Attentive Content Creator Terms & Conditions
This Attentive Content Creator Terms & Conditions (“Terms”) is a binding contract between you, an individual or entity (“you” or “Creator”) and Attentive Mobile Inc., and its affiliated companies and subsidiaries (“Attentive, “we,” “us,” or “our”), governing your creation of Content (defined below) pursuant to a statement of work (“SOW”). These Terms hereby incorporate by reference any such SOW. In the event of any conflict or inconsistency between the terms of any SOW and the body of these Terms, the Terms will control.
BY SIGNING THE SOW, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS.
You acknowledge that you have read and agree to the Attentive Privacy Policy which is incorporated into these Terms by reference.
1. General Terms and Conditions.
a. Changes to These Terms. You understand and agree that Attentive may change these Terms at any time without prior notice. Attentive will endeavor to provide you with prior notice of any material changes. You may read a current, effective copy of these Terms at any time by requesting them from Attentive. Notwithstanding the preceding sentences of this Section 1.a, no revisions to these Terms will apply to any dispute between you and Attentive that arose prior to the effective date of those revisions.
b. Obligations and Consideration. In exchange for certain compensation, you agree to produce posts, images, videos, text, and any other content or materials pursuant to an SOW (collectively the “Content”) related to Attentive. For clarity, Content excludes Attentive Content and Feedback (defined below). Except as otherwise expressly provided herein, you will produce the Content at your own expense and using your own resources and equipment. You acknowledge and agree that Attentive may generate revenues, increase goodwill or otherwise increase the value of Attentive from your creation of Content, and you will have no right to share in any such revenues, goodwill or value whatsoever.
c. Eligibility. By signing the SOW, you affirm that either you are at least 18 years of age or have been authorized to use the Service by your parent or legal guardian who is at least 18 years of age.
d. Confidentiality. You shall treat and keep all confidential information (meaning any and all information relating to Attentive in whatever form that (a) is by its nature confidential; (b) you know or should know is confidential; or (c) is designated by Attentive as confidential) secret and confidential, and will not, without Attentive’s prior written consent, disclose confidential information to any other person or use the confidential information for any other purpose than the services.
2. Compliance
a. Compliance. You will comply with all applicable laws and regulations and all policies and terms of service of applicable social media platforms. Without limiting the foregoing, you will clearly and conspicuously disclose your relationship with Attentive in each post, comment, or response, and will review and adhere to the Federal Trade Commission Endorsement Guides. Specifically, when publishing content about Attentive’s products or services, you must clearly disclose your “material connection” with Attentive, including the fact that you were given any consideration, were provided with certain experiences or is being paid for a particular service. The above disclosure should be clear and prominent and made in close proximity to any statements that you make about Attentive or Attentive’s products or services. Please note that this disclosure is required regardless of any space limitations of the medium, where the disclosure can be made via hashtags, e.g., #sponsored. Your statements should always reflect your honest and truthful opinions and actual experiences. You should only make factual statements about Attentive and Attentive’s products which you know for certain are true and can be verified.
3. Attentive Content & Marks
a. Attentive Content. Any content that Attentive provides to you, including, without limitation, any text, graphics, software, interactive features, information or other materials, is protected by copyright or other intellectual property rights and owned by Attentive or its licensors (collectively, the “Attentive Content”).
b. Attentive Trademarks. The Attentive trademarks, service marks, and logos (collectively, the “Attentive Trademarks”) are Attentive’s registered and/or unregistered trademarks or service marks. Except as otherwise permitted by law, you may not use the Trademarks to disparage Attentive, Attentive’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any website without Attentive’s prior express written consent. All goodwill generated from the use of any Attentive Trademark will inure solely to Attentive’s benefit.
c. Restrictions. Attentive hereby reserves all rights not expressly granted to you in this Section 3. Accordingly, nothing in these Terms will be construed as granting to you, by implication, estoppel, or otherwise, any additional license rights in and to the Service or any Attentive Content or Trademarks located or displayed on or within the Service.
