PLEASE READ THESE TERMS CAREFULLY BEFORE APPLYING TO BE AN INFLUENCER. THEY SET OUT THE CONTRACT BETWEEN YOU AND US FOR YOUR USE OF OUR SERVICES, INCLUDING MARKETPLACE.
Date of last amendment: 8 January 2018.
1. HELLO AND WELCOME!
A. We are Tailify Software Limited (Company number 10127861), C/O The Office Group, White Collar Factory, 1 Old Street Yard, EC1Y 8AF, London, United Kingdom ("Tailify"; "us"; "our"; "we").
B. You may choose to engage with us by applying to use Marketplace, which is an online and mobile application technology platform. Marketplace allows brands, advertisers and media agencies ("Brands") to explore our community of content creators ("you", "your", "Influencer") to engage with you to contribute to and participate in the Brand's advertising campaigns ("Campaigns") by posting endorsement content onto your own website blog or personal social media account.
D. We recommend you print and retain a copy of the Agreement for your future reference, but remember that we may amend the Agreement from time to time. For your reference, we'll add the date each time we change it. If you continue to use Marketplace after the date we change the Agreement, you'll be deemed to accept the changes.
F. In the case of any inconsistency, the following order of preference shall apply:
i. These Terms;
iii. Terms of Website Use.
2. CONTRACT FORMATION
A. In order to use the Marketplace, you will need to complete the Marketplace Influencer application process. We may decide whether to accept your account application in our sole discretion. When you accept our Terms, by ticking the box when you apply to be an Influencer, and we notify you of our acceptance of your application, a contract is formed between you and us, subject to the terms of this Agreement.
B. We will evaluate your application to become an Influencer and will notify you if your personal blog and/or social media account detailed in your application ("Blog") is deemed by us (in our sole discretion) to be suitable for the Marketplace.
C. Any Blog containing pornographic, violent or illegal material will not be accepted.
D. You agree to allow us access to your Blog in order to evaluate your application and, if your application is successful, use Marketplace. We will not interfere with or edit your Blog. If you wish to add any additional Blog(s) (other than those detailed in your original application), you must obtain our prior written consent (to be given in our absolute discretion).
E. Please note that we are under no obligation to provide you with one or more Proposals (defined below) and registration for the Marketplace is not a guarantee that Proposals will be offered to you.
3. FEES, PUBLISHING CAMPAIGNS AND CONTRACTING WITH BRANDS.
A. Upon your successful registration as an Influencer, we will provide to you via Marketplace or via email offers from Brands of advertising assignments related to Campaigns in which you may participate ("Proposals" and each a "Proposal"). Specific details of each Proposal, outlining what you need to do to participate in a Campaign, the type of content to be created and/ or posted (which may be text, imagery, a flash ad, HTML ad or video or any combination of the same), details of where, when and for how long the content should be posted, intellectual property rights ownership and the amount payable to you (or goods to be provided in lieu of payment) for the Campaign will be detailed in the Proposal. You may negotiate the Proposal terms (including the amount payable) via the Marketplace.
B. If a Brand invites you to participate in a Proposal, you respond to the invitation via Marketplace and the Brand selects you from the pool of Influencers who respond to the Proposal, you will be bound with the Brand by the terms of the Proposal which will be the contract between you and the Brand regarding the Campaign.
C. You may not post any Influencer content until it has been approved by the Brand via the Marketplace.
D. Subject to you not being in default of the Agreement or the Proposal, you will be paid the relevant amount for the Campaign (via Marketplace) in full and final settlement following the date you have posted your Influencer content, provided Marketplace has received payment from the Brand. You are responsible for ensuring that the account/ PayPal details you provide to us are correct and we will not be under an obligation to make a further payment if the details you provide to us are incorrect. We will not be liable for any fluctuations in exchange rates nor any transaction costs incurred in the use of PayPal or any other means of payment.
