INFLUENCER LTD: BRAND TERMS AND CONDITIONS
1. INTRODUCTION
1.1 We are Bingern Sdn Bhd (Register no: 202201036240 (1481937-V)) whose registered office is at Wangsa 118, Our platform (“Platform”) enables Content Creators registered on it (“Content Creators”) to contact, and be contacted by brands (“you”, “your”) giving you the opportunity to engage with them when running Campaigns (as defined below).
1.2. By ticking “Accept” where indicated, applying for an account on the Platform (“Brand Account”) or by using the Platform, you agree that you shall be bound by these terms and conditions (“Terms”) in relation to your use of the Platform, our provision of it and our provision of the services and functionality as set out in these Terms (“Services”). Please read these Terms carefully as they contain important information about your rights and responsibilities when using the Platform and Services.
1.3. In consideration of us providing the Services and making the Platform available to you, you provide us details when applying for a Brand Account which we may publish on the Platform.
2. PLATFORM
2.1 In order to use the Platform and the Services, and when applying for a Brand Account, you will be required to provide us with certain details, as indicated on the Platform. We shall be under no obligation to accept an application from you and any application shall only be accepted following our written confirmation that the application has been successful. You must treat your login details (including any password) as confidential and not disclose them to any third party.
2.2 When you login to your Brand Account for the first time, you will be required to choose the basis on which you will subscribe to the Platform and the Services by selecting a subscription plan (“Subscription Plan”). On selecting a Subscription Plan, a contract is formed between you and us, which shall be subject to these Terms (“Contract”). You may upgrade or downgrade your Subscription Plan at any time via the Platform, which will take effect as set out in these Terms.
2.3 The Platform contains a tool which enables you to upload details of proposed advertising and marketing campaigns (“Campaigns”) in relation to which you would like Content Creators to create and upload social media content (“Content”). To upload a Campaign you will be required to add certain details and criteria about the Campaign as indicated on the Platform including but not limited to:
2.3.1 a Campaign brief;
2.3.2 Social media platform targets;
2.3.3 The deadline for applications for each Campaign (“Application Deadline);
2.3.4 The deadline for Content Creators to have submitted their draft Content to you for approval (“Draft Deadline”);
2.3.5 And the date following or on which the Content Creator is to upload their Content to their social media accounts (“Campaign Live Date”).
2.4 A “Proposal” is an offer either by you to a Content Creator or a Content Creator to you setting out the basis on which you will contract with the Content Creator in relation to a Campaign including:
2.4.1 The number of Content that the Content Creator will upload;
2.4.2 And The fee due to the Content Creator (“Content Creator Fee”).
2.5 When creating a Campaign, you can choose for it to be: “closed” whereby only you can send Proposals to Content Creators; or “open” whereby you can send Proposals to Content Creators and any Content Creators can send a Proposal to you.
2.6 The Platform facilitates the negotiation between you and the Content Creator regarding the terms of a Proposal. We shall have no involvement with such negotiations, any terms agreed or any involvement in the contractual relationship between you and the Content Creator. The “Campaign Agreement” is your contract with the Content Creator regarding their participation in your Campaign.
2.7 You are permitted to upload your own legal documents for use in each Campaign. We will not in any way review or approve these documents and it is your responsibility to ensure they are suitable for the Campaign.
2.8 Proposals must be agreed and accepted by you and the relevant Content Creators through the Platform (“Acceptance”), following which an invoice will be issued to your Brand Account and sent to you by email.
2.9 Following Acceptance, the Content Creator will submit draft Content to you via the Platform for you to either approve or reject (with your comments). If you
2.9.1 approve the draft Content, the Content Creator will upload the approved Content onto the agreed social media platforms on or after the Campaign Live Date (as set out in the Campaign Agreement);
2.9.2 reject the draft Content, the Content Creator will amend the draft Content in accordance with your comments and re-submit it.
3. YOUR RESPONSIBILITIES
3.1 You agree that all information you submit when creating your Brand Account or otherwise make available through the Platform is accurate, complete and not misleading, and that you shall immediately inform us of any changes to or inaccuracies in such information.
