THE EXPERT DESIGNER AGREEMENT
Effective: September 12, 2022
The Expert, Inc., a Delaware corporation (collectively, “The Expert”, “we,” “our” or “us”) owns and operates The Expert Service, which enables individuals to find and connect with interior designers registered as “experts” with The Expert Service to receive home design guidance, advice and support via video consultations and/or through designer pages, and to purchase certain home good products through the Marketplace. This Designer Agreement (this “Agreement”) is incorporated into and made part of The Expert’s Terms of Service available at https://www.theexpert.com/terms (the “Terms”). Capitalized terms used in this Agreement and not defined have the meanings given to them in the Terms. In the event of any conflict between the terms and conditions of this Agreement and the Terms, this Agreement shall control solely with respect the subject matter herein.
IMPORTANT -- PLEASE READ THIS AGREEMENT CAREFULLY. This Agreement sets forth the legally binding terms between The Expert and you (hereinafter, “you,” and/or “your”), under which you may register as a designer (“Designer”) and offer your design consultations (“Consultations”) to end user clients of The Expert Service (the “Clients”). PLEASE NOTE, THIS AGREEMENT ALSO CONTAIN AN AGREEMENT TO ARBITRATE IN SECTION 11 WHICH WILL REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION.
1. Acceptance of this Agreement. By registering as a Designer or clicking “I Accept” you: (1) acknowledge that you have read, understand, and agree to be bound by this Agreement (including, The Expert Terms of Service and all of the terms and conditions specified or referenced below); (2) affirm, represent and warrant that you are 18 years old or the age of majority in your jurisdiction and that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement; and (3) acknowledge and agree that you are entering into this Agreement with The Expert, Inc., a Delaware corporation. If you are agreeing to this Agreement on behalf of another person, or an entity, organization, or company, who is the Designer, you represent and warrant that you have the authority to bind that person, entity, organization, and/or company to this Agreement and you agree to be bound by this Agreement on behalf of that person, entity, organization, and/or company (in which case, “you” and “your” as used throughout this Agreement shall also refer to such other person, entity, organization, and/or company). IF you DO NOT AGREE WITH ALL THE TERMS and conditions OF this Agreement, OR you DO NOT meet the eligibility requirements or have the requisite authority as set forth above, DO NOT ACCEPT THIS AGREEMENT.
2. Designer Materials & Obligations
2.1. Designer Materials. In support of the promotion and marketing of you as a Designer, and The Expert’s creation and maintenance of your designated product showroom page as a Designer (the “Showroom”), and, if applicable, your Consultation offerings through The Expert Service, you agree to provide or make available to The Expert the materials, information and content requested by The Expert for the creation of a profile on The Expert Service for you as a Designer and your Showroom, including, without limitation, portfolio images of past design work, descriptions of your design qualification, the design services and/or design styles you offer, identification of your social media usernames and/or handles, and biographical information (collectively, the “Designer Materials”). You agree to provide complete and correct Designer Materials, and will maintain and keep such information up to date.
2.2. License to Designer Materials. You hereby grant to The Expert a worldwide, perpetual, irrevocable (except as set forth in Section 2.3 below and Section 5 following termination), transferable, sublicensable, fully-paid, royalty-free license in and to your Designer Materials, and any name(s), voice(s), image(s), picture(s) or other likenesses of you or any other persons to the extent included in the Designer Materials (the “Likenesses”), to use, copy, reproduce, modify, perform, display, distribute, and disclose the Designer Materials and Likenesses: (a) on or through The Expert Service, The Expert’s websites and/or The Expert’s social media channels, to market, and promote you as a Designer, your Consultation, and The Expert Service to Clients and prospective clients and/or customers; and (b) in other promotional materials, communications, advertisements and/or marketing of The Expert, in any media whatsoever or distribution methods (whether now known, existing, or hereinafter developed), including, but not limited to, social media channels, to market, promote, and advertise The Expert and The Expert Service. The Expert shall attribute any use of the Designer Materials and/or Likeness to you unless otherwise approved by you.
