Last Updated: July 8, 2020
These Audience Signal Influencer Terms and Conditions (the “Terms and Conditions”) are entered into by and between the influencer (the “Influencer” or “you”) and Leadgen Group Ltd., a Bulgarian limited liability company with its principal place of business at Lozenets district, 17A Sveti Naum Str., 2nd floor, ap.4, Sofia 1421, Bulgaria, company number: 205842748 (the “Company”) on the date of Influencer’s registration at Company’s Platform and acceptance by the Company (the “Effective Date”). Influencer and the Company may be referred to hereinafter individually as a “Party” or collectively as the “Parties.”
Prior to Company’s grant of Platform access to Influencer, Influencer shall accept these Terms and Conditions and submit standard business information requested by Company, including payment information. Once accepted by Company, Influencer shall be provided with a Platform account which will allow Influencer to access and use the Platform (“Account”). Company, in its sole discretion, may decline Influencer’s use of the Platform.
BY ACCEPTING THESE TERMS AND CONDITIONS, YOU EXPRESSLY AGREE TO BE BOUND BY, AND STRICTLY ADHERE TO THESE TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THESE TERMS AND CONDITIONS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.
1. Services.
a. Use.
Influencer’s Account is for Influencer’s sole use. Influencer may not (i) distribute, transfer or allow any third party access to Influencer’s Account; or (ii) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any rights to access or use Influencer’s Account or the Platform or otherwise make Influencer’s Account or the Platform available to any third party. Influencer may access and use the Platform solely for lawful purposes, and in accordance with these Terms and Conditions.
b. Modifications.
Company reserves the right, at any time, for any reason, to modify (i) the Platform or the Offer (as defined in Section 4(a) (Fees) by making those modifications available on the Platform, or (ii) these Terms and Conditions. Modifications shall be effective immediately upon their posting on the Platform. Influencer shall be deemed to agree to and accept any such modifications by Influencer’s continued use of the Platform.
c. Ownership.
Company and its licensors own all rights, title and interest in all intellectual property rights in and to the Platform, the technology used to operate the Platform and all components thereof, including any and all modifications, upgrades, updates, developments, changes, edits, improvements and the like made to the Platform, the technology, and any of the components thereof (“Technology”). Influencer agrees it will not, nor will it allow a third party to (i) use the Technology, except as expressly provided in these Terms and Conditions; (ii) alter, modify, reproduce, or create derivative works of the Technology; (iii) use the Technology in any manner that could damage, disable, overburden or impair the Platform; (iv) use automated scripts to collect information from or otherwise interact with the Platform; (v) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Platform; (vi) attempt to circumvent or overcome any protection measures intended to restrict access to any portion of the Platform; (vii) monitor the availability, performance or functionality of the Platform; or (viii) interfere with the operation or hosting of the Platform. Influencer receives no ownership interest in or to the Technology. Influencer is granted no right or license to use the Technology, other than Influencer’s right to access and use the Platform under the terms of these Terms and Conditions. The Company name, logo and all product and service names associated with the Platform are trademarks of Company and its licensors and providers and Influencer is granted no right or license to use them without express written consent of Company.
d. Suspension.
Without limiting Company’s rights under Section 5(b) (Termination), Company, in its sole discretion, has the right to suspend Influencer’s Account and/or access to the Platform for Influencer’s actual, threatened, or suspected breach of these Terms and Conditions or upon conduct Company deems inappropriate or detrimental to Company or the Platform.
2. Content.
Development and Approval of Content.