3.2 You represent and warrant on an on-going basis that your use of the Services and Platform, and each Campaign and each Content does not infringe the rights of any other person or body and complies with all applicable laws, regulations, codes and standards, including without limitation all applicable advertising standards and regulations concerning sponsored or advertorial content. Such obligation includes but is not limited to a responsibility on you to ensure that any Content include the necessary hash tag requirements that exist in respect of all applicable advertising standards and regulations.
3.3 You agree to promptly provide us with all such assistance and information in relation to the Services as we may reasonably request from time to time.
3.4 You shall ensure that you have and will maintain all necessary licences, consents and permissions necessary for you to make use of the Platform, conduct Campaigns, and engage Content Creators.
3.5 You shall ensure that your use of the Platform and the Services does not infringe the rights of any other person or body.
3.6 You agree that you shall not do any of the following without our prior written consent, either solely or jointly with or on behalf of any third party directly or indirectly:
3.6.1 reproduce or copy information or material from the Platform or any other material sent or made available to you by us or by a Content Creator (“Material”) or create derivative works from, modify or in any way commercially exploit any of the Material;
3.6.2 distribute, transmit or publish any of the Material (including using it as part of any library, archive or similar service); or
3.6.3 create a database in electronic or structured manual form by downloading and storing all or any of the Material for any purpose whatsoever.
3.7 Except as expressly set out in these Terms you undertake that you shall not, either solely or jointly with or on behalf of any third party directly or indirectly:
3.7.1 attempt to copy, duplicate, adapt, modify, create derivative works from or distribute all or any portion of the Platform or the Services;
3.7.2 rent, lease, sub-license, assign, sell, encumber, loan, translate, merge, adapt, vary or modify the Platform or the Services;
3.7.3 attempt to re-use, reproduce, reverse compile, disassemble, reverse engineer, attempt to discern any software, including source code, used by or otherwise relating to the Platform or the Services or otherwise reduce to human-perceivable form all or any part of the Platform or the Services;
3.7.4 use the Platform or the Services on behalf of any other party nor allow or permit a third party to do so or to have access to the Platform or the Services;
3.7.5 do (or by omission do) anything which may damage our reputation;
3.7.6 access, store, distribute or transmit any viruses, during the course of your use of the Platform or the Services;
3.7.7 remove or alter any copyright or other proprietary notice on any of the Platform or the Services; or
3.7.8 access or use all or any part of the Platform or the Services in order to build a product or service which competes with the Platform or the Services.
3.8 You undertake that you shall not access, store, distribute or transmit any material during your use of the Platform or the Services, in relation to the Content or in relation to your relationship with the Content Creator that:
3.8.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.8.2 facilitates illegal activity;
3.8.3 depicts sexually explicit images;
3.8.4 promotes unlawful violence;
3.8.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.8.6 in manner or content is otherwise illegal or causes damage or injury to any person or property.
3.9 In the event of a breach by you of clauses 3.7 or 3.8 we reserve the right, without liability or prejudice to our other rights under these Terms, to:
3.9.1 disable your access to the Platform or the Service; and
3.9.2 to remove from the Platform any Campaign that we believe, acting reasonably breaches clause 3.8.and in such circumstances no compensation will be payable to you.
4. OUR RESPONSIBILITIES
4.1 We shall have no responsibility for any act or omission of any Content Creator in any way whatsoever, including their compliance with any Campaign Agreement or the processes set out in these Terms.
4.2 We do not warrant that the use of the Services or the Platform will be uninterrupted or error-free and you acknowledge that we may make changes to the Platform, or suspend or terminate the Platform or Services or your access to them for any reason without notice to you.
4.3 We do not guarantee that the Services or the Platform will be secure or free from bugs or viruses. You are responsible for configuring your information technology, mobile device, computer programs and platform in order to access the Platform.
4.4 We assume no responsibility and shall not be liable for any loss or damage caused by a virus, or other technologically harmful material that may infect your computer or other equipment or other property on account of your access to, use of, or browsing of the Platform or any website linked to it.
5. FEES AND PAYMENT
5.1 In relation to each Campaign, you will pay to us (no later than the Campaign Live Date):
5.1.1 the Content Creator Fees, which we collect on behalf of the Content Creator; and
5.1.2 commission on the Content Creator Fees, as calculated in accordance with your Subscription Plan (“Campaign Commission”) as consideration for the
5.2 If you terminate a Campaign Agreement after the Application Deadline, the Campaign Commission (and, subject to the Campaign Agreement, the Content Creator Fees) shall become immediately payable and due.
