Curacity Influencer Agreement

This Influencer Agreement (this “Agreement”) sets forth the agreement between influencer (“Influencer”) and Surface Travel Inc. d/b/a Curacity, a Delaware corporation (“Curacity”) with regard to Influencer’s personal services in connection with the Curacity Hotel Affiliate Social Media Program (the “Program”) to be conducted by Curacity.

  1. Program. The details of the Program are described in Exhibit A, which is incorporated herein.  Influencer agrees to participate in the Program described in Exhibit A, including but not limited to the Influencer Responsibilities listed in Exhibit A, and consents to the use by Curacity and its hotel affiliates of Influencer’s name, photograph, likeness, blogs, social media posts, quotes, information and other content in connection with the Program as set forth herein.   
  2. Consideration. Influencer will receive the consideration set forth in Exhibit A. 
  3. Grant of Rights. 

(a) Influencer acknowledges Curacity owns all rights in the Program. If any materials or content  are created by Curacity and/or its affiliates, subcontractors, representatives or consultants (“Curacity Content”), as may be further defined in Exhibit A, Influencer acknowledges that Curacity owns all rights in such Curacity Content. 

(b) For any content, posts, or materials described in Section V of Exhibit A “Influencer Owned Content”, the following shall apply: Influencer shall retain the copyright and all ownership rights in such Influencer Owned Content, but hereby grants to Curacity and others it may authorize a royalty-free, perpetual (except as otherwise specifically provided in Exhibit A), transferable, non-exclusive, unrestricted, worldwide right and license, with a right to sublicense, to copy, reproduce, modify, edit, crop, alter, revise, retouch, adapt, translate, enhance, reformat, remix, rearrange, resize, create derivative works of, move, remove, delete,  store, cache, aggregate, publish, post, perform, display, distribute, broadcast, perform, transmit, rent, share, sublicense, syndicate, or otherwise provide to others, use, or change all Influencer Owned Content, in any medium (now in existence or hereinafter developed), and authorize others to do so, for the purposes set forth in Exhibit A or otherwise. 

(c) Influencer authorizes all uses in Exhibit A in connection with the Program during the period set forth in Exhibit A after which time all active usage of Influencer’s name, likeness, photos, and Influencer Owned Content in connection with the Program will cease, except Influencer acknowledges and agrees that any previously published Influencer Owned Content and Curacity Content may (i) continue to be used by Curacity and its hotel affiliates in the context of the Program for self-promotion (e.g., on its website(s) or other platforms, or in trade advertising as an example of past projects, in presentations to potential future advertisers, etc.), (ii) be retained for archival purposes to be used for internal purposes by both Curacity and its hotel affiliates, and (iii) remain available at Curacity’s discretion on the website(s) in which it originally appeared. Notwithstanding the foregoing, Curacity’s ownership of the Program and Curacity’s or right to use the Influencer Owned Content as set forth in Section 3(b) and 3(c) does not expire, and further this agreement does not restrict whatever rights Curacity has by law.  

(d) Influencer Owned Content is sometimes referred to as “Influencer Created Content”.

  1. Approvals. All deliverables (including all Influencer Created Content) must be satisfactory in form and substance to Curacity, and must be submitted by the agreed due date. Curacity will have the right to approve all Influencer Created Content prior to publication on Influencer’s owned and/or operated sites and social media channels. Unless otherwise specified in Exhibit A, Influencer shall have no approval rights of any content or the use of Influencer’s name and likeness as authorized herein.  In the event Curacity does not approve any Influencer Created Content, Influencer agrees that Influencer may be required to revise, re-shoot, or edit the content accordingly and will do so. 
  2. Curacity Service Fee.  Influencer shall pay a service fee indicated on the hotel booking calendar for each stay at a Curacity’s hotel affiliate property booked via the Curacity portal.  Influencer shall be required to provide a credit card number for each reservation requested at which time a hold equal to the aggregate Curacity service fee will be placed on the credit card.  Upon confirmation of the reservation by Curacity, the amount of the aggregate Curacity service fee will be charged to Influencer’s credit card.  Influencer shall be entitled to cancel a reservation up to seven (7) days before the first day of the intended stay and receive a refund of the aggregate Curacity service fee minus a $10 cancellation fee.  Curacity service fees for cancellations within seven (7) days of the intended stay are non-refundable.  Standard cancellation policy provides a full refund if stay is cancelled within 48 hours of booking, there is no refund after 48 hours of booking.
  3. Expenses. Influencer bears all expenses except as otherwise set forth in Exhibit A. For any such expressly approved expenses, receipts and proper documentation must be provided within one (1) month of any expenditure. To the extent that such approved expenses are paid for initially by Influencer, Curacity will reimburse Influencer.
  4. Representations and Warranties. 

