ADOBE EXPRESS AMBASSADOR AGREEMENT
Effective Date: TODAY
(Once you agree this agreement will be stamped with today’s date)
(1) Adobe Inc., a company incorporated in Delaware, U.S.A., having a place of business at 345 Park Avenue, San Jose, California 95110 (“Adobe”).
(2) having a place of business at [address of Ambassador] (“Ambassador”).
(3) Adobe and Ambassador may be referred to collectively as “Parties.”
1. SERVICES/EXCLUSIVITY. Ambassador will be a member of the Adobe Express Ambassador program and will select and complete various informational, promotional, and other tasks from among those described at https://adobeccexpressambassadors.influitive.com/ (the “Challenge Site”) (the “Services”) in accordance with the terms and conditions of this Agreement. If Adobe wishes to expand the scope of the Services, Adobe will notify Ambassador of the proposed change, and Ambassador will furnish Adobe with a written offer to provide the expanded Services and an estimate of any additional costs, if any, within five (5) days. Such change will not be effective until Adobe’s written acceptance of the offer for the changed Services and any additional costs.
Ambassador agrees that its services are exclusive to Adobe during the term of this Agreement. For the avoidance of doubt, Ambassador will not publicly endorse any competitor’s products during the Term.
2. AMBASSADORS. Ambassador will either be a “Local Level Ambassador” or a “Global Level Ambassador” (collectively referred to as Ambassador). Responsibilities and compensation for each type of ambassador will be different as outlined in Section 3 and 7 of this Agreement and on the Challenge Site.
3. COMPENSATION. In exchange for the Services provided by Ambassador to Adobe, Ambassadors will be eligible to receive Points (defined below) that can be redeemed for certain rewards specified at https://adobeccexpressambassadors.influitive.com/. Local Level Ambassador acknowledges that its sole compensation for the Services will be the Points (defined below) and Local Level Ambassador will not be entitled to any other compensation for the Services. Global Level Ambassador acknowledges that its compensation for the Services will be the Points (defined below) and Cash Reward (defined below). Adobe will not be liable to Ambassador for any expenses paid or incurred by Ambassador.
4. RELATIONSHIP OF PARTIES. Ambassador is an independent contractor and is not an agent or employee of Adobe. Ambassador has no authority to bind Adobe by contract or otherwise. Ambassador will perform the Services under the general direction of Adobe or its authorized agent, but Ambassador will determine, in Ambassador’s sole discretion, the manner and means by which the Services are accomplished, subject to the express conditions that Ambassador will at all times comply with all applicable laws, statutes, ordinances, and regulations, and follow all guidelines and policies provided by Adobe.
5.1. License to Adobe. Ambassador hereby grants to Adobe (including its parents, subsidiaries, affiliates, assignees, successors in interest, agents, and those acting with its permission (“Related Parties”), the irrevocable, royalty free, perpetual, sublicensable, fully paid up, right, license, and privilege to: (i) use, publish, record, and exploit Ambassador’s name, likeness, picture, portrait, photo, created images, created videos, voice, appearance, performance, signature, social media username, and biographical information (collectively the “Likeness”) alone or together with other Materials (defined below), in whole or in part, together with written or spoken remarks and statements (“Statements”), in collateral materials, and any other media now known or hereafter developed throughout the world in perpetuity in connection with the Services; and (ii) use, copy, reproduce, translate, modify, distribute, create derivative works, publicly perform, and display any and all materials created by Ambassador in connection with the performance of the Services (“Materials”) alone or together with other materials, in whole or in part, together with Statements in connection with the Materials to be used on the internet, in collateral materials, including video, social media, trade show materials, event related materials, and any other media now known or hereafter developed throughout the world in perpetuity. You hereby waive any right to inspect or approve the Materials or the use of the Materials so long as all Materials are used in promotion of Adobe products and services. Ambassador agrees to sign documents and take any other action reasonably necessary, at Adobe’s request, to perfect, confirm, or support the rights granted under this paragraph and to verify that Ambassador's Content and Statements reflect his/her honest views, opinions, findings, beliefs, and experiences. For avoidance of doubt, Adobe will have no obligation to use any Ambassador Materials.
