Term of Service
Smartfluence has developed a web-based service available through various websites (each a “Site”) and applications (each, an “Application”) operated and provided by and on behalf of Smartfluence (such service, together with each Site and Application, together, the “Platform”). The Platform enables content creators (“Influencers”) to, among other things, engage with brands, advertisers, marketers or their agents (collectively, “Marketers”) for the creation and distribution of content created by Influencers (“Assignments”).
Unless You later enter into any the other agreements with Smartfluence regarding the Platform or Content, this Agreement is the complete and exclusive agreement between You and Smartfluence regarding Your access to and use of the Platform and Content. This Agreement supersedes any prior agreement or proposal, oral or written, and any other communications between You and Smartfluence relating to Your use of the Platform and Content (but excluding other agreements You may have entered into with Smartfluence regarding your creation of Assignments (a “Master Influencer Agreement”). In the event of any conflict between the terms of Your Master Influencer Agreement and this Agreement, the terms of this Agreement will control.
PLEASE CAREFULLY READ THIS AGREEMENT. by ACCESSING OR USING THE PLATFORM OR CONTENT, or by clicking a box that states that you accept or agree to these terms, YOU agree THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT.
IF YOU DO NOT AGREE TO THIS AGREEMENT, or do not meet the qualifications included in this agreement, Smartfluence IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE PLATFORM OR CONTENT and YOU MUST NOT ACCESS OR USE THE PLATFORM OR CONTENT. IF YOU ACCESS OR USE THE PLATFORM OR CONTENT, YOU ACKNOWLEDGE that you meet the qualifications included in this agreement and AGREE TO BE BOUND BY THIS AGREEMENT.
Terms used in this Agreement have the definitions given in this Agreement or, if not defined in this Agreement, have their plain English meaning as commonly interpreted in the United States.
This Agreement is entered into as of the earlier of the date You first download or install an Application, access or use the Platform or Content, or indicate your acceptance by clicking a box that states you accept this Agreement (the “Effective Date”) and will continue until terminated as set forth herein.
Smartfluence reserves the right, at any time, to modify the Platform, Content or this Agreement, by making those modification available on the Platform or by providing notice to You as specified in this Agreement. Modifications will be effective immediately upon posting on the Platform or such other notice. You may cease using the Platform at any time if you do not agree to any modification. However, You will be deemed to have agreed to such modification through Your continued use of the Platform following such notice.
You may be required to establish an account on the Platform (an “Account”) to access an Application and certain portions of the Platform. Each Account and the user identification and password for each Account (the “Account ID”) is personal in nature. Each Account is for Your personal use and each Account ID may be used only by You alone. You may not distribute or transfer Your Account or Account ID or provide a third party with the right to access your Account or Account ID. You are solely responsible for all use of the Platform or Content through Your Account. You will ensure the security and confidentiality of Your Account ID and will notify Smartfluence immediately if any Account ID is lost, stolen or otherwise compromised. You are fully responsible for all liabilities and damages incurred through the use of Your Account or under any Account ID (whether lawful or unlawful) and that any transactions completed through any Account or under any Account ID will be deemed to have been lawfully completed by You. In connection with establishing an Account, You will be asked to submit certain information about Yourself (“Registration Information”). You agree that: (1) all Registration Information You provide will be true and complete; and (2) You will maintain and promptly update Your Registration Information to keep it accurate and current.
5.1 To the Platform.
Subject to Your compliance with this Agreement, Smartfluence will permit You to access and use the Platform, solely for lawful purposes and only in accordance with the terms of this Agreement and any other agreement You have entered into with Smartfluence.
5.2 To Applications.
Subject to Your compliance with this Agreement, Smartfluence will permit You to download and install Applications and operate those Applications solely for the purpose of using and accessing the Platform. You may install each Application only on a single computer or mobile electronic device or smart phone owned or controlled by You and used only for Your own personal purposes in accordance with this Agreement and any applicable documentation accompanying the Application or otherwise provided to You by Smartfluence. Except as expressly set forth in the previous sentence, You are granted no licenses or other rights in or to any Application or any IPR (as defined below) therein or related thereto. You agree not to use, modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit or utilize any Application other than as expressly permitted in this Agreement or any other agreement You are required to agree to before being given access to any Application.
5.3 To Marketers.
The Platform may allow (a) You to make certain of Your data and information (which may include Your personally identifiable information) available to Marketers, (b) Marketers to solicit Assignments from You, and (c) for Marketers and You to communicate regarding any such Assignments or other matters (in each case, a “Communication”). By accepting or providing a Communication to or from a Marketer, You are agreeing to allow that Marketer to communicate directly with You through the Platform. You agree that You are solely responsible for all Communications between You and any Marketer through the Platform. Your election to share your data and information (which may include Your personally identifiable information) to Marketers, or solicitation or acceptance of an Assignment from a Marketer will serve as Your affirmative “opt in” to the disclosure by Smartfluence of Your, data, and information (which may include Your personally identifiable information) to that Marketer.
5.4 To Content.
Unless otherwise noted on the Platform, all content, data or other information provided through the Platform (excluding Your Assignments) (collectively “Content”) is owned by Smartfluence, the Marketers, and Smartfluence’s other Influencers, licensors and providers. You are solely responsible for verifying the accuracy, completeness, and applicability of all such Content, and for Your use of any such Content. You 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 Marketers or Influencers and other independent third-party Content providers (“Third Party Content”). Smartfluence has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Third-Party Content provided through the Platform. Except as set forth in this Agreement, You are granted no licenses or rights in or to any Content, or any IPR (as defined below) therein or related thereto. If You would like to use the Content in a manner not permitted by this Agreement, please contact Smartfluence.
