CLIENT TERMS OF BUSINESS
for use of
TAILIFY’S MANAGED SERVICES
(“TERMS OF BUSINESS”)
These Terms of Business including any campaign work orders (“Campaign Work Order”), which will set out the services for each campaign we manage (the “Services”) and other terms for the provision of the Services will form a binding contract with the company named on the Campaign Work Order (“you”).
These Terms of Business govern to the exclusion of all other terms or conditions of contract you may propose and shall not be varied unless agreed in writing and signed by us.
By using our Services, as set out below or in a Campaign Work Form, you are bound by these Terms of Business.
1. WHO WE ARE:
1.1 We are Tailify Software Limited (Company number 10127861), with our principle place of business located at The Bower, 207 Old Street, EC1V 9NR, London
United Kingdom (“Tailify”; “us”; “our”; “we”).
2. WHAT DO WE DO
2.1 We provide an end-to-end managed services solution for influencer marketing campaigns whereby we post clients endorsement content on an influencer’s own website blog or personal social media account (“Influencer”) to support your advertising campaigns (“Campaign”).
2.2 After you have selected the Influencer we have proposed to you, we will then engage and manage the Influencer directly. Unless set out in the Campaign Work Order you will not engage the Influencer nor pay the Influencer, as we will provide the Influencer with the Campaign brief; targets; budget and fees; timeframe and applicable deadlines; content approval process; exclusivity requirements.
3. THE SERVICES WE PROVIDE AND MANAGE
3.1 As part of our managed Services we provide:
strategic and creative ideas, expert and knowledgeable client services team to identify and source appropriate influencers including the management of the Campaign.
bespoke services tailored for your unique Campaign and business.
manage the Influencers to ensure the campaign content (“Campaign Content”) is created and we will either then upload the Campaign Content into our technology platform (“Platform”) or provide you with the Campaign Content via email unless agreed in a different format in the Campaign Work Order.
you with a Campaign report.
support and obtain participation from the Influencer in events that are organised by you.
3.2 Whilst we take care to only engage reputable Influencers you agree that we have no responsibility for any acts or omissions of the Influencers as they are fully independent from us. We will request the Influencers to use the applicable hashtag advertisement or sponsorship identifiers on all Influencer provided Campaign Content in order to disclose brand co-operation however we take no responsibility where the Influencer fails to adhere to such request.
3.3 We provide the Services, via our Platform to you on an “as is” basis and, to the fullest extent permitted by law, we exclude all implied conditions, warranties, representations or other terms including those in respect of satisfactory quality and fitness for purpose, and any liabilities arising therefrom that may apply to these Terms of Business.
3.4 In consideration of the payment by you of the Campaign Fees (as set out in the Campaign Work Order) we will perform those Services described in the Campaign Work Order in accordance with and subject to these Terms of Business.
4. PROCESS TO CONTRACT
4.1 In order to receive the Services, you are required to execute (via signature and/or electronic signature) the Campaign Work Order ; which will set out the specific Services to be provided by us during the term of the Campaign including the Campaign Fees to be paid by your company. For certainty where you receive the Services but have not signed the Campaign Work Order these Terms of Business will automatically apply and take precedence over your terms of business.
4.2 Each Campaign Work Order shall come into force on the date specified in the Campaign Work Order and will continue until completion. The termination or expiration of any Campaign Work Order shall not affect the Terms of Business or any other Campaign Work Order.
4.2 These Terms of Business are structured so that individual Campaign Work Order may be entered into by the parties and each [Campaign Work Order] will be governed by and shall be subject to these Terms of Business, except for any Special Conditions set out on the Campaign Work Order, which shall take precedence.
5. COMMERCIAL TERMS
5.1 The Campaign Fees will be set out in each Campaign Work Order. Unless otherwise set out in the Campaign Work Order the Campaign Fees are payable within 14 days of signature of the Campaign Work Order and/or issue of an invoice by us. Campaign Fees are to be paid in cleared funds directly into our bank account as indicated in the Campaign Work Order
5.2 The Campaign Fees shall exclude additional services performed by us falling outside the scope of the Campaign Work Order, third party costs and additional costs we incur due solely to delays caused by you or third parties acting on your behalf.