4. Content
a. Disclaimer. We are under no obligation to edit or control the Content that you create and/or publish pursuant to, or in conjunction with, any SOW, and will not be in any way responsible or liable for such Content. Attentive may, however, at any time and without prior notice, screen, remove, edit, block, or not pay for, any Content that in our sole judgment violates these Terms or is otherwise objectionable, such as, without limitation, Content that is or could be interpreted to be infringing, defamatory or otherwise unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, hateful, or promoting discrimination, bigotry or racism (collectively, “Objectionable Content”). You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Attentive with respect to the Content. We expressly disclaim any and all liability in connection with the Content. The foregoing does not alter your responsibility for reviewing all Content prepared under the Terms to confirm the accuracy and legality of all Content.
b. Your Rights to User Content. YOU RETAIN COPYRIGHT AND ANY OTHER PROPRIETARY RIGHTS THAT YOU MAY HOLD IN ANY USER CONTENT THAT YOU POST IN CONNECTION WITH ANY SOW SUBJECT TO THE RIGHTS YOU GRANT IN THESE TERMS.
c. Attentive Use of Content. By producing Content related to, for, or on behalf of Attentive, you grant to Attentive, its affiliates and designees a worldwide, perpetual, irrevocable, exclusive, transferable, sublicensable, royalty-free, and fully paid-up right license to use, copy, distribute, edit, publicly display, reproduce, transmit, publish, perform, and make derivative works based on the Content in any media for commercial purposes, without further approval by or payment to you or any third party. Without limitation, the foregoing includes the right to report, feature, publish and otherwise use the Content on and through Attentive online, mobile, social media channels, in-store digital displays, and printed materials, and use the Content in connection with the production, distribution, marketing, advertising, promotion and sale of Attentive product and services.
d. Use of Likeness. By producing Content related to, for, or on behalf of Attentive, you agree that Attentive, its affiliates and designees may use your name, likeness, photographs (including, without limitation, any copyrighted pictures and video images of you which you makes available for use hereunder), personal or professional background and experience, reputation, social handles, voice, and quotations (collectively “Likeness”) in connection with the Content in any media for Attentive commercial purposes, without further approval by or payment to you or any third party during and after the Term. The foregoing includes the right to report, feature, publish and otherwise use the Likeness in connection with the Content on and through Attentive online, mobile, social media channels, in-store digital displays, and printed materials, and use the same in connection with the production, distribution, marketing, advertising, promotion and sale of Attentive product and services.
e. Representations and Warranties. You are solely responsible for the Content and the consequences of publishing Content using the Service. By publishing Content using the Service, you affirm, represent, and warrant that: (i) you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use, and to authorize Attentive to use your Content as necessary to exercise the licenses granted by you in these Terms; and (ii) your Content, and the use of your Content as contemplated by these Terms, does not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (C) cause Attentive to violate any law or regulation.
5. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
a. Respect of Third Party Rights. Attentive respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask you to do the same. Infringing activity will not be tolerated. Attentive’s intellectual property policy is, to the extent possible, to remove or disable access to material that Attentive believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service. Attentive has discretion, however, to terminate any SOW after receipt of a single notification of claimed infringement or upon Attentive’s own determination.
b. Procedure for Reporting Claimed Infringement. If you believe that any Content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Attentive with the user alleged to have infringed a right you own or control, and you hereby consent to Attentive making such disclosure. Your communication must include substantially the following:
- a physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
- identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Attentive to locate the material;
- information reasonably sufficient to permit Attentive to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- a statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
c. Designated Agent Contact Information. Attentive’s designated agent for receipt of Notifications of Claimed Infringement (“Designated Agent”) can be contacted at:
Via E-mail: copyright@attentivemobile.com; or
Via U.S. Mail: 221 River Street, Suite 9047, Hoboken, NJ 07030.
d. Counter Notification. If you receive a notification from Attentive that material you Posted using the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Attentive with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Attentive’s Designated Agent through one of the methods identified in Section 5.d above and include substantially the following information:
- your physical or electronic signature;
- identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the your address is outside of the United States, for any judicial district in which Attentive may be found, and you will accept service of process from the person who provided notification in accordance with Section 5.d above or an agent of such person.
You should consult a lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid Counter Notification under the Copyright Act.
e. Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Attentive in response to a Notification of Claimed Infringement, then Attentive will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that, to the extent possible, Attentive, will replace the removed User Content or cease disabling access to it in 10 business days, and Attentive will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Attentive’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on Attentive’s system or network.
