Scope and application
SwayBrand has created a web-based service and application which, together, are the SwayBrand platform (“Platform”). The Platform allows influencers and celebrities (collectively “Influencers”) to, amongst other things, engage with businesses, products, or marketers (collectively “Brands”) to create and release content created by Influencers (“Content”). Any Content or events (“Events”) that an Influencer posts (collectively “Endorsement Opportunities”) and is subsequently purchased by a Brand will result in an endorsement (“Endorsement”). The obligations of both parties to the Endorsement shall result in an agreement (“Endorsement Agreement”).
This Agreement supersedes any prior agreement or proposal that You have agreed to, oral or written, between You and SwayBrand relating to use of the Platform and Services. In the event of any conflict between the terms of this Agreement and any previous agreement, the terms of this Agreement will control.
THIS AGREEMENT SHOULD BE READ CAREFULLY. BY ACCESSING OR USING THE PLATFORM, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT. IN ADDITION, BY CLICKING A BOX STATING THAT YOU ACCEPT OR AGREE TO THESE TERMS, YOU AGREE TO BE BOUND BY THIS AGREEMENT. THIS AGREEMENT SHALL CONTINUE UNTIL TERMINATED AS SET FORTH HEREIN. YOU MUST NOT ACCESS OR USE THE PLATFORM OR SERVICES IF YOU DO NOT AGREE TO THE TERMS SET FORTH IN THIS AGREEMENT.
You may be required to establish an account on the Platform (the “User Account”) and will receive a username and password credentials from SwayBrand (“Account ID”) that You will need in order to use the Platform. Each Account ID is for personal use and should be kept secure. You may not share or distribute Your User Account or Account ID with anyone. You shall not collect or harvest any personal data of any other user of Platform including, but not limited to, account names. You will ensure the confidentiality of Your Account ID and will notify SwayBrand immediately if any Account ID is lost, stolen, or compromised in any way. SwayBrand reserves the right to disable any User Account at any time in SwayBrand’s sole discretion. Any transactions consummated through the use of Your Account or Account ID will be deemed to have been lawfully completed by You. You are fully responsible for all damages or liabilities incurred through the use of Your Account.
The Platform is provided solely (the “Permitted Use”) to: (1) assist You in gathering information about the various types of Endorsement Opportunities and Brands available on the Platform, including profiles, price ranges, and descriptions; (2) enable You to post Endorsement Opportunities and to communicate with Brands; (3) post reviews of Brands and Influencers; (4) facilitate communication with Influencers with the objective of entering into an Endorsement Agreement; and (5) facilitate the transmission of payments from the Brand to Influencer under an Endorsement Agreement (collectively “Platform Services”).
By using the Platform, You agree to allow Brands to purchase Your Endorsement Opportunities and communicate directly with You on the Platform. You are solely responsible for all Communications with Brands through the Platform. Your choice to share Your information and Endorsement Opportunities with Brands or accept an Endorsement Agreement from a Brand, will serve as Your affirmative decision to consent to the disclosure by the Platform of Your Personal Information and Endorsement Opportunities to Brands.
You agree not to use, access, modify, reproduce, perform, display, create derivative works from, republish, post, transmit participate in the transfer or sale of, or in any way exploit or utilize the Platform other than as expressly authorized in this Agreement or any agreement You are required to assent to before accessing the Platform.
You are fully responsible for the Content and other Endorsement Opportunities, specifically including, but not limited to, videos and photos posted to the Platform. You shall not post or transmit to or from the Platform: (a) any unlawful, threatening, libelous, defamatory, obscene, pornographic, or other material or content that would violate rights of publicity and/or privacy, or that would violate any law; (b) any commercial material or content (including, but not limited to, solicitation of funds, advertising, or marketing of any good or services); and (c) any material or content that infringes, misappropriates or violates any copyright, trademark, patent right or other proprietary right of any third party. You shall be solely liable for any damages resulting from any violation of the foregoing restrictions, or any other harm resulting from Your posting of Endorsement Opportunities to the Platform. You acknowledge that SwayBrand may exercise its rights (e.g. use, publish, delete) to use any Endorsement Opportunity without any notice to You.
