses or other contact or personal information, or any other automatic means of obtaining lists of  information  from or through the Platform, including without limitation any information residing on any server or database connected to the Platform.
    2. Illegal Activities.  Sponsored Creator shall not undertake any activities that are considered illegal or unlawful within its jurisdiction or under US federal, state, or local laws.
  9. Term and Termination.
    1. Program Termination. The Program is offered at the discretion of OG Tech and may be modified, updated, revised, or terminated at OG Tech’s discretion at any time without notice to Sponsored Creator.  OG Tech reserves the right to remove Sponsored Creator from the Program at any time without cause and without liability to Sponsored Creator.  In the event that Sponsored Creator is removed from the Program, Sponsored Creator shall not be entitled to any Commissions after its removal from the Program.
    2. Term. The term of this Agreement (“Term”) commence upon the Sponsored Creator enrollment. Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination.   OG Tech may terminate this Agreement immediately without notice if it has discovered that Sponsored Creator has breached any portion of this Agreement. Upon the termination or expiration of this Agreement, Sponsored Creator shall immediately cease all marketing and promotion as a Sponsored Creator
    3. Post-Termination Commissions.  Except as otherwise set forth herein, Sponsored Creator shall not be entitled to Commissions for Paid Followers after the termination of this Agreement.
  10. Disclaimer; Limitation of Liability.
    1. OG Tech makes no express or implied warranties or representations with respect to the Program, the Platform, or any Paid Followers (including without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of course of performance, dealing or trade usage).  OG Tech makes no representation that the operation of the Platform or the Tracking Reports will be uninterrupted or error- free, and will not be liable for the consequences of any errors or interruptions.
    2. NEITHER PARTY TO THIS AGREEMENT WILL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM, TRACKING REPORTS, USER CONTENT OR THE SERVICES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS OR GOODWILL, BUSINESS INTERRUPTION, OR LOST DATA In any manner, however caused and on any theory of liability, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE CUMULATIVE LIABILITY OF EITHER PARTY WILL NOT EXCEED THE AMOUNT OF COMMISSIONS THAT SPONSORED CREATOR HAS RECEIVED UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRECEEDING THE DATE THE CAUSE OF ACTION ARISES OR SHOULD REASONABLY HAVE BEEN DISCOVERED.
  11.  Indemnification.
    1. Sponsored Creator shall indemnify OG Tech, their respective affiliates and  licensors, and any officers, directors, employees, agents or representatives of the foregoing,  from and against all third party claims, costs, liabilities, judgments, expenses, and damages (including amounts paid in settlement and reasonable attorneys’ fees) that result, directly or indirectly, from:  (i) any breach of any of the terms of this Agreement; (ii) any misrepresentation, fraud or negligence; (iii) any re-characterization of Sponsored Creator as an employee of OG Tech, including but not limited to any liability for premiums, contributions or taxes payable to any workers’ compensation, unemployment compensation, disability benefit or tax withholding; (iv) any amounts including, without limitation, taxes, interests and penalties assessed against OG Tech that are obligations of Sponsored Creator; (v) any claim that Sponsored Creator’s actions harmed OG Tech or a third party; and (vi) any use by Sponsored Creator of any User Content.
  12. Governing Law and Dispute Resolution.
    1. Governing Law & Interpretation.  This Agreement shall be construed and enforced under the substantive laws of the State of California without regard to conflicts of law principles.
    2. Dispute Resolution.  Any dispute, relating in any way, to your access or use of our Platform or this Agreement shall be submitted to confidential arbitration in Buena Park, CA. Arbitration under this Agreement shall be conducted pursuant to the applicable arbitration rules (“Rules”) then prevailing at the American Arbitration Association. Arbitration shall be conducted in English by one (1) arbitrator as selected pursuant to the Rules; the arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction.  Each party shall be responsible for their own arbitration fees and costs. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action proceedings or otherwise. Where permitted by the Rules, both parties may make any and all appearances telephonically or electronically. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Platform or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned.   Notwithstanding the foregoing, either party may seek equitable relief to protect its interests (including but not limited to injunctive relief), in a court of appropriate jurisdiction, and issues of intellectual property ownership or infringement may be decided only by a court of appropriate jurisdiction and not by arbitration. In the event that the law does not permit the abovementioned dispute to be resolved through arbitration or if this arbitration agreement is unenforceable, you agree that any actions and disputes shall be brought solely in a court of competent jurisdiction located within Orange County, CA.
