Last Updated: June 9, 2020
Welcome! Please read the terms and conditions of this Independent Creator Agreement (“Agreement”) carefully.The Agreement is a binding contract between you and lemonadetv (“lemonade.tv,” “Company,” “we,” or “us”). Any person or entity that participates or attempts to participate as a Creator must accept this Independent Creator Agreement, including Program Policies (as defined below) without change. The Agreement defines the role and responsibilities of the Creator. It is imperative for you to read the Agreement prior to signing up. A breach of this Agreement may result in termination of your relationship with us.
- Representations and Warranties and Covenants.
a. Age/Formation. You represent and warrant, that if an individual, that you are of legal age in the state in which you reside.If you are an entity, you represent and warrant that it is duly organized in the state of formation. You may not apply as a Creator using a fictitious or assumed name. You further represent that you are lawfully able to enter into contracts (e.g., you are not a minor or you are authorized on behalf of the entity to enter into contracts).
b. Accuracy of Information. You represent and warrant that the information you provide in connection with becoming a Creator is accurate and complete. You will update your account information at all times.
c. Independent Contractor. You understand that you are an independent contractor. You represent and warrant that you are conducting business for your own account. You are not an agent, employee, franchisee, joint venturer, or partner of Company and shall not state or imply, whether in writing or verbally, otherwise. You understand that you shall not be treated as an employee of Company and shall be responsible for obtaining all licenses required by law, pay all taxes and be responsible for all liabilities you incur, including any withholdings, workers compensation insurance and benefits, such as health insurance, disability benefits, sick pay or other similar obligations. You have no authority or power to bind Company in any way in dealing with third parties and shall not attempt or purport to do so. You will not misrepresent or embellish our relationship with you (including by expressing or implying that we support, sponsor, or endorse you), or express or imply any affiliation between you and us or any other person or entity except as expressly permitted by this Agreement.
d. Taxes. You accept sole responsibility for all taxes, including, but not limited to, self-employment, income or sales tax, and any other taxes on income earned as a Creator. You further agree that Company shall not be responsible for local, county, state or federal income taxes or other taxes or fees pertaining to your earnings as a Creator. At the end of each calendar year, Company may issue to you an Internal Revenue Service (IRS) Form 1099, as required by law, or other applicable documentation for non-employee compensation as an independent contractor.
We may deduct or withhold any taxes that we may be legally obligated to deduct or withhold from any amounts payable to you hereunder. From time to time, we may request tax information from you. If we request tax information from you and you do not provide it to us, we reserve the right (in addition to any other rights or remedies available to us) to hold any amounts owed to you until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
e. Compensation. As a Creator, you may earn compensation solely based on the sale of products and/or services to end customers and for referrals to lemonadetv. You can find more information about fees paid by going to Fees and Commissions.
f. Ethics. You will maintain high standards of honesty, integrity and business ethics when dealing with end consumers, other Creators and Company.
g. Legal Compliance. You will not violate any applicable laws, ordinances, rules, regulations, orders, codes of practice, industry standards, judgements or other requirements of any governmental authority by participating as a Creator and concerning the operation of your business.
h. No Exclusive Territory. You understand that there is no exclusive territory. No geographical limitations exists on selling within the United States.
i. No Reliance. You have independently evaluated the desirability of becoming a Creator and are not relying on any representation, guarantee or statement by lemonadetv other than as expressly set forth in this Agreement. We do not make any representation, warranty or covenant regarding the amount of fees you can expect at any time in connection with becoming a Creator. You will not hold us liable for any actions you undertake based on your expectations.
