Managed Service Terms
Effective as of March 28, 2023
These Managed Service Terms (the “Agreement”) govern the transactions made by and between IZEA Worldwide, Inc. (“IZEA”), a Nevada Corporation and you (“Customer”) or, if an agency, on behalf of itself and its client, as identified in an SOW (“Client”). In consideration of the recitals, premises and mutual covenants in this Agreement, the parties hereto agree as follows
1. Incorporation. The terms and conditions of this Agreement shall govern each Statement of Work (“SOW”) entered into by and between IZEA and the Customer on or after the execution date hereof, and such SOW(s) shall be incorporated into and become part of this Agreement. To the extent the terms of this Agreement and any SOW are in conflict, the terms of this Agreement shall control.
2. Services. IZEA or its affiliates shall provide services as requested by Customer and agreed to by IZEA (the “Services”) as defined in one or more statements of work (each, an “SOW”) during the Term. Services may include Social Display Services, Production Services, or Influencer Marketing Services. Customer agrees to provide IZEA the assistance, cooperation and information reasonably necessary for IZEA to fulfill its obligations hereunder.
3. Non-Exclusivity. Customer understands that IZEA may engage in other business and consulting activities, which are not inconsistent with the terms of this Agreement. Customer shall have the right to contract with third parties to provide services similar or identical to the services provided by IZEA hereunder.
4. Confidentiality. Information that is disclosed by one party to the other party, and that is marked “confidential”, or which under the circumstances ought reasonably to be treated as confidential information (including this Agreement), will be treated as confidential by the receiving party. The receiving party will not disclose to a third party such information or use such information other than for the purposes for which it was provided, without the written consent of the other party; this limitation will apply for a period of two years after disclosure of such confidential information, except if such information is a trade secret in which case the obligation will continue indefinitely. The foregoing limitations do not apply to the extent such information: (a) is or subsequently becomes publicly available other than through a breach of these limitations; (b) is already known to the receiving party at the time of disclosure, not as the result of a breach; (c) is developed by the receiving party independent of such information; or (d) is rightfully received from a third party without restrictions on disclosure or use. Notwithstanding the foregoing, to the extent conflict between the provisions of this Agreement and any non-disclosure agreement between the parties, the non-disclosure agreement shall take precedence.
Neither party may issue any press release or make any public announcement(s) relating to this Agreement or the relationship established by this Agreement without the express prior written consent of the other party, which consent shall not be unreasonably withheld; however, Customer agrees that IZEA may make reasonable limited references to Customer’s participation with IZEA on its corporate website or marketing materials (which may include Customer’s name, logo, publicly available Content samples, and aggregated data from launched campaigns).
5. Terms of Use. In connection with the provision of Services, IZEA may provide the Customer with access to specific analytic and dashboard tools and systems, some of which may be provided by third parties, including proprietary software, databases, tracking systems, and websites, which are governed by separate or additional terms of use. Customer shall comply with any applicable terms of use and restrictions.
6. Fees and Payment. Customer shall pay the fees and reasonable expenses incurred in connection with the Services, as well as any applicable sales, use, excise, value added and other taxes associated with the provision or receipt of the Services (the “Taxes”), excluding taxes on IZEA’s income generally. If IZEA fails to collect the Taxes, Customer remains responsible for the calculation and remittance of Taxes to the applicable governmental authority, now or at any time in the future. Fifteen percent (15%) of the total fees under an SOW shall be invoiced upon SOW execution. Payment is due within 30 days of invoice date, unless otherwise indicated in an SOW. Invoices more than 15 days overdue following notice of nonpayment may, at IZEA’s discretion, incur interest on the outstanding balance from the original due date at a rate the lesser of: (i) 18% per annum (or 1.5% per month); or (ii) the maximum amount permitted by applicable law. Interest payments will be applied first to late payment changes and, thereafter, to the outstanding balance. IZEA reserves the right to suspend Services altogether if payments are not timely made. Customer may dispute in good faith any invoiced amount; provided that, pending resolution thereof, Customer may not withhold the disputed amount from any payment otherwise due hereunder. The parties shall use commercially reasonable efforts to resolve any disputed amount promptly.