(a) Each party warrants and represents that it is authorized to enter into this agreement and that its participation in this agreement will not violate the rights of any third party.  

(b) Influencer represents and warrants that Influencer and all Influencer Created Content shall comply with all applicable laws and governmental regulations, including but not limited to refraining from engaging in deceptive and/or unfair marketing practices (e.g., acquiring fake followers, or not adhering to all FTC Guidelines governing the services) as well as with the rules set forth by applicable social media and other platforms, and that the content contained in all Influencer Created Content or other deliverables created hereunder will be original and accurate, and will not infringe or otherwise violate the personal or proprietary rights of or defame any third party, and Influencer shall obtain any and all necessary consents, permissions and releases from third parties in connection with the content of all such Influencer Content or other deliverables.  Without limiting the foregoing, Influencer agrees to adhere to the guidelines set forth on Exhibit B.  In the event of a conflict between the provisions of Exhibit B, on the one hand, and the terms and conditions of this Agreement and/or of Exhibit A, on the other hand, the terms and conditions of Exhibit B will control and prevail.

(c) Except in the event of Curacity’s gross negligence or willful misconduct, Influencer hereby releases Curacity and waives any claim for (i) damage to or loss of any equipment or other personal property of Influencer and (ii) personal injury of Influencer. 

(d) Curacity will defend and indemnify Influencer in connection with any claims arising out of Influencer’s participation in the Program, except to the extent such claims arise out of Influencer Created Content, Influencer’s negligence or willful misconduct, or Influencer’s breach of this or any other agreement, for which Influencer will defend and indemnify Curacity. In addition, Influencer hereby agrees to be solely responsible for any loss of or damages to any products or equipment provided to Influencer by Curacity or its hotel affiliates for the purpose of fulfilling the obligations of Influencer hereunder.  

  1. Morality.

(a) If at any time, in Curacity’s sole judgment, Influencer fails to exhibit due regard for or acts in a manner contrary to law, public morals, or decency, or commits any act or becomes involved in any situation or occurrence that may bring Influencer, or Curacity or its hotel affiliates (or any of their brands, products, services, businesses, advertisers, employees, clients, distributors, or others associated with any of them),  into disrepute, contempt, scandal, or ridicule, or that otherwise reflects unfavorably upon any of the foregoing, including but not limited to abuse of alcohol or drugs, mistreatment of other persons or groups, dishonesty, or illicit or inappropriate sexual conduct, or is accused of having done so, whether or not information in regard thereto becomes public, Curacity may, in addition to its other remedies, suspend or terminate this Agreement upon written notice to Influencer.  In such event, Influencer shall not be entitled to any of the consideration set forth on Exhibit A.

(b) Influencer represents that he/she has not been the subject of any claim or complaint alleging any actions described in the preceding paragraph, and Influencer will promptly (but in any event within two business days) notify Curacity, in writing, if Influencer receives notice or learns that he/she is the subject of any such claim or complaint in the future during the term of this Agreement.