E. The Marketplace enables you and the Brand to agree Proposal terms directly. We have no involvement in, and are not a party to, the contractual relationship between you and the Brand. We have no liability to pay your fees unless Marketplace has been paid by the Brand.
4. YOUR RESPONSIBILITIES AND PROMISES, A.K.A. WARRANTIES AND UNDERTAKINGS
A. You warrant and undertake on an ongoing basis that:
i. you are over 18 years of age;
ii. you have full authority to enter into this Agreement 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;
iii. all content you post in relation to any Campaign including but not limited to text, photographs, original artwork or videos ("Influencer Content") will be original and created by you for the specific Campaign;
iv. you are exclusively entitled to give all assurances, confirmations, waivers and agreements set out in the Agreement to enable Brands (and Marketplace, our group companies, partners, affiliates, contractors and/ or agents) to exploit the Influencer Content without making any further payment other than as expressly set out;
v. unless otherwise agreed by the Brand, you will procure that Influencer Content in relation to any Campaign will remain live on your Blog (as identified in the Campaign Instruction) for a period of thirty (30) consecutive days from initial posting;
vi. you will not at any time make any disparaging, defamatory or derogatory statement about or do anything detrimental to the reputation or business of Marketplace, any Campaign, our Brands (including the products or services of any of the Brand's other group companies) or our group companies, partners, affiliates, contractors and/ or agents;
vii. Influencer Content will not incorporate any material that:
infringes the copyright or any other rights of any third party, including any right of confidentiality or privacy;
is unlawful or illegal;
causes damage or injury to any person or property;
contains any obscene, profane, blasphemous, libellous, threatening, pornographic, bullying, harassing, hateful, racially or ethically offensive or defamatory matter;
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.
viii. Influencer Content and your use of Marketplace will be compliant with all applicable laws, regulations, codes and standards, including without limitation all applicable advertising standards and regulations;
ix. use of the Influencer Content by us, Brands (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 (and you agree that you shall immediately inform us if you become aware of any such claim);
x. you have at least 5,000 real followers of your Blog (meaning for the avoidance of doubt user accounts where there is an actual person behind the account who has not been paid to follow your Blog) and you will take all reasonable measures to ensure that all followers of your Blog are real followers; and
xi. you will use the hashtag #ad, #advert, #paid or #spon on all Influencer Content in order to disclose Brand co-operation.
B. Whilst we have no obligation whatsoever to monitor the content or materials you upload to Marketplace, we may, in our sole discretion and without prior notice to you, remove any Influencer Content which in our reasonable opinion (or the reasonable opinion of the Brand) breaches any of the warranties or undertakings above and/ or suspend or terminate your account. If we do this, acting reasonably, no compensation will be payable to you.
C. Unless you have our prior written consent, you agree that you will not, either yourself or with others:
reproduce or copy information or material, creative derivative works, or in any way modify or exploit material from the Marketplace;
create a database in electronic or structured form by downloading and/ or storing any of the Marketplace material for any purpose whatsoever; and/or
use or in any way exploit material from the Marketplace to compete with the Marketplace or Tailify's services.
5. OUR RESPONSIBILITIES
You agree that we have no responsibility for any acts or omissions of the Brands as they are fully independent from us. The Marketplace acts merely as a technology platform facilitator for your interaction and agreement with Brands.
6. INTELLECTUAL PROPERTY RIGHTS
A. You acknowledge and agree that we (or our licensees) own, solely and exclusively, all the intellectual property rights in Marketplace, the Site and the Tailify trade mark and that your use of the same does not grant to you any rights of ownership of our Marketplace, the Site and/ or the Tailify trade mark.
B. In relation to each Campaign, you will agree the intellectual property rights ownership position as between you and the Brand in the Proposal, including the Brand's rights to use your name and image in association with the Campaign and the treatment of any goodwill generated as a result of the Campaign.
