|Conversion action||Online purchase with processed valid payment|
|Cookie days||30 day(s)|
|Commission type||Percent of Sale|
HERON AND SWAN LLC.
INDEPENDENT INFLUENCER AGREEMENT
This Independent Influencer Agreement (including
any schedules, exhibits or addenda attached hereto, the “Agreement”), is made
and entered into as of the date identified below (the “Effective Date”), by and
between Heron and Swan LLC. (“Heron and Swan”), with an address of
305 Foxpath Loop, Myrtle Beach, SC 29588, United States and the influencer
identified below (“Independent Influencer” or “you”). In consideration of the
mutual promises contained herein, the parties agree as follows:
The Independent Influencer Program. Independent
Influencer agrees to provide to Heron and Swan under the terms and conditions
of this Agreement, services (the “Services”) in connection with Heron and Swan’s
Independent Influencer Program (the “Program”). As part of the Services, Independent
Influencer will generate and post content (including, without limitation, text,
videos and images) regarding Heron and Swan brand and Heron and Swan products
on Independent Influencer’s dedicated Heron and Swan Web page (the “Influencer
Page”) and on Influencer's Instagram, Instagram Story, Twitter, Facebook, blog
and potentially YouTube and Pinterest (the “Social Channels”) (collectively the
“Content”) in an effort to generate sales.
Independent Influencer agrees to:
Devote such of his/her time, resources and best
efforts to the Services as is reasonably necessary to perform them in a
professional and diligent manner
Comply with all applicable laws and regulations.
Determine, in his /her discretion, the time,
place, manner, means, methods and independent/personal resources by which the
Services are performed and achieved.
Provide and utilize his/her own equipment, tools
and other resources in performing the Services but Heron and Swan will provide
to Independent Influencer certain informational materials to facilitate the
creation of Independent Influencer's created content to his/her Influencer Page
and/or Social Channels (such templates and other materials are collectively
referred to as the “Heron and Swan Materials”).
Will be responsible for (i) creating and editing
the Content and (ii) either emailing to Heron and Swan such Content to upload
to the Influencer Page or posting such Content on the Social Channels. All such
Content that is uploaded to the Influencer Page will be posted to the
Influencer Page subject to prior review by Heron and Swan. Heron and Swan has
the right to remove any Content from the Influencer Page.
It is understood and agreed that Independent
Influencer will be an independent contractor, is not and will not be considered
an agent or employee of Heron and Swan (or any of its affiliates or related
entities), and shall have no authority to bind Heron and Swan (or its
affiliates or related entities) by contract or otherwise.
Independent Influencer agrees that they will not:
Make any derogatory statements about Heron and
Swan and/or Heron and Swan products
Link to any third-party websites, other than the
Social Channels, on the Influencer Page or otherwise redirect visitors of the
Influencer Page to third-party websites
Resell or distribute any Heron and Swan products,
including those received for free or as gifts, for commercial purposes, other
than via the Influencer Page
Promote Heron and Swan products, the Heron and
Swan brand, or the Program and/or the Influencer Page via any paid media
Promote Heron and Swan products, the Heron and
Swan brand, the Program and/or the Influencer Page via any website, media,
social media, or electronic presence or resource that may be considered
pornographic, lewd, offensive, or discriminate
Engage in any fraudulent transactions, as
reasonably determined by Heron and Swan, including without limitation making
transactions from Influencer's IP addresses or computers under Influencer's
In consideration for the Services, Heron and Swan will
pay to Independent Influencer a percentage of the Net Revenue (as defined
below) collected by Heron and Swan in accordance with the Commission Appendix
below (the “Commission(s)”). For purposes of this Agreement, “Net Revenue”
means gross fees received by Heron and Swan from Qualifying Orders (as defined
below), less amounts paid for using store credit or gift certificates, taxes,
duties and transaction-based costs and expenses, including but not limited to
payment process fees and shipping fees. For purposes of this Agreement,
“Qualifying Orders” means purchases of Heron and Swan product(s) via the
Influencer Page that are made by a method of payment accepted by Heron and Swan.