a. Termination. Either you or us may terminate this Agreement at any time by giving the other party written notice of the termination. Except as set forth in this Agreement, in the event that we terminate the Agreement the effective date of such termination is seven (7) calendar days from the date notice is provided. You can provide termination notice by logging onto your account and selecting the option to close your account in “My Profile” or by emailing email@example.com with your request to close your account.Notwithstanding anything to the contrary in this Agreement, Company may immediately terminate this Agreement upon written notice in the event that (i) you are in material breach of this Agreement, including Program Policies, (ii) you misrepresent the products and services or Company or your relationship with Company, (iii) we have previously terminated this Agreement with respect to you or other persons we determine are affiliated with you, or (iv) you act in a manner that may cause a negative impact on the business or reputation of Company. In the event you wish to appeal the termination, we must receive the appeal in writing within seven (7) calendar days from the effective date of termination. If no appeal is received within the seven (7) day period, the termination will automatically be deemed final as of date on the termination notice. If you file a timely appeal, we will review the appeal and notify you of our decision. The decision of Company will be final and not subject to further review.
b. Effect of Termination. If this Agreement is terminated for any reason, you shall no longer be eligible to make sales and must cease representing yourself as a Creator. You must remove and permanently discontinue use of the Company trademarks, service marks, trade names and other intellectual property of Company and discontinue use of any signs, labels, stationary or advertising referring to or relating to any product, plan or program of Company.Other than accrued but unpaid amounts, you lose all rights, if any, to any commissions, earnings or other compensation, resulting therefrom. You must take all action reasonably required by Company relating to protecting Company’s confidential information and must cease use of any such confidential information. Company has the right to offset any amounts owed to you from commissions or other compensation due to you.
All rights and obligations of the parties will be extinguished, including any and all licenses granted in connection with this Agreement, except that the rights and obligations of the parties under Sections 2, 4, 5, 6, 7, 8, 9, 11, 12 and 13 shall survive termination.
No termination of this Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Agreement prior to termination.
3. Transferability. Except as expressly set forth herein, you may not sell, assign or otherwise transfer this Agreement, by operation of law or otherwise, or his or her or its account without our express prior written approval. Any attempt to transfer or assign the Agreement or any rights under the Agreement without the express written consent of Company shall be void. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under this Agreement to any person other than you and your respective successors and assigns.
4. Proprietary Information.
a. Confidential Information.During the term of this Agreement, Company may supply to you confidential information about its business, products, intellectual property, trade secrets, financial information, third-party confidential information and other sensitive and proprietary information (“Confidential Information”). Any information that we provide or make accessible to you that is not known to the general public or that reasonably should be considered to be confidential shall be Confidential Information. All Confidential Information is proprietary and confidential to Company and you must use your best efforts to keep such information confidential and you will use Confidential Information only to the extent reasonably necessary for your performance under this Agreement. You shall not disclose Confidential Information to any person or entity, except to your employees or agents who have a need to know such Confidential Information to perform the obligations hereunder and who are bound by similar confidentiality obligations. This restriction will be in addition to the terms of any confidentiality or non-disclosure agreement between the parties. Upon expiration or termination of this Agreement, you shall continue to keep all Confidential Information confidential and discontinue the use of such Confidential Information. On expiration or termination of this Agreement, at Company’s sole discretion, you shall promptly return to Company all copies, whether written or electronic, or other form of media, the Confidential Information or, destroy all such copies and certify in writing to Company that such Confidential Information has been destroyed.
b. Intellectual Property. As between you and us, we own all content developed or acquired by us, including but not limited to trademarks, tradenames, and logos (collectively, “Company Intellectual Property”). We grant a non-exclusive license to you to use Company Intellectual Property in furtherance of your performance of this Agreement. Notwithstanding the foregoing, you shall not use Company Intellectual Property in any manner that would lead a third party to believe that you are an officer, director, employee, manager or agent of Company. Furthermore, you agree to comply with all statutes, regulations, rules and policies regarding the use of Company Intellectual Property, including by the Federal Trade Commission. You are not authorized to use any of Company Intellectual Property other than as expressly provided in this Agreement or as expressly licensed. You must abide by all rights notices, information, or restrictions contained in or attached to any Company Intellectual Property and must not remove any trademark, copyright, or other notice.
5. Entire Agreement. This Agreement incorporates, and you agree to comply with the most up-to-date version of all policies, appendices, specifications, guidelines, schedules and other rules referenced in this Agreement or accessible from your account (“Program Policies”), and the Agreement, including Program Policies, constitute the entire and exclusive agreement between us with respect to their subject matter, and supersede any prior agreements or negotiations between us with respect to that subject matter. In the event of any conflict between this Agreement and any Program Policy, this Agreement will control.
