Subtle Creator Terms
Subtle Creator Terms
These Subtle Creator Terms (the "Terms") govern all content services provided to Thix Snax, Corp d/b/a Subtle Snacks, a Delaware corporation ("Subtle"), by the individual or entity identified as Creator in an executed Deal Memo ("Creator").
1. Structure and Incorporation
1.1 Each engagement is documented by a deal memo executed by both parties (a "Deal Memo"), which incorporates these Terms by reference. The Deal Memo and these Terms together constitute the "Agreement" for that engagement.
1.2 The Deal Memo sets the commercial terms of the engagement, including deliverables, deadlines, fees, payment schedule, approval turnaround, and exclusivity scope. These Terms govern the parties' rights, obligations, and allocation of risk. Capitalized terms not defined in these Terms have the meaning given in the Deal Memo.
1.3 In the event of a conflict, the Deal Memo controls.
1.4 Version control. Each Deal Memo identifies the version of these Terms in effect on its execution date, and that version governs that engagement for its duration. Subtle may amend these Terms prospectively; no amendment applies to any Deal Memo executed before its effective date.
1.5 By executing a Deal Memo, Creator agrees to these Terms.
2. Independent Contractor
Creator is an independent contractor. Nothing in the Agreement creates an employment, partnership, joint venture, or agency relationship. Creator is not eligible for any benefit afforded to Subtle employees, controls the manner and means of performance, and supplies Creator's own equipment.
3. Production Standards
3.1 Creator shall produce all content contemplated by the Deal Memo (the "Content") in accordance with the brand guidelines furnished by Subtle and with all applicable laws, regulations, and platform terms.
3.2 No publication without approval. Creator shall submit all Content to Subtle for written approval prior to publication and shall not publish any Content that has not been approved in writing.
3.3 Content that fails to conform to the Deal Memo, applicable brand guidelines, or reasonable professional standards is "Non-Conforming" and shall not count toward Creator's deliverable obligations until cured.
3.4 Creator shall deliver Content as raw exports (.jpg, .png, .mp4, or .mov) and shall furnish project files, raw footage, and related materials upon Subtle's request at any time, including following expiration or termination.
4. Publication and Maintenance
Creator shall not delete, archive, restrict, or otherwise render unavailable any published Content for ninety (90) days following publication without Subtle's prior written consent, except (a) where removal is effected by the platform, or (b) where continued publication presents a documented risk to Creator's personal safety, in which case Creator shall notify Subtle immediately and the parties shall agree in writing on removal.
5. Advertising Compliance
5.1 Creator shall comply with the FTC Endorsement Guides and shall disclose Creator's material connection to Subtle in all Content. Each disclosure shall be clear and conspicuous, difficult to miss, presented within the endorsement itself, and made using the language and placement specified in Subtle's written disclosure instructions. Use of a platform disclosure tool does not satisfy this Section on its own and does not replace any additional disclosure Subtle reasonably requires.
5.2 All statements regarding Subtle or its products shall reflect Creator's honest opinion and actual use of the products.
5.3 Creator shall not state or imply that any Subtle product will diagnose, treat, cure, mitigate, or prevent any disease. Creator is otherwise free to describe Creator's own experience with the products, provided such statements are truthful and reflect Creator's actual use.
5.4 Creator shall not disparage any competitor or make any comparative claim without Subtle's prior written approval.
5.5 Correction and monitoring. Upon Subtle's request, Creator shall promptly correct, amend, or remove any Content or disclosure that Subtle reasonably determines does not comply with this Section 5 or with applicable law. Creator shall cooperate with Subtle's compliance monitoring, including by furnishing screenshots, analytics, or post links on request. Failure to effect a requested correction within twenty-four (24) hours of notice is a material breach.
6. Ownership of Content
6.1 Work made for hire. Unless the Deal Memo expressly provides otherwise, all Content constitutes a "work made for hire" for Subtle. To the extent any right does not vest in Subtle by operation of law, Creator hereby irrevocably assigns to Subtle all right, title, and interest in and to the Content, including all copyrights and other intellectual property rights, in perpetuity and throughout the world.
6.2 Scope of use. Subtle may use, reproduce, modify, adapt, distribute, display, publish, and create derivative works from the Content, in whole or in part, in all media and channels now known or hereafter developed, including paid advertising, social media, email, websites and e-commerce, packaging, point of sale, retail, print, and broadcast. Subtle may sublicense these rights to its agencies, retail partners, distributors, and resellers.