7. Agencies. If Customer is an agency acting on behalf of and with the authority of a disclosed principal(s) (“Client”), as identified, above, each Client will be identified on the applicable SOW. IZEA agrees to hold Customer liable for payments solely to the extent proceeds have cleared from Client to Customer. IZEA may notify Customer that it has not received timely payment and whether it intends to seek payment (including late payment interest) directly from Client. For sums not cleared to Customer, IZEA agrees to hold Client solely liable. IZEA understands that Client is Customer’s disclosed principal and Customer, as agent, has no obligations relating to such payments, either joint or several, except as specifically set forth in this section and Section 11(d). Customer agrees to make every reasonable effort to collect and clear payment from Client on a timely basis. Upon the request of IZEA, Customer will confirm whether Client has paid to Customer in advance funds sufficient to make payments pursuant to the SOW.
8. Ownership and Licenses; Compliance.
(a) Retained Ownership. The parties agree that, as between Customer and IZEA, (i) IZEA Materials (defined below) and any improvements thereto created under this Agreement are the exclusive property of IZEA, and (ii) Customer Materials (defined below) and any improvements thereto and derivative works thereof created or developed as part of the Production Services or Social Display Services are the exclusive property of Client. IZEA shall not contest or deny the validity of Customer’s (or its Client’s) right, title and interest in and to such Customer Materials. Neither party will use, copy, disclose or provide to any third party, the other party’s property, except as expressly provided in this Agreement or as necessary for the parties to perform their obligations or exercise or enforce their rights hereunder.
(b) Customer Materials and IZEA Materials. Customer grants IZEA a non-exclusive, revocable, worldwide, fully paid-up, royalty free right and license to use, copy, encode, adapt, modify, make improvements to, store, archive, distribute, transmit, communicate, publicly display, and publish the Customer Materials, in whole or in part, during the Term solely as necessary to perform the Services. Any use or publication of IZEA Materials (including, but not limited to the IZEA logo) by Customer in connection with the Content is prohibited unless expressly agreed to in writing by an authorized representative of IZEA.
As between the parties and except to the extent that IZEA expressly undertakes an obligation in this Agreement, Customer is solely responsible and liable for the content of and decision to publish Customer Materials and Content, including compliance with any laws, regulations, and industry standards as to media channels, disclosures or other content, distribution, or targeting restrictions.
(c) Influencer Marketing Content. Where Content is created by a Creator (defined below) for Customer’s marketing campaign and is submitted, posted, displayed, or shared to Creator’s followers through his or her personal social media platforms, such services shall be referred to as “Influencer Marketing” Services. The Content created in connection with the Influencer Marketing Services shall be owned by Creator, but Customer receive a worldwide, fully paid-up, royalty-free, and fully sublicensable right and license to share, use, copy, process, translate, display, perform, reproduce, republish, and distribute the content or any portion thereof in any and all forms of media or distribution methods (now known or hereafter developed), including but not limited to television, radio, print, Internet site and other electronic communications for a period of twelve (12) months. IZEA will receive a right and license to share and use the Content as necessary to promote the Content and perform its obligations under the applicable SOW. Any use, publishing, or distribution of a Creator’s content must be accompanied by credit to the Creator of that content by use of the Creator’s name, likeness, image, username/ handle, or other identifying representation (to which Customer will receive a limited license). While Customer has the right to reuse such Content outside of its native platform, as described above, FTC guidelines state that the connection between the Creator and the Customer (or Client) must be disclosed and the Content must be attributed to the Creator. The disclosure should also clearly and conspicuously communicate that the Creator is paid by or works with the Customer (or Client). The License and this Section shall not apply to Creator Content that is Represented Creator Content.
(d) Content Production. Where Content is created as commissioned by Customer, without limitation as to how that Content may be used now or in the future, such services shall be referred to as “Content Production” Services, and IZEA will facilitate Creator’s assignment of all rights in such Content to Customer. Customers purchasing Content created via the Content Production Services shall own the copyright in and to such Content and may use, reproduce, have reproduced, edit for length or clarity, publish, and exploit such Content in its sole discretion, including, without limitation, licensing the Content to any agent or third party, copying, distributing, displaying, publicly performing, and creating derivative works of the Content. Attribution to the Creator is optional, unless the Content is created by a Represented Creator.