5.3 The Subscription Plan may have subscription fees payable by you to us as set out when selecting a Subscription Plan, or updated by us from time to time (“Subscription Fee”). If your Subscription Plan does have Subscription Fees payable, your Subscription Fees shall be payable on formation of the Contract and then in advance as set out in your Subscription Plan.
5.4 If you upgrade your Subscription Plan in accordance with clause 2.2, the revised Subscription Fees shall be calculated from confirmation of the upgrade by us and payable on the next payment date (and we may request an interim payment to reflect your increased Subscription Fees).
5.5 If you downgrade your Subscription Plan, this will take effect as of your next payment date, and your Subscription Fees (and any changes in your rate of Campaign Commission) will be reduced from that point.
5.6 All amounts payable to us under the Terms are provided by such payment processor as we use from time to time (“Payment Processor”) and are subject to the Payment Processor terms of service and found at the following hyperlink: https://stripe.com/ie/connect-account/legal (“Terms of Service”). By agreeing to these Terms, you agree to be bound by the Terms of Service, as the same may be modified by the Payment Processor from time to time. As a condition of us enabling payment processing services through the Payment Processor, you agree to provide us with accurate and complete information about you, and you authorise us to share such info with the Payment Processor together with transaction information related to your use of the payment processing services provided by the Payment Processor.
5.7 All sums payable under these Terms shall be paid in pounds sterling and will be stated exclusive of VAT which shall, if applicable, be payable in addition.
5.8 If you fail to make any payment to us in accordance with these Terms, we may charge you interest at the rate of 4% above Barclays Bank UK plc’s base lending rate in force from time to time. Such interest shall accrue on a daily basis from the date the sums became due.
6. INTELLECTUAL PROPERTY & DATA PROTECTION
6.1 We, and / or our licensors, own all intellectual property rights (including but not limited to copyright, database rights, design rights and trade marks) (“Intellectual Property Rights”) in the Platform and the Services and your only right to use such rights is as set out in these Terms, any other use by you is prohibited.
6.2 The ownership of Intellectual Property Rights and all other rights in each Content shall be as provided for in accordance with the Campaign Agreement.
6.3 To the extent the use relates to the Campaign and to your marketing activities, you may use the name of a Content Creator with whom you have entered into a Campaign Agreement in association with the content of each Content produced by that Content Creator.
6.4 You grant us the right to use any content, material or branding provided or made available by you, including but not limited to the Content, Campaign and your trade marks, logos and other branding as we require in relation to the provision of the Services and in order to promote and market the Platform or Services such right to survive termination. You warrant that our use of such material in accordance with this clause 6.3 shall not infringe the Intellectual Property Rights or other rights of any third party
6.5 Our privacy policy contains details of how we use the information we hold about you and can be found on the Platform or such other website address as may be notified to you from time to time.
6.6 If we process any personal data on your behalf when performing our obligations under the Terms, you and we record our intention that (save as set out in our privacy policy) you shall be the data controller and we shall be a data processor and in any such case:
6.6.1 you acknowledge and agree that the personal data may be transferred or stored outside the EEA or the country where you are located in order to carry out the Services and our other obligations under the Terms;
6.6.2 you shall ensure that you are entitled to transfer the relevant personal data to us so that we may lawfully use, process and transfer the personal data in accordance with these Terms on your behalf;
6.6.3 you shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; and
6.6.4 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
7. TERMINATION
7.1 Either of we or you may terminate the Contract immediately for any reason by giving written notice to the other party save that your right to terminate is subject to the completion of any live Campaigns.
7.2 On termination of the Contract (for any reason):
7.2.1 you shall immediately pay to us any and all sums outstanding as at the date of termination including the payment of all Campaign Commission and Content Creator Fees (including in relation to any Campaign Agreements agreed following termination);
7.2.2 you shall (subject to any temporary use or engagement we allow at our discretion in relation to any existing Campaigns) stop all use of the Platform and engagement with Content Creators;
7.2.3 all Campaign Agreements will terminate, unless otherwise permitted;
7.2.4 the accrued rights of us or you as at termination or the continuation of any provision expressly or by implication intended to survive termination shall not be affected or prejudiced; and
7.2.5 we shall have the right to delete any or all of the information you have uploaded to the Platform during the term of the Contract.