The Commission is also only paid to Independent Influencer if the Qualifying
Order is final -any returns will cause that specific Commission to be deducted
out of the month payouts. The Commission will be calculated solely based on
records maintained by Heron and Swan using its standard methodologies. Heron
and Swan will pay Independent Influencer its Commission on the 28th day of each
month. Commissions due hereunder will be made by Heron and Swan to
Independent Influencer through its payment processor (“Payment Processor”),
which, as of the Effective Date, is PayPal Holdings, Inc. Independent
Influencer is solely responsible for creating and maintaining a Payment
Processor account, and communicating such account information to Heron and Swan
for purposes of receiving the payments set forth herein. Heron and Swan is not
responsible for making any payments based on any amounts which result from any
fraudulent transactions, as reasonably determined by Heron and Swan, including
without limitation any transactions originating from Influencer 's IP addresses
or computers under Influencer's control.
Definition. “Confidential Information” means all
trade secrets and confidential or proprietary information, whether or not in
writing, concerning Heron and Swan’s business technology, business
relationships or financial affairs which Heron and Swan has not released to the
general public. By way of illustration, Confidential Information includes, but
is not limited to, information or material which has not been made generally
available to the public, such as: (i) corporate information , including plans,
strategies, method, policies, resolutions, negotiations or litigation;(ii)
marketing information, including strategies methods, customer identities or
other information about customers , prospect identities or other information
about prospects, or market analyses or projections; (iii) financial
information, including cost and performance data (iv) operational and
technological information , including plans, specifications, manuals, forms,
templates, software, designs, methods, procedures, formulas, discoveries,
inventions improvements, concepts and ideas; and (v) personnel information,
including personnel lists, reporting or organizational structure, resumes,
personnel data. Confidential Information also includes information received in
confidence by Heron and Swan from its customers or suppliers or other third
Non-Disclosure and Non-Use Obligations.
Independent Influencer will not, at any time, without Heron and Swan 's prior
written permission, either during or after the term of this Agreement, disclose
any Confidential Information to anyone outside of Heron and Swan, or use or
permit to be used any Confidential Information for any purpose other than the
performance of the Services for or on behalf of Heron and Swan. Independent
Influencer will cooperate with Heron and Swan and use best efforts to prevent
the unauthorized disclosure or use of any and all Confidential Information.
Independent Influencer will deliver to Heron and Swan all copies of
Confidential Information in Independent Influencer's possession or control upon
the earlier of a request by Heron and Swan or termination of this Agreement for
Information of Third Parties. Independent
Influencer understands that Heron and Swan is now and may hereafter be subject
to non-disclosure or confidentiality agreements with third persons which
require Heron and Swan to protect or refrain from use of Confidential
Information. Independent Influencer agrees to be bound by the terms of such
agreements in the event Independent Influencer has access to such Confidential
Intellectual Property Rights.
Independent Influencer hereby grants to Heron and
Swan and its subsidiaries, affiliates, licensees, agents, representatives,
successors and assigns:
Unrestricted, fully-paid, royalty free, exclusive,
transferable and irrevocable rights, power and authority to use, reproduce,
publish, print, distribute, transmit, copy or otherwise use any of the Content,
worldwide and perpetually, in whole or in part, in any medium known now or
later discovered, for the purpose of its advertisements, promotions, marketing
activities, public relations, educational and other commercial or
non-commercial purposes, subject only to the payment made to Independent
Influencer in section 2 hereof.