2.3. Your Right to Revoke Certain Licenses; Waiver of Rights. You may revoke the license grant set forth in Section 2.2(b) by providing written notice to The Expert of such revocation, in which case, any further use of the Designer Materials and/or Likenesses for the purposes set forth in Section 2.2(b) above shall be subject to your prior approval. For the avoidance of doubt, your revocation of such license grant shall not require The Expert to remove, take down or cease distribution of any marketing, advertising, promotion and/or communications distributed prior to such revocation. You also understand and agree that the Designer Materials and/or Likenesses may be combined with other images, text, graphics, film, audio, audio-visual works, and may be cropped, altered or otherwise modified. This includes the right to add captions or otherwise modify the Designer Materials and/or Likenesses to ensure accessibility. EXCEPTS AS OTHERWISE EXPRESSLY SET FORTH ABOVE, You hereby waive and relinquish any and all moral rights that you might otherwise assert against The Expert with respect to the DESIGNER Materials AND/OR LIKENESSES; including, without limitation, any right that you may have to inspect or approve any use by The Expert of the DESIGNER Materials AND/OR LIKENESSES. You acknowledge and agree that The Expert is under no obligation to actually exploit the designer Materials at any time.
2.4. Ownership Rights; Confidentiality. Subject only to the licenses you grant to us in this Agreement, you retain all right, title, and interest, including, all intellectual property rights, in and to, the Designer Materials and Likenesses. Subject to your rights in and to your Designer Materials and Likeness, The Expert will retain all right, title, and interest in and to any in marketing materials, content, and/or documentation created by and/or on behalf The Expert hereunder. In addition, you acknowledge and agree that, unless otherwise expressly agreed to by The Expert in writing, The Expert will control the content, appearance, design, functionality and all other aspects of your Designer profile page and Showroom, and any modifications, redesign and/or removal thereof. You acknowledge that the terms of this Agreement and any non-public information regarding the business of The Expert, and its products, and services shall be confidential (“Confidential Information”) and you agree that you will not disclose Confidential Information to any third party.
2.5. Designer Promotion. Subject to the terms of this Agreement, you may, but are under no obligation to, market and promote The Expert Service and your participation as a Designer of The Expert Service, including, your Showroom and/or your Consultation offerings your provide through The Expert Service (if applicable), to your clients and customers, and through your website(s) and/or any social media accounts owned and/or controlled by you. If you engage in any such marketing and/or promotion, you acknowledge and agree: (a) that you will use The Expert’s trademarks, logos and tradenames (“The Expert Marks”) at all times in the marketing and promoting of your participation as a Designer, your Showroom and/or your Consultations and you will comply with The Expert’s then-current trademark usage guidelines provided by us to you; and (b) that you will not associate The Expert Marks with any content or material, or include and content or materials in any social media posts, advertising, and/or other marketing content and/or materials, that, in The Expert’s discretion, is unlawful in any manner, or which is otherwise harmful, threatening, defamatory, obscene, offensive, harassing, sexually explicit, violent, discriminatory, or otherwise objectionable in, or that reflects unfavorably on, disparages, or otherwise causes a decrease in the goodwill and reputation of The Expert Marks, The Expert Service or any other products or services. All goodwill arising out of the use of The Expert Marks shall be on behalf of and shall inure to the benefit of The Expert.
2.6. Representations and Warranties. You represent and warrant: (a) that the Designer Materials are your original material; (b) that you own or control all rights in and to the Designer Materials and Likenesses, and have the necessary rights to grant the licenses and releases granted in this Agreement; (c) that the use and distribution of the Designer Materials and Likenesses as authorized by you herein will not constitute a violation of any law or infringe upon the copyright, trademark, intellectual property or moral rights of any third party; (d) your execution of this Agreement and performance hereunder will not constitute a breach of any other agreement; and (d) you will comply with applicable laws, rules, regulations and guidelines (including the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising – https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf), as well as the rules, regulations, terms, conditions, and policies of each applicable digital and/or social media platform in connection with your marketing and/or promotion activities hereunder (if applicable). For the avoidance of doubt, you may not provide any Designer Materials (or any part thereof) that is owned, controlled or obtained from a third party, or that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including patent, privacy and publicity rights, unless you are the owner of such rights or you have valid and enforceable permission from the rightful owner to use the Designer Materials as contemplated hereunder.
3. Your Consultations; Customer Service
3.1. Consultations. You agree to provide your Consultations (if applicable to you) in a professional and workmanlike manner and will comply with all laws, regulations, and ordinances (including, obtaining any required licenses, permits, authorizations and/or approvals) applicable to your performance of the Consultations. You will not engage in any activity or action that may damage the reputation of or disparage The Expert, The Expert Services, or any of The Expert’s trademarks.