6. Severability. If any provision of this Agreement shall, for any reason, be held unenforceable, such provision shall be severed from this Agreement. The invalidity of any provision shall not affect the enforceability of any other provision herein and the remaining provisions shall remain in full force and effect.
7. Indemnity and Release. You release, indemnify and hold harmless Company, its affiliates, and its or their respective suppliers, distributors, or customers, and any of its or their respective officers, directors, managers, members, employees, contractors, representatives, or agents (collectively, the “Company Parties”) for any and all claims, actions, losses, damages, liabilities, fines, penalties, and expenses and fees (including attorneys’ fees) arising out of or relating to (a) your operation of your independent business and any activities related thereto, including, but not limited to the marketing and sale of products, any content you post, your use of any of our services, employee wages and any unauthorized conduct, (b) breach of the terms of this Agreement (including any Program Policies), or (c) your or your employees’ or contractors’ conduct or activities.
8. Limitation of Liability. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL THE COMPANY NOR ANY COMPANY PARTY BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STATUTORY, OR OTHERWISE) FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT, GOODWILL, USE OR DATA), EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM OR RELATING IN ANY WAY TO THIS AGREEMENT, OUR WEBSITES, APPLICATIONS OR THE SERVICES OFFERED BY COMPANY.NOTWITHSTANDING THE FOREGOING, SUCH LIABILITY SHALL NOT EXCEED AND IS HEREBY EXPRESSLY LIMITED TO ANY COMPENSATION PAID TO CREATOR IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM GIVING RISE TO THE LIABILITY OCCURRED. YOU HEREBY WAIVE ANY RIGHT OR REMEDY IN EQUITY, INCLUDING THE RIGHT TO SEEK SPECIFIC PERFORMANCE, INJUNCTIVE OR OTHER EQUITABLE RELIEF IN CONNECTION WITH THIS AGREEMENT. Some states and jurisdictions do not allow limitations or exclusions of certain damages or warranties, so the above limitations may not apply to you. To the extent that we may not, as a matter of applicable law, limit our liabilities, the extent of liability of the Company Parties will be the minimum permitted under such applicable law.
9. Disclaimers. You acknowledge and agree that we and our affiliates may at any time (directly or indirectly) operate sites or applications or perform services that are similar to ones offered by you or compete with you.
Our website, applications, any products or service offered on our website or applications, any special links, content, data feed, our and our affiliates’ domain names, trademarks, tradenames and logos, and all technology, software, functions, materials, data, images, text and other information and content provided by us in connection herewith (“Services”) are provided “AS IS” and “AS AVAILABLE.” We do not make any representation or warranty of any kind, express or implied, with respect to the Services and we disclaim all warranties, including implied warranties of title, merchantability or fitness for a particular purpose, non-infringement, or arising out of any course of dealing. We may discontinue any Service or many change any Service, feature, function, operation or scope of any Service at any time. We do not warrant that the Services will function as described or consistently or will be uninterrupted, accurate, or error free. We nor any of our affiliates will be responsible for any errors, viruses, malicious software or service interruptions. Neither us nor any of our affiliates will be responsible for (x) any compensation, reimbursement, or damages arising in connection with any loss of profits or revenue (or prospective profit or revenue), anticipated sales, goodwill or other benefits, (y) any expenditures or commitment by you in connection with your participation as a Creator or use of Services or (z) any termination or suspension of your participation as a Creator.
NOTHING IN THIS SECTION WILL OPERATE TO EXCLUDE OR LIMIT WARRANTIES, LIABILITIES, OR REPRESENTATIONS THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
10. Modifications to Agreement. We may update or change any of the terms and conditions contained in this Agreement at any time and in our sole discretion, by posting a change notice or revised Agreement or by sending notice to you at the email address you provided to us. If any modification is unacceptable to you, your only recourse is to terminate your participation as a Creator in accordance with Section 2 of this Agreement regarding termination. The effective date of such change will be the date specified, which will be no less than seven (7) calendar days from the date the notice is provided. Your continued participation as a Creator following the effective date of such will constitute your binding acceptance of the change.