7.3 Following termination of the Contract by us, we have the right to cancel any existing Campaigns and, to the extent we do not, any live Campaigns will continue to operate subject to these Terms until the Campaigns are completed
8. CONFIDENTIALITY
8.1 You undertake that you shall keep secure and not at any time disclose to any person any information relating to us or any of the Content Creators which we reasonably consider to be confidential, including but not limited to details of our relationships with or knowledge of the Content Creators; details of our business methods, finances, prices or pricing strategy, marketing or development plans or strategies and any other information made available to you via the Platform or Services which is or ought reasonably to be considered confidential in nature (“Confidential Information”) without our prior written consent, except as permitted by clause 8.2.
8.2 You may disclose Confidential Information as required by law or to your employees, officers, sub-contractors, representatives or advisers who need to know such information for the purposes of carrying out your obligations under the Contract, provided that you shall ensure that such employees, officers, sub-contractors, representatives and advisers comply with this clause 8.
8.3 You shall not use the Confidential Information for any purpose other than to perform your obligations under the Contract.
9. COMPETITION
9.1 For the duration of the Contract and for one year following termination (and, to the extent any Campaign Agreement persists longer than this, for one year following any Campaign Agreement), you shall not attempt to engage (whether directly or indirectly) any Content Creator that you have had contact with via the Platform, other than through us or the Platform without our prior written consent.
9.2 For each Campaign, to the extent permitted by your selected Subscription Plan, you have the ability to impose a non-compete obligation on every Content Creator that enters into a Campaign Agreement. If you have activated the non-compete obligation and a Content Creator enters into a Campaign Agreement with you in respect of a Campaign, the Content Creator agrees that it shall not be involved in activities whether online or otherwise in connection with any business involved in the manufacture or supply of goods or services which may compete with the goods or services to which the Campaign related. Such non-compete restriction shall continue for a period of 30 days after the Content has been uploaded, or if no Content is uploaded, for 30 days after the Campaign Agreement has been entered into.
9.3 Where you impose a non-compete obligation on a Content Creator through a Campaign Agreement, we shall not be responsible in any way for enforcing such obligations on the Content Creator or for restricting their activities on the Platform.
10. NON-CIRCUMVENTION & GOOD FAITHNITY
10.1 You shall not in any manner, directly or indirectly attempt to circumvent the operation of this Agreement or the introduction of any Content Creator so as to otherwise deprive us of any of the benefits intended under or pursuant to this Agreement.
10.2 The parties acknowledge that the fee arrangement pursuant to this Agreement shall be applicable to all future business following the introduction of Content Creators originally introduced by us to you through the Platform or otherwise in respect of any Campaign hosted by you on the Platform, for the duration of the Contract and one (1) calendar year thereafter. You acknowledge that any fees payable will still be due to us. This provision and any other provision capable of surviving or intended to survive termination shall survive termination of this Agreement.
10.3 You hereby acknowledged, agree and declare that you owe Influencer Ltd a duty of utmost good faith in relation to your respective obligations under this Agreement, the Platform and your relationship with the Content Creators or any contacts and clients that we may introduce to you through the Platform or otherwise from time to time.
11. INDEMNITY
11.1 You agree to indemnify us and keep us indemnified against all and any expenses, losses, liabilities, damages, costs (including reasonable legal costs) incurred or suffered by us in relation to any claims or proceedings, which arise in any way from:
11.1.1 your use of the Platform and the Services;
11.1.2 any breach by you of these Terms;
11.1.3 any use of the Platform or the Services by anyone using your Brand Account; or
11.1.4 any claim made by a Content Creator concerning your interaction with them.
11.2 This clause 10 shall survive termination of the Contract.
12. LIABILITY
12.1 Nothing in these Terms excludes or limits our liability for death or personal injury arising from our negligence, or our fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by English law.
12.2 To the extent permitted by law, we exclude all conditions, warranties, representations or other terms which may apply to this Contract or the Platform or the Services, whether express or implied and the Platform and the Services are provided on an “as is” basis.
12.3 We shall not be liable whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any loss of profits, reputation, business, goodwill, data, or for any special, indirect or consequential loss, costs or damages, whether it is foreseeable, known, foreseen or otherwise, under or in connection with the Platform, Services or this Contract. This exclusion of liability shall apply to all such losses whether they are direct, indirect or consequential losses.