a. Initial Development and Approval. Influencer shall submit all elements of any and all content, materials, videos, photographs and/or works of a similar nature produced, developed, or created by Influencer, in whole or in part pursuant to these Terms and Conditions (collectively, the “Content”), including any captions relating to the Content or applicable post(s), to the Company for the Advertiser’s prior written approval prior to posting, which may be granted or withheld in the Advertiser’s and the Company’s sole discretion. All Content must be submitted to the Company in accordance with the applicable schedule set forth in the Offer. If, following each submission of Content to the Company for approval by the applicable Advertiser, the Company or the Advertiser requests or requires any edits to the applicable Content, the Influencer shall make any and all edits as required or requested by the Company or the Advertiser. Following Influencer’s implementation of such edits, Influencer shall resubmit the applicable Content to the Company for review and approval by the Advertiser. In the event that Influencer incorporates applicable edits in a manner reasonably consistent with the applicable requirements provided to Influencer, but the Content is thereafter not approved by the Advertiser, the Company reserves the right to terminate these Terms and Conditions and/or the applicable Offer immediately upon notice to Influencer, subject to the payment to Influencer of a termination fee equal to twenty percent (20%) of the total compensation payable to Influencer by the Company in connection with the Services and/or Campaigns to which the applicable Content relates. In addition, if Influencer makes any post without having received notice from the Company of the applicable Advertiser’s approval, such unauthorized post shall be deemed a material breach of Influencer’s obligations under these Terms and Conditions and the Company shall have the right to (a) terminate the Agreement and/or the applicable Offer immediately upon notice to Influencer, (b) require Influencer to post a makegood that has been approved by the applicable Advertiser, without additional compensation to Influencer, and/or (c) reduce the compensation payable to Influencer by the amount that was otherwise payable in connection with the applicable unauthorized post.
b. Ongoing Revisions. In addition, following approval of any Content by the Advertiser, and posting of such Content by Influencer, the Company shall have the right to (i) require Influencer to revise any Content to the extent that the information included in a post with regard to the Advertiser is no longer accurate, and (ii) require Influencer to remove any indicia of the Advertiser from the Content. In the event of any such requirement by the Advertiser, upon request from the Company, Influencer shall revise the applicable Content which shall be subject to the approval process set forth in Section 2(a).
c. Influencer Delays. Time is of the essence with regard to Influencer’s performance under these Terms and Conditions. In the event that Influencer fails to provide the Content for review and approval in accordance with the timing requirements set forth herein or in the applicable Offer or otherwise mutually agreed to by the parties in connection with an applicable Offer, or otherwise fails to perform the Services in accordance with the timelines set forth in the applicable Offer, in addition to any other rights and remedies that the Company or the Advertiser may have hereunder, the compensation owed to Influencer in connection with the applicable Services and Campaign may be reduced due to any instance of delay, as applicable under the circumstances, from five to ten percent (5-10%) of the total compensation owed to Influencer in connection with the applicable Services and/or Campaign.
3. Objectionable Content.
Influencer acknowledges and agrees that he/she will not (a) make any unsubstantiated claims about any third party or its products or services in any Content related to any Campaign; or (b) develop or post any Content that is in any way illegal, obscene or harmful to the reputation, goodwill or interest of the Company or the Advertiser or their respective products, services, associates, employees or Influencers or that is otherwise reasonably objectionable to the Company or the Advertiser.
4. Exclusivity.
Influencer acknowledges and agrees not to include as part of any Content, or otherwise post to any Social Media Channel, or any other media channel set forth in an applicable Offer, in connection or combination with the Content, any reference to any other brand or trademark other than those authorized by the Company on behalf of the Advertiser. In addition, Influencer agrees to only tag Advertiser’s pages on Social Media Channels and/or Advertiser’s social media handles in Influencer’s post(s) that include the Content.
5. Influencer Representations and Warranties.
a. Influencer represents, warrants and covenants that (a) Influencer shall provide all Services under each applicable Offer with commercially reasonably skill and care in a competent and professional manner and at a level of quality not less than that prevailing in the industry, (b) Influencer has the proper skills, training and background to enable Influencer to perform such Services under the Offer in a competent and professional manner and to exercise the diligence ordinarily exercised by members of Influencer’s industry, (c) Influencer shall comply with all applicable laws and regulations in connection with the performance of the Services and each applicable Campaign, including, without limitation, laws and regulations concerning advertising and promotional campaigns, including, without limitation, the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, (d) Influencer shall comply with all terms of use, privacy policies, and other terms, rules or policies that are applicable to any Social Media Channel, (e) subject to the license grants pursuant to Section 8 and Section 9, Influencer has all consents, permissions or licenses necessary for Influencer to create the Content as contemplated hereunder; (f) the Content does not violate any copyright, trademark, or other intellectual property or proprietary right of any other party, (g) Influencer is at least 21 years of age and upon request by the Company at any time during the Term, will provide proper evidence of his or her age in the form of a valid driver’s license, passport or other acceptable government-issued identification as determined by the Company in its sole discretion, and (h) Influencer shall not engage in any fraudulent activity or other activity that would falsely or artificially increase or affect the number of Influencer’s followers, “likes” or other indicators of Influencer’s audience or reach on any applicable Social Media Channel, including, without limitation, with regard to a particular Campaign.