    3. Class Action Waiver. You and OG Tech agree that any proceedings to resolve or litigate any dispute whether through a court of law or arbitration shall be solely conducted on an individual basis and waive all trials by jury. You agree that you will not seek to have any dispute heard as a class action, representative action, collective action, or private attorney general action.
  13. Miscellaneous.
    1. Force Majeure.  Neither party shall be liable for any failure to perform any of its respective obligations under this Agreement when such failure is caused by or results from any event beyond the control of that party; provided, that (a) the party who has suffered a force majeure event shall (1) immediately notify the other party of the occurrence and nature of such event and (2) use commercially reasonable efforts to continue performing its obligations under this Agreement.
    2. Notices.  Any notice or other communication under this Agreement shall be in writing and shall be considered given when delivered personally, mailed by registered or certified mail, return receipt requested, delivered by overnight courier or faxed or sent via email (with confirmation receipt report) to the parties at the addresses specified in the Platform or via the Platform messaging system.
    3. Entire Agreement. This Agreement, together with the TOU, and any Program Policies communicated to Sponsored Creator by OG Tech and any modifications, exhibits or schedules hereto, contains the entire agreement between the parties and supersedes any prior or inconsistent agreements, negotiations, representations and promises, written or oral between the parties respecting the subject matter hereof. Where the TOU and this Agreement directly and expressly conflict the TOU shall control and supersede.
    4. ModificationsNo modifications of this Agreement shall be effective unless in writing and signed by both parties.
    5. Waiver.  The failure of a party to insist upon strict adherence to any of the terms of this Agreement on any occasion shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.  Any waiver must be in writing.
    6. Assignment.  This Agreement is binding upon the heirs, legal representatives and successors of the parties.  This Agreement may not be assigned unless approved in writing by both parties with such consent not be unreasonably withheld.
    7. Relationship of the Parties.  The parties are and shall be, with respect to the subject matter of this Agreement, independent contractors of one another and nothing herein shall be deemed to create an agency, partnership, employment, or joint venture relationship between the parties.  Sponsored Creator shall in no way imply that OG Tech endorses, recommends, or is otherwise affiliated with Sponsored Creator except as expressly stated within this Agreement. Nothing in this Agreement precludes OG Tech from retaining the services of other persons or entities undertaking the same or similar services as those undertaken by Sponsored Creator hereunder.  Construction; Severability. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid by a court with jurisdiction over the parties to this Agreement, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.
    8. Interpretation.  This Agreement shall be deemed a mutual agreement and shall not be construed and/or interpreted in favor or against either party on the basis of preparation of the Agreement.
    9. Remedies Cumulative.  The rights and remedies herein provided to OG Tech in case of default or breach of this Agreement by Sponsored Creator are cumulative and without prejudice to any other rights or remedies that OG Tech may have by reason of such default or breach by Sponsored Creator at law, in equity, under contract or otherwise (all of which are hereby expressly reserved).
    10. Consent to Receive Communications. Sponsored Creator acknowledge that this Agreement serves as Sponsored Creator’s express written consent to receive e-mail, facsimile or other communications from OG Tech and/or any of its Sponsored Creators, including without limitation, communications that contain unsolicited advertisements.  This written consent shall include (without limitation) all such communications regulated by future Federal Communications Commission action.
    11. Survival.  Following the termination of this Agreement, the parties shall remain obligated under all provisions of this Agreement which by their terms continue after the termination of this Agreement or are incidental to the performance of the obligations under such provisions, including, without limitation, Sections 3, 8, 9, 10,12, 13, and 14.
  14. Electronic Acceptance.
    1. Upon the clicking of the “Accept” or “I Agree” button Sponsored Creator has read and accepts the terms of this binding Agreement by and between OG Tech and Sponsored Creator.