5.2. Use of Adobe Trademarks. Ambassador may only use Adobe’s trademarks as necessary in connection with the Ambassador’s provision of the Services. Ambassador will comply with any guidelines provided by Adobe regarding the use of Adobe’s trademarks. Except for the preceding limited right, Ambassador will not use any Adobe or Related Party logo, trademark, or other identifier without Adobe’s prior written approval. Ambassador will submit all Statements and Materials made by Ambassador to Adobe for approval prior to publishing such Statements and Materials, and Ambassador will immediately notify Adobe if any posted Statements or Materials about Adobe, or any Adobe services or products cease to reflect Ambassador's honest views, opinions, findings, beliefs, or experiences, and will then cooperate with Adobe to revise the posted Statements or Materials such that the posted Statements or Materials are accurate or remove such Statements. Ambassador will cooperate with Adobe to modify, edit, remove, or retract any Statements or Materials, upon Adobe's request.
6. CONFIDENTIALITY; NON-DISCLOSURE.
6.1. Definition. In connection with the Services or this Agreement, Adobe or Ambassador may acquire certain information that is the confidential, proprietary or trade secret information of the other or a third party ("CI"). The party disclosing CI is referred to as “Discloser” and the party receiving CI is referred to as “Recipient.” CI includes, without limitation (i) any information, whether or not marked or otherwise designated as confidential, of or relating to Discloser that is not generally available to the public, including any information relating to the products, methods, techniques, services, finances, business plans, marketing plans, legal affairs, prospects, opportunities, contracts, assets or trade secrets of Discloser, and (ii) any information that has been made available to or obtained by Discloser by or with respect to its customers or other third parties and which Discloser is obligated to keep confidential. CI does not include information that (A) is or becomes generally publicly available at the time of disclosure or subsequently through no fault of Recipient, (B) was known to Recipient, free of any confidentiality obligations, before its disclosure by Discloser, (C) becomes known to Recipient, free of any confidentiality obligations, from a source other than Discloser, (D) is independently developed by Recipient without use of CI, or (E) is information, feedback or comments provided in connection with the Services to facilitate Adobe’s product developments, which shall not be considered CI and may be used by Adobe for any purpose.
6.2. Confidentiality Obligations. Recipient will not reproduce, use, disseminate, or disclose CI to any person or entity, except to its employees and authorized representatives (i.e., temporary employees, consultants, and contractors) who need to know the CI to further the Services and are bound by confidentiality obligations at least as restrictive as the terms in this Section 6 before having access to the CI. Ambassador is responsible for any breach of this NDA by any of its representatives. Ambassador will not modify, reverse engineer, create other works from, or disassemble any software programs contained in the CI without Adobe’s prior written consent. Recipient will treat all CI with at least the same degree of care as it treats its own information of similar sensitivity, but never with less than reasonable care. Recipient will stop use of and return or destroy all tangible CI promptly upon request, together with any copies, except as otherwise required by law. Recipient may disclose CI (i) as approved in a writing signed by Discloser or (ii) as necessary to respond to a valid order by a court or other governmental body, as required by law, or as necessary to establish the rights of either party, provided that Recipient promptly notifies Discloser upon receipt of the disclosure order and requests confidential treatment of any affected CI. All CI is provided “AS IS” and all warranties, express, implied, or otherwise are disclaimed.
6.3. No Other Rights. All Discloser CI remains the property of Discloser. Unless expressly set forth in this NDA, Recipient does not receive any license or intellectual property rights to Discloser’s CI. Each party agrees that Recipient may independently develop and acquire software, hardware, and other technology for its own products, services, and processes, and that having access to Discloser’s CI does not prohibit Recipient from freely developing or acquiring similar products without obligation to Discloser.
7. POINTS AND REWARDS PROGRAM.
7.1. Program Overview. As a member of the Adobe Express Ambassador program, you have the opportunity to participate in the “Points and Rewards Program” described in this Section 7. As part of the Points and Rewards Program, Ambassador will have the opportunity to accumulate promotional points “Points” by completing certain “Challenge Activities” described on the Challenge Site. As part of the Points and Rewards Program, Global Level Ambassador will have the opportunity to receive rewards in cash “Cash Reward” by completing certain Challenge Activities described on the Challenge Site. As you will see, certain Challenge Activities include hosting events, sharing your opinion, knowledge, advice, answers, or other information with the public, giving feedback to Adobe, or otherwise making Statements and creating/publishing Material. The acceptable means of conducting Challenge Activities are set forth in this Agreement, the Challenge Site, and the Adobe Ambassador Code of Conduct set forth in Exhibit A (“Code of Conduct”). For more information, please visit the Challenge Site. Additional promotional activities (and the terms of each promotion) may be communicated to you via email, via the Challenge Site, or any other form of communication as solely determined by Adobe.