b. Influencer is solely responsible for verifying the accuracy, completeness, and applicability of all such Content, and for Influencer’s use of any such Content. Influencer will not, and will not permit any third party to: (a) alter, modify, reproduce, or create derivative works of any Content; (b) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any Content; or (c) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with any Content. Certain Content may include or be based on data, information or content from Advertisers and/or other independent third party Content providers (“Third Party Content”). Company does not verify the accuracy of, and will not be responsible for any errors or omissions in, any Third Party Content or any Third Party Content provided through the Platform. Except as expressly set forth in these Terms and Conditions, Influencer is granted no licenses or rights in or to any Content therein or related thereto. Influencer is responsible for Influencer’s compliance with any additional Advertiser terms and conditions as provided by such Advertiser to Influencer.
c. Other Influencer Content Requirements:
i. Original Content. Influencer’s blog must contain original editorial content in addition to opportunity-related or other paid posts. Blogs that exist primarily for payment will not be accepted.
ii. Influencer Content. Any content submitted by Influencer to the Platform may not include or support libelous, defamatory, knowingly false content, excessive profanity, violence or racial intolerance, illicit drugs or drug paraphernalia, pornography, adult or mature content, or any other content that promotes intolerance, illegal activity, or infringes upon the legal rights of others, including but not limited to any third party copyright, trademark, trade secret or patent.
iii. Review. Advertiser may require a review of Influencer’s content prior to dissemination. In such case, Influencer shall use best efforts to ensure that such content remains “private” for interim posts under review until the applicable approvals are received by the Influencer.
iv. Advertisements, Links and Obstructions. Influencer shall use best efforts to ensure that (1) elements such as advertisements, links to other websites, or any other obstructions should not obscure or hide Advertiser’s Content; and (2) no third party links or advertisements should be placed within the submitted Influencer content unless directly specified by the Advertiser.
v. Manipulation. Influencer shall not manipulate any code provided by Advertisers or Company.
vi. Badges. Company will provide Influencer with disclosure badges and language (collectively, the “Badges”) to add to Influencer’s content distribution channels and Influencer shall include the Badges in order to receive payment from Company.
vii. Transparency and Disclosure. Influencer shall (1) clearly disclose the relationship between Influencer and any Advertiser’s campaign; (2) meet all Federal Trade Commission disclosure guidelines (“FTC Guidelines”); provided that Influencer agrees that the Badges may not be sufficient to meet these requirements and Influencer is solely responsible for the compliance of this subsection vii.
6. Fees and Payments.
a. Fees
Influencer shall be paid in accordance with the “Offer” as hosted on the Platform, and specific to each Influencer, dependent upon various factors, including but not limited to, the number of and type of Advertisers with which Influencer is participating. The amounts due to Influencer by Company (“Influencer Fee”), and subject to the terms of Section 4(c) (Payments), include (i) the “Influencer Fee”, defined as the dollar amount Influencer earns times the number of Advertisers Influencer completes participation requirements for, during a given month. Influencer must complete all Advertiser requirements in full for a given month in order to earn such month’s Monthly Fees. Monthly Fees may be pro-rated based on Influencer’s partial completion of Advertiser requirements, if such decision made by the Advertiser in its sole discretion.
b. Statements.
Company shall store amounts due to Influencer within the Platform. Influencer shall have four (4) calendar days to notify Company of any disputes on the statement. Company shall use reasonable efforts to resolve all statement disputes with Influencer in a timely manner.
c. Payments.
