Upfluence Inc. Upfluence (“Upfluence”) provides you, and, if applicable, your Affiliates, access to its online influencer campaign management tool at publishr.io (“Publishr”), which allows Advertisers to compensate Influencers for creating and distributing influencer content (the “Service”) subject to your acceptance of and compliance with these terms of service (the “Terms of Service” or the “Agreement”). If you do not agree to these Terms of Service, please do not use the Service. Each time you use the Service, the current version of the Terms of Service will apply. Accordingly, when you use the Service, you should check the date of the Terms of Service (which appears at the top of this document) and review any changes since the last version. The Terms of Service will be available at all times at publishr.io. In this Terms of Service, (i) “Advertiser” means collectively any person or entity who participates in the Service and deposits money into Publishr or use Publishr to recruit one or more "Influencer", and (ii) “Influencer” means collectively any person who participates in the Service and receives compensation for creating influencer content, or any other form of content in Publishr, and (iii) “Affiliate” means any entity or person that directly or indirectly controls any Advertiser or Influencer, and the term “control” with regard to this definition means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of voting securities, written voting rights agreement or other influence. These Terms of Service shall apply to all transactions conducted through the Service. The term of the Agreement will commence on the date you enroll as an Influencer or Advertiser and will end when terminated by either party in accordance with the terms of the Agreement (the “Term”).
1.1. CAMPAIGNS. Each Campaign contains a description of the desired content to be produced, along with the tracking codes (herein referred to as the “Tracking”) to implement on the Websites. The campaigns descriptions and the Tracking are hereafter referred to as the “Requirements”. Participating Advertisers create and list campaigns (“Campaigns”) on the Publishr.io website, which offers Influencers the chance to receive compensation from the Advertiser in exchange for producing influencer content for the Advertiser in posts on their Websites and/or on social networks and/or any other website they may own (each, a “Website”, and collectively the “Websites”) which comply with the requirements set forth in the Campaign.
1.2. REVIEWS & APPROVALS. Upfluence and Advertisers in their sole discretion shall determine whether a particular Website is entitled to the set compensation. Influencer posts which do not comply with the requirements of the Campaign will not be entitled to the compensation associated with such Campaign. Advertisers may only require content produced within an Influencer’s post. Upfluence reserves the right to review and reject Campaigns from Advertisers. Campaigns will be automatically rejected by Upfluence if the Tracking has not been properly implemented on Websites. Once the influencer content has been agreed upon by an Advertiser and submitted by an Influencer on Websites, an Advertiser cannot request any modifications or reject the post. Final approval and payment to the Influencer will occur if the influencer content is active 30 days from approval. Upfluence will automatically check for active posts and make payments to the Influencer on behalf of the Advertiser. Advertiser may be required to check for active influencer content. If the automated system fails to locate an influencer content, Advertiser has 3 days to verify if the content has been posted. Failure to do so will result in automatic, non-refundable payment to the Influencer.
2.1. TRANSPARENCY & DISCLOSURE. Upfluence requires full disclosure by all participants. Any attempt to instruct, coerce or manipulate an Influencer into hiding the commercial relationship between you and the Influencer may result in removal from the system. Advertiser agrees to comply with Code of Ethics, the Federal Trade Commission Guides Concerning the Use of Testimonials and Endorsements in Advertising effective December 1, 2009, WOMMA’s Ethical Influencer Contract Guidelines, and all applicable laws and regulations, including but not limited to Section 5 of the Federal Trade Commission Act and the Federal Trade Commission’s Endorsement Guidelines.