7.2. Modification. Adobe reserves the right to change, modify or eliminate the Points and Rewards Program and all or any portion of the Points and Rewards Program terms in this Section 6, the Reward Site, or any terms or policies pertaining to the Points and Rewards Program at any time and in its sole discretion, including the right to discontinue or change the potential rewards received under the Points and Rewards Program (as described on the Challenge Site), merge the Points and Rewards Program with another rewards program, or to adjust how Points are earned, calculated or redeemed (as described on the Challenge Site). If Adobe makes changes to the potential rewards received under the Points and Rewards Program or how Points are earned, calculated, or redeemed, Adobe will post the amended terms to the Challenge Site. Adobe may also attempt to notify Ambassadors in other ways. Unless Adobe communicates otherwise, the amended terms and policies will be effective immediately and each Ambassador’s continued participation in the Points and Rewards Program after the amended terms are posted will confirm their acceptance of the changes. If any Ambassador does not agree to the amended terms, s/he must stop participating in the Points and Rewards Program.
7.3. Earning/Redeeming Points. The potential rewards that are available to each Ambassador through the Points and Rewards Program are based on the number of Points that s/he accumulates during participation in the Points and Rewards Program. No Points may be earned after expiration or termination of the Points and Rewards Program or this Agreement. Due to the promotional nature of the Points, Points not redeemed within 90 days of [he expiration of the Points and Rewards Program or Termination of this Agreement are not eligible for redemption. Points have no cash value. Rewards received by redemption of Points are non-refundable. Rewards will be featured at various point levels and in limited quantities. The approximate retail values of rewards received by redemption are subject to change based on current market conditions at the time of reward redemption. Members are not entitled to any surplus between the actual retail value (“ARV”) of a reward and stated ARV and any difference between stated ARV and actual value of the reward will not be awarded. No substitution, assignment, transfer, or cash redemption of any reward is allowed.
7.4 Earning Cash Rewards. The potential Cash Reward that are available to each Global Level Ambassador through the Points and Rewards Program are based on the type of promotional activity that s/he creates during the Points and Rewards Program as described on the Challenge Site. No Cash Reward may be earned after expiration or termination of the Points and Rewards Program or this Agreement.
7.5. Events. While the Points and Rewards Program does allow for Ambassadors to earn Points, and solely for Global Level Ambassador to earn Cash Rewards, when they run their own events and workshops and charge a fee to attendees, such events are not sponsored or authorized by Adobe.
8. REPRESENTATIONS AND WARRANTIES.
Ambassador represents and warrants that:
a) Ambassador’s performance of the Services and Challenge Activities will comply with all laws, rules and regulations including, without limitation, clearly and conspicuously disclosing Ambassador’s relationship with Adobe in each post, public statement, comment or response as required by the U.S. Federal Trade Commission’s (“FTC”) Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. Part 255, and related guidance, in each case as amended from time to time by the FTC and all applicable laws, rules and regulations regarding advertising (including any laws, regulations, and industry standards that apply to endorsements, affiliate marketing, native advertising, and truth-in-advertising). Ambassador further agrees to comply with the Adobe Ambassador Code of Conduct set forth in Exhibit A (“Code of Conduct”) and any other instructions provided by Adobe, included on the Challenge Site, in Ambassador’s performance of the Services and Challenge Activities. For example:
i. Where it is not clear that Ambassador’s Challenge Activity is a promotional advertisement, Ambassador must include a clear and prominent statement disclosing Ambassador’s relationship to Adobe. For example, if Ambassador promotes Adobe or Adobe Express through a webpage, blog post, social media or incentivizes others to do so, Ambassador must ensure that such post includes a clear disclosure that it is an advertisement, such as #ad or #AdobeExpressAmbassador. Ambassador also may disclose in sentence form that s/he is posting as an ambassador of Adobe. See Code of Conduct for further guidance.
ii. Ambassador’s disclosure must be as close as possible to the posting, review, or endorsement; be placed above the fold so it does not require any scrolling to see it; and not be in the form of a pop-up.