Company shall pay: (i) 50% of Influencer Fees due to Influencer for the Offer by wire transfer or any other payment processing systems on prepayment basis upon condition that Influencer provided Company with a video file containing Influencer’s acceptance of the Offer conditions and its obligation to film a video with applicable advertisement in correspondence with the Offer; and (ii) the other 50% of Influencer Fees due to Influencer for the Offer by wire transfer or any other payment processing systems within 15 business days from the date of video advertisement made under the Offer conditions being published at the Influencer media channel agreed in the Offer; unless otherwise stated in the Offer. Influencer must provide all applicable methods of payment information prior to Influencer’s Account activation. It is Influencer’s responsibility to notify Company of any payment changes in a timely manner. In the event Company does not collect payment in whole from a specific Advertiser with which Influencer is participating, Company shall not be responsible for any payments due Influencer for such Advertiser participation until such Advertiser payments are collected by Company. Each party is solely and separately responsible for its own taxes, levies and duties, bank fees and charges applicable to its servicing bank. Minimum payment amounts shall be 500 USD. If the balance is less all due payment will rollover to the next month until the due payment accumulated to 500 USD and Company will add the amount to the next payment.
7. Term: Termination.
a. Term. These Terms and Conditions shall be effective as of the Effective Date and shall continue in full force and effect, unless these Terms and Conditions are otherwise terminated as set forth herein (the “Term”). Notwithstanding the foregoing, the Term of these Terms and Conditions shall be concurrent with any insertion order or other written agreement between Company and Influencer (the “Insertion Order”) to which each applicable Campaign pertains, if any.
b. Termination. In addition to any termination rights otherwise set forth herein, the Company shall have the right to terminate these Terms and Conditions, including any and all outstanding Offers, (i) immediately upon written notice to Influencer for any reason; (ii) in the event that the Company reasonably suspects that Influencer is in breach of Subsection 5(h), the Company shall notify Influencer, and, unless Influencer is able to provide reasonable evidence to the Company that Influencer has not fraudulently or falsely increased or affected the applicable number(s) within twenty-four (24) hours of receipt of such notice, the Company shall have the right to terminate these Terms and Conditions and/or the applicable Offer, immediately upon notice to Influencer, without any compensation or liability to Influencer, and subject to Influencer’s indemnification obligations set forth in Section 11(a)(3); (iii) immediately upon written notice to Influencer if Influencer, its representatives and/or agents, act in any way that causes it or them to undergo material adverse publicity or scandal, or fall into disrepute, including, without limitation if Influencer personally commits any act that results in a conviction of a felony, or any misdemeanor of moral turpitude (by way of example only, a misdemeanor involving a controlled substance, fraud, embezzlement, assault, and battery) or the neglect of others or self-harm.
c. Additional Remedies of the Company. In the event Influencer materially breaches these Terms and Conditions, in addition to the termination rights hereunder, the Company shall be entitled to recover all costs (including attorney’s fees) in the enforcement of the Company’s rights hereunder and, if Influencer shall have been paid in advance pursuant to these Terms and Conditions, the Company shall be entitled to a refund of any monies advanced to Influencer under these Terms and Conditions. In addition, if Influencer fails to perform any of the Services and/or Campaign(s) as required pursuant to the applicable Offer, Influencer shall pay to the Company as liquidated damages an amount equal to thirty percent (30%) of the compensation payable to Influencer under the applicable Offer to which such Services and/or Campaign(s) relate.
d. Survival. Upon termination of these Terms and Conditions, the following sections shall survive: Section 1 (Definitions), Section 2(c) (Advertisers), Section 2(d) (Ownership), Section 3 (Content), Section 4 (Payment Schedule and Terms), Section 5(c) (Survival), Section 6 (Warranties and Disclaimers), Section 7 (Indemnification and Damages), Section 8 (Data Privacy), and Section 9 (General).