(e) Represented Creator Content. Customer and its Client (if applicable) understand and agree that in the event a Represented Creator (defined as a Creator who has third-party, professional representation) is requested to create, provide, or endorse any Influencer Marketing Content pursuant to a Statement of Work between IZEA and such Represented Creator, the Represented Creator retains ownership rights to the Content and any terms surrounding its use must be negotiated in a separate agreement between IZEA and the Represented Creator. Customer and its Client will be advised of all relevant use limitations for licensed Represented Creator Content prior to IZEA contracting with such Creator.
(f) Social Display Assets. Where the services provided by IZEA predominantly consist of IZEA using and/or promoting Customer’s existing Customer Materials to advertise Customer’s products or services on the Internet, such services shall be referred to as “Social Display” Services. Social Display services shall be provided in one of two ways, as follows:
i. Where Social Display services are requested that include the creation of Content by IZEA or Creators, IZEA will utilize Customer Materials to create such custom content assets (along with the assistance of third-party subcontractors and/or Creators, as applicable), and Customer will receive up to two (2) rounds of review (such Content, shall be referred to as “Custom Display Assets”). Upon completion and approval of such Social Display Assets, IZEA shall promote and/or distribute it via the applicable IZEA “Our Favorite Things” social media accounts provided in an SOW (e.g. Facebook, Instagram, Pinterest, etc.). All Social Display Assets shall be created as commissioned by Customer, without limitation as to how such Social Display Assets may be used now or in the future. Customer shall own the copyright in and to the Social Display Assets and may use, reproduce, have reproduced, edit for length or clarity, publish, and exploit such Social Display Assets in its sole discretion, including, without limitation, licensing the Social Display Assets to any agent or third party, copying, distributing, displaying, publicly performing, and creating derivative works of the Social Display Assets. Additionally, IZEA will facilitate the assignment of any and all third-party rights from any subcontractor or Creators, as applicable, in such Social Display Assets to the Customer.
ii. In the event no custom Content is requested from IZEA in connection with Social Display services, such services shall consist solely of IZEA promoting and/or distributing the Customer Materials provided by Customer, as is, via the applicable IZEA “Our Favorite Things” social media accounts provided in an SOW (e.g. Facebook, Instagram, Pinterest, etc.). 3
9. Disclaimer. EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THIS AGREEMENT, (i) ALL SERVICES AND CONTENT ARE PROVIDED BY IZEA “AS IS” AND WITHOUT WARRANTY OF ANY KIND; AND (ii) TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IZEA MAKES NO AND DISCLAIMS ALL PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE FOREGOING INCLUDING ALL IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. CUSTOMER’S USE OF THE SERVICES AND ANY CONTENT IS AT ITS OWN RISK.
10. Representations and Warranties.
Each party represents and warrants to the other party as follows: (i) it has the full power and authority to enter into this Agreement and the person entering this Agreement on behalf of that party has the full authority to do so; (ii) its execution and performance of this Agreement have been duly authorized by all necessary corporate action on behalf of that party; (iii) its execution and delivery of this Agreement does not and shall not conflict with or result in a breach of the terms, conditions or provisions of, or constitute a default under, any agreement to which it is or may become party or instrument by which it is or may become bound; (iv) the content or information it provides to the other party shall not contain any viruses or other malicious code that will degrade or infect any product, service or any other parties’ network or system; and (v) it will comply with all applicable laws and regulations in its performance of its obligations hereunder, including privacy laws.
Customer further represents and warrants that: (i) IZEA’s use of the Customer Materials in accordance with this Agreement and Customer’s direction does not and will not violate any intellectual property or other proprietary rights of any third-party; (ii) any disclosures or language required to comply with laws or regulations related to the marketing and sale of its or its Clients products or services, or as otherwise required by its industry shall be timely provided to IZEA for use as instructed in connection thereof; and (iii) all contract and term negotiations with, and payments to Creators under any active SOW will be conducted exclusively through IZEA.
IZEA further represents and warrants that it shall use commercially reasonable efforts to ensure that the Content as delivered and as permitted to be used does not knowingly infringe any third-party intellectual property rights including patent, copyright, trademark, trade secret or other proprietary rights, except to the extent such claim is covered by the preceding Section 10(b).
If applicable, Customer represents and warrants that it has the authority as agent to Client to bind Client to this Agreement and each SOW. Customer agrees to defend, indemnify and hold harmless IZEA, its affiliates and their respective directors, officers, employees and agents from any and all Losses (defined below) incurred as a result of Customer’s alleged breach of the foregoing sentence.
