Terms and Conditions

Effective as of October 27, 2020

PHYLA INFLUENCER PROGRAM

TERMS AND CONDITIONS

Congratulations on qualifying to be a Phyla Influencer! Phi Therapeutics, Inc. (“we,” “us,” “our,” “Phyla,” or the “Company”) are excited about the opportunity to work with you in the Phyla Influencer Program (“Program”). Before moving forward, however, you must familiarize yourself with the following Phyla Influencer Terms & Conditions.

The Phyla Influencer Terms & Conditions provided below are in addition to the standard Phi Therapeutics, Inc. Terms and Conditions, which are available here and incorporated herein by reference.

The Phi Therapeutics, Inc. Terms and Conditions and the Phyla Influencer Terms & Conditions (collectively, the “Terms” or “Agreement”) are a legally binding contract between you and Phi. BY BECOMING A PHYLA INFLUENCER, YOU AGREE TO ALL OF THE TERMS AND TO FULLY COMPLY WITH AND ABIDE BY THE AGREEMENT. Therefore, we ask that you PLEASE READ THE FOLLOWING TERMS CAREFULLY.

1. ARBITRATION NOTICE. As stated above, the Phi Therapeutics, Inc. Terms and Conditions are part of the Terms. This includes, without limitation, THE MANDATORY ARBITRATION AGREEMENT CONTAINED THEREIN. THE ARBITRATION AGREEMENT REQUIRES YOU TO RESOLVE ALL DISPUTES WITH VITAL ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION, AND REQUIRES YOU TO FOREGO THE RIGHT TO RESOLVE ANY AND ALL DISPUTES YOU MAY HAVE WITH PHYLA THROUGH COURT PROCEEDINGS OF ANY KIND. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THE ARBITRATION AGREEMENT AND HAVE TAKEN THE TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.

2. INSTAGRAM NOT INVOLVED. You acknowledge and agree that although these Terms require use of Instagram, Instagram is not a party to this Agreement. This Agreement is between you and Phyla only.

3. DESCRIPTION OF PHYLA INFLUENCER PROGRAM.

a. The Phyla Influencer Program (the “Program”) allows you to earn free Phyla products and other promotional items as well in exchange for Phyla-Compliant Instagram posts. First, you receive a Phyla product using a free product code that you receive from Phyla. Second, you publish a Phyla Instagram post and story that meets our Posting Requirements (see link below).

b. Part of your compensation for participating in the Program will be Phyla products. The Phyla products you receive from us in connection with the Phyla Influencer program may not be resold, transferred for value or exchanged for other value.

c. Additional compensation for participating in the Program will be given. Initially, Phyla agrees to make a one-time $15 payment to you for each customer that purchases more than $50 of Phyla products using the unique product code provided to you by Phyla, provided that the products are not returned to Phyla (“Sales Payment”). Only one Sales Payment will be made per customer. There is no limit to the number of Sales Payments that you may be entitled to receive. Should a customer cancel their order before it is shipped, the Sales Payment for this order will not be paid. Phyla reserves the right to change the dollar value of Sales Payments upon written notice (which may be done by email or through a website posting). The new dollar value will become effective on the date of the notice.

d. You may only receive one free product in a thirty (30) day period. The foregoing notwithstanding, you may post as many Phyla-Compliant posts as you want during the term of this Agreement. For as long as you are a Phyla Influencer, any post you make that refers or relates to Phyla in any manner whatsoever, and regardless of whether you will use the post to obtain a free product code, must be Phyla-Compliant.

e. You and Phyla are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us or our respective affiliates. You will have no authority to bind the company to any contract or to make or accept any offers or representations on our or our affiliates’ behalf. If you authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of this Agreement, you will be deemed to have taken the action yourself.

4. PHYLA-COMPLIANT POSTS. To receive a free Phyla product, as well as compensation for your posts your post must be Phyla-Compliant. To be Phyla-Compliant:

a. Your post must include a static post as well as a story post.

b. If you describe the benefits or performance of the Phyla product, including your own personal experience with the product, your description must substantially mirror the language contained in the Phyla Posting Requirements, available here.