5.3 All Campaign Fees are exclusive of VAT or similar applicable sales tax.
5.4 You shall not deduct or set-off any amounts owed to us and in the event, you fail to pay valid invoices then we are entitled to suspend the Services and/or charge interest at the rate of the maximum amount permitted under applicable law.
5.4 Where you wish to amend the scope of the Services under an agreed Campaign Work Order then we will agree to these new amendments including new timelines and costs associated with this amendment. The amendment to the Services will only become effective once we have signed a variation to the Campaign Work Order.
5.5 If you are an agency acting on behalf of your client, you agree that payment of the Campaign Fees is not contingent on payment to you from your client.
6. YOUR RESPONONSIBILITIES AND COMMITMENTS
6.1 You accept that in order for us to perform our Services and for the Influencer to perform their duties you will need to provide in a timely manner approval of the Influencer shortlist, approval of the content, reply to correspondence from us and other resources needed for us to perform the campaign. You will also comply with your activities set out in the Campaign Work Order or any reasonable request made by us.
6.2 You warrant and undertake (or if you are a media agency, procure such warranties and undertakings from your client) on an ongoing basis that:
(i) you are authorised to enter into contractual relationships on behalf of the contracting entity or brand owner and to grant the consents and assign and grant the rights herein expressed to be granted and assigned, free from encumbrances and third-party rights;
(ii) all the information and content you provide to us or Influencers is accurate, complete and not misleading, and that you will immediately inform us in writing if any of that information or content changes;
(iii) you have and will maintain all the necessary licences, consents and permissions necessary and you are entitled to give all assurances, confirmations, waivers and agreements herein to enable us to use, publish your Campaign content on our Platform without us being in breach of any applicable laws or having to make any further payment other than as expressly set out herein;
(iv) you will not at any time make any disparaging, defamatory or derogatory statement about or do anything detrimental to the reputation or business of us, any Campaign, the Influencers or our group companies, partners, affiliates, contractors and/ or agents;
(v) no materials that you provide to us / the Influencers and that we upload onto our Platform will incorporate anything that:
is unlawful or illegal;
causes damage or injury to any person or property;
infringes any right of confidentiality or privacy;
contains any obscene, profane, blasphemous, libellous, defamatory, threatening,
pornographic, bullying, harassing, hateful, racially or ethically offensive or defamatory
incites or encourages criminal or illegal activity;
is discriminatory based on race, gender, colour, religious belief, sexual orientation, or
disability; and/ or
depicts sexually explicit images.
(vi) your use of our Services and Platform will be compliant with all applicable laws, regulations, codes and standards, including without limitation all applicable advertising standards and regulations;
(vii) publication of your uploaded content by us, our Influencers (including but not limited to in any Campaign), group companies, partners, affiliates, contractors and/ or agents will not infringe the rights of any third party rights and you agree that you shall immediately inform us if you become aware of any such claim;
6.3. Whilst we have no obligation whatsoever to validate, monitor the content or materials you provide to us including any Campaigns, or Influencer created content, we may, in our sole discretion without prior notice to you (although we will use all reasonable efforts to provide you with prior notice), remove any Campaign or content which in our reasonable opinion breaches any of the warranties or undertakings above and/ or suspend your account. If we do this, acting reasonably, no compensation will be payable to you.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 We shall retain exclusive license and/or ownership over all Campaign Content and associated materials that is produced by us and/or the Influencer for any Campaign and will make available the Campaign Content to you solely for the purposes set out in the Campaign Work Order for the duration of the Campaign.
7.2 You acknowledge and agree that we (or our licensees) own, solely and exclusively, all the intellectual property rights which include but is not limited to patents, rights to or unpatented inventions, patent applications, patents, design rights, copyrights (including related rights and future copyright), rights in designs, database rights, mask work rights, trademarks, service marks, trade names and domain names or rights, rights in confidential information (including know-how and trade secrets) in the Platform, the Site, the App and the Tailify trademark and that your use of the same does not grant to you any rights of ownership of our Platform, the Site, the App and/ or the Tailify trademark.
7.3 In relation to each Campaign and unless agreed in the Campaign Work Order, we will retain the ownership of the material devised, created, invented or commissioned by us in supplying the Services under these Terms of Business including any goodwill generated as a result of the Campaign.