11. Indemnification.
IZEA shall defend, indemnify and hold harmless Customer and its directors, officers, employees and agents from any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees and costs of investigation) (collectively “Losses”) incurred as a result of a third party claim, judgment or proceeding relating to or arising out of IZEA’s breach of Section 3 (Confidentiality), or a breach of IZEA’s representations or warranties.
Customer shall defend, indemnify and hold harmless IZEA, its affiliates and each of their respective directors, officers, employees, agents, and representatives from and against any and all Losses incurred as a result of a third party claim, judgment or proceeding relating to or arising out of (i) any facts or alleged facts which, if true, would constitute a breach of a representation, warranty or covenant by Customer; (ii) use or publication of the Content other than in accordance with the terms of this Agreement and any applicable documentation or instructions supplied by IZEA or in a form other than as delivered to Customer; (iii) negligent or willful acts of the Customer or Client; (iv) Customer or its Client’s products, materials, or services, including any advertising claims made in connection with respect to such products, materials or services; or (v) personal injury, death, property damage, theft, or other loss in connection with any use of the Client’s products or services or attendance at an event coordinated by the Client.
If either party learns of an actual or potential claim for which it may seek indemnification under this Section, it shall promptly notify the other party. The indemnifying party shall have the right to assume control over the defense of, settlement of, and selection of counsel for such claim or proceeding. The indemnified party shall cooperate with the indemnifying party, its insurers and its counsel in contesting any claim or proceeding. The indemnified party at its cost and expense may participate in, but not control, any such defense. Except for a settlement involving only a cash payment, the indemnifying party shall not agree to any settlement of any claim or suit without the prior written approval of the indemnified party, which approval shall not be unreasonably withheld.
12. Limitation of Liabilities.
IN NO EVENT WILL IZEA OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, DAMAGES TO COMPANY’S COMPUTER SYSTEM OR OTHER SYSTEMS, LOSS OF DATA, GOODWILL, REPUTATION, USE, OR OTHER LOSSES) ARISING OUT OF THIS AGREEMENT, SERVICES, CONTENT, OR ANY RESULTS.
EXCEPT IN THE CASE OF IZEA’S (I) BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 10, OR (III) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND IZEA’S MAXIMUM AGGREGATE LIABILITY FOR ANY DAMAGES OR OBLIGATIONS RELATED TO OR ARISING FROM THE SERVICES, CONTENT OR ANY RESULTS IS TO OBTAIN ITS DIRECT DAMAGES UP TO THE AMOUNT ACTUALLY PAID BY COMPANY TO IZEA FOR SERVICES IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS WILL NOT ENLARGE OR EXTEND THIS LIMITATION ON DAMAGES.
Customer further represents and warrants that: (i) IZEA’s use of the Customer Materials in accordance with this Agreement and Customer’s direction does not and will not violate any intellectual property or other proprietary rights of any third-party; (ii) any disclosures or language required to comply with laws or regulations related to the marketing and sale of its or its Clients products or services, or as otherwise required by its industry shall be timely provided to IZEA for use as instructed in connection thereof; and (iii) all contract and term negotiations with, and payments to Creators under any active SOW will be conducted exclusively through IZEA.
IZEA further represents and warrants that it shall use commercially reasonable efforts to ensure that the Content as delivered and as permitted to be used does not knowingly infringe any third-party intellectual property rights including patent, copyright, trademark, trade secret or other proprietary rights, except to the extent such claim is covered by the preceding Section 10(b).
If applicable, Customer represents and warrants that it has the authority as agent to Client to bind Client to this Agreement and each SOW. Customer agrees to defend, indemnify and hold harmless IZEA, its affiliates and their respective directors, officers, employees and agents from any and all Losses (defined below) incurred as a result of Customer’s alleged breach of the foregoing sentence.
13. Term and Termination.
This Agreement shall commence on the Effective Date and continue for a period of one (1) year (the “Initial Term”). Following the initial Term, the Agreement will automatically renew for additional 30-day terms (each, a “Renewal Term”) unless either party notifies the other at least fifteen (15) days before expiration of the Initial Term or then-current Renewal Term (as applicable) that it is electing not to renew these Terms. The “Term” refers to the Initial Term and any Renewal Term, or such shorter period as may occur in the event of an earlier termination.
