These terms, together with the terms in our Talent Booking Form, set out your agreement with The Fifth (“we”/”us”) for your involvement in the Campaign. Please read them carefully. Unless defined below, all capitalised terms shall have the meanings ascribed to them in the Talent Booking Form.


1.) Services. Talent agrees to perform the services for each Program for the Client as specified in the applicable Talent Booking Form, which is attached hereto as Exhibit A and any additional Talent Booking Forms that may be signed from time to time by the parties (collectively, the “Services”). The Services include Talent’s blogging and/or posting of posts, tweets, text, photographs, videos, music, audio/sound recordings, artwork and/or other material or information (collectively, the “Content”) to certain websites, forums, webpages, social media pages/platforms and/or other word-of-mouth channels or media (collectively, the “Channels”).  

2.) Compensation. In full consideration of Talent’s performance of the Services and the rights granted herein for each Client Program, Talent shall receive the compensation specified in the applicable Talent Booking Form.  Talent will otherwise perform the Services at his/her own expense and using his/her own resources and equipment. The Fifth and Client shall have no other obligation for any other compensation to or expenses or costs incurred by the Talent in connection with this Agreement.  

3.) Intellectual Property Rights:   

(a) Grant of Rights.  Talent grants The Fifth and Client the worldwide, irrevocable, sublicenseable, royalty-free and fully paid-up right and license to use, reproduce, distribute, adapt, translate, make derivative works of, and publicly display the Content, including Talent’s name (including nickname, online handle or username), image, likeness, performance, voice, statements, and/or biographical information or performance metrics in connection with such Content (collectively, “Talent’s Likeness”), during the License Period (as defined in the Talent Booking Form) and in any and all of the media formats described in the applicable Talent Booking Form, for any and all lawful purpose, including, without limitation, Client’s advertising, marketing and promotional purposes (collectively, the “License”). For clarity and the avoidance of doubt, the foregoing License grants The Fifth and Client the right to share and/or repost the Content, and to paraphrase, amplify, shorten, and/or put the Content into conversational form, on Client’s social media outlets and websites; and to “mention” and/or “tag” (and all like activity) Talent’s name and/or applicable social media handles and otherwise use or refer to Talent’s Likeness in Client’s social media messaging.  Furthermore, notwithstanding the usage period set forth in the applicable Talent Booking Form or anything to the contrary stated herein, The Fifth and Client shall have the right to use the Content, including Talent’s Likeness, worldwide, in perpetuity, for its internal, archival and/or historical purposes.  In addition, it is understood that The Fifth and Client shall not be required to remove any Content from its social media outlets following the expiration of the License, and The Fifth and Client’s usage rights hereunder will include the right to keep the Content archived on its social media channels as long as they does not re-post or re-highlight the initial post containing the Content after the expiration of the License.

(b) Restrictions.  Except for Client IP incorporated therein, Talent shall own all right, title, and interest, including all copyright rights, in and to the Content.  Notwithstanding the foregoing, Talent represents that Talent will not use any of the Content, except as set forth herein, without Client’s prior written consent, which may be withheld in Client’s sole discretion.  Talent further represents that Talent will not license and/or otherwise permit the use of any of the Content by any third party, for any reason whatsoever, anywhere in the world, at any time in perpetuity, except with Client’s prior written permission, which may be withheld in Client’s sole discretion. 

(c) Approvals.  Talent acknowledges and agrees that all Content must be approved by The Fifth and Client in writing (email is sufficient) before being posted by Talent in accordance with the applicable Talent Booking Form.  Talent shall submit the proposed Content to The Fifth and Client for review and approval on such deadlines set forth in the applicable or as otherwise are agreed by the parties in writing.  Unless otherwise set forth in the applicable Talent Booking Form, Talent shall make all changes to the proposed Content as are reasonably requested by The Fifth and Client until the Content has been approved by such parties in writing.  Talent will obtain signed releases from all persons other than Talent whose voice, statements, performance, name, handle, photograph, image and/or likeness are contained in the Content.

(d) Client’s IP. Client shall own and retain all right, title and interest in any trademarks, trade names, service marks, logos, artwork, designs, copy or other intellectual property owned by Client (collectively, “Client IP”).  In connection with Talent’s creation of the Content, The Fifth and/or Client may provide Talent with a limited license to use the Client IP solely in connection with the performance of Talent’s Services herein.  Talent shall have no interest in or right to the use any Client IP except for the limited right to use the Client IP solely for purposes of performing the services in accordance with this Agreement. Without limiting the foregoing, Talent shall not claim any right in or attempt to challenge the validity of any of the Client IP. 