Independent Influencer shall have the revocable,
unlimited, perpetual and worldwide right to use the Content, for Independent
Influencer’s promotional purposes, in any and all media now known or hereafter
With respect to Content which portrays Independent
Influencer’s face, body and voice (the “Restricted Materials”), Heron and Swan shall
have the right to use the Restricted Materials upon prior approval from
Independent Influencer hereby grants to Heron and
Swan and its affiliated companies, successors and assigns, the royalty-free,
perpetual, unrestricted, transferable, irrevocable sublicensable,
non-exclusive, worldwide right and license to use,
reproduce, modify, adapt, publish, translate, create derivative works from,
distribute, perform and display any content or other materials, other than the
Content, (i) submitted to Heron and Swan in connection with the Program or (ii)
otherwise created by Independent Influencer in connection with the Services,
(collectively, the “Other Developments”)
Heron and Swan Materials and Trademark.
Except for Independent Influencer's limited right
to use the Heron and Swan Materials solely in connection with performing the
Services, Heron and Swan retains all right title and interest in the Heron and
Swan Materials, including all related intellectual property rights. Heron and
Swan hereby grants to Independent Influencer, a limited, non-exclusive,
non-transferable license to use and display Heron and Swan’s name, website
address, logo and trade names (the “Marks”), solely in connection with
performing the Services.
Independent Influencer agrees that any use of the
Will comply with Heron and Swan’s quality
standards and trademark guidelines, which may be provided by Heron and Swan to
Independent Influencer from time to time
Will solely inure to the benefit of Heron and Swan.
The Marks are proprietary and nothing in this Agreement constitutes the grant
of a general license for their use. Independent Influencer does not acquire any
right, title or interest in the Marks or the goodwill associated therewith.
Independent Influencer agrees not to (A) attack the Marks or assist anyone in
attack in the Marks, and (B) make any application to register the Marks or use
any confusingly similar trademark, service mark, trade name, iconography, or
derivation thereof including, but not limited to, the registration of any
domain name including any of the Marks, during the term of this Agreement and
Federal Trade Commission Requirements.
Independent Influencer acknowledges and agrees
that the provisions of the Federal Trade Commission's Guides Concerning Use of
Endorsements and Testimonials in Advertising (the “Guides”) apply to
Independent Influencer's provision of the Services hereunder. Independent
Influencer represents and warrants that he or she has read and understands the
Guides and their requirements, and that the Content and Other Developments
(including, without limitation, social media communications regarding Heron and
Swan products, the Heron and Swan brand and/or the Program) will contain clear
and prominent disclosures compliant with the Guides.
Independent Influencer Social Channels.
In connection with performing the Services,
Independent Influencer may link certain of his or her Social Channels to the
Influencer Page. If Independent Influence so elects, Heron and Swan may link
to, and stream content from such Social Channels on its websites, social media
channels and in other Heron and Swan advertising and promotional materials.
Representations and Warranties.
Independent Influencer represents and warrants
He or she is at least 18 year of age and legally
allowed to live and work in his/her country of residence
The Services will be performed in a professional,
lawful and workmanlike manner, in accordance with any terms and conditions set
forth herein and in the Heron and Swan Materials;
The Content and Other Developments are Independent
Influencer' s original work
Use of the Content and Other Developments by Heron
and Swan will not infringe or involve the misappropriation of any third party
All clearances and licenses relating to the use of
the Content or Other Developments have been obtained by Independent Influencer
Except as expressly set forth herein, no fee,
compensation or any other payment whatsoever will be payable by Heron and Swan for
any Content or Other Developments or any content or material incorporated
therein to any third party;
He or she will comply with all applicable laws,
rules and regulations, including the Guides
Independent Influencer shall indemnify and hold Heron
and Swan, its affiliates and their respective directors, officers, agents and
employees harmless from and against all claims, demands, losses, damages and
judgments, including court costs and attorneys' fees, arising out of or based
upon the Services and/or Independent Influencer's performance thereof
including, but not limited to, (a) any claim that the Services provided
hereunder or, any related intellectual property rights or the exercise of any
rights in or to any Content, Other Development, Influencer IP or related
intellectual property rights infringe on, constitute a misappropriation of the
subject matter of, or otherwise violate any patent, copyright, trade secret, or
trademark of any person or breaches any person' s contractual rights; and (b)
any breach or alleged breach by Independent Influencer of any representation,
warranty, certification, covenant, obligation or other agreement set forth in
This Agreement will commence on the Effective Date
and continue until terminated as set forth herein. Either party may terminate
this Agreement for convenience upon at least seven (7) days' prior written
notice thereof to the other party. Heron and Swan may, in addition to any other
rights it may
have at law or in equity, terminate this Agreement
immediately and without prior notice if Independent Influencer refuses to or is
unable to perform the Services or is in breach of any material provision of
this Agreement. Upon any termination of this Agreement, all rights and duties
of the parties toward each other shall cease, except that the following
Sections shall survive: 2 (with respect to any Net Revenue accrued during the
term of this Agreement but not yet paid); 3, 4(a), 4(b), 4(c) and 5 through 13
Independent Contractor; No Agency.
