Hummingbird Agreement

This Hummingbird Agreement (“Agreement”) is between the hummingbirds, LLC, an Iowa limited liability corporation (“the hummingbirds”), and you (an individual, or if you represent an entity or other organization, that entity or organization) (“you” or “Hummingbird”). This Agreement provides the terms and conditions under which Hummingbirds may provide creation and distribution of content services (the “Services,” as more fully defined and explained below).

When is this Agreement effective?

The date that you click thru acceptance of the terms of this Agreement.

What is covered by this Agreement?

All Hummingbird Services are subject to the terms of this Agreement. If you wish to provide Services as a Hummingbird, you may do so only in compliance with the terms of this Agreement. Hummingbirds may access the hummingbirds and provide Services as a Hummingbird solely for lawful purposes and only in accordance with the terms of this Agreement, the Event Information, and any other agreement you are required to agree to before providing Services.

How will I find out if the Agreement changes? Can Hummingbirds make changes to the Agreement?

the hummingbirds reserves the right to modify, suspend, or discontinue the Hummingbird program (or any portion thereof), or your right to provide Services, with or without notice to you, at any time, in its sole discretion. Your continued access to the hummingbirds’s site and/or your continued provision of Services will constitute acceptance of any changes.

Hummingbirds can only make changes to this Agreement if the changes are in a written agreement signed by both an authorized representative of the hummingbirds and the Hummingbird.

Who can be a Hummingbird?

At this time, Hummingbirds must be over the age of 18 and meet any of the other qualifications included in this Agreement or required by a particular Event. By accessing this Agreement or providing Services, you represent that you are at least 18.

Do I have to agree to this Agreement to be a Hummingbird?

Yes. You are required to accept the terms and conditions of this Agreement before providing Services as a Hummingbird. If you do not choose to accept the terms and conditions, you will not be a Hummingbird. PLEASE CAREFULLY READ THIS AGREEMENT.

Capitalized and Defined Terms

All capitalized terms used in this Agreement will have the meanings as defined i) below or ii) in the context in which they are used. All other terms used in this Agreement will have their plain English meaning as commonly interpreted in the United States.

“Partner” means any the hummingbirds client, including its affiliates, and Partners that have a contractual relationship with the hummingbirds to receive Hummingbird Services.

“Site” means all or any portion of a website, application, or social media platform containing written, video or photographic commentary, news or discussion on one or more particular topics and that includes any Hummingbird content.

“Charm Values” means, collectively, the hummingbirds’s Charm Values located at https://thehummingbirds.co/ and any other policy, guidelines, terms of use, terms of service, code of conduct, or instructional materials provided or made available by the hummingbirds to Hummingbird from time to time.

“Confidential Information” means all information, including but not limited to this Agreement, relating to or disclosed in the course of performing Services which is or should be reasonably understood to be confidential or proprietary to the hummingbirds, its Partners, the subsidiaries and affiliated companies of both and/or their licensors, licensees, and business partners.

“Event,” “Event Information,” and “Event Invitation” means the specific details provided to Hummingbird by the hummingbirds or the Partner, including, but not limited to, Perks, compensation, program dates, branding guidelines, general and specific Hummingbird responsibilities and the identity of the Partner, relating to an opportunity for the Hummingbird to provide Services for a Partner.

“Hummingbird content” means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content created or provided by Hummingbird pursuant to an Event Information.

“IP Rights” includes, but is not limited to, all intellectual property and proprietary rights throughout the world, including, without limitation, all copyrights, trademarks, trade secrets, patents, moral rights, and other rights protecting data, information or intangible property throughout the world.

“Services” means content Hummingbird creates pursuant to this Agreement, Hummingbird’s relationship with the hummingbirds and its Partners, and includes but is not limited to posts on social media that have photos and textual components.

“Site” means social media platforms, such as Facebook and Instagram, and the web hosting and applications Hummingbird requires to use, support, and operate those social media platforms.

Are Hummingbirds employees of the hummingbirds? Does the hummingbirds hire Hummingbirds?

No. This Agreement does not create an employment relationship between Hummingbird and the hummingbirds or between Hummingbird and Partner. Hummingbird has no rights as an employee of the hummingbirds or Partner.

What Services do Hummingbirds provide? What are Hummingbirds required or expected to do?

Hummingbirds help build community through posting and sharing content related to Partners and Events.

the hummingbirds may provide Event Information to Hummingbird from time to time. If Hummingbird indicates interest in the Event, is selected for the Event, and accepts the Event Invitation, Hummingbird will provide the hummingbirds or the Partner with the Services as more specifically described in the applicable Event Information. Hummingbird will be solely responsible for the performance of the Services and hosting, maintenance, and operation of Hummingbird’s Services and/or use of a Site(s).