This Agreement may be terminated by either party at any time, in that party’s sole discretion. Upon termination or expiration of this Agreement for any reason: (1) all rights and subscriptions granted to You under this Agreement will terminate; (2) You will immediately cease all use of and access to the Platform and all Content; (3) You will immediately delete any Applications downloaded or installed prior to termination; and (4) Smartfluence may delete Your Account and any of Your Assignments held by Smartfluence at any time. Sections 1 (Definitions), 6 (Termination), 9 (Ownership), 10 (Warranties and Disclaimer), 11 (Indemnity), 12 (Limitation on Liability), 13 (Data Privacy), 15 (Governing Law and Venue) and 16 (Additional Terms) will survive any expiration or termination of this Agreement.
Without limiting Smartfluence’s right to terminate this Agreement, Smartfluence may also suspend Your access to Your Account and the Platform or Content (including Your Assignments), with or without notice to You, upon any actual, threatened, or suspected breach of this Agreement or applicable law or upon any other conduct deemed by Smartfluence to be inappropriate or detrimental to the Platform, Smartfluence, or any other Marketer or Influencer.
8. Platform Technology.
The Platform, and the databases, software, hardware and other technology used by or on behalf of Smartfluence to operate the Platform, and the structure, organization, and underlying data, information and software code thereof (collectively, the “Technology”), constitute valuable trade secrets of Smartfluence. You will not, and will not permit any third party to: (1) access or attempt to access the Technology except as expressly provided in this Agreement; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (3) use automated scripts to collect information from or otherwise interact with the Technology; (4) alter, modify, reproduce, create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Your rights to access or use the Technology or otherwise make the Technology available to any third party; (6) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (7) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (8) monitor the availability, performance or functionality of the Technology; or (9) interfere with the operation or hosting of the Technology.
Smartfluence retains all right, title and interest, including, without limitation, all IPR (as defined below), in and to the Technology and any additions, improvements, updates and modifications thereto. You receive no ownership interest in or to the Technology and You are not granted any right or license to use the Technology itself, apart from Your right to access the Platform and Content under this Agreement. The Smartfluence name, logo and all product and service names associated with the Platform and Content are trademarks of Smartfluence and its licensors and providers and You are granted no right or license to You to use them. For purposes of this Agreement, “IPR” means all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
10. Warranties and Disclaimer.
Each party hereby represents and warrants that: (1) it has the legal right and authority to enter into this Agreement; (2) this Agreement forms a binding legal obligation on behalf of such party; and (3) it has the legal right and authority to perform its obligations under this Agreement and to grant the rights and licenses described in this Agreement. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PLATFORM, CONTENT and TECHNOLOGY ARE PROVIDED “AS IS” AND “AS AVAILABLE” and Smartfluence AND ITS providers EXPRESSLY DISCLAIM, AND YOU DISCLAIM ANY RELIANCE ON, ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO the SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, title or non-infringement. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Smartfluence, ITS EMPLOYEES, PROVIDERS OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES expressly SET FORTH IN THIS SECTION.
You hereby agree to indemnify, defend, and hold harmless Smartfluence and its officers, directors, shareholders, affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising from Your access to or use of the Platform, Content or Technology, any Assignments You provide to the Platform, and any breach by You of this Agreement. Smartfluence will provide You with notice of any such claim or allegation, and Smartfluence will have the right to participate in the defense of any such claim at its expense.
12. Limitation on Liability.
Smartfluence will not BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE USE OF THE PLATFORM, CONTENT OR SERVICES, EVEN IF Smartfluence HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF SUBMISSIONS, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. Smartfluence’s TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND all SERVICES provided under this agreement, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $10. You agree THAT Smartfluence WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, Smartfluence’s LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
13. Data Privacy.
14. Claims of Infringement.
Smartfluence respects Your copyrights and other intellectual property rights and those of other third parties. If You believe in good faith that Your copyrighted work has been reproduced on the Platform without Your authorization in a way that constitutes copyright infringement, You may notify us by e-mail at firstname.lastname@example.org.
Please provide the following information to Smartfluence’s Copyright Infringement Agent: (1) the identity of the infringed work, and of the allegedly infringing work; (2) Your name, address, daytime phone number, and email address, if available; (3) a statement that You have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (4) a statement that the information in the notification is accurate and, under penalty of perjury, that You are authorized to act on behalf of the owner; and (5) Your electronic or physical signature.
15. Governing Law and Venue.
The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of New York, U.S.A. as such laws apply to contracts between New York residents performed entirely within New York without regard to the conflict of laws provisions thereof. Each party will bring any action or proceeding arising from or relating to this Agreement exclusively in a federal court in the District of New York, U.S.A. or in state court in New York, New York U.S.A., and You irrevocably submit to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts by Smartfluence.
16. Additional Terms.
Unless otherwise amended as provided herein, or as otherwise provided herein, this Agreement will exclusively govern Your access to and use of the Platform and Content, and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Your access to and use of the Platform and Content. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Neither this Agreement nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of Smartfluence. Any assignment in violation of the foregoing will be null and void. Smartfluence may assign this Agreement to any party that assumes Smartfluence’s obligations hereunder. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. The Platform or Content may contain links to third-party sites that are not under the control of Smartfluence. Smartfluence is not responsible for any content on any linked site and You access any third-party site from the Platform or Content at Your own risk. Smartfluence may reference You as a user of the Platform and use Your name and logo, as applicable, in listings of users of the Platform appearing on the Platform and for other marketing and promotional purposes relating to the Platform.