Either party may, upon giving not less than thirty (30) days prior notice to the other, terminate this Agreement, however, in the event there is an active SOW in place at the time of such termination notice, the terms of this Agreement shall continue to apply to such SOW until it is completed. Should Customer desire to terminate an active SOW, any amounts due for services rendered through the date of termination and any cancellation fees as described in such SOW shall become due and owing.
In the event of a party’s material breach of its obligations hereunder, the other party may terminate this Agreement or SOW upon written notice immediately (if the breach is incapable of being cured) or within fifteen (15) days after receiving written notice thereof if the other party fails to correct such breach (unless a different cure period or lack thereof is specified herein).
Customer or IZEA may terminate this Agreement or any SOW immediately upon written notice in the event of any bankruptcy, insolvency, receivership, dissolution, or similar proceeding of the other party which (i) is voluntary or (ii) is involuntary and continues for sixty (60) days from filing.
In the event of a termination of an SOW, in whole or in part, by Customer or its Client, the following amounts will be due within thirty (30) days: (i) payments due to Creator(s) contracted to provide services under the SOW; (ii) amounts due under any non- cancellable contracts entered into by IZEA in relation to the SOW; and (iii) amounts due for any Content created as of the date of the cancellation of the campaign. In no event will the fees charged in connection with a termination exceed the Total Price indicated in an SOW.
Termination of this Agreement will automatically terminate all SOWs then in effect unless the parties otherwise expressly agree in writing, and subject to the terms of such SOWs with respect to survival of certain provisions post-termination.
14. General.
All notices, demands, or other communications given or made under this Agreement shall be in writing, in English, to the parties at the addresses set forth above. If no address is listed for the Customer, notice to the Customer will be effective if sent to any published Customer address that IZEA selects. Notice shall be effective: (a) upon delivery if delivered in person; (b) five (5) days after deposit in the regular mail, addressed to the recipient, postage prepaid and registered with return receipt requested; (c) one (1) day after deposit with an express mail or overnight courier service, provided that confirmation of such delivery is received; or (d) upon transmission if sent via electronic mail or facsimile, provided that a confirmation copy is sent via express mail or overnight courier service and confirmation of such delivery is received. A copy of any notice to IZEA shall be sent to: LegalRequests@izea.com Any party may change its address or other notice information by providing the other party with notice in accordance with this Section.
The relationship between the parties is that of independent contractors, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Neither party is authorized to make any representations, contracts or commitment on behalf of the other. IZEA may identify the Customer as a client and include a general description of the services provided by IZEA to the Customer in IZEA’s client lists, marketing presentations, website and promotional materials, provided that IZEA does not reveal specific details about, or the participants of, the engagement.
No rights, benefits, or claims are conferred upon any person or entity not a party to this Agreement or any agreement between IZEA and the Customer to provide Services. In the event the Customer chooses to directly engage other contractors as permitted, IZEA shall not be responsible for the performance of such contractors, even if IZEA has been involved in recommending or selecting such contractors or in otherwise reviewing such third party’s work.
Unless expressly stated otherwise in this Agreement or an SOW, this Agreement’s terms shall be, and hereby are, incorporated by reference into any SOW. To the extent there are any inconsistencies between the terms of this Agreement and an SOW, the terms of this Agreement shall govern.
Neither party shall be liable or responsible by reason of any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, or any other cause which is beyond the reasonable control of such party. The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use its best efforts to resume performance. Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event concludes.
This Agreement and any agreement between IZEA and the Customer to provide Services shall be governed in all respects by the laws of the State of Florida without regard to conflicts of laws rules.
Each party consents to the exclusive jurisdiction of the state and federal courts of Orange County, Florida for any legal action, suit, or proceeding arising under or relating to this Agreement and agrees that any such action, suit, or proceeding may be brought only in such courts. Each party further waives any objection to the laying of venue for any such suit, action, or proceeding in such courts or for the purpose of enforcing any such decisions or rulings.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES KNOWINGLY AND WILLINGLY EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE, INCLUDING ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER WILL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, ADDENDUMS, SUPPLEMENTS, OR MODIFICATIONS TO THIS AGREEMENT.