3.2. Interactions with Clients. Please note that The Expert does not currently conduct any verification of or background checks on any Clients. Accordingly, we cannot and do not represent, warrant or guarantee the identity of any Clients and/or whether any Clients are trustworthy. You are solely responsible for making your own decisions about the suitability of Clients whom you agree to provide Consultations to, or otherwise contact, communicate, transact or interact with in connection with your use of The Expert Service as a Designer. In addition, you acknowledge, understand, and agree that, except solely with respect to our payment obligations to you with respect to Consultations, any agreement(s), understandings, interactions, communications, and/or dealings between you and any Client, including, but not limited to, the Consultations (all of the foregoing, collectively, “Dealings”), shall be solely between you and the applicable Client. The Expert shall not be a party to any Dealings, or have any responsibility or liability for such Dealings and/or the Client’s performance of its obligations under or in connection with any such Dealings. You further acknowledge, understand and agree that any problems or disputes between you and any Client, including, but not limited to, with respect to any Dealings between you and any Client (collectively, “Your Disputes”) must be resolved solely between you and such Client. YOUR DEALINGS WITH ANY CLIENTS SHALL BE AT YOUR SOLE AND ENTIRE RISK. THE EXPERT IS NOT AND SHALL NOT BE RESPONSIBLE FOR ANY LOSS, HARM OR DAMAGE OF ANY SORT INCURRED AS A RESULT OF ANY SUCH DEALINGS or otherwise arising from your disputes AND YOU AGREE THAT THE EXPERT IS UNDER AND HAS NO OBLIGATION TO BECOME INVOLVED ANY OF your disputes.
3.3. Customer Service. The Expert will serve as the point of contact for customer service for Clients. If any Client reaches out directly to you through The Expert Service regarding customer service issues, questions and/or requests regarding your Consultations, Designer page and/or Showroom, you agree to promptly forward the inquiry or communication to The Expert. In addition, you agree to provide any additional information and/or reasonable support and assistance, as reasonably requested by The Expert, in order to respond to the inquiry and/or communication.
4. Fees and Payment Terms
4.1. Consultation Fees. As the Designer, you will set the applicable hourly rates you wish to charge for Consultations you offer to Clients through The Expert Services (the “Consultation Fees”). For each Consultation purchased by Clients, you shall receive an amount equal to the Consultation Fee for such Consultation minus the Service Fees (defined in Section 4.2 below). Within 20 (twenty) business days after the end of each calendar month during the term of this Agreement, The Expert will make payments of the fees due to you hereunder based on the Consultation Fees actually received by The Expert from Clients who purchased Consultations in such calendar month.
4.2. The Expert Fees. In consideration for your use of The Expert Service to provide Consultations, The Expert shall receive an amount equal to 21% of the gross Consultation Fees paid for each Consultation (the “Service Fees”). The Expert may change the Service Fees, the pricing model, and/or the payment terms upon ten (10) days prior notice; provided that, for the avoidance of doubt, any Consultation Fees paid prior to the applicable effective date of such change, shall be subject to the Service Fees in effect prior to such change.
4.3. Showroom Commissions. In addition, if you have entered into an addendum referencing this Agreement with The Expert with respect to Products purchased through your Showroom (hereinafter, the “Showroom Addendum”), you will be eligible to receive commissions on the sale of such Products pursuant to the terms and conditions of the Showroom Addendum (the “Commissions”). The Showroom Addendum (if applicable to you) is hereby incorporated into and made a part of this Agreement as if set forth in full, and the term “Agreement” as used herein and all other instruments and agreements executed or entered under this Agreement, shall, for all purposes, refer to this Agreement, together with, and as supplemented by, the Showroom Addendum for as long as the Showroom Addendum is in effect. In the event of any conflict between the terms of the Showroom Addendum and this Agreement, the Showroom Addendum will control, solely with respect to the subject matter thereof.
4.4. Payment Terms. Payments of amounts due to you under this Agreement will be made electronically via The Expert’s third-party payment provider (currently, Stripe (subject to change)). You are required to have all necessary accounts to receive and accept payments of any amounts due and payable by The Expert to you under this Agreement. In addition, you agree to provide any identifying information or tax documentation (such as a W-9 or W-8) requested by The Expert necessary for payment of amounts due, and you agree that we have the right to withhold appropriate taxes from your payments. The Expert reserves the right to withhold payments or impose other penalties if we do not receive proper identifying information or tax documentation from you. You understand and agree that you are ultimately responsible for any taxes on your income. You will be responsible for all costs expended by you and The Expert will be responsible for all costs expended by The Expert in connection with this Agreement. Please note that there will be deducted from any sums due to you hereunder an amount equal to the Consultation Fees and/or Commissions (as applicable) paid to you by The Expert where all, or substantially all, of the Consultations Fees and/or amounts paid by Clients for the purchase of Products through your Showroom have since been returned to the Client.