Independent Influencer is not and shall not be
deemed an employee, agent, joint venture or partner of Heron and Swan, and neither
party shall have any right or authority to assume or create any obligation on
behalf of or bind the other party in any manner whatsoever.
Limitation of Liability.
IN NO EVENT SHALL HERON AND SWAN, ITS AFFILIATES,
THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR
LICENSORS (EACH, A “HERON AND SWAN PARTY”) BE LIABLE FOR ANY DAMAGES WHATSOEVER
(INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST
PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) ARISING
FROM OR RELATED TO THIS AGREEMENT, THE HERON AND SWAN PRODUCTS AND/OR THE
PROGRAM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR
ANY OTHER LEGAL THEORY, EVEN IF SUCH HERON AND SWAN PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED
WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES,
SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. IN SUCH STATES, THE
LIABILITY OF THE HERON AND SWAN PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT
PERMITTED BY LAW.
Governing Law, Jurisdiction and Venue.
The provisions of this Agreement will be construed
and enforced in accordance with, and any dispute arising out of or in
connection with this Agreement, including any action in tort, will be governed
by, the laws of the State of South Carolina. Each party hereby irrevocably
submits to the exclusive jurisdiction and venue of the courts within Myrtle
All notices or other communications, required or
permitted to be given hereunder, shall be in writing and shall be delivered
electronically, personally or mailed, certified mail, return receipt requested,
postage prepaid, to the parties at their addresses as set forth above. Any
notice given electronically shall be deemed received on the business day
following transmission. Any notice mailed in accordance with the terms hereof
shall be deemed received on the third day following the day of mailing.
Either party may change the address to which such notices to such party may be
given hereunder by serving proper notice of such change of address to the other
Independent Influencer and Heron and Swan agree
that it would be impossible or inadequate to measure and calculate Heron and
Swan’s damages from any breach by Independent Influencer of this Agreement.
Accordingly, Independent Influencer and Heron and Swan agree that if
Independent Influencer breaches this Agreement; Heron and Swan will have
available, in addition to any other right or remedy available and
notwithstanding anything to the contrary in Section 10 above, the right to
obtain from any court of competent jurisdiction an injunction restraining such
breach or threatened breach and specific performance of Sections 3, 4 and
Section 8. Independent Influencer and Heron and Swan further agrees that no
bond or other security shall be required in obtaining such equitable relief and
Independent Influencer and Heron and Swan, hereby consent to the issuances of
such injunction and to the ordering of such specific performance.
