Mishell Cosmetics Test Process Agreement
Please read carefully. This is a legal document.
You, the Participant, have agreed to be a voluntary member of the Mishell Cosmetics LLC (“Mishell Cosmetics”) tester team. Your selection as a Mishell Cosmetics tester or model allows you the opportunity to evaluate Mishell Cosmetics newest skincare products. In exchange for being provided access to Mishell Cosmetics products and acting as a tester, including related activities and any continuation thereof (collectively, the “Test Process”), and your participation in the Test Process, Mishell Cosmetics requires that you agree to the terms of this Test Process Agreement. In consideration for the opportunity to participate in the Test Process, I hereby irrevocably and unconditionally warrant and agree for myself and my heirs, estate, insurers, successors and assigns, as follows:
In the course of the Test Process, I may have access to information that is confidential and proprietary to Mishell Cosmetics or to Mishell Cosmetics affiliates, partners, suppliers, customers or other participants in the Test Process including but not limited to the designs, materials, marketing plans, tests, data and evaluations (collectively, “Confidential Information”). Any comments, suggestions, materials or ideas I provide to Mishell Cosmetics in connection with this Test Process is also Confidential Information. I will keep confidential all Confidential Information, not disclose it to any person (other than to Mishell Cosmetics) and use it only as expressly permitted by Mishell Cosmetics in writing. Information (i) that is generally known to the public through no fault of mine, (ii) that I can demonstrate was in my possession before I received it from Mishell Cosmetics or created it using Confidential Information or (iii) that I obtained from a non-restricted source, is not considered Confidential Information. I agree that Mishell Cosmetics retains sole rights in all Confidential Information, and no rights are granted to me by virtue of my participating in the Test Process or otherwise.
I acknowledge that a violation of the sections of this agreement concerning Confidential Information and protection of Products will cause irreparable injury to Mishell Cosmetics, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Therefore, I agree that if I breach those sections, Mishell Cosmetics is entitled, in addition to all other rights and remedies available under applicable law, to an injunction from any court of competent jurisdiction, enjoining any violation or threatened violation of those sections in this agreement.
Ownership of the Products
I understand that all experimental products I use during the Test Process phase are and remain the property of Mishell Cosmetics before, during and after the Test Process. I will not loan, sell or give the products to anyone. After the Test Process, or whenever a Mishell Cosmetics representative analyst requests their return, I will promptly return the products to Mishell Cosmetics. I will provide detailed information about the experimental products when requested by Mishell Cosmetics.
I do not have, and will not have at any time during my engagement with Mishell Cosmetics under this Test Process Agreement, any material relationship with any Mishell Cosmetics competitor. If I develop any such relationship during my engagement with Mishell Cosmetics, I agree to (i) promptly notify Mishell Cosmetics in writing as to the nature of such relationship and (ii) discuss it with my direct contacts at Mishell Cosmetics. For purposes of this paragraph, (i) “Mishell Cosmetics competitor” means any person, entity or organization that designs, develops, manufactures, distributes, markets, licenses or sells products or services that are similar to Mishell Cosmetics’ products and services and (ii) “material relationship” means any relationship that a reasonable person would believe potentially harmful to the Mishell Cosmetics or that may present any threat or potential threat to Mishell Cosmetics, including, for example, any Mishell Cosmetics competitor’s engaging or employing me or any of my family members or friends.
Authorization to Use, Recording, and Feedback
I hereby grant to Mishell Cosmetics, its affiliates, subsidiaries, successors, assigns and licensees (collectively “Mishell Cosmetics”) permission to film, photograph, video record and otherwise record my image, voice, avatar, name, biographical data, or any other aspect of the recording in connection with the Test Process (collectively the “Recording”) and the right, throughout the world, in perpetuity, to register for copyright, to use and to assign and/or license others to use all or any portion of the results thereof (or a reproduction thereof), in all media and in any manner now known or hereafter developed, in connection with the Test Process or otherwise without any additional consideration. I shall have no right of approval and no legal claim arising out of any use or editing of the Recording or my name. Mishell Cosmetics shall have no obligation to use any of the rights I grant. Mishell Cosmetics shall have the right at all times to use my name, likeness, and other identifying information for product development, research, and other internal purposes. I represent that it is not necessary for Mishell Cosmetics to obtain permission from or to pay any third party in connection with the rights granted in this paragraph.