You are not permitted, without the express written permission of SwayBrand, to use the Platform and Endorsement Opportunities therein for purposes other than those set forth in the Permitted Use and Access sections. You shall not and shall not permit anyone else to: (a) use the Platform in an unlawful manner or in any other manner that could damage, disable, overburden or impair the Platform; (b) use automated scripts or any manual processes to collect information from or otherwise interact with the Platform; (c) alter, modify, reproduce, create derivative works of Platform; (d) distribute, sell, resell, lend, loan, lease, license, or transfer any of Your rights to access or use the Platform or otherwise make the Platform available to any third party; (e) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Platform; (f) attempt to circumvent or circumvent any technological protection measures intended to restrict access to any portion of the Platform; (g) monitor the availability, performance or functionality of the Platform; (h) remove or permit others to remove, any watermarks, labels or other legal notice included in any Endorsement Opportunity or on the Platform; (i)interfere with operation or hosting of the Platform; (j) upload to or transmit through the Platform any information, text, data, images or content of any kind that is offensive, hateful, obscene, defamatory, or otherwise in violation of any laws; (k) use or access the Platform in a manner that violates the rights of any third party.
Facilitating Payments Withholding Consent
If SwayBrand facilitates the transmission of any payments from the Brand to You in connection with an Endorsement Agreement (each, a “Facilitated Payment”), SwayBrand may in its sole discretion withhold from any such Facilitated Payment any amounts that are payable to SwayBrand by the applicable Brand in connection with that Endorsement Agreement. SwayBrand is not Your trustee or fiduciary in respect of any Facilitated Payments or any Endorsement Agreements. SwayBrand reserves the right, at its sole discretion, to place a hold on a Facilitated Payment, if SwayBrand determines that the funds may be subject to a breach of applicable law (e.g. fraud or money laundering), or if SwayBrand is required to cooperate with law enforcement.
This Agreement may be terminated by either party, at any time, in that party’s sole discretion. If SwayBrand is the terminating party, You will receive notice via electronic mail to the email address on file with SwayBrand. Upon termination of this Agreement: (a) any and all rights and subscriptions granted to You under this Agreement shall terminate; (b) You will cease all use and access to the Platform and all Endorsement Opportunities, immediately; (c) You may delete Your Account and any of Your Content held by SwayBrand at any time.
By You. By accessing or using the Platform or by accepting these Terms, You hereby warrant that:
(a) You have the legal right and authority to enter into this Agreement;
(b) this Agreement forms a binding legal obligation on You;
(c) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement.
By SwayBrand. We represent and warrant that: (a) we have the right, power and authority to enter into and to perform pursuant to this Agreement; and (b) the service provided hereunder will be performed in a professional and workmanlike manner in accordance with industry standards. In the event that SwayBrand breaches this warranty, SwayBrand will, to the extent possible, re-perform the services in a manner consistent with the warranty, with the understanding that re-performance is the sole and exclusive remedy for any breach.
THE PLATFORM, ENDORSEMENT OPPORTUNITIES, AND ASSOCIATED TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. SWAYBRAND EXPRESSLY DISCLAIMS, AND YOU DISCLAIM ANY RELAINCE 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 AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SWAYBRAND, SWAYBRAND EMPLOYEES, OR SWAYBRAND AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES TO, WARRANTIES SET FORTH EXPRESSLY IN THIS SECTION.
SWAYBRAND MAKES NO GUARANTEES ABOUT THE AVAILABILITY OF SPECIFIC BRANDS, CONTENT, OR TYPES OF ENDORSEMENT OPPORTUNITIES.
BRANDS ENGAGING INFLUENCER SERVICES THROUGH THE PLATFORM ARE INDEPENDENT ORGANIZATIONS. THEY ARE NOT CONTRACTORS, AGENTS OR EMPLOYEES OF SWAYBRAND. SWAYBRAND IS NOT LIABLE FOR ANY ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES, OR NEGLIGENCE OF ANY BRANDS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE OR OTHER DAMAGES RESULTING THEREFROM AND TAKES NO RESPONSIBILITY WHATSOEVER RELATED TO ANY CONTENT OR ENDORSEMENT OPPORTUNITIES OR ENDORSEMENT AGREEMENTS.