C. You grant us or procure the right to grant us the use of any content, material or branding uploaded onto the Marketplace or otherwise provided to us, including Influencer Content in order to provide the Marketplace and any other services and promote the Marketplace and Tailify globally on any media in perpetuity on a royalty-free basis.
D. 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.
E. You hereby grant to us a non-exclusive, perpetual, irrevocable and royalty free licence to use, solely in connection with the Marketplace and the promotion of the Marketplace, your name, image, character, likeness and/ or signature.
7. CONFIDENTIALITY AND ANNOUNCEMENTS
A. You undertake to keep confidential your log- in and password and any information of which you become aware by virtue of this Agreement or any Assignment or Proposal relating to any Campaign or to us, Brands, our clients, our group companies, partners, affiliates, contractors and/ or agents or the clients, customers, business, business plans or affairs of us or any of our Brands clients, group companies, partners, affiliates, contractors and/ or agents which is proprietary and confidential to us or our clients, Brands, group companies, partners, affiliates, contractors and/ or agents ("Confidential Information").
B. Confidential Information shall exclude information which:
i. at the time of receipt by you is in the public domain;
ii. subsequently comes into the public domain through no fault of yours;
iii. is lawfully received by you from a third party on an unrestricted basis;
iv. is already known to you before receipt; and/or is required to be disclosed by law, regulation or order of competent authority, provided that you give to us (to the extent you are legally able) reasonable advance notice of the intended disclosure.
A. You agree that during the course of this Agreement and for all purposes whatsoever, you are and will at all times be an independent contractor. You acknowledge and agree that you are not and will not be an employee of us (or of our clients, Brands, group companies, partners, affiliates, contractors and/ or agents) and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship between us and you.
B. You are not authorised to make any representation, contract or commitment on our behalf (or on behalf of any of our clients, Brands, group companies, partners, affiliates, contractors and/ or agents) unless expressly requested in writing to do so by us.
C. You shall be solely responsible for the payment of and shall pay any and all taxes and other payments payable on account of the fees ("Tax Payments").
You hereby indemnify us and our group companies, partners, affiliates, contractors (excluding you) and/ or agents (together the "Indemnified Parties") and agree to keep the Indemnified Parties indemnified against all actions, losses, demands, proceedings, charges, costs (including reasonable legal costs), claims and damages whatsoever incurred by or awarded against the Indemnified Parties and compensation agreed by the Indemnified Parties in consequence of any breach or non-performance by you of any provision of this Agreement, including but not limited to the warranties and undertakings set out in clause 4 of these Terms and any failure by you to make any Tax Payments.
10. LIMITATION OF LIABILITY
A. 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.
B. We provide the Marketplace 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 that may apply to this Agreement, our service, the Marketplace, the App (or any content on them) or any Proposal or Campaign.
C. We provide no warranty that your application to become an Influencer will be successful, that if you are accepted as an Influencer that you will be offered a Proposal, or that you will ever be offered an Proposal that you wish to accept.
D. We will not be liable to you for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with:
i. use of, or inability to use the Marketplace or the Site;
ii. any errors or omissions on the Site, the Marketplace, the Proposal, the Campaign or the providing of any of the foregoing to you;
iii. the unavailability or interruption of the Marketplace or the Site; and/or
iv. use of or reliance on any content displayed on our Site, the Marketplace, any Proposal and/or any Campaign.
E. In particular, we will not be liable for:
i. loss of profits, sales, business, or revenue;
ii. business interruption or loss of data;
iii. loss of anticipated savings;
iv. loss of business opportunity, goodwill or reputation; and/or
v. any indirect or consequential loss or damage.
F. To the extent we are in breach of the Agreement, the only liability we may have to you in relation to a Campaign shall be:
i. if we provide inaccurate information concerning a Brand, provided the error or inaccuracy was entirely our mistake and not due to incorrect information provided to us by the Brand;
ii. if we make any error in relation to the Campaign itself, again provided such error was our mistake and not the mistake of the Brand; or
iii. if we have been paid by a Brand yet we have not paid you your fees in accordance with the Proposal and/or the terms of this Agreement.