4.) Content Guidelines/Code. Talent agrees that Talent will not submit or post any Content in connection with the applicable Program that is not compliant with the following Content Guidelines/Code. Content may be rejected by The Fifth and Client if it contains any of the following materials:

* Violates or infringes any rights of any other party, including but not limited to copyright, trademark, privacy, publicity or any other intellectual property rights;
* Contains material that is inappropriate, indecent, obscene hateful, tortious, defamatory, slanderous or libelous;
* Contains material that is unlawful, in violation of or contrary to the laws or regulations of the United States or of any jurisdiction where Content are created;
* Contains information known by Talent to be false, inaccurate or misleading;
* Contains content that is, or may reasonably be considered to be, hate speech, or promotes bigotry, racism, hatred or harm against any group or individual or promotes discrimination based on race, gender, religion, nationality, disability, sexual orientation or age;
* Contains material or content for which Talent has been compensated or granted any consideration by any third party; 
* Disparages Client or any other person or party; and/or 
* Contains material not consistent with the image and values of Client. 

5.) Representations and Warranties.

(a) Talent’s Representations and Warranties. Talent represents and warrants to The Fifth and Client that: (i) Talent has the full right, power and authority to enter into this Agreement, grant the rights granted herein, and fully perform its obligations hereunder without violating the rights of any third party; (ii) the Content is wholly original with Talent, and that the use of the Content in accordance with this Agreement will not infringe any patents, copyrights, trademarks, trade secrets or other intellectual property rights or violate the right of privacy, publicity or other rights of any third party; (iii) the Content, and Talent’s performance of the Services and all of its other obligations under this Agreement, will comply with The Fifth’s Talent Social Media Policy, a copy of which is attached hereto as Exhibit B, and all other terms and conditions of this Agreement; (iv) Talent will comply with any Internet or social media platforms’ terms of use and policies when posting Content on such third party platforms; (v) Talent will not commit and has not committed any act which brings The Fifth or Client into public disrepute, contempt, scandal, or ridicule, or which insults or offends the general community to which Client’s advertising and publicity materials are directed, or which might tend to injure the success of Client or any of Client’s products or services including, without limitation, disparaging Client, its products or services, or its competitors; and (vi) Talent will comply with all applicable federal, state and local laws, regulations, administrative guidelines, orders and ordinances, including without limitation, and the FTC Endorsement and Testimonial Guidelines (http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf) (“FTC Endorsement Guides”) and the FTC’s Native Advertising Guidelines (https://www.ftc.gov/tips-advice/business-center/guidance/native-advertising-guide-businesses) (“FTC Native Advertising Guidelines”).  The form and placement of any FTC-required disclosures shall be agreed to by the The Fifth and Client but, at a minimum, will appear clearly and conspicuously and in close proximity to any statements that Talent makes about Client and/or its Products/Services.  In no event will The Fifth’s or Client’s approval of any Content or activities relieve Talent of its responsibilities under this section. 

(b) No Fake Followers. Talent further represents and warrants that Talent will not: (1) use any script, programmed, mechanical, click fraud, botnets, impression ladderups, robotic, macro, automatic, programmed or other automated means to increase Talent’s engagement, likes, views, impressions, followers, or other performance metrics (“Engagement Metrics”), including in connection with the Content; (2) pay or otherwise engage a third party to affect Engagement Metrics, or (3) collaborate with other individuals or groups to affect Engagement Metrics or utilize paid media amplification without Client’s prior written consent. 

(c) Monitoring. Talent understands and agrees that The Fifth and Client shall have the right to monitor Talent’s Content and Channels to ensure compliance with this Agreement, including this Section 5 of the Agreement and the The Fifth’s Talent Social Media Policy. 

6.) Indemnification.  Talent agrees to defend, indemnify and hold harmless Client, The Fifth and their respective affiliates, subsidiaries and parent companies, and their respective officers, directors, employees, business partners and agents (collectively, “Client Entities”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including, but not limited to, attorney’s fees) arising from: (a) Talent’s breach of this Agreement and/or any of its representations and/or warranties included herein; (b) Talent’s negligence or willful misconduct; and/or (c) any other acts or omissions by Talent in connection with the Agreement.  

