Observer Tools Influencer Program Agreement

Welcome Influencers!!  We're happy to be partnering with you to promote the Observer Tools brand with your audience.  As part of the Observer Tools Influencer Program, there are certain Terms & Conditions that need to be agreed to in order to participate in the program.

Acknowledging the adequacy of the consideration exchanged in the Observer Tools Social Media Influencer Agreement (“Agreement”), the parties agree as follows:

1. Duties of Influencer

1.1. Influencer (the "Influencer") agrees to provide the professional services (“Services”), which includes, but is not limited to, creating social media Posts, Stories, Reels or Videos that can be shared on the major social media platforms, including, but not limited to, Facebook, Instagram, TikTok, and Twitter. The content is original, and should properly represent Observer Tools, LLC (the "Company).

There are no specific dates or number of posts that need to be created, but the Influencer must create content to remain in the Program. The Influencer is free to decide how often to post and what format those posts will take.

1.2. Influencer further agrees to: (a) perform the services in a professional manner; (b) comply with any safety, security, code of conduct, terms of service, or other policies of the Company, its business partners, and applicable social media platforms; and (c) supply all tools and equipment necessary to perform the Services unless otherwise agreed, including any and all licenses, permits, and certificates required by law, which are required for the performance of the Services.

1.3. Influencer warrants and represents that (a) all work product created by Influencer in connection with this Agreement (“Work Product”) is new and original, or has all necessary licenses, and that it will not violate any law or infringe upon the rights of any other person or entity; (b) to the best of Influencer’s knowledge, there is no other contract or obligation that would prevent Influencer from performing the Services; and (c) it will comply with all applicable, local, state, provincial, and national laws and regulations while performing the Services.

1.4. The influencer is not required to have postings approved by the Company, but the Company reserves the right to have a post removed if the content misrepresents the company.

The content must align with the Company values: no hate speech, drugs, assault weapons, or smoking paraphernalia. Influencer shall immediately remove any posts which Observer deems in its sole discretion do not meet standards associated with the quality of their brand.

If the influencer fails to deliver any content in the duration of the contract, or delivers more than 2 pieces of content that are outside of the Company' values, the contract will be terminated.

1.5. During any influencer campaign, Influencer will ensure that all its activities and posts (i) disclose its material connection to the Company clearly and conspicuously pursuant to applicable laws and regulations including the FTC influencer sponsorship disclosure guidelines referenced at https://www.ftc.gov/system/files/documents/plain-language/1001a-influencer-guide-508_1.pdf; (ii) do not make any unsubstantiated claims about the goods and services of the Company.

1.6. Influencer agrees that it is an independent contractor and is responsible for all federal, state and local taxes. This Agreement shall not be construed to create a joint venture or partnership, and neither party has the authority to bind the other to any third party.

1.7. Influencer must obtain the Company’s prior written permission for any use of the Company’s or its business partners’ names or trademarks for self-promotional activities beyond the Services.

1.8. Influencer may not subcontract or assign its obligations under this Assignment without Observer’s prior written approval.

1.9. Influencer agrees not at any time to make any defamatory or disparaging remarks concerning the Company, its employees, agents or third parties.

2. Duties of the Company

2.1 The Company will compensate the Influencer a commission of all sales (the "Commission") that will be a percentage on sales attributed to the specific Influencer and agreed to in writing (physical or electronic).

2.2. The Company will provide the Influencer a unique discount code to share with their followers in order to the Influencer' Commission.

2.3. The Company will pay the Influencer via PayPal. There will be a 3-month trial period (the "Trial Period") in which the Influencer will be paid their commission 35 days after the end of the month in which the sale occurred in order to account for any returns (the Company has a 30-day return policy).  For example, if a sale occurs in March during the Trial Period, the Influencer will be paid the Commission on that sale 35 days after March 31st.  After the Trial Period, the Influencer will be paid within 5 business days after the end of every month for sales during that month.  For example, if a sale occurs in March after the Trial Period, the Influencer will be paid the Commission on that sale within 5 business days of March 31st. When the Company references a payment being made, this is referring to when the payment transfer is started.  The Company is not responsible for the time it takes for the financial institution to process the transaction.

2.4. The Company shall send the Influencer a sales report on the last day of the month, if that day falls on a business day, or the first business day after the last day of the month to document the sales attributed to that Influencer and the Commission.

3. Limited License

3.1. The Company grants Influencer a limited non-exclusive, royalty-free, non-transferable, and non-sublicensable license during the Term to use the Company’s trademarks or other intellectual property (the “Company IP”) solely to the extent necessary to provide the Services.

3.2. Influencer acknowledges that the Company owns all right, title, and interest in the Company IP, and that Influencer will not acquire any proprietary rights therein. All goodwill and other rights associated with the Influencer’s use of the Company IP inures to the benefit of the Company.