b) Ambassador’s Challenge Activity(ies) is/are not untruthful, incomplete, unsupported, inaccurate or misleading; reflects Ambassador’s honest opinions, beliefs, or experiences; and is voluntary, meaning submitted at Ambassador’s sole discretion;
c) Ambassador’s Challenge Activity(ies) is/are your original creation and owned 100% by Ambassador, or, alternatively, Ambassador must have the full rights to grant the license and other rights that Ambassador grants to Adobe in Section 4 above;
f) Ambassador’s Challenge Activity(ies) does/do not: (i) violate any third-party rights, including copyrights, trademark rights, or rights of privacy and publicity; (ii) contain disparaging or defamatory statements; (iii) include threats to any person, place, business, or group; (iv) contain obscene, offensive, or indecent content; (v) depict any risky behavior; (vi) contain material that 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; and/or (vii) contain unauthorized third-party trademarks or logos;
g) Ambassador will not send unsolicited bulk emails (spam) or engage in any other behaviors resembling spam, determined at Adobe’s discretion;
h) Ambassador has the right, power, and authority to enter into and perform this Agreement, to grant the rights granted in this Agreement, and to do so without obtaining the permission of any third party;
i) Ambassador’s execution, delivery, and performance of this Agreement does not, and will not during the term of this Agreement, breach or conflict with any of Ambassador’s other commitments, agreements, understandings or duties; and
j) Ambassador’s Materials and Statements do not and will not infringe any copyright, trademark or other intellectual property or proprietary rights of any third party, including rights or privacy and publicity.
9. TERM AND TERMINATION. This Agreement will commence on the Effective Date and will continue unless and until terminated as follows: (i) either party may terminate this Agreement if the other party breaches any of its obligations contained herein if such breach continues uncured for a period of five days after written notice of such breach to the other party; (ii) either party may terminate this Agreement upon written notice to the other party if either party is adjudicated bankrupt, files a voluntary petition of bankruptcy, makes a general assignment for the benefit of creditors, is unable to meet its obligations in the normal course of business as they fall due, or if a receiver is appointed on account of insolvency; (iii) Adobe may terminate this Agreement for any reason or no reason without penalty by providing seven days’ prior notice to Ambassador.
10. Indemnity; disclaimer. Ambassador will indemnify and hold Adobe, the Related Parties, and each of their respective officers, directors, employees, and agents harmless from and against any and all claims, suits, losses, liabilities, damages, expenses, fines, costs, attorneys’ fees and court costs (“Claims”) alleging or arising out of (a) Ambassador’s breach of this Agreement; (b) Ambassador’s performance of the Services in this Agreement, including Ambassador’s creation, use, or dissemination, of any Statements and Materials; provided that Adobe gives Ambassador written notice of any such Claim and Ambassador has the right to participate in the defense of any such Claim at its expense. From the date of written notice from Adobe to Ambassador of a Claim, Adobe will have the right to withhold from Ambassador any unpaid fees due under this Agreement. ALL EVENTS, OUTINGS, PRODUCTS, AND SERVICES THAT AMBASSADOR RECEIVES, USES, OR OTHERWISE PARTICIPATES IN PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS IS.” WITHOUT LIMITING THE FOREGOING, AMBASSADOR’S ATTENDANCE OR PARTICIPATION AT ANY ADOBE EVENTS WILL BE AT AMBASSADOR’S OWN RISK AND SUBJECT TO ANY ADDITIONAL TERMS AND CONDITIONS ASSOCIATED WITH SUCH EVENTS. ADOBE HEREBY DISCLAIMS ANY FINANCIAL LIABILITY IN CONNECTION WITH SUCH EVENTS.
11.1. Assignment. The rights and liabilities of the Parties hereto will bind and inure to the benefit of their respective successors, executors and administrators, as the case may be, provided that, as Adobe has contracted for Ambassador’s services, Ambassador may not assign or delegate its obligations under this Agreement either in whole or in part without Adobe’s prior written consent. Adobe may assign its rights and obligations, in whole or in part and in any manner, under this Agreement at its discretion. Any attempted assignment in violation of this Section will be null and void.
11.3. Equitable Relief. Because the Services are personal and unique and because Ambassador will have access to and become acquainted with the CI of Adobe, Ambassador agrees that Adobe will have the right to enforce this Agreement by injunction, specific performance or any other equitable relief without prejudice to any other rights and remedies that Adobe may have for the breach of this Agreement.