f. False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of Attentive relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Attentive reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
7. Feedback. While our own staff works to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we may receive from you. If you choose to contribute by sending Attentive or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Attentive, you agree that:
- Attentive has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
- Feedback is provided on a non-confidential basis, and Attentive is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
- You irrevocably grant Attentive perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge, and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
8. Dispute Resolution.
a. General. In the interest of resolving disputes between you and Attentive in the most expedient and cost effective manner, you and Attentive agree that any dispute arising out of or in any way related to these Terms or your use of the Service will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Terms or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ATTENTIVE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
b. Exceptions. Notwithstanding Section 8.a above, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
c. Arbitrator. Any arbitration between you and Attentive will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Attentive. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (“Notice”). Attentive’s address for Notice is: 221 River Street, Suite 9047, Hoboken, NJ 07030, Attn: Chief Executive Officer. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Attentive may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Attentive must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by Attentive prior to selection of an arbitrator, Attentive will pay you the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by Attentive in settlement of the dispute prior to the arbitrator’s award; or (C) $15,000.
e. Fees. If you commence arbitration in accordance with these Terms, Attentive will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, New York, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Attentive for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. Notwithstanding anything in these Terms to the contrary, and for the avoidance of doubt, the arbitrator can award injunctive relief as a remedy in any arbitration required under this Section 8.
f. No Class Actions. YOU AND ATTENTIVE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Attentive agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
g. Modifications to this Arbitration Provision. Except as otherwise provided in these Terms, if Attentive makes any future change to this arbitration provision, other than a change to Attentive’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Attentive’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Attentive.
h. Enforceability. If Section 8.f above is found to be unenforceable or if the entirety of this Section 8 is found to be unenforceable, then the entirety of this Section 8 will be null and void.
9. Limitation of Liability and Disclaimer of Warranties.
THE TERMS OF THIS SECTION 9 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
a. NEITHER ATTENTIVE NOR ITS AFFILIATES (COLLECTIVELY, “ATTENTIVE PARTIES”) MAKE ANY WARRANTIES OR REPRESENTATIONS UNDER THESE TERMS. ACCORDINGLY, ANY CONTENT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND THE ATTENTIVE PARTIES HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE.
b. IN NO EVENT WILL ANY ATTENTIVE PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THESE TERMSOR ANY CONTENT , WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF THE ATTENTIVE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ATTENTIVE’S LIABILITY, AND THE LIABILITY OF ANY OF THE OTHER ATTENTIVE PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE ARISING FROM THESE TERMS IS LIMITED TO U.S. $100.
10. Third Party Disputes. ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY IN CONNECTION WITH YOUR CREATION OF CONTENT IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY IRREVOCABLY RELEASE THE ATTENTIVE PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
11. Indemnification. To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless the Attentive Parties from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (i) your breach of these Terms; or (ii) your access to, use, or misuse of the Attentive Content or Trademarks; or (iii) any allegation that you published Content in violation of any applicable law, rule, regulation or industry best practice. Attentive will provide notice to you of any such claim, suit, or proceeding. Attentive reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section if Attentive believes that you are unwilling or incapable of defending Attentive’s interests. In such case, you agree to cooperate with any reasonable requests assisting Attentive’s defense of such matter at your expense.
12. Term and Termination of the Terms.
a. Term. As between you and Attentive, the term of this agreement commences upon execution of an SOW and continues until the earlier of: (i) final completion of the Services set forth in the SOW(s); or (ii) termination as provided in Section 12.B.
b. Termination. Attentive may terminate these Terms upon giving you fourteen (14) days prior written notice of such termination. Attentive may terminate this Agreement for cause, immediately and without prior notice, if you refuse to or are unable to perform substantially all the Services listed in the SOW or are in breach of any material provision of these Terms.
c. Survival. Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13, and all defined terms used herein will survive the termination of these Terms indefinitely.
13. Miscellaneous. These Terms are governed by the internal substantive laws of the State of New York without respect to its conflict of laws provisions. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Attentive as a result of these Terms. If any provision of these Terms is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms, which will remain in full force and effect. Failure of Attentive to act on or enforce any provision of these Terms will not be construed as a waiver of that provision or any other provision in these Terms. No waiver will be effective against Attentive unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. These terms constitute the entire agreement between you and Attentive with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The Section headings are provided merely for convenience and will not be given any legal import. These Terms will inure to the benefit of our successors and assigns. You may not assign these Terms or any of the rights or licenses granted hereunder without the prior express written consent of Attentive. Attentive may assign these Terms, including all its rights hereunder, without restriction. For the purposes of these Terms, an assignment includes, without limitation, any merger, acquisition of stock or assets, change of control or similar transaction.
14. Contact Us.
If you would like to contact us, then please contact us at 221 River Street, Suite 9047, Hoboken, NJ 07030, or by email at legal@attentive.com.
Last Updated: 1/2/2024