7.4 You agree to execute or procure the execution of all such documents and take all such action as we may reasonably request to give effect to the terms of this clause.
7.5 You hereby grant us or procure the right to grant us for no additional cost the use of any Campaign Content material or branding that you provide to us, your brand trademarks, logos and other branding as we require in order to provide the Services. This right is in perpetuity on a royalty-free basis.
7.6 You agree to execute or procure the execution of all such documents and take all reasonable action as we may reasonably request to give effect to the terms of this clause.
7.7 You agree that the relevant Influencer is only obliged to keep the Campaign Deliverables on its personal social media channels or blog for 1 month following completion of the Services or otherwise for a period agreed between us and you as set out in the Campaign Work Order.
8.1 Each party (“Disclosing Party”) may from time to time before or during the continuance of these Terms of Business / Campaign Work Order disclose to the other party (“Receiving Party”) certain non-public, commercially proprietary or sensitive information, whether oral, in writing, machine-readable or in any other form and whether or not designated as “confidential” or “proprietary” or information that, by its very nature, the Receiving Party knows or should know is confidential (together, “Confidential Information”).
8.2 The Receiving Party agrees to use the same degree of care that it uses to protect its own confidential and proprietary information of similar importance, but in no event no less than reasonable care, to prevent the unauthorised use, disclosure, publication or dissemination of Confidential Information.
8.3 The Receiving Party will not disclose Confidential Information to any person or entity outside the Receiving Party's organisation other than professional advisors, consultants and subcontractors including cloud services providers without first obtaining written consent from the Disclosing Party. The Receiving Party may disclose the Confidential Information only to employees, professional advisors, consultants or subcontractors having a need to know in connection with discussing the Services.
8.4 We may collect, develop, create, extract, compile, synthesize, analyse and commercialize statistics, benchmarks, measures and other information based on Aggregated Data (collectively, “Blind Data”). Blind Data will be owned solely by us and may be used for any lawful business purpose. “Aggregated Data” means Customer Data that is: (i) anonymized and not identifiable to any person or entity; (ii) combined with the data of other customers or additional data sources.
9.1 Nothing in these Terms of Business is intended to, or should be construed to, create a partnership, agency, joint venture or agency relationship between us and you.
9.2 You are not authorised to make any representation, contract or commitment on our behalf (or on behalf of any of our Influencers, group companies, partners, affiliates, contractors and/ or agents) unless expressly requested in writing to do so by us.
10.1 We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors and for fraud or fraudulent misrepresentation.
10.2 Subject to clause 10.1 and a breach of clause 14 neither party shall be liable to the other party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the agreement for:
loss of business interruption or loss of data;
loss of anticipated savings;
loss of business opportunity, goodwill or reputation;
loss of profits, sales, business, or revenue; or
any indirect or consequential loss or damage.
10.3 Save for liability arising under clauses 6.2, 8, 10.1,10.2, 14 and/or payments due to us by you (where liability shall be unlimited) in all other circumstances the parties liability arising under these Terms of Business, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Terms of Business shall be limited in aggregate to the amount paid by you under the Campaign Work Order from which that liability arose.
10.4 You must conduct your own diligent enquiry before entering into any Campaign and we take no responsibility and or liability arising from any Influencers failure to perform.
11. TERM AND TERMINATION
11.1 Where you have executed a Campaign Work Order these Terms of Business shall continue to apply to both parties until terminated by either party serving thirty days written notice on the other party. All Campaign Work Orders will be governed by these Terms of Business.
11.2 You may not terminate these Terms of Business for convenience whilst a Campaign Work Order is in progress and in the event, you do then you will remain liable for payment of the Campaign Fees under the terminated Campaign Work Order.
11.2 On termination of these Terms of Business, all rights granted to you under these Terms of Business (including your right to use our Service or the Platform shall immediately cease and you must immediately remove or delete the App from all devices then in your possession, custody or control.
11.3 Any unpaid Campaign Fees shall become immediately payable at the date of termination of these Terms of Business.
11.4 Termination of these Terms of Business shall be without prejudice to our rights and remedies accrued in connection with these Terms of Business prior to the date of termination.
11.5 You acknowledge that those provisions that are intended to remain in force shall remain in force notwithstanding the termination of these Terms of Business.