12.4 Subject to clauses 12.1 and 12.3, our total aggregate liability in contract, tort (including negligence), breach of statutory duty, or otherwise, under or in connection with this Contract shall be limited:
12.4.1 to the extent that the liability relates to any specific Campaign, shall be limited to an amount equal to the Campaign Commission relevant to that Campaign; and
12.4.2 in any event, shall not exceed in any 12 month period (commencing on the Contract start date and its anniversary thereafter) 100% of the Subscription Fees and Campaign Commission paid by you under these Terms in such 12 month period.
12.5 We provide a facilitation Platform for brands and Content Creators, we do not represent, investigate, or contract on behalf of any Brands or Content Creators. As such, by entering into a Campaign Agreement you agree that our only responsibility is as set out in clause 12.6 below 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 an Content Creator. We will not carry out any checks in relation to Content Creators and shall in no way be responsible or liable for their acts or omissions or for any damage or problem caused by them. You must conduct your own due diligence and enquiries before entering into any Campaign Agreement. Our only obligation to you in relation to this shall be to provide you with the assistance set out at clause 12.7 below. You accept all risks in relation to the Content Creators and their contributions to the Campaign.
12.6 To the extent we are in breach of this Contract, the only liability we may have to you in relation to a Campaign or a Content Creator shall be:
12.6.1 to the extent that we make any errors or provide inaccurate information concerning a Content Creator, provided the error or inaccuracy was entirely our mistake and not the mistake of the Content Creator;
12.6.2 to the extent that we make any error in relation to the Campaign itself again provided such error was our mistake and not the mistake of the Content Creator; or
12.6.3 to the extent that we misappropriate or mislay Content Creator Fees paid by you and held by us for the Content Creator.
12.7 Where there is any dispute between you and a Content Creator regarding a Campaign Agreement, we shall provide such assistance to you as we consider to be reasonable in the circumstances, but we will not be responsible for resolving or mediating such dispute. Any such disputes must be taken up by you with the relevant Content Creator who is responsible directly to you for such matters. We shall only refund, distribute, recover or assist in the recovery of any Content Creator Fees at our sole discretion, and otherwise shall have no responsibility for such except under clause 12.6.3. Any Campaign Commission is non-refundable.
13. CONTACT
13.1 If you wish to contact us in writing, or if any clause in these Terms requires you to give us notice in writing (for example, to terminate the Contract), you can send this to us by email to contact@bingern.com.
13.2 If we have to contact you or give you notice in writing, we will do so by e-mail or by sending a notification to your Brand Account.
14. OTHER IMPORTANT TERMS
14.1 We shall not be in breach of our responsibilities under these Terms nor liable for any delay in performing, or failure to perform, any of our responsibilities under these Terms if such delay or failure results from events, circumstances or causes beyond our reasonable control.
14.2 We shall be entitled to change these Terms at any time in our sole discretion by providing an updated copy of these Terms on the Platform. For the avoidance of doubt, your use of the Platform following any update to these Terms shall be deemed as acceptance of those updates which (following such acceptance) shall apply to the Contract with effect from the day they were uploaded to the Platform. Any other variation of the Contract (other than as permitted under these Terms), shall only be effective if it is agreed in writing and signed by us.
14.3 We shall be entitled to change the Services or the Subscription Fees at our sole discretion. We will give you not less than one month’s notice of such changes unless there is an important business reason why shorter notice needs to be given.
14.4 Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between you and us, constitute either you or us as the agent of the other, or authorise either you or us to make or enter into any commitments for or on behalf of the other.
14.5 We may transfer our rights and obligations under these Terms to a third party. You are not entitled to assign or transfer your rights or obligations under these Terms unless we consent in writing.
14.6 The Contract is between you and us. No other person shall have any rights to enforce any of its terms and for the avoidance of doubt, the Contracts (Rights of Third Parties) Act 1999 shall not apply to these Terms.
14.7 The Contract constitutes the entire agreement between you and us in relation to your use of the Platform and the Services.
14.8 Each of the clauses of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining clauses will remain in full force and effect.
14.9 If we fail to insist that you perform any of your obligations under the Contract or in law, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
14.10 The Contract shall be governed and interpreted in accordance with English law. You and we both agree to submit to the exclusive jurisdiction of the English courts.