  1. Confidentiality. The subject of Influencer’s services under this agreement and all details relating to it will be held confidential by Influencer and may be discussed by Influencer only with other persons to the extent necessary for Influencer to carry out his/her responsibilities hereunder. 
  2. Power of Attorney. If this agreement is signed by an agent on Influencer’s behalf, such agent warrants that he/she has secured or will secure all releases, permissions, and contractual clearances from Influencer and any others that may be necessary for the inclusion of Influencer in the Program as described herein and said agent hereby indemnifies and agrees to hold Curacity harmless from any loss, damage and expense (including reasonable attorney’s fees) that it may suffer or incur by reason of the assertion by any third party of any claim that is inconsistent with any covenant, representation or warranty made by agent in this agreement.
  3. Cancellation. Either party may cancel the Agreement due to an act of God, act of governmental authority, war, riot, act of public enemy, flood, civil commotion, insurrection, severe weather conditions, or any other cause beyond the canceling party's reasonable control that prevents the performance or enjoyment of the benefits of the Agreement or makes it impossible or impracticable to proceed with the Program.  In the event of such a cancellation, both parties will be relieved of any further obligations in connection with this Agreement. In addition, either Party may cancel this Agreement with thirty days prior written notice to the other party and, in the event of such cancellation, neither party shall have any further obligations hereunder.  The Grant of Rights, Approvals, Representation and Warranties, Morality, Confidentiality, and Power of Attorney, and Miscellaneous provisions shall survive any cancellation or expiration of this Agreement. 
  4. Independent Contractor. Influencer is an independent contractor and will not be treated as or considered an employee of Curacity or its hotel affiliates for any purpose, including but not limited to employee benefits, workers’ compensation, unemployment taxes, the Federal Insurance Contribution Act, and income tax withholding at the source.  
  5. Subcontracting. Influencer acknowledges that Curacity uses subcontractors in the course of implementing the Program and agrees to cooperate with such subcontractors and provide them with the same access to information and data as required to be provided to Curacity hereunder.
  6. Term; termination.  This Agreement shall have a term of one (1) year (the “Initial Term”).  The Initial Term shall automatically renew for successive one (1)-year periods (each, a “Renewal Term” and collectively with the Initial Term, the “Term”) unless either party provides the other with written notice of non-renewal at least sixty (60) days prior to the end of the then-current term.
  7. Miscellaneous.  All notices under this agreement must be delivered by hand, by confirmed facsimile followed by first class mail, or by certified mail, return receipt requested, to the parties at the addresses listed herein. Notices to Curacity must be addressed to Curacity, 110 east 25th street, NY, NY 10010, Attention: Nicholas Slavin. This agreement constitutes the entire agreement and understanding between the parties, supersedes prior agreements between the parties with respect to the subject matter hereof, and may not be altered except in a document signed by the party to be bound thereby.  No contrary or inconsistent terms, conditions, restrictions, or other provisions in delivery memos, invoices, letters, or other documents will be binding on either party unless expressly agreed to in writing by that party. This agreement will be governed by the laws of the state of New York applicable to contracts to be wholly performed therein; any action based on or alleging a breach of this agreement must be brought in the state or federal courts in New York, New York and the parties hereby consent to the exclusive jurisdiction of such courts.

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Curacity Influencer Agreement

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EXHIBIT A

  1. PROGRAM DESCRIPTION. The Program will include the provision of social media content for hotel marketing purposes.
  2. CONSIDERATION. Influencer shall receive a [1-2]-night stay at a property owned by a Curacity hotel affiliate.
  3. CURACITY PORTAL.

Influencer’s stay at Curacity’s hotel affiliate’s property shall be coordinated via the Curacity portal.

  1. CURACITY CONTENT.

“NOT APPLICABLE”

  1. INFLUENCER OWNED CONTENT. 

Influencer is responsible for creation of content designated by Curacity’s hotel affiliate and supplied to Influencer prior to stay. Produced content may be inclusive of picture and/or video imagery with text focused on the hotel and its spaces. Influencer is responsible for producing two individual posts based on the aforementioned guidelines, submitted to Curacity and Hotel Affiliate for final approval before post. Influencer retains copyright in these materials, but grants Curacity and/or its hotel affiliates usage as described in VII-VIII below.

  1. EXCLUSIVITY PERIOD. In addition, Influencer agrees that Influencer shall never use or grant rights in the Influencer Created Content for this Program to any other advertiser or for any other program. Finally, unless otherwise mutually agreed upon in writing in each instance by Curacity, Influencer may not publish any other branded and/or sponsored messages for any other hotels or their products or services during the four (4) hours immediately preceding, and/or the four (4) hours immediately following any publication by Influencer containing Influencer Created Content or Curacity Content.      
  2. USAGE PERIOD. Usage period shall commence on the date of first publication and continue thereafter at Curacity’s discretion. 
  3. USAGE. Influencer agrees to distribution of the Influencer Content for this Program, along with the use of their name, likeness, photograph, appearance, ideas, etc. for this Program, in the following ways and via Influencer’s Instagram Account. Influencer shall provide Curacity and its subcontractors access to Influencer’s Instagram Ad account to amplify such postings.
  4. INFLUENCER RESPONSIBILITIES. Influencer is responsible for bringing all materials needed to produce content within the agreed upon campaign. If there are any additional requests from or materials provided by the hotel, Influencer will be notified in advance and expected to return materials to the hotel affiliate after use.
  5. CURACITY RESPONSIBILITIES. Curacity will coordinate Influencer’s stay at Curacity’s hotel affiliate and report on the outcome of the Influencer’s posts.