2.2. PAYMENTS. Advertiser agrees to pay Upfluence all charges to Advertiser’s account for the Service in accordance with these Terms of Service. If Upfluence does not receive timely payment or if Advertiser exceeds prepayment hereunder: (i) Advertiser will incur a debit balance for the value of any unpaid charges incurred under your account, (ii) Advertiser agrees to pay all amounts due on your account upon demand, and (iii) Upfluence reserves the right to either suspend or terminate an Advertiser’s account with Upfluence, including deletion of your Campaigns from the Services. Any fees for the Services which are charged to Advertiser account, as well as the initial and all deposit(s), are non-refundable. Advertiser agrees to submit any disputes regarding any charge to your account in writing to Upfluence within thirty (30) days of such charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge. The inactive period will begin upon the completion of an Advertiser’s post or Website sponsorship opportunity. If Advertiser fails to make payment as set forth herein, Advertiser will be responsible for all reasonable expenses (including attorneys’ fees) incurred by in collecting such amounts. All prices are either in United States dollars, in Euros, in Great Britain Pounds or in Swiss Francs and do not include taxes that may be assessed by any jurisdiction. If withholding taxes or any other taxes are imposed by any jurisdiction on the transactions pursuant to this Agreement, Advertiser shall pay such taxes to ensure that Upfluence receives the full amount invoiced to you without offset or deduction. Advertiser agrees to promptly (i) update all information to keep your account and credit card billing current, complete and accurate (such as a change in billing address or e-mail), (ii) notify Upfluence in writing if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your user name or password, and (iii) notify Upfluence in writing if your credit card is canceled. Upon termination, suspension or discontinuation of the Service or Advertiser’s participation therein, all outstanding payment obligations incurred by Advertiser under the Service will become immediately due and payable.
2.3. CREDIT CARD CHARGES. Advertiser authorizes Upfluence to charge Advertiser’s credit card (as provided by you) for all charges to your account. Advertiser’s non-termination or continued use of the Service reaffirms that Upfluence is authorized to charge Advertiser’s credit card. Upfluence may submit those charges for payment and you will be responsible for such charges. Upfluence reserves the right to modify, suspend or terminate the required method of payment for use of the Service at any time, although any pending Campaigns will be completed using the method current when you listed the Campaign. If Upfluence modifies the terms of the method of payment as outlined in this Section 2.3, the modifications will be reflected in an updated version of the Agreement posted on the Upfluence website. If you do not consent to such modified terms, you must immediately discontinue use of Publishr. Advertiser’s continued enrollment after any modifications constitutes your acceptance of the terms of the method of payment as modified. Advertiser determines a maximum amount for charges to your account for each Campaign subject to the provisions below. Upfluence will send Advertiser a notification to the e-mail address associated with your account after each pre-authorized transaction to notify you that your credit card has been charged. Such charges should appear on the periodic statement sent to you by the provider of your credit card. You understand that all of your Campaigns may be taken offline if your credit card does not allow additional charges or rejects any charges made to it by Upfluence Inc which your account equals or exceeds your budget amount. Unless Advertiser or Upfluence discontinues your enrollment or participation in this Payment Plan, you understand that this pre-authorization is valid until the termination of the Agreement or the applicable Master Agreement with Upfluence. For your future reference, you agree to retain, either by printing or otherwise saving, a copy of the Agreement, which provides the terms of your pre-authorization.
2.4. FEE FOR REMOVAL OF INFLUENCERS’ POST. An Advertiser can request that an Influencer’s influencer content in response to a Campaign be removed from the Influencer’s Websites. For a fee, Upfluence will assist Advertiser in requesting an Influencer to remove a post, however, Upfluence cannot guarantee removal of the influencer content.
2.5. POST AND influencer content INFORMATION. Advertiser agrees that Upfluence is not responsible for any aspect of Advertiser’s content or product to be featured in a post redacted by contracted Influencers. Advertiser represents, warrants and covenants that: (i) all information you provide or approve or that is provided on your behalf in connection with the Agreement and on your Websites is, and will be updated to remain, current and accurate, (ii) the Websites to which any influencer content is included in a listed Campaign will look substantially the same to all end users regardless of the end users’ location, (iii) your Websites do not contain any Upfluence-owned or licensed content, except pursuant to a separate signed agreement with Upfluence. You acknowledge that Upfluence Influencers are independent third-parties and not directly controlled by Upfluence. Advertiser specifically acknowledges and agrees that Upfluence has no control over any content that may be available or published on any Websites (or otherwise), and that Advertiser is solely responsible (and assumes all liability and risk) for determining whether or not such contents are appropriate or acceptable to you.
2.6. DISPUTES. Advertiser agrees that so long as an Influencer has met the requirements as outlined in your Campaign you will not deny payment. Advertiser may not discriminate based on aesthetics, grammar, Website layout, or the racial, physical, political, spiritual, age, gender or sexual orientation characteristics of the Influencer. Payment will be made to the Influencer unless the Influencer has violated the terms of this Agreement or the specific terms of your Campaign as stated in writing.