8. License to Use Advertiser Trademarks and Content.
The Company, on behalf of the Advertiser, hereby grants to Influencer, a non-exclusive, non-transferable, revocable, limited license to use and display Advertiser’s name, logo and trademarks, and any other content provided to Influencer by the Company or the applicable Advertiser in connection with an Offer, in the form and manner specifically described in the applicable Offer, or otherwise approved for use as part of the Content in accordance with Section 2 hereof (collectively, the “Advertiser Works”), solely as necessary to perform its obligations hereunder and only during the Term hereof, unless otherwise expressly authorized herein. For the avoidance of doubt, Influencer may only use the Advertiser Works in the form and format provided or approved by the Company or Advertiser, as applicable. Influencer acknowledges the Advertiser’s exclusive right, title and interest in and to the Advertiser Works and the goodwill pertaining thereto, that any use of the Advertiser Works by Influencer does not create any ownership, license or other right or interest in or to the Advertiser Works by Influencer except as specifically set forth in these Terms and Conditions, and that all use of the Advertiser Works by Influencer shall inure to the benefit of the Advertiser. Influencer agrees that it shall not, challenge, or assist in any challenge to, the validity or exclusivity of the Advertiser’s ownership of the applicable Advertiser Works.
9. Ownership Rights.
The Parties shall elect one of the following ownership options which shall be set forth in the applicable Offer. Notwithstanding the foregoing, in the event that the Offer fails to expressly identify the Advertiser’s usage rights with regard to the Content, the Parties hereby agree that the Work for Hire terms as defined in “Option 2” below shall be the controlling in the applicable to such Offer. Further, in the event that the Offer fails to expressly identify the duration of Advertiser’s right to use the Content, the Parties hereby agree that both the Advertiser and the Company shall have the right to use the Work Product for the specified purposes for a period of twelve (12) months.
Ownership Option 1 – Standard:
a. Ownership of Content. Except with regard to any Advertiser Works incorporated therein, Influencer shall own, exclusively and in perpetuity, any and all intellectual property rights, including trademarks, trade secrets, trade dress, design, mask work, copyrights, and patent rights, and other rights of whatever kind and character, throughout the universe and in any and all languages, in and to the Content.
b. Licenses to Content. Influencer hereby grants to the Advertiser a worldwide, non-exclusive, royalty-free right and license, during the applicable posting periods and subject to any other limitations set forth in the applicable Offer, to (A) feature any and all Content generated by Influencer (including Influencer’s name and likeness) on all Social Media Channel accounts owned, controlled or licensed by the Advertiser, (B) repost any and all Content generated by Influencer (including Influencer’s name and likeness) in one or more sponsored posts distributed through Social Media Channels or other media channels mutually agreed to by the parties and set forth in the applicable Offer, (C) feature and use any and all Content generated by Influencer (including Influencer’s name and likeness) in connection with white labeled posts on all Social Media Channel accounts owned, controlled or licensed by Influencer, and (D) feature, use and distribute any and all Content generated by Influencer (including Influencer’s name and likeness) through any digital media or digital assets, whether in existence as of the date hereof or developed subsequently, as determined in Advertiser’s sole discretion; provided, for the avoidance of doubt, that such digital media or digital assets shall not be deemed to include television or billboards. Advertiser agrees to use Influencer social media handles specified in the applicable Offer (e.g. @[Influencer] or #[Influencer] in connection with the use of applicable Content, or otherwise credit Influencer in the event Advertiser re-posts any Content. In addition, Influencer hereby grants to the Advertiser a worldwide, non-exclusive, perpetual, irrevocable, royalty-free right and license to continue to use and display the applicable Content in the manner originally featured or used by the Advertiser as specified in the applicable Offer, as well as for all internal uses of the Advertiser, and in any reviews of the Advertiser’s products or services to which such Content relates.
Influencer hereby grants to the Company a limited, worldwide, non-exclusive, royalty free, perpetual and irrevocable right and license to use the Content (including Influencer’s name and likeness) for the purpose of marketing on the Social Media Channel accounts owned, controlled or licensed by the Company, as well as such third party digital and print platforms as the Company may elect in its sole discretion, which shall include but not be limited to internet rights, publication rights, white paper rights, newspapers, magazines, e-mail marketing, and brochures.