11.4. Attorneys’ Fees. If any action at law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, costs and expenses in addition to any other relief to which such prevailing party may be entitled.
11.5. Governing Law; Choice of Forum and Venue; Severability. This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to conflict of law or choice of law rules. The Parties agree that the United Nations Conventions on Contracts for the International Sale of Goods is specifically excluded in its entirety from application to this Agreement. All disputes arising out or in relation with this Agreement will be settled by the competent court in state or federal courts located in Santa Clara County, California, without prejudice to Adobe’s right to bring suit against Ambassador before any court that would have jurisdiction in the absence of this Section. If any provision of this Agreement is for any reason found by a court of competent jurisdiction to be unenforceable, the remainder of this Agreement will continue in full force and effect. The use of the term “including” in this Agreement is illustrative and not limiting.
11.6. Notices. Notices required or permitted hereunder will be given to the appropriate party at the address specified at the beginning of this Agreement or at such other address as the party specifies in writing and will be by personal delivery, facsimile transmission, certified or registered mail or mail by reputable courier. Such notice will be deemed given upon personal delivery to the appropriate address, upon receipt of electronic transmission, certified or registered mail, or if by courier, the delivery date as shown by the courier’s records.
11.7 Survival. The respective rights and obligations of the parties under this Agreement, which by their nature would continue beyond the termination or expiration of this Agreement, will survive the termination or expiration of this Agreement, including without limitation Sections 6 (Confidentiality) and 10 (Indemnity; Disclaimer).
11.8. Complete Understanding; Modification; Waiver; Precedence. This Agreement, including all Services Appendices, constitutes the full and complete understanding and agreement of the Parties and supersedes all prior understandings and agreements. Any waiver, modification or amendment of any provision of this Agreement will be effective only if it is in writing and signed by the Parties. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. If any terms of a Services Appendix conflict with the terms of this Agreement, the terms of this Agreement will govern.
Adobe Ambassador Code of Conduct
This Code of Conduct applies to all individuals and business that engage in promotional activities on behalf of Adobe or otherwise have a material connection to Adobe, including employees, agents, contractors, bloggers, celebrity endorsers, brand ambassadors, and all other social media Ambassadors, whether they are engaged by Adobe directly or indirectly through an agency (“Ambassadors” or “You”). As an Ambassador, you must clearly and prominently disclose your relationship with Adobe while performing Challenge Activities. Your disclosure obligations apply equally to hosted events, personal blogs, websites, social network pages or posts, and other media. See also, https://www.ftc.gov/system/files/documents/plain-language/1001a-influencer-guide-508_1.pdf
The following guidelines explain how to comply with Adobe and Federal Trade Commission requirements for making truthful endorsements.
1. Disclose material connections with Adobe
Who: As an Adobe Express Ambassador you have a material connection to Adobe.
Media Channels: The disclosure requirement applies to any materials created, contributed, distributed, commented on, or modified by you on all media, including:
Types of Communication: The disclosure requirement applies to any communication that could be interpreted to promote or highlight the benefits of Adobe or its products. The requirements can apply even if you do not actually write about Adobe (e.g., merely posting a photo showcasing an Adobe product on social media is enough). Here are common examples where disclosure is required:
2. Ensure your disclosure is clear and prominent on each post on which you endorse a product
How to disclose: Disclosures should be easy to see and understand. In other words, it should be clear to the audience that you have a connection with Adobe. A simple statement about your relationship is often the best option. Another option is to incorporate the disclosure into your post. On social media you can use shorter disclosures if necessary. See below for examples of good disclosures (disclosures should be tailored to the nature of your relationship):
Location of Disclosure: Follow these guidelines for placement of the disclosure:
Size of Disclosure: The disclosure should be in large enough font for the audience to read and understand it. The disclosure should also be visible regardless of whether viewing online or on a mobile device.
3. Statements must reflect your honest opinions, beliefs, or experiences and must not be false, misleading, or unsupported
4. Think before you post
5. Your posts are subject to review by Adobe
Adobe periodically reviews materials created by Ambassadors. If you violate this Code of Conduct, we will remind you about your obligations. Repeat violators will be removed from the Adobe Express Ambassador program and/or be asked not to participate in future social media activities on behalf of Adobe.