6.3 Name and likeness. Creator grants Subtle the right to use Creator's name, image, likeness, voice, and social media handle as they appear in or relate to the Content, in connection with the uses described in Section 6.2.
6.4 Moral rights. To the fullest extent permitted by law, Creator waives, and agrees not to assert, all moral rights, rights of attribution and integrity, and analogous rights in the Content.
6.5 No obligation to use. Subtle has no obligation to publish, distribute, or otherwise exploit any Content.
6.6 Portfolio use. Creator may display the Content in Creator's portfolio for self-promotional purposes only, provided such use does not state or imply any continuing endorsement or partnership beyond the term of the applicable Deal Memo.
6.7 Whitelisting and creator-handle advertising. Where the Deal Memo so provides, Creator shall grant Subtle and its media agencies the access necessary to run paid advertising from or in the name of Creator's account, including partnership or authorized-advertiser permissions on the applicable platforms, for the period stated in the Deal Memo. Creator shall not revoke such access during that period. Subtle shall use such access solely to promote Subtle and shall not post organically from Creator's account without Creator's consent.
6.8 Licensed engagements. Where a Deal Memo expressly grants Subtle a license in lieu of ownership, that Deal Memo shall state the scope and expiration date of such license, and Sections 6.1 and 6.2 shall apply only as modified therein.
7. Third-Party Materials
7.1 All Content shall be original to Creator. Creator shall obtain, prior to delivery, all rights, licenses, consents, and releases necessary for any third-party material incorporated into the Content, including music, footage, artwork, trademarks, and the name, voice, image, or likeness of any person.
7.2 Where Creator uses material from a platform-provided library, Creator shall use it only within the scope that library's license permits and shall notify Subtle in writing of any material so used and of any limitation on its use in paid media. Creator is responsible for confirming that scope before delivery.
7.3 Section 7.1 does not apply to materials furnished to Creator by Subtle, which Subtle is responsible for clearing.
8. Payment Administration
8.1 Payment shall be made by ACH. Creator shall deliver a completed IRS Form W-9 prior to any payment. Creator is solely responsible for all taxes arising from amounts paid under the Agreement, and Subtle shall make no withholdings.
8.2 View-based compensation. Where a Deal Memo provides for compensation measured by views, only organic views on Creator's original post are counted, paid amplification is excluded absent Subtle's prior written approval, view counts are measured thirty (30) days following publication, and any earned amount is payable within fourteen (14) days of measurement, in each case unless the Deal Memo expressly provides otherwise.
8.3 Setoff. Subtle may withhold or set off any amount otherwise payable against any amount owed by Creator, and may withhold payment during the pendency of any uncured material breach.
9. Delivery Shortfall
9.1 If Creator delivers fewer approved deliverables than the Deal Memo requires, the final payment shall be reduced pro rata to reflect approved deliverables actually delivered.
9.2 If Creator delivers fewer than one-half of the required deliverables, the final payment is forfeited in its entirety.
9.3 In either case, Creator shall refund all amounts previously paid in respect of deliverables that were not delivered or that were Non-Conforming.
9.4 No double recovery. The remedies in this Section 9 are cumulative but shall not operate to recover the same amount twice. Any amount forfeited under Section 9.2 shall be credited against any refund otherwise due under Section 9.3 in respect of the same deliverable. Subtle's total recovery under this Section shall not exceed the amounts paid and payable to Creator under the applicable Deal Memo.
9.5 Cure. Content deemed Non-Conforming shall be identified to Creator in writing with the specific basis for the determination. Creator shall have one (1) opportunity to cure within seventy-two (72) hours of such notice, after which uncured Content remains Non-Conforming for all purposes of the Agreement.
10. Exclusivity
Creator shall observe the exclusivity restrictions stated in the Deal Memo, including any post-term tail specified therein. Absent an express provision, no exclusivity applies. Creator shall notify Subtle in advance of any engagement Creator reasonably believes may fall within a restriction.
11. Confidentiality
Creator shall hold in confidence all non-public information disclosed by Subtle, including product details, formulations, launch timelines, pricing, briefs, strategies, and performance data, and shall not disclose or use such information outside the scope of the Agreement. This obligation is perpetual. Subtle shall afford equivalent treatment to non-public information disclosed by Creator.