Release of Liability and Waiver
I assume all responsibility for and agree to release, defend and hold Mishell Cosmetics and its officers, directors, employees, shareholders, agents, and all their respective successors and assigns (collectively, the “Released Parties”) harmless from all liabilities, costs, expenses and damages. I also agree to release, defend and hold the Released Parties harmless from all liabilities, costs, expenses and damages relating to (i) my breach of any terms of this Test Process Agreement or any other written agreement between Mishell Cosmetics and me and (ii) the impact of my signing this Test Process Agreement and participating in this Test Process. I also agree to never institute any claim, suit or action against any of the Released Parties, in any court or agency, related to or arising out of me being a tester. As a tester, I further acknowledge that no employee/employer relationship is established by this agreement or relationship.
I understand that my agreeing to this Release of Liability and Waiver section is a condition to my joining and continued participation in the Test Process and that, in permitting me to participate in the Test Process, Mishell Cosmetics is relying on this section’s continued effectiveness.
I will hold harmless, indemnify, and reimburse the Released Parties from and for any sums, costs, or expenses (including attorney fees) incurred by any of the Released Parties or paid by them to any person (including me or my insurers) in connection with any accident, injury (including death), loss, or damage sustained by me or others in connection with my attendance at or participation in the Test Process, including transportation related to the Test Process. This means that I will reimburse the Released Parties if anyone makes a claim against them based on injuries, losses, or damages I may suffer in connection with the Test Process. If I am a California resident or could otherwise claim the protections of California law, I further expressly waive the provisions of Section 1542 of the California Civil Code, which reads as follows: "A general release does not extend to the claims which the creditor does not know or suspect to exist in his favor at the time of executing the release which, if known by him, must have materially affected his settlement with the debtor."
No Insurance and/or Medical Expenses
Notification of Injury. I understand that Mishell Cosmetics does NOT provide me with any insurance (including life, medical or general liability), for any illness, accident, injury, loss, or damage that may arise in connection with my participation in or attendance at the Test Process. If I want insurance of any kind, I must obtain my own. I will pay my own medical emergency expenses and all subsequent medical expenses for any illness, accident, or injury in connection with the Test Process. If I am involved in an accident or injured during the Test Process, I will promptly report such accident or injury to a Mishell Cosmetics representative. I understand that Mishell Cosmetics does NOT provide me any medical advice or recommendation, and I will seek medical advice from a qualified medical practitioner.
I give to Mishell Cosmetics my permission for any medical treatment that may be necessary in connection with my participation in the Test Process. I understand the Test Process is not designed to diagnose or treat any medical condition or disease and is not a substitute for professional medical advice or treatment.
I will faithfully follow any instructions given to me by Mishell Cosmetics in the course of the Test Process. In addition, during the Test Process, I may provide comments, suggestions, materials or ideas (collectively, "Feedback") to Mishell Cosmetics or its representatives. The Feedback will be a true reflection of my beliefs, findings and opinions. I hereby irrevocably grant, assign and transfer to Mishell Cosmetics all of my right, title and interest in and to the Feedback. Mishell Cosmetics shall have the sole and exclusive right throughout the world and in perpetuity to use and exploit the Feedback, in any format or version, by any means and in any media. I warrant that my Feedback is not subject to any confidentiality, nondisclosure or use restriction that might prevent Mishell Cosmetics from using my Feedback. I acknowledge that Mishell Cosmetics is under no obligation to use the Feedback.
I acknowledge that Mishell Cosmetics may remove me from the Test Process at any time and for any reason. I acknowledge that I may terminate this agreement only in a signed writing delivered to the person at Mishell Cosmetics who has direct oversight of the Test Process. Upon any such termination, I acknowledge that Mishell Cosmetics may terminate my participation in the Test Process and that I forfeit all compensation relating to any post-termination time period. This document is the entire agreement between the parties with respect to the matters addressed in it, and it may not be changed without Mishell Cosmetics’ written consent. The rights and obligations in this Test Process Agreement survive the end of the Test Process and the termination of this Test Process Agreement. If any portion of this Test Process Agreement is held to be unenforceable, that portion will be ineffective only to the extent it is unenforceable, and all the other provisions shall be given full force and effect. I hereby consent to the jurisdiction of any state or federal court in Marion County.