11.6 On the termination or expiration of these Terms of Business any current Campaign Work Orders will be completed in accordance with the terms of that Campaign Work Order.
13. PRIVACY AND DATA PROTECTION LEGISLATION
13.2 By using our Services, the Platform, the Site and/ or the App, you agree to us listing and presenting information to Influencers about your brand and Campaign.
13.3 In this clause 13, "Data Privacy Laws" means all laws that relate to data protection, privacy, the use of information relating to individuals, and or the information rights of individuals including, without limitation, the Data Protection Act 1998, the Privacy and Electronic Communication (EC Directive) Regulations 2003 (as may be amended or replaced from time to time) and from 25 May 2018, the General Data Protection Regulation ((EU) 2016/679)); and "Personal Data means personal data as defined in the Data Privacy Laws.
13.4 Each party warrants that it shall fully comply with its obligations under the Data Privacy Laws and under all other applicable laws, enactments, regulations, orders, standards and other similar instruments relating to the control and processing of Personal Data.
13.5 To the extent that we act as a Data Processor, we shall:
process Personal Data only in accordance with your written instructions;
take appropriate technical and organisational measures against the unauthorised or unlawful processing of the Personal Data and against the accidental loss or destruction of, or damage to, such Personal Data;
disclose any information required under Data Privacy Laws on your written request; and
13.6 Neither party shall use any Personal Data for any purpose except:
to deliver the Services; and
to run the Campaigns in accordance with these Terms of Business.
14.1 For the duration of these Terms of Business and for twelve months following its termination (for whatever reason) you shall not attempt to contact and/ or engage an Influencer (whether directly or indirectly) that you have had contact with our Services, the App, Site or otherwise via us unless you have our prior written consent.
15. GENERAL PROVISIONS
15.1 You acknowledge and agree that we shall have the right to assign our rights or obligations hereunder and/ or to grant sub-licences of our rights. You shall not assign or sub-contract any of your rights or obligations under these Terms of Business or in any Campaign Work Order without our prior written consent.
15.2 Any waiver, amendment or modification of any provision of these Terms of Business or any right, power or remedy hereunder shall not be effective unless in writing. No failure or delay by us in exercising any right, power or remedy with respect to any of our rights under these Terms of Business shall operate as a waiver thereof.
15.3 If any provision of these Terms of Business is held by any competent authority to be invalid or unenforceable in whole or part the validity of the other provisions of these Terms of Business and the remainder of the provisions in question shall not be affected.
15.4 Notices required to be given under these Terms of Business may be delivered by hand, prepaid first- class post or email to the recipient at its registered address or email as notified from time to time to the sender by the recipient. Notices shall be deemed to have been given and served: i) if by hand, at the time of delivery; ii) if by prepaid first class post, 48 hours from the time of posting; or iii) if by email, at the time of sending if sent on a business day before 5:00pm or at 10:00am on the next business day in all other cases.
15.5 If a party is prevented, hindered or delayed in or from performing any of its obligations under this Terms of Business due to any circumstance not within a party's reasonable control (“Force Majeure Event”) the affected party shall not be in breach of these Terms of Business or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly provided the affected party, as soon as reasonably practicable, notifies the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under these Terms of Business. The effected party will use all reasonable endeavors to mitigate the effect of the Force Majeure Event on the performance of its obligations under these Terms of Business.
15.6 These Terms of Business are between you and us only. No third party [(including Influencers] or your clients, if you are an agency) shall have any right to enforce its terms, and for the avoidance of doubt, the Contracts (Rights of Third Parties) Act 1999 shall not apply to these Terms of Business.
16 APPLICABLE LAW AND DISPUTES
16.1 These Terms of Business are governed by and shall be construed in accordance with the laws of England and Wales.
16.2 In the event of a dispute, the parties shall attempt to resolve the dispute in good faith by senior level negotiations. Where both parties agree that it may be beneficial, the parties shall seek to resolve the dispute through mediation using the services of the Centre for Effective Dispute Resolution to facilitate the mediation process. Nothing in this clause shall preclude the right of either party to seek injunctive relief.
16.3 If the dispute is not resolved through negotiation or mediation both parties agree that the English Courts shall have exclusive jurisdiction in connection with the resolution of the dispute.
Date of last amendment: 5th November 2019