Ownership Option 2 – Work for Hire:
a. Ownership of Content. Influencer acknowledges and agrees that all Content and all copyrightable material, notes, records, drawings, designs, inventions, improvements, developments, discoveries and trade secrets which relate in any manner to the business of the Advertiser that are conceived, made or discovered by Influencer, solely or in collaboration with others, in performance of the Services or the implementation of the Campaign (collectively, “Work Product”), are the sole property of the Advertiser. Influencer hereby irrevocably conveys, transfers and assigns to the Advertiser all right, title and interest, in perpetuity and throughout the world and without further consideration, in and to such Work Product, and any and all related patents, copyrights, trademarks, trade names, and other industrial and intellectual property rights and applications therefor. The assignment of the Work Product under these Terms and Conditions includes all rights of paternity, integrity, attribution and withdrawal and any other rights known as, or substantially similar to, “moral rights.” To the extent such moral rights may not be assigned under applicable law, Influencer hereby waives such moral rights and consents to any action in connection therewith, including any violation of such moral rights, in the absence of such consent. Influencer shall provide to the Company on the Advertiser’s behalf, all reasonable assistance to enable, and execute all documents necessary to assist with enabling, Advertiser to prosecute, perfect, register or record its rights in any Work Product. Influencer represents and warrants that it has secured all necessary assignments from its personnel to convey ownership of the Work Product as contemplated hereunder.
10. License to Work Product.
a. Subject in each case to the Advertiser’s prior review and written approval in each instance in accordance with Section 2, during the Term of these Terms and Conditions, on behalf of the Advertiser, the Company hereby grants to Influencer a limited, revocable, non-exclusive, royalty-free, license to use the Work Product only as required for Influencer to perform the Services and implement the Campaign to which such Work Product relates. Upon any expiration or termination of these Terms and Conditions, the rights and licenses granted to Influencer hereunder will automatically terminate and Influencer shall immediately cease any and all use of the Work Product; provided, that the Advertiser hereby grants to Influencer a worldwide, non-exclusive, revocable, royalty-free right and license to continue to use and display the applicable Work Product in the manner originally featured or used by Influencer as specified in the applicable Offer.
b. To the extent that any copyrighted materials of Influencer that were developed or created by Influencer prior to the Effective Date of the applicable Offer (collectively “Influencer Intellectual Property”), are incorporated into the Work Product, Influencer hereby grants to the Company, for the Company itself and to the Company for the Advertiser’s benefit, and each of the Company’s and the Advertiser’s respective agents, employees, licensees, vendors, and representatives a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, fully sub-licensable and transferable unrestricted right and license to use, reproduce, distribute, transmit, publicize, display, modify, adapt, translate, create derivative works from, and exploit, in whole or in part, edited or otherwise modified, alone or with other materials, in whatever form or medium, the Influencer Intellectual Property incorporated into the Work Product.
11. Third Party Licenses.
Influencer shall be solely responsible for obtaining, in a form acceptable to and approved in writing by the Company, any required licenses, permissions or approvals from third parties, contributors, and/or other affected rights holders with regard to third party content incorporated into the Content by Influencer, as necessary for the Company and/or the Advertiser to make full and unrestricted use of the Content as set forth herein, including by way of example and without limitation, requiring all individuals appearing in the Content, to sign an authorization, consent and release form and granting to the Company and the Advertiser all license and publicity rights necessary for the Company or the Advertiser to make use of the name, likeness, image, biography, statements, avatar, and/or social media name and handle and other indicia of such individual contained in the Content. Influencer will provide the Company with copies of such consents upon its written request.
