BRAND PROMOTION AGREEMENT

By accepting this Brand Promotion Agreement (“Agreement”), either by clicking a box indicating your acceptance or by executing an offline version of the Agreement, you enter into a binding contract with Whurk, Inc. (“Whurk,” “we” or “us”). This Agreement governs your access to and use of Whurk’s brand representative program, websites, mobile applications and any other products and services provided by Whurk to help you promote your brand on college campuses (collectively, the "Services"). If you are entering into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind such entity to these terms and conditions, in which case the terms “you” and “your” shall refer to such entity. If you do not have such authority, or if you do not agree with the terms and conditions herein, you must not accept this Agreement and may not use the Services.

This Agreement was last updated on August 10th, 2015 and it is effective between you and Whurk as of the date you accept this Agreement.

  1. Description of Services

    Whurk provides a web-based tool for activating and managing on-campus brand promotion campaigns (each, a “Campaign”). By signing up for our Services, you will have access to a workforce of full-time and part-time college students (the “WhurkForce”) who are independent contractors of Whurk and have signed up to participate in on-campus brand promotion opportunities.

  2. Registration

    In order to access and use the Services, you must register for a Whurk account by visiting http://production.whurk.com/brands.html. By registering for an account, you agree that you will (a) provide accurate, current and complete account information; (b) not create an account that incorporates a trademark owned by another business or individual for which you do not have all necessary rights; (c) maintain and promptly update account information as necessary; (d) maintain the security of your password and accept all risks of unauthorized access to your account and the information you provide to us; and (e) promptly notify us if you discover or otherwise suspect any security breaches related to your account or the Services.

  3. Privacy

    For information about how Whurk collects, uses and shares information, please see our Privacy Policy .

  4. Ownership of the Services and Whurk Content

    Unless otherwise indicated through the Services or by Whurk, the Services and all content and other materials therein, including, without limitation, the Whurk logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Whurk Content”) are the proprietary property of Whurk and/or our licensors and are protected by U.S. and international copyright laws.

  5. License; Restrictions

    Subject to the terms and conditions of this Agreement, Whurk hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Services and Whurk Content solely to activate and manage Campaigns.

    You will not (a) make the Services or Whurk Content available to, or use the Services or Whurk Content for the benefit of, anyone other than you, (b) sell, resell, license, sublicense, distribute, rent or lease the Services or Whurk Content, in whole or in part; (c) modify or otherwise make any derivative uses of the Services or Whurk Content; (d) use any data mining, robots or similar data gathering or extraction methods; (e) use the Services to store or transmit infringing, libelous or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (f) use the Services to store or transmit malicious code; (g) frame or mirror any part of the Services or Whurk content, except as authorized by Whurk; (h) reverse engineer the Services; (i) interfere with or disrupt the integrity or performance of the Services; and (j) use the Services or Whurk Content other than for their intended purposes. Unless explicitly stated herein, nothing in this Agreement shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise.

  6. Brand Content

    The Services include interactive features and areas in which you may create, upload, transmit and store information related to Campaigns, including but not limited to text, sound, photos, videos, graphics, code and other materials (collectively, "Brand Content"). [Note to Whurk: Please describe the types of content and information that brands will be able to provide through the Services. Depending on your response, we may want to include additional information in this section.] You will be solely responsible for all Brand Content and for your use of such interactive features and areas. By creating, uploading, transmitting, storing, distributing and/or otherwise publishing Brand Content through the Services, you agree that your Brand Content (a) is not unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable; (b) does not constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or otherwise create liability or violate any local, state, national or international law; (c) does not infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any third party; (e) does not include the private information of any third party without such third party’s consent; (e) does not contain viruses, corrupted data or other harmful, disruptive or destructive files; (f) is not, in the sole judgment of Whurk, objectionable; and (g) does not expose Whurk or any third party to any harm or liability of any type.
  7. Acceptable Use

    By accessing or using the Services, you agree to not (a) request or instruct members of our WhurkForce to engage in activities that could create liability, violate any local, state, national or international law, or result in any harm or injury to Whurk, our WhurkForce or any third party; (b) contact individual members of our WhurkForce, unless authorized to do so by Whurk; (c) use or attempt to use another user's account without authorization from such user and Whurk; (d) attempt to circumvent any content filtering techniques Whurk employs, or attempt to access any features or areas of the Services that you are not authorized to access; (e) engage in any harassing, intimidating, predatory or stalking conduct; (f) develop any third-party applications that interact with the Services without our prior written consent; and (g) use the Services for any illegal or unauthorized purpose or engage in, encourage or promote any activity that violates the terms of this Agreement.

  8. Fees and Payment

    All fees will be displayed in U.S. dollars. Except as otherwise specified by Whurk, all fees are non-refundable.

    You will provide Whurk with valid and updated credit card information in order to process your order. By providing credit card information to us, you authorize Whurk (or a third party payment processor) to (a) charge such credit card for the purchase amount of your order (including taxes, if applicable) and (b) store your payment information. In the event that the credit card information you provide cannot be verified, is invalid or is otherwise not acceptable, we may suspend or cancel your order immediately.

    Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder.

  9. Confidentiality

    In the course of this Agreement, either party may disclose certain non-public information or materials to the other party, including, without limitation, trade secrets, product or service plans, designs, specifications, ideas, concepts, data, marketing and development plans and customer information (collectively, “Confidential Information”). If a party receives Confidential Information, unless otherwise expressly authorized by the disclosing party, such party will: (a) use such Confidential Information solely for the purposes for which it was provided; (b) not disclose any Confidential Information to any third party; and (c) protect such Confidential Information from unauthorized use or disclosure to the same extent that it protects its own Confidential Information of a similar nature (but in no event using less than a reasonable standard of care). Confidential Information will not include any information that is in the public domain (other than by breach of this Agreement), is obtained from a third party without any obligation to maintain its confidentiality or is independently developed by the receiving party. Further, this section will not apply to any use or disclosure of Confidential Information that is required by applicable law, legal process or governmental authority or that is made with the express consent of the disclosing party.

  10. Insurance

    You will obtain and maintain the following insurance coverage: [insert applicable insurance obligations]. Such insurance coverage will remain in full force and effect, and will name Whurk as an additional insured, during the term of this Agreement. You will provide Whurk with certificates of insurance and other supporting materials as Whurk may reasonably request to verify your continuing compliance with your obligations under this section. In the event that such insurance coverage is cancelled or materially modified, you agree to give prompt notice to Whurk.

  11. Representations and Warranties

    Each party represents and warrants to the other party that: (a) it has all necessary rights and authority to enter into this Agreement and to perform its obligations hereunder; (b) entering into this Agreement will not constitute a breach of any other agreement to which the party is or may be bound; and (c) it will comply with all applicable federal, state and local laws, rules and regulations in performing its obligations under this Agreement and, with respect to you, in using the Services.

  12. Disclaimers

    EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES AND WHURK CONTENT ARE PROVIDED “AS IS,” AND YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES AND WHURK CONTENT IS AT YOUR SOLE RISK. WHURK IS NOT RESPONSIBLE OR LIABLE FOR ANY DAMAGES, INJURIES OR LOSSES THAT YOU OR ANY THIRD PARTY MAY INCUR AS A RESULT OF OR IN CONNECTION WITH YOUR ACCESS TO OR USE OF THE SERVICES AND/OR WHURK CONTENT.

  13. Indemnification

    You will defend, indemnify and hold harmless Whurk and our officers, directors, employees and agents, from and against all third-party claims, losses, liabilities, costs, damages and expenses (including without limitation reasonable attorneys' fees) (collectively, “Claims”) alleging that your use of the Services, including the Campaigns you administer through the Services, (a) causes or results in any damage to property, injury and/or death; (b) breaches this Agreement, (c) violates any applicable law, or (d) infringes any third-party copyright, trademark, or other intellectual, proprietary or personal rights.

  14. Limitation of Liability

    EXCEPT FOR LIABILITY ARISING OUT OF ANY BREACH OF A PARTY'S CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, AND WITHOUT LIMITING YOUR INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING LOSS OF REVENUE OR PROFITS) THAT RESULT FROM OR ARE RELATED TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WHURK'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.

  15. Term and Termination

    This Agreement commences on the date you first accept it and continues until [all subscriptions have expired or] either party terminates it. Either party may terminate this Agreement with or without cause or prior notice; provided, however, that you may not terminate this Agreement if you have any active Campaigns.

  16. Relationship of the Parties

    Nothing in this Agreement creates any relationship between the parties other than that of independent contractors. Neither party will not hold itself out as an agent, subsidiary or affiliate of the other party or have any authority to incur any debt, obligation or liability on behalf of the other party.

  17. Force Majeure

    Neither party will have any liability under this Agreement by reason of any failure or delay in the performance of its obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet and/or electrical outages, computer viruses, acts of God, war, governmental action or any cause that is beyond either party’s reasonable control.

  18. No Waiver

    No waiver of any term in this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Whurk's failure or delay to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.

  19. Severability

    Any provision of this Agreement held unenforceable or illegal by a court of competent jurisdiction will be severable from the remaining Agreement, which will continue in full force and effect.

  20. Governing Law and Venue

    This Agreement will be governed and interpreted in accordance with the laws of the State of Oregon without reference to its choice of law rules. Each party irrevocably consents to the exclusive jurisdiction of and venue in any state or federal court located in Multnomah County, Oregon in connection with any matter based upon or arising out of this Agreement or the matters contemplated herein.

  21. Assignment

    You may not assign or transfer any of your rights or obligations under this Agreement, in whole or in part, to any third party without the prior written consent of Whurk. Any attempted assignment in violation of this section shall be void.

  22. Amendment

    This Agreement may be modified only a written instrument expressly agreed to by both parties.

  23. Headings

    The captions and section headings used in this Agreement are for convenience of reference only and will not affect the construction or interpretation of this Agreement of any provision hereof.

  24. Survival

    Sections [to be inserted once agreement is finalized] and any definitions defined elsewhere in this Agreement will survive the termination of this Agreement.