2.7. SEARCH ENGINE ACKNOWLEDGEMENT. By participating in Publishr and paying for posts, Advertiser acknowledges and affirms that Advertiser will hold UPFLUENCE and Influencer harmless for any changes in placement in search engine results. The links included in the post will be tagged as "no-follow" in accordance with the guidelines of the main Search Engines, and the Advertiser will not hold Upfluence or the Influencer responsible for not posting "dofollow" links.
3.1. TRANSPARENCY & DISCLOSURE. Influencers participating in Publishr must clearly disclose on their Websites the relationship between themselves and the Advertisers in connection with Campaign-related posts. Upfluence requires that all Influencers adopt a Disclosure Policy and provide a link to that policy when claiming their Website. Upfluence reserves the right to review and monitor the disclosure practices of all Influencers who participate in Publishr and to either require greater levels of disclosure (in the event that Upfluence determines in its sole discretion that current disclosure practices are inadequate) or remove the Influencer from Publishr (in the event of such inadequate disclosures). Influencer agrees to comply with the Federal Trade Commission Guides Concerning the Use of Testimonials and Endorsements in Advertising effective December 1, 2009, WOMMA’s Ethical Influencer Contract Guidelines, and all applicable laws and regulations, including but not limited to Section 5 of the Federal Trade Commission Act and the Federal Trade Commission’s Endorsement Guidelines.
In addition to the sponsorship disclosure, the Disclosure Policy must indicate (i) a clear and appropriate description of how Tracking Codes (as defined in article 3.3 of the present agreement) may be used on the Website, (ii) a message that third-parties may place and use pixels on the Website to show interest-based ads to Website’s visitors on sites across the Internet, and (iii) information about how a visitor to the Website can opt out of receiving interest-based ads. EU-based Influencers must, in addition to the hereinabove requirements, obtain their visitors’ consent on the use of pixels by third parties.
3.2. FULFILLMENT OF COMPENSATION. Influencer acknowledges and agrees that the obligation to compensate Influencer for Campaign-related posts resides with the Advertiser, not Upfluence. Upfluence merely facilitates such compensation on behalf of the Advertisers. Influencer waives any and all claims or rights of action against Upfluence relating to the failure of an Advertiser to compensate Influencer in connection with a Campaign-related post. In addition, Influencer acknowledges that Influencer is: (i) not an employee of Upfluence, (ii) responsible for the payment of all federal, state and local taxes on compensation received from an Advertiser, (iii) responsible for any reporting requirements imposed by the federal, state or local government, and (iv) responsible for compliance with all other applicable laws and regulations. You agree that all earnings will be forfeited if your account is terminated for any reason, or if Upfluence discontinues providing the Service.
3.3. TRACKING CODES. By participating in Publishr, Influencer agrees to place on Websites tracking codes (the “Tracking”) specified by the Campaigns’ Requirements and more specifically (i) all tracking codes on links within the influencer content on Websites (including but not limited to social posts) recording clicks and visits timestamps, (ii) tracking codes on Websites in order to record reads of articles, visits timestamps and clicks for campaign reporting to the Advertiser purposes only and (iii) third-party advertising tags collecting aggregated data (data collected by third-party services for the purpose of providing advertising services to the Advertiser that can no longer be linked to the Websites’ visitors, i.e. data that does not identify or permit identification), which includes any information that can be attributed to a user via cookies or other technologies that record events related to users’ activity on Websites (such as the number of articles read, the articles the Websites’ visitors read). The Influencer agrees to provide screenshots of its own analytics tool(s) if the Websites do not authorize the implementation of tracking codes (for instance on certain social networks, where the Influencer owns a social account on the Website and not the Website itself).
3.4. WEBSITE ELIGIBILITY. In order to participate in Publishr, Influencer must register their Website(s) with Upfluence and meet the minimum eligibility requirements. Upfluence will not accept certain Websites and Influencers as determined by Upfluence in its sole discretion.
A.Blogs & Serviceocial Accounts only. Upfluence only accepts blogs and social media saccounts (accounts on social networks such as but not limited to Facebook, Youtube, Snapchat, Instagram, Vine, Twitter, Pinterest, Viadeo, Linkedin, Dailymotion) - the “Websites” - and not message boards, e-mails, IM or other similar services.