Hummingbird agrees that all Services provided or created with respect to an Event will be made publicly available according to the Event Information’s timeline or expectations.

Hummingbird is solely responsible for moderating any submission, comments, responses or other feedback (“Submissions”) from any third party in response to any of Hummingbird’s Services on a Site, and agrees that neither the hummingbirds nor Partners have any responsibility for moderating any Submissions.

Hummingbird agrees to promptly remove any Submissions or Hummingbird Services from a Site upon the hummingbirds’s or the Partner’s request.

Hummingbird will operate each Site and share content in accordance with the hummingbirds’s Privacy Policy which is posted on the the hummingbirds website at https://thehummingbirds.co/ (“Privacy Policy”). If Hummingbird chooses or is required to maintain a separate privacy policy, Hummingbird’s privacy policy must contain terms no less protective of personal information than the terms of the hummingbirds’s Privacy Policy.

Does the hummingbirds pay Hummingbirds? Do Hummingbirds get paid for their time or expenses?

No, the hummingbirds does not pay Hummingbirds. Hummingbirds may receive Perks from Partners from time to time, usually associated with an Event.

If Hummingbird accepts an Event Invitation, Hummingbird agrees that the benefits or compensation described in the Event Information (the “Perks”) represent Hummingbird’s entire compensation for all Services and Hummingbird shall not be entitled to reimbursement for any expenses.

the hummingbirds reserves the right to suspend or terminate any agreement with any Partner or Hummingbird at any time. the hummingbirds shall not be obligated to pay Hummingbird any Perks.

Hummingbird shall be responsible for determining the applicability of any sales, use, excise, or similar transactional taxes that may be applicable to the performance of the Services, if any. Hummingbird shall be obligated to pay any applicable taxes for corresponding Services, including without limitation, any and all interest, penalties and attorneys’ fees. the hummingbirds will not be responsible to Hummingbird or any governing body for any taxes relating to amounts that Hummingbird receives under this Agreement including but not limited to federal or state income tax, social security tax, or unemployment tax.

Hummingbird shall bear any and all costs, and shall indemnify the hummingbirds against the same, including, without limitation, penalties, interest and attorneys’ fees. the hummingbirds shall be entitled to contest, pursuant to applicable law and at its own expense, any taxes it is ultimately obligated to pay, and Hummingbird shall reasonably cooperate with any such a case.

Who owns Hummingbird’s Services? What about my intellectual property rights?

Except as expressly provided in the applicable Event Information, all Services, Submissions, and all IP Rights in or relating to the Services or Submissions, are owned by the Hummingbird and/or according to the Site, however, Hummingbird hereby grants and assigns all of its right, title and interest in and to the foregoing to, the hummingbirds. the hummingbirds may license or assign Services, Submissions, and all IP Rights in or relating to the Services or Submissions to a Partner. The parties understand that the foregoing rights are intended to permit the hummingbirds to pass along certain rights to a Partner paying for the Services, Submissions, and all IP Rights in or relating to the Services or Submissions.

All the hummingbirds software, processes, contracts with Partners, content, and all IP Rights therein or related thereto, are owned by the hummingbirds or its licensors.

the hummingbirds hereby grants to Hummingbird a non-exclusive, non-transferable, personal, revocable license to: (i) display the Hummingbird content and/or Submissions on Hummingbird’s Site in accordance with the applicable Event Information.

Except as permitted pursuant to this Agreement, Hummingbird may not, and will not permit any third party to: (a) interfere in any manner with the operation of the the hummingbirds or attempt to gain unauthorized access to the hummingbirds’s software, website, or processes; (b) contact a Partner about an Event or other marketing opportunities without prior notice to the hummingbirds; (c) remove, alter or obscure any copyright notice or any other proprietary notice that appears on or in the hummingbirds’s, a Partner’s, or a third party’s content or technology; or (d) share, display, license, sell, or otherwise use any Hummingbird content or Submissions in any manner (including without limitation to generate revenue for Hummingbird) other than as set forth in the applicable Event Information. Hummingbird will defend, indemnify and hold harmless the hummingbirds and its Partners, and their respective affiliates, employees, agents, contractors, assigns, licensees, and successors in interest from and against any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) incurred or arising from any claim or action by a third party arising out of or relating to the Hummingbird content or Submissions, or the hummingbirds’s or an Partner’s use thereof.

Can Hummingbirds post content or provide Services for other third parties?

Yes. Hummingbird has the right to provide content services to others during the Term of this Agreement provided: (a) such other services do not interfere with Hummingbird’s timely and professional performance of the Services to the hummingbirds; (b) such other services do not require the disclosure or use of Confidential Information; and (c) such other services not conflict with any other agreements between the hummingbirds and/or Hummingbird, such as an exclusivity agreement.