c. YOUR POST MUST NOT MAKE ANY STATEMENTS CONCERNING HEALTH BENEFITS IN ANY WAY EXCEPT THAT YOU MAY REFER TO THE PHYLA SYSTEM AS A WHOLE (INCLUDING THE CLEANSER) OR THE CLEANSER ALONE AS BEING EFFECTIVE FOR THE TREATMENT OF ACNE. THIS MEANS THAT, EVEN IF YOU BELIEVE IT TO BE TRUE, YOU MUST NOT MAKE ANY CLAIM THAT INDIVIDUAL PHYLA PRODUCTS (OTHER THAN THE CLEANSER FOR ACNE) PROVIDED YOU WITH ANY RELIEF FROM ANY HEALTH AILMENTS. IF YOU ARE UNCERTAIN ABOUT WHETHER A PARTICULAR STATEMENT CONCERNS HEALTH, PLEASE ASK US FOR GUIDANCE OR DO NOT MAKE THAT STATEMENT.
TO ENSURE THAT YOUR POST IS PHYLA-COMPLIANT, YOUR BEST BET IS TO CONSULT THE PHYLA INFLUENCER POSTING GUIDELINES AVAILABLE here: AND SUBSTANTIALLY MIRROR THE LANGUAGE CONTAINED THERE.

d. You must not mention any brand other than Phyla in the post.

e. You must not incorporate any political, divisive or potentially offensive content in your post.

f. You must tag every post with #ad and #phylainfluencer in that order. You may add other hashtags as well (provided they comply with the Terms), but #ad and #phylainfluencer must always be the first and second ones listed.

g. Your post must comply with the FTC’s guidelines for Social Media Influencers, available here.

h. You must not post any images or other content that you did not personally author, except that you may use images and other content identified as available for your use in the Phyla Influencer Content Library.

i. You must not include the image, voice, or likeness of any person other than yourself in any post.

j. Your post must be submitted to Phyla within one hour of being published to Instagram or Facebook.

k. If we become aware that your post is non-compliant, we will ask you to remove the non-compliant from Instagram within 30 minutes of learning of its non-compliance, and provide confirmation of its removal promptly thereafter. If you have not removed the post within 48 hours after receipt of our request, you will no longer be entitled to earn a Sales Payment and your relationship as a Phyla Influencer may immediately terminated in Phyla’s sole discretion.

5. INFLUENCER CONTENT. Subject to any other applicable rules or guidelines (including those provided by Instagram or Facebook), and excluding any content from the Phyla Influencer Content Library, you retain any copyright and other proprietary rights that you may hold in your posts (“Influencer Content”).

a. By providing us with links to your posts and by submitting any Influencer Content to Instagram using a Company-branded hashtag (i.e., #phylainfluencer), you grant Phyla a worldwide, non-exclusive, perpetual, irrevocable, freely transferable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your Influencer Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed. Among other things, this means that your Influencer Content can be added to the Phyla Influencer Content Library and used by other Phyla Influencers.

b. Phyla disclaims any and all liability in connection with Influencer Content. You are solely responsible for your Influencer Content and the consequences of providing Influencer Content via the Phyla Influencer Program. By providing Influencer Content, you affirm, represent, and warrant that: (a) you are the creator and owner of the Influencer Content, or have the necessary licenses, rights, consents, and permissions to authorize Phyla and its licensees or sub-licensees, including other Phyla Influencers to use and distribute your Influencer Content as necessary to exercise the licenses granted by you in this Agreement; (b) the Influencer Content does not and will not: (i) 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; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Phyla to violate any law or regulation or otherwise cause liability for Phyla; and (c) your Influencer Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.

c. Phyla is under no obligation to edit or control Influencer Content that you or other users post or publish, and will not be in any way responsible or liable for Influencer Content. Phyla may, however, at any time and without prior notice, screen, remove, edit, or block any Influencer Content that in our sole judgment violates these Terms or is otherwise objectionable. Should Phyla determine that a post or Influencer Content is not Phyla-Compliant, you shall, at Phyla’s request, immediately remove such post from Instagram or Facebook and wherever else you may have published it.

6. COMPLIANCE REQUIREMENTS. You must comply with this Agreement to participate in the Program and receive Phyla products and compensation from Phyla. You must promptly provide us with any information that we request to verify your compliance with this Agreement. If you violate this Agreement, or if you violate the terms and conditions of any other applicable agreement you have with us, then, in addition to any other rights or remedies available to us, we reserve the right to permanently (to the extent permitted by applicable law) withhold (and you agree you will not be eligible to receive) any and all compensation due to you under this Agreement (i.e., free Phyla products), whether or not directly related to such violation without notice and without prejudice to any right of Phyla to recover damages in excess of this amount.

7. PHYLA CUSTOMERS. Our customers are not, by virtue of your participation in the Program, your customers. As between you and us, all pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales set forth on the Phyla website will apply to those customers and may be changed at any time. You will not handle or address any contacts with any of our customers, and, if contacted by any of our customers for a matter relating to interaction with Phyla or a Phyla product, you will state that those customers must contact Phyla to address customer service issues.