Negotiations in the Event a Dispute Arises. In the event any dispute, controversy, or claim (“Dispute”) arises between Customer and IZEA, Customer hereby agrees to attempt to negotiate and resolve such dispute, controversy or claim for at least fifteen (15) days. After such time, if a resolution has not been reached, the parties agree to submit to non-binding mediation. Each party shall pay its own costs of mediation, and equally share in the costs of a mutually agreed- upon mediator. Such mediation shall be conducted in Orange County, Florida unless the parties agree upon e-mediation. In the event of a Dispute, the party claiming to be aggrieved must give written notice to the other party in accordance with the Notice provision herein.
In the event of (i) actual or threatened breach of either party’s confidentiality obligations; (ii) any claims or disputes seeking to enforce or protect, or concerning the validity of, any intellectual property rights; (iii) claims or disputes related to allegations of theft, piracy or unauthorized use of the Services; or (iv) enforcement of any resolution agreed upon during mediation, nothing in this Agreement will be deemed as preventing the non-breaching Party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
In connection with any dispute arising under the terms of this Agreement, whether or not an action is instituted, the prevailing party shall be entitled to reasonable attorneys’ fees, litigation expenses, expert witness fees and any other costs incurred, in addition to any other relief to which it may be entitled.
The Section headings in this Agreement are provided for convenience only and shall not affect its construction or interpretation.
The following capitalized terms shall have the following meanings:
“Content” means all work product created or developed by IZEA or on IZEA’s behalf by a subcontractor as specified under an SOW and delivered to Customer. Content does not include IZEA Materials, Customer Materials, or any materials in any form licensed or otherwise acquired by IZEA from third parties other than Creators.
“Creator” means a third party engaged by IZEA for the purposes of creating Content in connection with the Services.
“Customer Materials” means all information, including, but not limited to, textual, graphic, video and audio materials, and all intellectual property rights therein, provided by Customer to IZEA pursuant to this Agreement or for the provision of Services. Customer Materials includes Customer-owned content or third-party materials licensed by Customer. In the event that Customer is an agency, Customer Materials additionally refers to any such information and materials owned or controlled by Client and provided to IZEA by Customer or Client.
“Influencer Marketing Services,” as identified and further detailed in an SOW, are Services in which Content is created and produced by a Creator specifically for such Creator’s self-publication, posting and distribution as directed for a specific period of time on Creator’s agreed social channels (“Creator Content”).
“IZEA Materials” means all content, utilities, tools and programs used to facilitate creation, implementation, maintenance, storage or transmission of the Services that are owned (or licensed) by IZEA and (i) in existence prior to and during the Term of this Agreement, or (ii) created by or for IZEA outside this Agreement and which are intended to be reused across its customers.
If any court of competent jurisdiction shall hold any part of this Agreement or any agreement between IZEA and the Customer to provide Services invalid or unenforceable, the other provisions of this Agreement or any such agreement shall remain in full force and effect. Any provision of this Agreement or any such agreement held invalid or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable.
The rights and remedies of the parties are cumulative and not alternative. Neither the failure nor delay by any party in exercising any right, power, or privilege, and no single or partial exercise of any such power, right, or privilege shall preclude any other or further exercise of such or any other power, right or privilege. Any waiver or consent shall be in writing signed by the party granting such waiver or consent.
This Agreement or any agreement between IZEA and the Customer to provide Services may not be assigned or transferred (including any transfer by operation of law) by either party without the written consent of the other party, except that either party may assign this Agreement to its parent company or successor entity, including a successor resulting from an acquisition, merger, or consolidation, provided written notice is given to the other party.
This Agreement and any agreement between IZEA and the Customer to provide Services shall be binding upon and shall inure to the benefit of the parties, their affiliates, and their respective successors and permitted assigns.
The rights and obligations that by their nature should survive or extend beyond the termination or expiration of this Agreement or any agreement between IZEA and the Customer to provide Services shall survive any termination or expiration of this Agreement or such agreement.
This Agreement supersedes all prior and contemporaneous communications, proposals or agreements between the parties, oral or written. This Agreement contemplates a variety of communications between the parties in connection with the Services, including the possibility of communications made on forms of IZEA or the Customer (e.g., invoices, purchase orders, or other IZEA or Customer). In the event of a conflict, the terms of this Agreement shall control and any terms and conditions contained in those communications that are inconsistent with the terms of this Agreement are null and void. This Agreement may be amended or modified only by a written instrument signed by a duly authorized agent of the Customer and IZEA.
IZEA may use contractors to perform services and will be responsible for their performance in accordance with the terms of this Agreement.