Are Hummingbirds guaranteed any Events, posts, content, or Perks?

No. By clicking “I accept,” Hummingbird agrees and understands that the hummingbirds has no obligation to propose Event Information to Hummingbird and may receive content services from other Hummingbirds during the Term of this Agreement.

Hummingbird agrees that:

Liability and Indemnification.

Hummingbird agrees to indemnify, defend, and hold harmless the hummingbirds and its Partners, and their respective affiliates, employees, agents, contractors, assigns, licensees, and successors in interest from and against any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) arising out of resulting from any breach by Hummingbird of this Agreement, Hummingbird’s representations and warranties under this Agreement, or Hummingbird’s breach of the Charm Values, Privacy Policy, or other agreement(s) between the parties.

LIMITATION OF LIABILITY. EXCEPT IN CONNECTION WITH CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS, THE HUMMINGBIRDS SHALL NOT BE LIABLE TO HUMMINGBIRD FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THE HUMMINGBIRDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, OR ARISING FROM ANY OTHER PROVISION OF THE AGREEMENT, SUCH AS, BUT NOT LIMITED TO, BREACH OF PRIVACY OR LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.

Are Events and Perks confidential? What about information privacy?

Data Privacy. Hummingbird expressly consents to the use and disclosure of personally identifiable information and other data and information as described in the hummingbirds’s then current Privacy Policy. In addition, Hummingbird acknowledges and agrees that the hummingbirds may disclose all information about Hummingbird and that Hummingbird may provide with respect to Hummingbird content or a Submission to the applicable Partner to which that Hummingbird content or Submission relates.

Notwithstanding the foregoing, Hummingbird’s identity is not confidential, and the hummingbirds or Partners may use Hummingbird’s name, likeness, and other information as set forth in this Agreement. the hummingbirds may reference Hummingbird as a provider of Services and use Hummingbird’s name, likeness and logo, as applicable, in listings of Hummingbirds appearing on the the hummingbirds web site and for other marketing and promotional purposes.

Confidentiality. Hummingbird acknowledges that in the course of providing Services under this Agreement, Hummingbird may acquire certain Confidential Information. Hummingbird shall not: (a) disclose such Confidential Information to any third party without the prior written consent of the hummingbirds, (b) will notify the hummingbirds if Hummingbird becomes aware of any breach of confidentiality in any manner whether through (i) Hummingbird’s negligence, acts or omissions, or (ii) computer virus, or theft of Hummingbird’s computer or login information; or (c) use the Confidential Information for any purpose other than to carry out the Services contemplated under this Agreement. Hummingbird acknowledges that misuse or disclosure of any Confidential Information by Hummingbird will give rise to irreparable injury to the hummingbirds or the owner of such information, which is inadequately compensable in damages. Accordingly, the hummingbirds or such other party may seek and obtain injunctive relief against the breach or threatened breach of these Confidentiality Obligations, in addition to any other available legal remedies.

Legal Notices

This Agreement will be governed in all respects exclusively by the laws of the State of Iowa, U.S.A. as such laws apply to contracts between Iowa residents performed entirely within Iowa. Each party agrees that it will only bring any action or proceeding arising from or relating to this Agreement in Polk County, Iowa and Hummingbird irrevocably submits to the personal jurisdiction and venue of any such court in any such action or proceeding or in any action or proceeding brought in such courts by the hummingbirds. Both parties waive the right to a jury trial.

This Agreement, the Charm Values and the Privacy Policy supersede any oral or written proposal, prior agreement or other communication between the hummingbirds and Hummingbird. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Neither this Agreement nor any rights or obligations of Hummingbird under this Agreement may be assigned or transferred by Hummingbird (in whole or in part and including by sale, merger or operation of law) without the prior written approval of the hummingbirds. Any assignment in violation of the foregoing will be null and void. the hummingbirds may freely assign this Agreement or any of its rights under this Agreement. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires under this Agreement any right or ability to bind or enter into any obligation on behalf of the other.

Acceptance of this Agreement

BY CLICKING ON THE “ACCEPT” BUTTON BELOW OR BY OTHERWISE ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE HUMMINGBIRDS OR PROVIDING SERVICES, YOU ACKNOWLEDGE YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT AS OF THE DATE ON WHICH YOU FIRST CLICK THE “ACCEPT” BUTTON, OTHERWISE ACCEPT THIS AGREEMENT, OR ACCESS OR USE THE HUMMINGBIRDS’S SITE OR PROVIDE SERVICES (THE “EFFECTIVE DATE”).

IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, THE HUMMINGBIRDS IS UNWILLING TO ALLOW YOU TO PROVIDE SERVICES AS A HUMMINGBIRD.

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