4. Confidentiality

During the term of this Agreement and for two (2) years thereafter, Influencer shall treat Confidential Information on a confidential basis and not disclose it to others without the prior written permission of the Company, or use Confidential Information for any purpose, other than for the performance of Services.  For purposes of this Agreement, "Confidential Information" shall mean all documentation, software, know-how, website development, applications, customers, business partners, marketing, processes, pricing, sales, products, premiums, and other information relating to the past, present or future business of the Company and business partners or any plans therefore, or relating to the past, present or future business of a third party or plans therefore that are disclosed to the Company, which the Company does not disclose to third parties without restrictions on use or further disclosure. Confidential Information shall not include information that verifiable documentation establishes: (i) is or has become part of the public domain through no fault of Influencer; (ii) was received from a third party, not under an obligation to keep such information confidential; or (iii) is known to or developed by Influencer prior to the date he or she commenced performing Services, except to the extent such information has become the property of the Company.

5. Work Product and Rights

5.1. All rights in the Work Product that Influencer creates in connection with this Agreement shall remain ownership property of Influencer. The Company will receive a non-exclusive, royalty-free license, throughout the universe in perpetuity, to use Influencer's Work Product in any media.

5.2. The Company shall have the right to edit or otherwise alter the Work Product for promotional purposes. Influencer hereby waives the right to inspect or approve any altered Work Product wherein Influencer’s name and likeness appears. Influencer further releases the Company from all liability, loss, claims, suits or damages arising out of or in connection with the use of Influencer’s name, likeness, and personal information for all purposes worldwide, including but not limited to, compensatory, punitive, enhanced, consequential and incidental damages and reasonable attorneys’ fees, whether such damages arise under contract, tort or statute.

6. Term and Termination

6.1. This Agreement will commence on the date that the Influencer agrees in writing (physical or electronic) to the terms of this Agreement (the "Effective Date") and will continue for one (1) year, unless it is terminated earlier pursuant to this Section. This Agreement is automatically renewed annually unless the Parties agree to terminate the Agreement in writing (physical or electronic) 30 days before the renewal.

6.2 Termination during Trial Period: Either Party can terminate this Agreement during the Trial Period immediately without cause.  The Company will be responsible for paying any outstanding Commission due to the Influencer.

6.3. Termination after Trial Period: Either Party can terminate this Agreement after the Trial Period without cause as long as notice is given 60 days prior to termination.  The Company will be responsible for paying any outstanding Commission due to the Influencer.

6.4. Termination for Morals: During the Term of the Agreement, If Influencer fails, refuses or neglects to govern its conduct with due regard to social conventions and public morals, or commits any act which brings either party into public disrepute or reflects unfavorably on the Company or its customers or business partners, then the Company may, in addition to and without prejudice to any other remedy of any kind or nature set forth herein, immediately suspend or terminate this Agreement at any time after the occurrence of any such event, in addition to any other rights and remedies that the Company may have hereunder or at law or in equity.  If the Agreement is terminated for this reason, the Company is not responsible to pay any outstanding Commission to the Influencer.

7. Indemnification

Influencer shall hold harmless, defend and indemnify the Company its officers, agents, and employees, and its clients and business partners, from and against each and every demand, claim, loss, liability or damage of any kind, including attorneys’ fees and expenses, whether in tort or contract, whether personal injury, business injury or property damage, that the Company may incur by reason of, or arising out of: any failure of performance of Influencer under this Agreement; the negligence of Influencer in the performance of its duties under this Agreement; or any act, error, or omission on the part of Influencer, its agents, employees, or servants. Influencer shall make payment of all proper charges for labor, products, and materials required to perform Services, and Influencer shall indemnify the Company and hold it harmless from and against any demand, claim, loss, liability, or damage of any kind, including attorneys’ fees and expenses, arising out of unpaid bills for labor, products, or materials utilized to perform the Services under this Agreement.

8. General

8.1.Applicable Law and Jurisdiction.  This Agreement will be governed and construed in accordance with the laws of the State of Maryland without regard to the conflicts of laws or principles thereof and applicable US federal law.  It is further agreed that any and all disputes shall first be attempted to be resolved through friendly negotiation.  If the disputes cannot be resolved through friendly negotiation, all disputes, claims or litigation arising from or related in any way to this Agreement or any provisions herein will be resolved through arbitration according to Maryland law.  If the disputes, claims or litigation cannot be resolved through arbitration, all disputes, claims or litigation arising from or related in any way to this Agreement or any provisions herein will be resolved exclusively in the state and federal courts located in Maryland.  The parties expressly agree to submit to the personal jurisdiction and venue of such state or federal courts.

8.2. Force Majeure.  Neither party will be responsible for any delay or failure in performance resulting from acts beyond such party’s control (“Force Majeure”).  Force Majeure will include but not be limited to: acts of God, government or war; riots or strikes; fires, floods, or disasters. The parties acknowledge that there are inherent risks due to the ongoing pandemic of COVID-19. Influencer assumes all COVID-19 related risks in delivering the Work Product and shall hold harmless and indemnify the Company and Client from any COVID-19 related claim arising out of its duties under this Agreement.

Observer Tools Contact for Influencer: Freda Johnson, freda@observertools.com