B.Inappropriate Contentt. Websites submitted to Publishr may not include or support: excessive profanity, violence, or racial intolerance, illicit drugs or drug paraphernalia, or any other content that promotes intolerance, illegal activity, or infringes on the legal rights of others.
C.Minimum Websitessites Age. Websites must be live for a minimum of ninety (90) days, counted from the date of the first post, with at least twenty (20) pre-existing posts written in the 90 days prior to registration with Publishr.
3.5. SEARCH ENGINE ACKNOWLEDGEMENT.
By participating in Publishr and accepting payment for your content, Influencer acknowledges and affirms that Influencer will hold UPFLUENCE and Advertiser harmless for any changes in placement in search engine results.
3.6. GRANT OF USAGE LICENSE. By participating in Publishr and accepting payment for the content you create, Influencer grants Upfluence and the specific Advertiser purchasing the content a worldwide, royalty-free, nonexclusive, sub-licensable, unconditional, perpetual and transferable license to use, display, perform, reproduce, republish, and distribute the content or any portion thereof in all forms of media and through any media channels (now known or hereafter developed), including but not limited to television, radio, print, Internet site and other electronic communications. Any use, publishing or distribution of an Influencer’s content by Upfluence or any Advertiser must be accompanied by credit to the Influencer of that content or a link to the Website where the content appeared.
Any attempt to utilize automated programs, bots, screen scraping, database calls, human initiated data collection or any other means of gathering data, content or other information for the purpose of reverse engineering our platform for commercial gain is strictly prohibited.
Upfluence is constantly innovating and changing its Service offering in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which Upfluence provides may change from time to time without prior notice to you. You acknowledge and agree that Upfluence may stop (permanently or temporarily) providing the Services (or any features or functionality within the Services) to you or to users generally at Upfluence’s sole discretion, without prior notice to you. You and/or Upfluence may terminate this Agreement and/or your participation in the Service at any time, for any reason or for no reason, and Upfluence shall not have any liability regarding such decisions. Sections 2 through 17 of these Terms of Service shall survive any termination of the Agreement.
Influencers and Advertisers participating in Publishr each represent, warrant and covenant that (i) you have sufficient authority to enter into the Agreement; (ii) your use of Upfluence’s services is solely for lawful commercial and business purposes; (iii) you have the necessary rights to provide all information provided under the Agreement (including all content, data, Campaigns, titles, URLs and descriptions) for use as described in this Agreement, and that all such information and all claims, statements, products and services contained or referenced herein and in the Websites: (a) do not violate any law, statute, ordinance, treaty or regulation or Upfluence policy or guideline; (b) do not infringe any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (c) do not breach any duty toward or rights of any person or entity including rights of publicity or privacy, and have not otherwise resulted in or are not likely to result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (d) are not false, deceptive or misleading; (e) are not defamatory, libelous, slanderous or threatening; (f) will be free of viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that may potentially damage, interfere with, intercept, or expropriate any system data or personal information; and (g) comply with the applicable Master Agreement (if applicable); and (iv) you will not engage or cause others to engage in any form of spamming or improper or malicious, as determined by Upfluence, clicking, impression or marketing activities through the Service, and you will comply with all applicable laws including complying with all applicable laws such as the CAN-SPAM Act of 2003.
Upfluence and other Upfluence graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of Upfluence in the U.S. and/or other countries. Upfluence’s trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion. The images and icons available on our media page may be used by partner and third party sites in connection with journalistic promotion of our services, commercial applications are forbidden except if pre-approved in writing.
Influencers and Advertisers participating in Publishr each agree to indemnify and hold harmless Upfluence, its parent and affiliates and their officers, directors, licensors, partners, licensees, consultants, contractors, agents, attorneys, employees, third party service providers and third parties authorized by Upfluence to make your listings, results, and/or Services available in connection with third party Websites, blogs, postings, content, applications and/or e-mails (“Third Party Products”), and their respective officers, directors, agents, affiliates, and employees (each, an “Upfluence Entity” and collectively, the “Upfluence Entities”) from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees (collectively, “Claim(s)”), that actually or allegedly result from your information, use of the Service, any posting, your Websites, or your breach of the Agreement. You agree to be solely responsible for defending any Claim against or suffered by Upfluence and/or any Upfluence Entity, subject to Upfluence and/or the Upfluence Entity’s right to participate with counsel of its own choosing, and for payment of damages or losses resulting from all claims against Upfluence, and/or any Upfluence Entity provided that you will not agree to any settlement that imposes any obligation or liability on Upfluence and/or an Upfluence Entity without Upfluence’s prior express written consent.