THE LIMITATIONS EXPRESSED IN THIS PARAGRAPH REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES.
You shall indemnify, hold harmless, and defend SwayBrand and all of its officers, directors, employees and agents from and against any claims, causes of action, recoveries, losses, damages, penalties, fines or other costs or expenses of any kind or nature including, but not limited to, reasonable legal and accounting fees, brought in connection with or as a result of: (1) Your violation of any law(s) or rights of a third party; (2) Your access to or use of the Platform; (3) failure to perform or breach of any Agreement reached by You or any third party acting on Your behalf; (4) the use of any media content created by You or someone acting on Your behalf, or (5) Your breach of any warranties, representations or obligations as set forth in this Agreement and any documents referenced therein.
Six Month Exclusivity
For a period of six (6) months commencing on the later of: (i) the date when You last communicated with a Brand in respect of Endorsement Opportunities, whether through the Platform or otherwise, and (ii) the execution date of an Endorsement Agreement entered into with a Brand (the “Commencement Date”), neither You nor Your agents or affiliates will enter into an agreement directly or indirectly with such Brand for the creation of any promotional media content or event appearances, subject to the following exemptions: (a) The agreement you are entering into with the Brand is an Endorsement Agreement, in respect of which SwayBrand will receive a fee as provided for thereunder; or (b) You were engaged in good-faith negotiations with the Brand for the creation of that promotional media content or event on or before the Commencement Date; or (c) You are renewing a pre-existing agreement with the Brand that expired after the Commencement Date.
All content, including (without limitation) all designs, infrastructure graphics, pictures, illustrations, software, artwork, video, music, sound, names, words, titles, phrases, logos and marks displayed on the Platform, are owned or licensed by SwayBrand and are protected by copyright, trademark and other intellectual property laws.
The downloading and viewing of Platform is done at Your own risk. SwayBrand cannot and does not guarantee or warrant that the Platform or the Content therein are compatible with Your computer system or that the Platform or the Content, or any links from the Platform or the Content, shall be free of viruses, worms, trojan horses or disabling devices or other code that manifests contaminating or destructive properties. You are responsible for implementing safeguards to protect the security and integrity of Your computer system, and You are responsible for the entire cost of any service, repairs or connections of and to Your computer system that may be necessary as a result of Your use of the Platform.
Communications Not Confidential
SwayBrand does not guarantee the confidentiality of any communications made by You through the Platform. Although SwayBrand generally adheres to the accepted industry practices in securing the transmission of data to, from and through the Platform, You understand, agree and acknowledge that SwayBrand cannot and does not guarantee the security of data transmitted over the Internet or public networks in connection with Your use of the Platform or any Endorsement.
Governing Law, Venue, and Jurisdiction
The rights and obligations of the parties under this Agreement shall be governed by the laws of the State of Delaware and the federal laws of the United States applicable therein. Notwithstanding Your domicile, residency or physical location, these laws apply to Your access or use of the Platform or Endorsement Opportunities. Both the Platform and Endorsement Opportunities are intended for use only in jurisdictions where both may lawfully offered for use. Further, nothing on the Platform shall constitute an offer or solicitation to buy or sell any service or product to anyone in any jurisdiction in which such an offer or solicitation is prohibited by law.
Any disputes arising out of or related to this Agreement will be referred to and finally settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect at the time of arbitration except as inconsistent with this section. All awards may, if necessary, be enforced by any court having jurisdiction. The existence of any dispute, the existence or details of the arbitration proceeding, and all related documents, materials, evidence, judgments and awards therein, must be kept confidential. Except as required by law, no party will make any public announcements with respect to the proceeding or the award, except as required to enforce the same. The parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Notwithstanding the foregoing, nothing in this section will preclude the right and ability for You or SwayBrand to file and maintain at any time an action for recovery of injunctive or provisional relief in any court of competent jurisdiction under applicable law.
Entire Agreement, Waiver, and Severability
Questions or Comments
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