12. Conduct
Creator shall not engage in conduct that is illegal, offensive, or reasonably likely to damage the reputation of Subtle.
13. Termination
13.1 By Subtle for cause. Subtle may terminate immediately upon written notice if Creator materially breaches the Agreement, fails to deliver Content meeting reasonable professional standards, or engages in conduct described in Section 12. Upon such termination, Creator shall be compensated solely for approved deliverables delivered prior to termination and shall refund all prepaid amounts attributable to undelivered or Non-Conforming Content.
13.2 By Creator. Creator may terminate upon seven (7) days' written notice, in which case Creator shall refund any unearned portion of the fee.
13.3 By Subtle for convenience. Subtle may terminate upon fourteen (14) days' written notice, in which case Subtle shall pay for approved deliverables delivered and for Content produced and submitted in good faith prior to the notice date.
13.4 Termination does not affect any right or obligation accrued prior to termination.
14. Representations and Warranties
Creator represents and warrants that: (a) Creator has full authority to enter into the Agreement and performance will not breach any other agreement or obligation; (b) the Content is original to Creator and does not and will not infringe or misappropriate any third-party right; (c) Creator has obtained all rights and releases required under Section 7; and (d) Creator will comply with all applicable laws, regulations, and platform terms. Subtle represents and warrants that it has full authority to enter into the Agreement.
15. Indemnification
15.1 Creator shall defend, indemnify, and hold harmless Subtle and its officers, directors, employees, agents, and affiliates from and against any claim, demand, loss, liability, damage, cost, and expense, including reasonable attorneys' fees, arising out of or relating to (a) Creator's breach of the Agreement or of any representation or warranty herein, (b) any allegation that the Content infringes or misappropriates a third-party right, (c) Creator's failure to comply with the FTC Endorsement Guides or any applicable law, regulation, or platform term, or (d) Creator's gross negligence or willful misconduct.
15.2 Subtle shall indemnify Creator against third-party claims arising out of Subtle's material breach of the Agreement.
15.3 Procedure. The party seeking indemnification shall give the indemnifying party prompt written notice of the claim, provided that a delay in notice relieves the indemnifying party only to the extent it is actually prejudiced. The indemnifying party shall have the right to control the defense with counsel of its choosing, and the indemnified party shall cooperate at the indemnifying party's expense. Neither party shall settle any claim in a manner that imposes liability, an admission of wrongdoing, or a non-monetary obligation on the other without that party's prior written consent, not to be unreasonably withheld.
16. Limitation of Liability
16.1 Except with respect to Creator's obligations under Sections 7, 11, and 15.1, neither party shall be liable for any indirect, incidental, consequential, special, exemplary, or punitive damages, or for lost profits, revenue, or goodwill, arising out of or relating to the Agreement, regardless of the theory of liability and even if advised of the possibility of such damages.
16.2 Subtle's aggregate liability arising out of or relating to the Agreement shall not exceed the total fees paid or payable to Creator under the applicable Deal Memo.
17. General
17.1 Governing law and venue. The Agreement is governed by the laws of the State of Delaware without regard to its conflict of laws principles. The parties submit to the exclusive jurisdiction of the state and federal courts located in Delaware. EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY.
17.2 Amendment; renewal. No amendment, extension, or renewal is effective unless in writing and signed by both parties. Nothing renews automatically.
17.3 Assignment. Neither party may assign the Agreement without the other's prior written consent, except that Subtle may assign to a successor in connection with a merger, reorganization, or sale of all or substantially all of its assets.
17.4 Force majeure. Neither party is liable for any delay or failure to perform, other than a payment obligation, caused by events beyond its reasonable control.
17.5 Notices. All notices shall be in writing and delivered by email to the addresses set forth in the Deal Memo.
17.6 Electronic execution. A Deal Memo may be executed electronically and in counterparts, each of which is deemed an original. The parties consent to the use of electronic records and signatures.
17.7 Severability. If any provision is held unenforceable, it shall be modified to the minimum extent necessary and the remainder shall continue in full force.
17.8 Entire agreement. The Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior discussions and understandings.
17.9 Survival. Sections 3.4, 4, 6, 7, 8, 9, 10, 11, 14, 15, 16, and 17 survive expiration or termination.
Subtle Creator Terms v1.0 — Thix Snax, Corp d/b/a Subtle Snacks. These terms are incorporated by reference into each executed Deal Memo. Prior versions are retained and available on request.