If any provision of this Agreement is found to be
invalid by any court or arbitrator having competent jurisdiction, then the
meaning of said provision shall be construed, to the extent feasible, so as to
render the provision enforceable, and if no feasible interpretation would save
such provision, it shall be severed from the remainder of this Agreement which
shall remain in full force and effect. Failure of Heron and Swan to act on or
enforce any provision of this Agreement shall not be construed as a waiver of
that provision or any other provision of this Agreement. No waiver shall be
effective against Heron and Swan unless made in writing, and no such waiver
shall be construed as a waiver in any other or subsequent instance. Except as
expressly agreed by Heron and Swan and Independent Influencer, this Agreement
constitutes the entire agreement between Independent Influencer and Heron and
Swan with respect to the subject matter, and supersedes all previous or
contemporaneous agreements, whether written or oral, between the parties with
respect to the subject matter. The section headings are provided merely for
convenience, and shall not be given any legal import. Neither this Agreement
nor any right hereunder or interest herein may be assigned or transferred by
Independent Influencer without the express written consent of Heron and Swan. Heron
and Swan may assign any or all of its rights and obligations under this
Agreement without Independent Influencer's written consent to any affiliate or
to another third party affiliate by way of merger, acquisition, consolidation,
or sale or transfer of all or substantially all of Heron and Swan’s assets or
capital stock. Any attempted assignment, delegation or transfer to a third
party in violation hereof shall be null and void. Subject to the foregoing,
this Agreement shall be binding on the parties and their successors and assigns.
For Qualifying Orders in a calendar month, Heron
and Swan will pay to Independent Influencer commission payments in accordance
with the following table, with the exception that Heron and Swan could have
promos that could go to higher percentages as incentive, all details of such
promos to be at Heron and Swan’s sole discretion and communicated to
Independent Influencer in due time:
7% of Net Revenue
For purposes of this Commission Appendix, each Qualifying
Order shall count as one Qualifying Order, regardless of the number of Heron
and Swan Products that are purchased pursuant to such Qualifying Order.
The Site is not intended for individuals under the age of 18. We do not intentionally collect Personal Information from children. If you are the parent or guardian and believe your child has provided us with Personal Information, please contact us at the address below to request deletion.
We share your Personal Information with service providers to help us provide our services and fulfill our contracts with you, as described above. For example:
As described above, we use your Personal Information to provide you with targeted advertisements or marketing communications we believe may be of interest to you. For example:
For more information about how targeted advertising works, you can visit the Network Advertising Initiative’s (“NAI”) educational page at http://www.networkadvertising.org/understanding-online-advertising/how-does-it-work.
You can opt out of targeted advertising by:
Additionally, you can opt out of some of these services by visiting the Digital Advertising Alliance’s opt-out portal at: http://optout.aboutads.info/.
We use your personal Information to provide our services to you, which includes: offering products for sale, processing payments, shipping and fulfillment of your order, and keeping you up to date on new products, services, and offers.
When you place an order through the Site, we will retain your Personal Information for our records unless and until you ask us to erase this information. For more information on your right of erasure, please see the ‘Your rights’ section below.
If you are a resident of the EEA, you have the right to object to processing based solely on automated decision-making (which includes profiling), when that decision-making has a legal effect on you or otherwise significantly affects you.
We DO NOT engage in fully automated decision-making that has a legal or otherwise significant effect using customer data.
Our processor Shopify uses limited automated decision-making to prevent fraud that does not have a legal or otherwise significant effect on you.
Services that include elements of automated decision-making include:
Our Site does not sells Personal Information, as defined by the California Consumer Privacy Act of 2018 (“CCPA”).
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We use the following cookies to optimize your experience on our Site and to provide our services.
The length of time that a cookie remains on your computer or mobile device depends on whether it is a “persistent” or “session” cookie. Session cookies last until you stop browsing and persistent cookies last until they expire or are deleted. Most of the cookies we use are persistent and will expire between 30 minutes and two years from the date they are downloaded to your device.
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Additionally, please note that blocking cookies may not completely prevent how we share information with third parties such as our advertising partners. To exercise your rights or opt-out of certain uses of your information by these parties, please follow the instructions in the “Behavioural Advertising” section above.
Please note that because there is no consistent industry understanding of how to respond to “Do Not Track” signals, we do not alter our data collection and usage practices when we detect such a signal from your browser.
For more information about our privacy practices, if you have questions, or if you would like to make a complaint, please contact us by e-mail at [email protected]Last updated: 9-6-2021
If you are not satisfied with our response to your complaint, you have the right to lodge your complaint with the relevant data protection authority. You can contact your local data protection authority, or our supervisory authority here: https://ico.org.uk/make-a-complaint/]