12. Indemnification; Limitation of Liability.
a. Indemnification. Influencer agrees to indemnify, defend and hold harmless the Company and the Advertiser, and their respective parents, subsidiaries and Influencers, and each of their officers, directors, agents and employees, from and against any and all claims, demands, liabilities, fees, costs or expenses (including reasonable attorneys’ fees) arising out of or related to, in whole or in part, (i) the Content (excluding any Advertiser Works incorporated therein if used as permitted hereunder) and/or any act or omission of Influencer or its employees, agents, trustees, partners, officers or directors, (ii) the content or operation of Influencer’s digital properties or any Influencer webpages or digital properties on Social Media Channels (e.g. YouTube channels or social media posts) on which Content appears, and (iii) Influencer’s performance of, or failure to perform, its obligations under these Terms and Conditions; including, without limitation, any claims, actions or proceedings for libel, slander, invasion of privacy, infringement of trademark, copyright, license, or other intellectual property rights, unfair or improper trade practices or other wrongful business conduct, including, without limitation, claims relating to Influencer’s fraudulent activity or other activity that would falsely or artificially increase or affect the number of Influencer’s followers, “likes” or other indicators of Influencer’s audience or reach, or claims for bodily injury, death or property damage, or loss or employment claims.
b. Limitation of Liability. The Company shall not be liable for Influencer’s misconduct. Content created by Influencer(s) in connection with any Campaign is the sole responsibility of Influencer, and the accuracy of such Content is not endorsed or guaranteed by the Company. The Company and its Influencers, successors, assigns, employees, agents, directors, and officers assume no responsibility or liability which may arise from the Content, including, but not limited to, claims for defamation, libel, slander, infringement, invasion of privacy and publicity rights, obscenity, pornography, profanity, fraud, or misrepresentation.
IN ADDITION, INFLUENCER ACKNOWLEDGES AND AGREES THAT THE COMPANY SHALL NOT BE LIABLE TO INFLUENCER, ITS PARENTS, SUBSIDIARIES, OR AFFILIATES, AND/OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, UNDER THESE TERMS AND CONDITIONS OR IN ANY WAY RELATED TO THESE TERMS AND CONDITIONS, FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST WAGES AND SAVINGS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF THE COMPANY UNDER THESE TERMS AND CONDITIONS SHALL NOT EXCEED THE TOTAL PAYMENT BY THE COMPANY TO INFLUENCER FOR THE APPLICABLE CAMPAIGN OR SERVICES TO WHICH SUCH CLAIM RELATES.
c. Warranty Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PLATFORM, TECHNOLOGY AND CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND COMPANY AND ITS PROVIDERS MAKE NO OTHER WARRANTIES (WHETHER STATUTORY, ARISING FROM COURSE OF DEALING OR OTHERWISE), EITHER EXPRESS OR IMPLIED, REGARDING THE PLATFORM, THE TECHNOLOGY OR COMPANY’S SERVICES, THEIR MERCHANTABILITY OR THEIR FITNESS FOR ANY PARTICULAR SERVICES.
13. Data Privacy.
Influencer expressly consents to the use and disclosure of personally identifiable and other data and information as described in the Company’s Privacy Policy. Company will have the right to collect, extract, compile, synthesize, and analyze non-personally identifiable data or information resulting from access to and use of the Platform. To the extent any such data or information is collected or generated by Company, the data and information will be solely owned by Company and may be used by Company for any lawful business purpose without a duty of accounting, provided that the data and information is used only in an aggregated form, without directly identifying Influencer. Company may reference Influencer as a user of the Platform and use Influencer’s name and logo (as provided by Influencer to Company), as applicable in listings of users of the Platform and for other marketing and promotional purposes relating to the Platform and Company.
14. Confidentiality.
Influencer hereby acknowledges that the Company’s privacy, and that of the Advertiser, is highly valued and that all efforts are made to maintain confidentiality with respect to Confidential Information (as defined below). Influencer shall hold in confidence using commercially reasonable measures, and not directly or indirectly divulge to any third party, any Confidential Information. For purposes of these Terms and Conditions, “Confidential Information” means any financial information, the identity of the Advertiser and/or any Advertiser lists or Advertiser contact information, or any brand strategy, marketing plans, technical data, intellectual property, content or know how relating to ideas, discoveries, inventions, concepts, software, equipment, designs, drawings, specifications, techniques, processes, models, data, documentation, diagrams, research, development, business plans or opportunities, business strategies, future projects or products, projects or products under consideration, procedures, and information related to finances, influencers, costs, prices, contractors and employees that are provided to Influencer by the Company in connection with the applicable Campaign or Services or otherwise with regard to the relationship contemplated hereunder. All of the foregoing information is proprietary, and disclosure of such information to third parties or unauthorized use of such information would cause substantial and irreparable harm and injury to the Company’s and/or the Advertiser’s ongoing business for which there would be no adequate remedy at law. Accordingly, in the event of any breach or attempted or threatened breach of any of the terms of this Section, the Company shall be entitled to receive injunctive and other equitable relief without need of posting a bond, and without limiting the applicability of any other remedies.