5. Term; Termination. This Agreement will remain in full force and effect until terminated in accordance with the provisions of this Agreement. Either party may terminate this Agreement upon written notice to the other. For termination notices from you to The Expert, please notify us at hello@theexpert.com; subject line: “Notice of Termination – Designer Agreement.” Notices to you will be sent to the email address you used when you first registered as a Designer. Notwithstanding the foregoing, in addition to any of The Expert’s other rights or remedies, The Expert may immediately and without notice to you, terminate this Agreement if The Expert, in good faith, believes that you, your Designer Materials, and/or Consultations are in violation, or have violated, this Agreement, including any incorporated policies, guidelines, terms or rules. Upon termination, the licenses granted by you to us in Section 2.2 shall terminate; provided that, The Expert shall not be required to remove, take down or cease distribution of any Designer Materials and/or Likenesses or related marketing, advertising, promotion and/or communications distributed prior to the effective date of termination except where The Expert has violated the scope of the license grants. The following Sections will survive any expiration or termination of this Agreement: 1, 2.2, 2.3, 2.4, 2.6, 3, 6, 7, 8, 9, 10, 11, 13 and 14.
6. Indemnity. You agree to indemnify, defend and hold harmless The Expert, its officers, employees, agents, directors, subsidiaries, affiliates, successors, assigns, suppliers, or licensors from any and all claims, actions, suits, demands, damages, liabilities, losses, costs and expenses (including attorneys’ reasonable fees) arising from or related to: (a) your violation of this Agreement (including, without limitation, any breach of your obligations, representations and warranties made in this Agreement), or violation of any of your agreements with any third party related to the Designer Materials; (b) any actual or alleged infringement, violation, or misappropriation of any intellectual property right or other proprietary right, including without limitation, any copyright, property, moral or privacy right, of any third party in connection with your Designer Materials, or use thereof by The Expert; and/or (c) your Consultations. The Expert will have sole control of the defense and any related settlement negotiations of such claims. You may participate and retain your own counsel at your expense.
7. Disclaimer. The Expert makes no warranties under this agreement and HEREBY EXPRESSLY DISCLAIMs ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY PURPOSE, ACCURACY, OR NON-INFRINGEMENT. the expert makes, and has made, no representations, warranties, or guarantees that clients will purchase consultations or any products, or that the expert will seek, obtain or procure engagements of consultations for you.'
8. Limitation of Liability. IN NO EVENT WILL THE EXPERT BE LIABLE TO YOU OR ANY THIRD PARTY OR PERSON FOR ANY LOST PROFITS, LOST REVENUES OR LOSS OF BUSINESS ADVANTAGE, COST OF COVER, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE EXPERT’S TOTAL AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES OR ALLEGED DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THE GREATER OF THE FEES PAID OR PAYABLE TO YOU BY THE EXPERT UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM GIVING RISE TO THE LIABILITY AND $500. THE LIMITATIONS SPECIFIED IN THIS PARAGRAPH SHALL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9. Release. You, ON BEHALF OF YOURSELF AND YOUR SUCCESSORS, ASSIGNS, REPRESENTATIVES, EMPLOYEES, AGENTS, CLIENTS, AND ANYONE ELSE CLAIMING BY OR THROUGH YOU (COLLECTIVELY, the “releasing parties”), hereby release, discharge and hold harmless The Expert and its directors, officers, employees, contractors, agents, successors, and assigns (collectively, the “Released Parties”), from and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injury, death, property damage, libel, defamation, invasion of privacy, right of publicity, or infringement of copyright), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, this agreement, ANY DEALINGS AND/OR YOUR DISPUTES WITH CLIENTS, any utilization of the DESIGNER materials (including, without limitation, any blurring, distortion, alteration, optical illusion, or use in composite form, whether intentional or otherwise, that may occur in the use and/or any publication of the DESIGNER materials), or based upon any failure or omission to make use of the DESIGNER materials. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (AND ANY LAW OR LEGAL PRINCIPLE OF SIMILAR EFFECT IN ANY JURISDICTION WORLDWIDE) IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN THE RELEASING PARTY’S FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY THE RELEASING PARTY MUST HAVE MATERIALLY AFFECTED THE RELEASING PARTY’S SETTLEMENT WITH THE RELEASED PARTIES.” You acknowledge and agree that the waiver and release is binding upon the heirs and assigns of the releasing parties and is irrevocable.