8. WARRANTIES.

a. You represent, warrant, and covenant that (a) you will participate in the Program and create posts in compliance with this Agreement, (b) neither your participation in the Program nor your creation of your Posts will violate any applicable laws, ordinances, rules, regulations, orders, licenses, permits, guidelines, codes of practice, industry standards, self-regulatory rules, judgments, decisions, or other requirements of any governmental authority that has jurisdiction over you (including all such rules governing communications, data protection, advertising, and marketing), (c) you are lawfully able to enter into contracts (e.g. you are not a minor or otherwise legally prevented from contracting), (d) you have independently evaluated the desirability of participating in the Program and are not relying on any representation, guarantee, or statement other than as expressly set forth in this Agreement, (e) the information you provide in connection with the Program is accurate and complete at all times.

b. Disclaimers; No Warranties by Phyla. EXCEPT AS PROVIDED FOR IN THESE TERMS, THE PROGRAM, PRODUCTS, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PROGRAM ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY LAW, VITAL DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE PROGRAM, PRODUCTS, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PROGRAM, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PHYLA DOES NOT WARRANT THAT THE PROGRAM OR ANY PORTION OF THE PROGRAM, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE PROGRAM (INCLUDING RECEIPT OF FREE PRODUCTS), WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND PHYLA DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PHYLA WILL CREATE ANY WARRANTY REGARDING PHYLA, PRODUCTS, OR THE PROGRAM THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE PROGRAM, PRODUCTS, AND YOUR DEALING WITH ANY OTHER PERSON. YOU UNDERSTAND AND AGREE THAT YOU PARTICIPATE IN THE PROGRAM AND USE THE VITAL PRODUCTS AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOU OR YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE PROGRAM) OR ANY LOSS OF DATA.

THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. PHYLA DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT COMPANY IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.

9. INDEMNIFICATION. You agree to defend, indemnify and hold harmless Phyla, its affiliates, investors, business partners, licensees and licensors, and its and their respective employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees), resulting from or arising out of (a) your participation in the Program and (b) a breach of these Terms.

10. NO CONFLICTS. These Phyla Influencer Terms & Conditions incorporate the Phi Therapeutics, Inc. Terms and Conditions set forth here as if fully set forth herein. The Phi Therapeutics, Inc. Terms and Conditions explain that “Supplemental terms shall prevail over these Terms only in the event of a conflict ….” For the avoidance of doubt, unless a term contained in the Phyla Terms and Conditions creates a direct and irreconcilable conflict with a term contained in the Phi Therapeutics, Inc. Terms and Conditions, no conflict shall be found. Wherever it is possible for the terms of both documents to apply, they shall both apply.

11. TERM AND TERMINATION. The term begins upon your submission of a Phyla-Compliant post and continues until Phyla decides to terminate the Agreement, which it may do at any time for any reason or no reason and with or without notice to you. You may terminate your Phyla Influencer account at any time by sending us an email to info@phylabiotics.com stating your desire to terminate this Agreement.

a. Upon termination, you shall no longer receive free Phyla products, and you must no longer use the hashtags #phylainfluencer or otherwise hold yourself out as affiliated with Phyla.

b. You will be paid for outstanding balance related to Sales Payments.

12. MODIFICATION. Phyla may change these Phyla Influencer Terms and Conditions at any time without notice to you. The updated Phyla Influencer Terms and Conditions will be available on the website and will be effective immediately thereafter. Phyla reserves the right to modify or discontinue the Program at any time (including by limiting or discontinuing certain products or features of the Program, or changing the Sales Payment amount), temporarily or permanently, for any reason, or no reason at all, without notice to you. Phyla will have no liability for any change to product offerings or the Program or any suspension or termination of your access to or participation in the Program. Phyla may terminate its relationship with you as a Phyla Influencer at any time in its sole discretion.

13. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL PHYLA BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR PARTICIPATION IN, ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE PROGRAM OR ANY MATERIALS OR CONTENT PROVIDED THROUGH THE PROGRAM (INCLUDING CLAIMS RELATED TO OUR PRIVACY POLICY OR OTHER PRIVACY OR DATA SECURITY CLAIMS), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PHYLA HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. NOTWITHSTANDING THE FOREGOING OR ANYTHING HEREIN TO THE CONTRARY, PHI THERAPEUTICS INC’S AGGREGAGE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNTS PAID TO YOU AS SALES PAYMENTS.