7.) Waiver and Release. Talent acknowledges that neither The Fifth nor Client have any control over and are not responsible for media and/or other third-party re-posts or other republication of the Content or Talent’s Likeness, and shall have no obligation to recall or remove materials properly distributed or published under this Agreement.  Talent hereby agrees, for him/herself, his/her heirs, executors and administrators, to release, waive, discharge, absolve, agree to hold harmless, and covenants not to sue The Fifth, Client, and each of their respective parents, affiliates, agents (including advertising agencies), successors and assigns, business partners, subsidiaries, and the employees, officers and directors of all such entities (collectively, “Released Parties”), from and/or in relation to (i) any and all liability, loss, harm, damage, injury, cost or expense whatsoever resulting from Talent’s services under this Agreement and the use of the Content or Talent’s Likeness and/or (ii) any other claims of every character, nature and/or description whatsoever which Talent, his/her heirs, executors, administrators and assigns had, now have or hereafter may have, by reason of any matter connected in any way with the Released Parties’ exercise of their express or implied rights under this Agreement, including but not limited to the right to use Talent’s Likeness in accordance with the terms of this Agreement (collectively (i) and (ii), “Losses”).  For the avoidance of doubt, Talent assumes all risk of injury, property damage, death, or illness resulting from or arising out of Talent’s participation in the Services as set forth herein and fully releases and discharges the Released Parties from any and all Losses arising from Talent’s participation in such services, including but not limited to claims related to injury, property damage, death or illness.

8.) Relationship of Parties. Talent’s relationship with The Fifth and Client is that of an independent contractor and Talent agrees that as an independent contractor, it will not be considered an employee of The Fifth and Client for any purpose, including tax obligations, and will not be eligible to participate in any of The Fifth and Client medical, benefit or health plans.  For clarity, Talent understands and agrees that Talent will be solely responsible for the withholding and payment of all federal, state and local income taxes, Social Security taxes, unemployment taxes, disability insurance or similar items associated with the fees Talent receives under the Agreement, and that Talent will hold The Fifth and Client harmless from and against any liability or costs incurred by Talent with respect to such taxes. Neither The Fifth and Client shall have any other obligation for any other compensation to or expenses or costs incurred by the Talent in connection with this Agreement.  Talent will perform the services described herein at his/her own expense and using his/her own resources and equipment.  Notwithstanding anything to the contrary included herein, Talent acknowledges and agrees that The Fifth is acting as agent for Client, a disclosed principal in accordance with the principles of sequential liability and therefore The Fifth will only be responsible for payment obligations to Talent to the extent The Fifth has been paid the applicable amounts by Client.

9.) Exclusivity. Talent will not perform any services during the Exclusivity Term for any brands in the Exclusivity Category in accordance with the applicable Talent Booking Form.  

10.) Term and Termination

(a). Term. The initial term of this Agreement shall commence on the Effective Date and continue in full force and effect until terminated as set forth herein or until completion of all Services specified herein, whichever is sooner.    

(b) Termination.  The Fifth may terminate this Agreement: (i) immediately in the event of a material breach by Talent or (ii) for convenience at any time.  Upon termination, Talent must return any materials supplied under this Agreement to The Fifth and immediately remove any Client-IP from dissemination or from Talent’s Channels. For clarity, Talent’s failure to make disclosures in the manner set forth in the FTC Endorsement Guides or Exhibit B and/or as instructed by The Fifth shall be deemed a material breach of this Agreement.

10.) Miscellaneous.  Talent will not be entitled to, and hereby waives any right to seek, injunctive relief to enforce the provisions of this Agreement, and Talent’s sole remedy for any breach by The Fifth shall be to recover monetary damages, if any, subject to the terms and conditions herein. Talent may not subcontract or otherwise delegate Talent’s obligations under this Agreement without The Fifth’s prior written consent.  Subject to the foregoing, this Agreement shall benefit and bind the parties’ successors and permitted assigns.  This Agreement shall be governed in all respects by the laws of the State of California and Talent agrees that unless otherwise indicated by Client, any action arising from or relating to this Agreement shall be brought exclusively in a state or federal court located in the states of California.  Should any provisions of this Agreement be held by a court of law to be illegal, invalid, or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.  The rights and obligations contained in this Agreement which, by their nature or by their terms are intended to survive termination or expiration of this Agreement, will hereby so survive.  The waiver by either party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other or subsequent breach by the other party.  This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.  This Agreement may only be changed by mutual agreement of authorized representatives of the parties in writing.