ADVERTISER AND INFLUENCEUR EXPRESSLY AGREE THAT THE SERVICES ARE AVAILABLE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND THAT YOUR USE THEREOF IS AT YOUR OWN RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, UPFLUENCE DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY (i) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (ii) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, (iii) WARRANTIES RELATING TO DELAYS, INTERRUPTIONS, ERRORS, OR OMISSIONS IN THE SERVICE OR UPFLUENCE WEBSITE, OR ANY PART THEREOF, (iv) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE SERVICE OR THE UPFLUENCE WEBSITE, (v) WARRANTIES RELATING TO THE ACCURACY OR CORRECTNESS OF DATA, AND ANY OTHER WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NONPERFORMANCE, OR OTHER ACTS OR OMISSIONS BY UPFLUENCE. FURTHER, AND WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, THERE IS NO WARRANTY THAT THE SERVICE OR THE UPFLUENCE WEBSITE WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT UPFLUENCE’S WARRANTY DOES NOT COVER TELECOMMUNICATIONS OR INTERNET OUTAGES CAUSED BY THIRD PARTIES OR OTHERWISE OUTSIDE OF UPFLUENCE’S CONTROL. SERVICES MAY BE LIMITED BY MANY FACTORS, INCLUDING INHERENT RISKS OF THE INTERNET. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES OR IMPLIED WARRANTIES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, UPFLUENCE’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
ANY LIABILITY OF UPFLUENCE TO AN ADVERTISER IN CONNECTION WITH THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, SHALL BE STRICTLY LIMITED TO TWENTY-FIVE PERCENT (25%) OF THE AMOUNT PAID BY ADVERTISER TO UPFLUENCE FOR THE SERVICES RELATED TO THE ADVERTISER’S MOST RECENT CAMPAIGN (EXCLUDING AMOUNTS PAID BY ADVERTISERS TO INFLUENCEURS). UPFLUENCE SHALL NOT BE LIABLE TO INFLUENCEURS FOR DAMAGES OF ANY KIND ARISING OUT OF INFLUENCEURS’ USE OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL UPFLUENCE OR ANY UPFLUENCE ENTITY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, ARISING OUT OF, OR IN CONNECTION WITH, THE AGREEMENT. ADVERTISER AGREES THAT ADVERTISER WILL NOT HOLD UPFLUENCE RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT, INCLUDING WITH RESPECT TO CLICKS BY ANY THIRD PARTY ON ADVERTISER’S LISTING(S) OF OPPORTUNITIES, REGARDLESS OF THE INTENT OF SUCH THIRD PARTY. THE FOREGOING LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF UPFLUENCE OR ITS AFFILIATES OR ANY OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, UPFLUENCE’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
Upfluence may give general notices to you by posting on its website, or by electronic mail to the e-mail address provided by you to Upfluence. It is your responsibility to ensure that your e-mail address and any other contact information you provide to Upfluence is updated, current and correct. All notices to Upfluence shall be sent via recognized overnight courier or certified mail, return receipt requested, to: President, Upfluence Inc., 158 West 75th street New York City, New York, 10023, USA.
Any dispute referring or relating to the Agreement or between the parties shall be governed by the laws of the State of Delaware, without regard to its conflict of laws principles. You agree to submit to the exclusive jurisdiction of the state and federal courts located in Delaware. Any claim against Upfluence arising from the Agreement shall be adjudicated on an individual basis, and shall not be consolidated in any proceeding with any claim or controversy of any other party.
(i) The Agreement is an electronic contract that sets out the legally binding terms of your use of the Upfluence Service. You indicate your acceptance of the Agreement and all of the terms and conditions contained or referenced in this Agreement by signing up on Publishr website in connection with your enrollment. This action creates an electronic signature that has the same legal force and effect as a handwritten signature. By signing up on Publishr website, you accept the Agreement and agree to the terms, conditions and notices contained or referenced herein. When you click on the “Accept” button during enrollment, you also consent to have the Agreement provided to you in electronic form. (ii) Please print a copy of the Agreement for your records. To retain an electronic copy of the Agreement, you may save it into any word processing program.