10. Electronic Communications. You consent to receiving electronic communications from The Expert, including, without limitation, notices posted on our website and/or via email. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to your Consultations, Consultations Fees and/or Commissions, and/or our use of the Designer Materials. These electronic communications are part of your relationship with The Expert and you receive them as part of your registration as a Designer. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
11. Governing Law; Dispute Resolution
11.1. Governing Law; Dispute Resolution. This Agreement shall be governed in all respects by and construed in accordance with the laws of the State of New York, without regard to its conflicts of laws principles. Any controversy or claim arising out of or relating to this Agreement, or any breach thereof, shall be determined and settled by arbitration in Manhattan, New York, pursuant to the rules then pertaining of the American Arbitration Association as such rules are then prevailing, provided that the arbitrator and the parties shall comply with the following: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be binding, final, and confidential, and may be entered in any court of competent jurisdiction. You and The Expert will share equally the administrative costs of such arbitration proceedings.
11.2. Venue; Exceptions to Arbitration. If the agreement to arbitrate is found not to apply your or our claim, you and The Expert agree that any judicial proceeding will be brought in the federal or state courts of New York, New York. Both you and The Expert consent to venue and personal jurisdiction there. Notwithstanding anything in this Agreement to the contrary to the extent you have in any manner violated or threatened to violate any of The Expert’s intellectual property rights, The Expert may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of California, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section, and you hereby consent to the personal jurisdiction and exclusive venue in such courts.
12. Modifications to this Agreement. The Expert reserves the right to update or modify this Agreement at any time. Except as otherwise set forth in this Agreement or as stated below with respect to material changes, all updates and modifications to this Agreement will be effective from the day they are posted online at https://www.theexpert.com/blog/expert-designer-agreement. If we make any material changes to this Agreement, we will provide you reasonable prior notice of such changes by sending a notification to the email address we have on file for you. Material changes to this Agreement will become effective on the date set forth in the notice. It is your responsibility to regularly visit and review this Agreement for updates, changes and modification. If you do not agree to any updates or modifications to this Agreement, simply terminate this Agreement as set forth in Section 5 and do not accept any Consultation bookings from Clients. If you do not termination this Agreement prior to the effective date of the revised Agreement, or accept bookings for Consultations after the effective date of the revised Agreement, that will constitute your acceptance of the revised Agreement.
13. General. Your relationship with The Expert is that of an independent contractor and nothing in this Agreement is intended to, or shall be construed to, create a joint venture, partnership, agency, employment, or similar relationship between the parties. Neither the rights nor the obligations arising under this Agreement are assignable by you, and any such attempted assignment or transfer shall be void and without effect. The Expert may freely assign this Agreement and/or any of its rights and obligations under this Agreement. Any waiver of any provision of this Agreement must be in writing and executed by both parties. The failure of either party to exercise any right provided for by this Agreement shall not be deemed a waiver of that right. Except as otherwise specified in this Agreement, this Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed on behalf of both parties. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision shall be stricken from this Agreement and shall not affect the legality, enforceability or validity of the remainder of the provisions set forth in this Agreement. This Agreement is not intended to grant rights to anyone except you and The Expert, and this Agreement shall not create any third party beneficiary rights. This Agreement, and any other policies or terms and conditions referenced herein, constitutes the entire agreement between you and The Expert, and supersedes all prior oral or written agreements or communications, with regard to the subject matter described herein. Any notice to you may be provided by email. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” You agree that this Agreement will not be construed against The Expert by having drafted it. The official text of this Agreement (and any notice submitted hereunder) will be in English. The parties acknowledge that they require that this Agreement be drawn up in the English language only. In the event of any dispute concerning the construction or meaning of this Agreement, reference will be made only to this Agreement as written in English and not to any translation into another language.
QUESTIONS AND ADDITIONAL INFORMATION. Please feel free to contact us at hello@theexpert.com if you have any questions about this Agreement.