G. Tailify's Marketplace and Site are technology platforms for our Brands and Influencers. As such, we do not represent or contract on behalf of any users of our technology. By entering into a Proposal with a Brand, you agree that Tailify's only responsibility is as set out in clause 10 (F) above and that we are not responsible for and shall not be liable to you, or to any third party, in relation to a Campaign or for any acts or omissions of a Brand. We are in no way responsible or liable for the Brand's acts or omissions or for any damage or issues they cause you. You must conduct your own diligent enquiry before entering into any Proposal for a Campaign. Our only obligation to you in relation to this shall be to provide you with the assistance set out at clause 10 (H) below. You accept all risks in relation to the Brands.
H. Where there is any dispute between you and a Brand regarding a Proposal, we shall provide reasonable assistance where it is prudent to do so, but we will not have any responsibility for resolving or mediating such dispute.
I. Our aggregate liability in connection with the Site, the Marketplace our Service and any Proposal and/ or Campaign shall not exceed £100 and that amount shall be in lieu of all other remedies which you may have against us, our group companies, partners, affiliates, contractors and/ or agents.
J. In the event of a breach by us of this Agreement, you confirm that the recovery of damages (if any) would be an appropriate remedy and you shall not try to injunct or stop the release or distribution of the Influencer Content in any Campaign or otherwise.
11. TERM AND TERMINATION
A. Your Influencer Account and this Agreement will commence when we accept your application to become an Influencer ("Commencement Date") until terminated by either you or us on 30 day's written notice. However, you may not terminate this Agreement for convenience whilst you have a live Proposal in progress with a Brand. If we terminate this Agreement before the completion of an Assignment, you will, provided only that you are not in breach of this Agreement and have fully complied with the Proposal, be paid on a pro rata basis for work undertaken.
B. On termination of this Agreement, all rights granted to you under this Agreement (including your right to use the Marketplace and the Site) shall immediately cease and you must immediately remove or delete the App from all devices then in your possession, custody or control. You shall at our written request, destroy any and all information and/ or materials in your possession that come from use of the Marketplace.
C. Termination of this Agreement shall be without prejudice to our rights and remedies accrued in connection with this Agreement prior to the date of termination.
D. You acknowledge that the provisions of this Agreement that are intended to remain in force shall remain in force notwithstanding the termination of this Agreement.
12. YOUR PERSONAL INFORMATION
B. By using the Marketplace, you agree to us listing and presenting information to potential Brands about you as an Influencer (including but not limited to the number of followers of your Blog and details of your previous Campaigns).
13. RESTRICTIONS ON CONTACTING BRANDS OUTSIDE MARKETPLACE
For the duration of the Agreement and for one year following its termination (for whatever reason), you shall not attempt to contact and/ or engage a Brand (whether directly or indirectly) that you have had contact with via the Marketplace or otherwise via Tailify unless you have our prior written consent (to be given in our complete discretion).
14. GENERAL TERMS
A. You acknowledge and agree that we shall have the right to assign our rights or obligations hereunder. You shall not assign or sub-contract any of your rights or obligations under the Agreement without our prior written consent.
B. The Agreement incorporating these terms constitutes the entire agreement between us and you in relation to its subject matter and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter.
C. Any waiver, amendment or modification of any provision of this Agreement 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 this Agreement shall operate as a waiver thereof.
D. If any provision of this Agreement is held by any competent authority to be invalid or unenforceable in whole or part the validity of the other provisions of this Agreement and the remainder of the provisions in question shall not be affected.
E. Notices required to be given under this Agreement 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.
F. You agree that our Agreement shall be construed in accordance with English law and shall be subject to the exclusive jurisdiction of the courts of England & Wales.
G. This Agreement is between you and us only. No third party (including Brands) 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 this Agreement.