1.1 Unless otherwise defined, capitalized words used in these Terms of Service shall have the meaning given to them in the table.
1.2 In these Terms of Service, the following words will have the meaning given to them in these Terms, unless inconsistent with the context:
"Affiliate" means, with respect to an entity, any entity that controls, is controlled by, or is under common control with such entity, where "control" means the power, directly or indirectly, to direct or cause the management of such entity, the direction of operating policies or assets, whether by ownership of more than 50% of the voting or equity securities or assets, or by contract, management agreement, voting trust or otherwise; provided that the term "affiliate" shall include any variable interest entity, regardless of whether any variable interest entity may or needs to be consolidated with that entity under GAAP;
"Applicable Law" means, with respect to any Person, any and all: (a) laws, statutes or regulations, (b) codes, standards, rules, requirements, orders and standards issued under any law, statute or regulation, (c) the rules of any stock exchange or equivalent body; (d) applicable data protection laws; (e) judgments, orders, writs, instructions, authorizations, awards, decisions, injunctions, decrees, assessments, settlements of any and all governmental authorities an agreement or award which in each case applies to that person or his business or property;
"Business day" means any day in the United States other than a Saturday, Sunday or public holiday;
"Commercially reasonable efforts" means the taking of such steps and the manner in which such steps are carried out by a well-managed company in a determined, prudent and reasonable manner to achieve a particular result in its own interests;
"Confidential Information Legal and Administrative Information; (b) the existence and terms of these Terms of Service (including any fees paid to Influencers/Agents and the commercial details set out in the form), and the Disclosing Party’s use of any information relating to these Terms Position Services in Disputes; (c) any copies of the Confidential Information and all information created or derived from the Confidential Information by or on behalf of the Receiving Party, provided that the Confidential Information shall not include information that: (i) has been is in the possession of the Disclosing Party or its representatives at the time of disclosure; (ii) is or becomes part of the public knowledge except as a result of any act or omission by the Receiving Party or its representatives that violates the confidentiality provisions of these Terms of Service; (iii) is caused by has not been obtained by the Receiving Party or its representatives from a third party who has obtained such information directly or indirectly from the Disclosing Party subject to any obligation of confidentiality; (iv) was independently developed by the Receiving Party or its representatives without use or reference to the Disclosing Party’s Confidential Information ;
"Insolvency Event" means, in relation to a particular person, any of the following events: (i) the appointment of a receiver or similar officer to manage all or a substantial part of the assets or business of that person; (ii) the passing of a resolution for the winding up (for any (other than for the purposes of a solvency merger or reorganization or a winding up in connection therewith) or the court making the order or for the purpose of administration (or any equivalent order in any jurisdiction); (iii) with the creditors of that person any combination or arrangement (other than in connection with a solvency restructuring); (iv) ceases to carry on business; (v) is unable to pay the debts of such person as they become due in the ordinary course of business; (vi) a person causing or being subject to any event, In accordance with applicable law,
"Influencer Content" means all content created and provided by the Influencer under these Terms of Service, including without limitation all intellectual property rights owned by the Influencer, such as text, images, photos, illustrations, drawings, animations, songs, audio, videos and any other works created by the Influencer and provided under these Terms of Service;
"Personal Rights" means any and all rights that protect an Influencer's name, pseudonym, voice, likeness, image, likeness, biography, character, persona, and all other aspects of his or her publicity, privacy, or personality rights under applicable law, and all intellectual property rights related to or incidental to any of the foregoing;
“Intellectual Property Rights” means all copyrights, patents, utility innovations, trademarks and service marks, geographical indications, domain names, layout rights, registered designs, design rights, database rights, trade or commercial names, rights to protect trade secrets and confidential information, the right to protect goodwill and reputation, and all other similar or corresponding proprietary rights and all same applications, whether now existing or created in the future, anywhere in the world, whether registered or not, and all benefits, privileges, the right to sue, recover damages and obtain relief or other remedies for any past, present or future infringement, misappropriation or violation of any of the foregoing rights; and
"Representatives" means a party's affiliates, as applicable, and its and its affiliates' respective officers, directors, employees, consultants, agents and subcontractors.