EXHIBIT B

INFLUENCER GUIDELINES

Influencer agrees to comply with the following guidelines:

  1. INFLUENCER WILL COMPLY WITH ALL APPLICABLE FTC GUIDES (and any revisions thereof) including but not limited to:
  1. The FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising: (http://ftc.gov/os/2009/10/091005revisedendorsementguides.pdf).  
  2. FTC .com Disclosures https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf.
  3. The FTC’s Native Advertising: A Guide for Businesses https://www.ftc.gov/tips-advice/business-center/guidance/native-advertising-guide-businesses 
  4.   The FTC’s Endorsement Guides: What People Are Asking  https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking 
  1. INFLUENCER MUST FULLY DISCLOSE RELATIONSHIP WITH HOTEL AFFILIATE
  • Influencer Content, regardless of length, social channel or format, must clearly and prominently disclose that Influencer has a material connection to Curacity’s hotel affiliate and/or that Influencer received compensation for the Influencer Content. Acceptable notations for posts include:
    • #Ad
    • #Sponsored
    • #Promotion
    • #BrandedContent
    • #SponsorContent
    • #PaidPost
    • #[Curacity hotel affiliate] Ambassador
    • Or disclosing the participating brand by tagging in post (note this is required by Facebook policy) “[Influencer] with @BrandName”
    • Thanks [hotel affiliate] for [describe e.g. “the free [1-3]-night stay”]
      • NOTE: “Thanks [hotel affiliate]” alone is not sufficient. 
  • Influencer may not present himself or herself as an independent or impartial ordinary consumer.  
  • Tweets or other character/space-restricted Influencer Content must begin with “AD:” OR “SPONSORED:”
  • In all cases, the disclosure must occur prominently at the beginning of or immediately on top all Influencer Content.
  • The disclosure must stand out from other visual or audio elements so that it is easily noticed, read, and understood, by its size, color, shading, location, length of time it appears or is heard, volume, cadence, and other characteristics.
  • The presentation and substance of a disclosure must be geared to the “ordinary consumer” to whom Influencer Content is directed.
  • Prohibited methods of “disclosure” include:

o   Fine print and/or faint print

o   Links to other pages or other sections of the same page

o   Inconspicuous or vague hashtags or other social jargon/links (including without limitation #SPON, #COMM, #Thanks, or words like “Details” or “More Info”)

o   Use of multiple posts to make disclosures separately from the content

  1. INFLUENCER MUST COMPLY WITH ALL ADVERTISING AND RELATED LAWS AND REGULATIONS

Influencer must comply with all advertising and related laws and regulations.  Among other things, this means that:

  • Influencer Content must be true and reflect the honest opinions, findings, beliefs, and experiences of the Influencer.
  • Influencer Content must not make any factual claim about a product or service unless Influencer has substantiation/proof for the claim.
  • Influencer must not make any express or implied representation about the product or about hotel affiliate that could not be made by hotel affiliate.  
  • If Influencer runs a give-away, contest, or sweepstakes involving or referencing Curacity’s hotel affiliate or its products, Influencer must follow all federal and state laws regarding such events, and must state that Influencer – not Curacity’s hotel affiliate – is the sponsor of the event.
  • Influencer may not obtain, distribute to, or otherwise use fake followers or engagement, including but not limited to bots, imitations, foreign accounts, or any other ways the number or character of or interaction with followers are increased or enhanced by any artificial or automated means.  
  • Influencer understands that Curacity may monitor or analyze Influencer’s activities related hereto (or use third party vendors to do so). 
  • Influencer will, upon Curacity’s request(s), share or provide access to all public and private post statistics and metrics and other information, including that held or controlled by third parties.
  1. INFLUENCER MUST COMPLY WITH ANY CURACITY OR CURACITY HOTEL AFFILIATE DIRECTIVE TO REMOVE OR FIX CONTENT 
  • Influencer will provide a screenshot or other proof of compliance to Curacity immediately upon completing any and all Influencer Content.  Such proof of compliance will be sent to Curacity signatory listed above. Influencer will provide to Curacity such other material or access as Curacity requests.
  • If Curacity or its hotel affiliate notifies Influencer that it believes any Influencer Content is in violation of these Guidelines, FTC Guides, or other laws or regulations, or is otherwise objectionable, Influencer must remove or bring the Influencer Content into compliance immediately, but in all cases within 24 hours of Curacity or Curacity’s hotel affiliate’s notice.