15. Non-circumvention.
Influencer agrees that during the Term of these Terms and Conditions and for one (1) calendar year from the expiration or termination of these Terms and Conditions it will not, either directly or indirectly, contact the Advertiser for the purpose of entering into, or attempting to enter into, any negotiations or contractual obligations with the Advertiser which could reasonably be construed to circumvent the efforts of Company under these Terms and Conditions, without the Company’s prior written consent.
During the term of these Terms and Conditions and for a period of 6 (six) months thereafter, the Influencer will not seek, in any way, to undermine the business standing and goodwill of Company, and in particular, the Influencer will not, directly or indirectly: (i) solicit or entice or attempt to solicit or entice any of the employees of Company to enter into employment service with the Influencer or a competitor of Company; or (ii) directly or indirectly enter into any agreement or contract, written or otherwise, with any Advertiser or otherwise provide services to any third party for the ultimate benefit of Advertiser which might, in the opinion of Company, compete with any services provided by Company; or (iii) solicit, engage, contract, license, or work with any Advertiser without the prior written approval by Company.
Influencer agrees and understands that Company has incurred significant expense forming Company's Platform and in providing services for the benefit of Advertisers, and Influencer agrees and understands that in the event of a breach by Influencer of this section, Influencer shall pay Company as liquidated damages an amount equal to the amount paid by Company to Influencer within 6 (six) billable months preceding such breach. The liquidated damage remedies provided herein in this section shall not preclude Company from seeking injunctive relief.
16. General.
a. Governing Law; Venue.
The laws of United Kingdom applicable to contracts made or to be wholly performed there (without giving effect to choice of law or conflict of law principles) shall govern the validity, construction, performance, and effect of these Terms and Conditions. The Parties hereby consent to exclusive jurisdiction and venue in the courts in London, United Kingdom for any dispute arising out of these Terms and Conditions.
b. Notices.
All notices required to be provided by Company by these Terms and Conditions shall be delivered by Company to Influencer via email to the email address provided by Influencer or via the Platform. It is Influencer’s responsibility to keep a current email on file with Company. All notices required to be provided by Influencer to Company shall be delivered via email.
c. Force Majeure.
Neither party shall be liable for any delay in the performance of its obligations on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.
d. Waiver.
The failure of either party to exercise any right or option arising out of a breach of these Terms and Conditions shall not be deemed a waiver of any right or option with respect to any subsequent or different breach or the continuance of any existing breach.
e. Severability.
Each provision of these Terms and Conditions shall be interpreted in such fashion as to be effective and valid under applicable law. If any provision of these Terms and Conditions is declared void, unenforceable or invalid all remaining provisions shall remain in full force and effect.
f. Assignment.
Influencer may not assign or transfer these Terms and Conditions, nor any of its rights or obligations, in whole or in part, without the express written consent of Company. Company may assign these Terms and Conditions to any party that assumes Company’s obligations hereunder.
g. Independent Contractors.
Company and Influencer shall perform their obligations hereunder as independent contractors. Nothing herein is intended to, or shall be construed to create a partnership, agency, joint venture, employment or similar relationship between the parties. Neither party has any right or ability to bind or enter into any obligation on behalf of the other. Each party shall bear its own costs and expenses of its performance of its obligations under these Terms and Conditions.
h. Entire Agreement.
These Terms and Conditions states the entire agreement between the parties regarding its subject matter and supersedes and terminates any prior oral or written proposals, agreements or other communications between the parties regarding the subject matter. Furthermore, the Company reserves the right to modify these Terms and Conditions at any time without any notice to Influencer. It is Influencer’s responsibility to regularly check these Terms and Conditions in order to comply with them.