11. Disputes. These Terms and the relationship between us will be governed by the Laws of the State of California as applied to agreements made, entered into, and performed entirely in California. All lawsuits arising out of or relating to this Agreement, or the rights and obligations of either party shall be subject to binding arbitration under the Rules of the American Arbitration Association (“AAA”).
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury. However, an arbitrator can award the same damages and relief on an individual basis that a court can. An arbitrator will apply the terms of the Agreement as a court would.
A party who intends to seek arbitration must first send notice to the other (“Notice of Dispute”), by certified mail. If not lemonadetv, the Notice of Dispute should be sent to lemonadetv, Attn: Litigation Department, 350 Clinton St, Suite F, Costa Mesa, CA 92626. lemonadetv will send any Notice of Dispute to you to the physical address we have on file associated with your lemonadetv account; it is your responsibility to keep your physical address up to date. The Notice of Dispute must provide a description of and the basis of the claims the party is asserting and the relief sought. If you and lemonadetv are unable to resolve the claims described in the Notice of Dispute within thirty (30) days after the Notice is sent, you or lemonadetv may initiate arbitration proceedings.
Arbitration will be handled by a sole arbitrator in accordance with those rules. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. Judgment on the arbitration award may be entered in any court that has jurisdiction. You agree that you may bring claims only on an individual basis and not as a plaintiff or class member in any purported class, or representative or private attorney general action or proceeding, unless both you and lemonadetv agree otherwise in writing. The arbitrator may not consolidate or join more than one person’s or party’s claims, and may not otherwise preside over any form of consolidated, representative, class or private attorney general action or proceeding. Also, the arbitrator may award relief (including monetary, injunctive or declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s). Any relief awarded cannot affect other users. If a court decides that applicable law precludes enforcement of any of this section’s limitations to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to a party’s right to appeal the court’s decision. All other claims will be arbitrated.
You understand that you and lemonadetv are each waiving the right to trial by jury or to participate in a class action or class arbitration. Notwithstanding the foregoing, each party shall have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. Alternatively, you may assert your claim in “small claims” court, if your claim qualifies and your claim remains in such court, and your claim remains on an individual, non-representative, and non-class basis.
Payment for any and all reasonable AAA filing, administrative, and arbitrator fees will be in accordance with the Rules of American Arbitration Association. If the value of your claim does not exceed $10,000, lemonadetv will pay for the reasonable filing, administrative, and arbitrator fees associated with the arbitration. Any request for payment of fees by lemonadetv should be submitted by mail to the AAA along with your Demand for Arbitration and lemonadetv will make arrangements to pay all necessary fees directly to the AAA. If (1) you willfully fail to comply with the Notice of Dispute requirements discussed above or (2) the arbitrator determines the claim(s) you made in the arbitration to be frivolous or brought for an improper purpose, you agree to reimburse lemonadetv for all fees associated with the arbitration paid by lemonadetv on your behalf that you otherwise would have been obligated to pay under the AAA’s rules.
12. Electronic Communications Notice. When you use our website(s), application(s) or send emails to us, you are communicating with us electronically. You consent to receiving communications from us electronically. We may communicate with you by email or posting notices on the applicable website or application. You may update your information for notice purposes by logging in to your account. You agree that all agreements and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. In order to access any such communications, you must have a computer or other Internet-enabled device. In order to retain copies of any such communications, you must have a printer or data storage device. If you have a printer, you may print paper copies of any such communications for your own use. If you wish to withdraw your consent for us to communicate with you electronically, you must terminate your account and you may not use our services, including our website(s) or application(s).
13. Miscellaneous. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Company will not be responsible for delays or failure in performance caused by circumstances beyond Company’s control, including, but not limited to, fire, flood, earthquakes, storms, labor strikes, acts of war or government. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.