2.1 These Terms of Service apply to the Influencer/Agency as of the Agreement Date (as stated in the Form) and will survive the Initial Term (as stated in the Form) in the event of earlier termination in accordance with the terms of these Terms of Service in the table). Upon expiration of the Initial Term or any then-current Renewal Term (as the case may be), Macy's may renew the Initial Term (the “Renewal Term”) for such period as Macy's determines in writing to the Influencer /Agency. The Initial Term and the Renewal Term (if applicable) shall be collectively referred to as the “Term”.
3.1 The Influencer/Agency acknowledges and agrees that it shall provide the services specified in the form (the "Services") independently to Macy's during the Term in accordance with these Terms of Service and Macy's needs and shall consider from time to time (in its reasonable discretion, utilizing its technology and expertise) Feedback from Macy's. The Services shall include such other tasks, services, features, activities and obligations not specified in these Terms of Service but reasonably required (at the reasonable discretion of the Influencer /Agency, in consultation with Macy's) for the purpose of influencing The performance of the Services by the Operator /Agency; and shall: (X) be performed with at least the same degree of accuracy, completeness and quality and with the same degree of care, skill and diligence used by, Influencers and other social media personalities of similar status to influencers; (Y) subject to applicable law.
3.2 Macy's may place an order in writing with the Influencer/Agent for additional services from time to time, the order being determined by Macy's ("Order").
3.3 Each such Order shall form part of these Terms of Service and the terms of these Terms of Service shall apply to each Order. If there is a conflict between: (i) the Forms and these Terms of Service (collectively, the "Master Terms"); (ii) any Order, such conflict will be resolved by giving priority to the Master Terms, unless otherwise expressly provided in the Order.
3.4 The Influencer/Agent shall confirm receipt of each order to Macy's within two (2) working days of receipt of the order, after which the Influencer/Agent shall be deemed to have accepted the order.
3.5 Before the influencer/agent delivers services to Macy's in accordance with the order, Macy's has the right to immediately modify, change or terminate the order by notifying the influencer/agent in writing.
3.6 In providing the Services, the Influencer shall and the Agency shall cause the Influencer to:
(a) carry out the activities set out in the Form and/or Order Form (as applicable) (including creating and providing Influencer Content);
(b) produce original, carefully crafted and edited Influencer Content that is of an overall quality that is at least equal to the Influencer’s original content posted before Macy's became an Influencer;
(c) independently produce Influencer Content, provided that it shall take into account (in its reasonable discretion, utilizing its technology and expertise) any feedback and /or requests (including creative briefs) provided by Macy's from time to time;
(d) (if applicable) participate in an event hosted, promoted or supported by Macy's (a "Company Event"), provided that an invitation is submitted in advance by Macy's at least five (5) days from the date of the Company Event. Influencers should also respond within forty-eight (48) hours after receiving Macy's invitation;
(e) ensure that the performance of its services does not involve any attempt to deceive Macy's or any other person and that the information provided to Macy's is not false, inaccurate or misleading;
(f) not publish, authorize or otherwise make any statement or representation or other communication (whether through a social media platform or during a live broadcast) that defames, disparages, disparages or otherwise damages Macy's or its affiliates or their respective products. Period), services, officers, directors, employees or shareholders (the “Corporate Entity”);
(g) ensure that it does not contain any abusive or prohibited content (including but not limited to: (i) inappropriate language, defamatory, abusive or infringing material, (including promoting bigotry, racism, discrimination on the basis of race, gender, religion, sexual orientation, nationality, disability, or any other protected category, or material promoting violence against individuals or organizations, content that breaches any applicable law or right); and/or).