These terms and conditions are entered into by Promote My Brand Limited (“PMYB”, “us”, “we”) and the social media influencer (“Influencer”, “user”, “you”). PMYB provides promotional opportunities to the Influencer (user who is accepted by PMYB) in exchange for compensation including but not limited to money, products and experiences. By using the PMYB website and registering as an Influencer, the user agrees to be bound by these terms and conditions. The Influencer agrees to be entered into this agreement electronically, which will have the same force and effect as an agreement in writing. If an Influencer does not agree with these terms and conditions, they should not apply to become an Influencer with PMYB. The Influencer agrees that PMYB may provide the Influencer with notices and terms and any opportunities via electronic means such as email, or other means including but not limited to text message. The Influencer agrees that PMYB may make changes to these terms and conditions at any time and the amendment of these terms and conditions will take effect immediately upon the Influencer’s notice of the amendment. If PMYB notifies the Influencer of any terms and conditions that are not accepted by the Influencer, the Influencer should immediately terminate their contract with PMYB, including but not limited to any promotional opportunities that the Influencer might be involved in.
Acceptance of Agreement and Engagement
The Influencer agrees to perform the service agreed with PMYB in the terms received in each email from PMYB, or person with the authority to represent PMYB. The Influencer acknowledges that they will be compensated by the amount agreed with PMYB and included in the email with the terms of the opportunity (this is usually but not limited to a promotional opportunity for a client of PMYB) on, and more information on this can be found in the ‘Payment of Influencer’ section of these Terms and Conditions. The Influencer will create the Product (this includes all intellectual property rights embodied in the work of an Influencer, including all copyrights and trademarks) at his/her own expense and using his/her own resources.
Payment of Influencer
Payment terms are often agreed with each influencer on an individual basis. The “Earning Fee” in the “Dashboard” of the Influencer’s account provides an indication as to the price for each opportunity received from PMYB. PMYB reserves the right to change the “Earning Fee” without notice. The “Earning Fee” agreed for each opportunity will be sent to the Influencer via email in the email with the terms of the opportunity. If the Influencer proceeds to fulfill the terms of the opportunity, they agree to the “Earning Fee” in the email. If the Influencer prefers a different method to be paid than PayPal, they make an agreement on this with PMYB immediately after registration with PMYB.
At PMYB, we comply with the rules set by the Federal Trade Commission. Therefore, Influencers must disclose the relationship between themselves and the Client. Influencers must include a disclaimer with all content from the opportunities from PMYB when posting it to their social media page or blog. This disclaimer provided by the Influencer in a post from an opportunity from PMYB should be sufficient enough to make clear to the “every-day consumer” that there is a relationship between the Influencer and the Client. Influencers may use indicators including but not limited to ‘#Ad’ or provide other sufficient signs to the “every-day consumer” that the Influencer was paid or incentivised to post the content related to the Client. PMYB reserves the right to inspect client-related content before being posted by the Influencer. PMYB reserves the right to make a request for a revision to the submitted material from the Influencer. PMYB will make the request for the revision within 3 working days of the submission by the Influencer. Influencers agree, in the event of the material not being approved by PMYB, to provide revisions to the material within 3 working days of receiving a request for this revision, by PMYB.
The Influencers of PMYB agree to comply with the rules set by the Federal Trade Commission and Influencers are solely responsible for the disclosure of the relationship between themselves and the Client. PMYB reserves the right to specify the form that the disclosure of the relationship between the Influencer and the Client takes. PMYB reserves the right to monitor the levels of disclosure by the Influencers when posting sponsored content obtained via PMYB. PMYB also reserves the right to request higher levels of disclosure or immediately terminate the terms set in this Agreement if the Influencer does not comply with the rules set by the Federal Trade Commission. Failure to make the disclosure to the standards set by the Federal Trade Commission will be considered a material breach of these Terms and Conditions that is not capable of cure.
Influencers may not attempt to contact any client of PMYB directly. Influencers will not attempt to negotiate terms directly with any client of PMYB. Influencers agree to honour the relationships between PMYB and its clients with the upmost respect and acknowledge that these relationships are precious to PMYB. Clients of PMYB can include but are not limited to companies, brands, individuals, agencies and entities that use the services of PMYB.
We reserve the right at our discretion to reject any influencer that applies to PMYB; however, here is an indication of our criteria and what we look for:
- Has over 3,000 followers
- No inappropriate or illegal content
- Considered to have mostly legitimate followers
- Language required by our clients
- Regular posts and engagement
- Original content
The Influencer will create their Product and perform their services for PMYB on receiving notification. The Influencer agrees that PMYB owns the commissioned Product developed by the Influencer for PMYB under the Copyright, Designs and Patents Act 1988 in the UK. If the Influencer carries out the creation of the product in the USA, the Influencer will create their Product and perform their services for PMYB as a ‘work made for hire’ according to the Copyright law in the USA. Therefore, in the UK and the USA, all intellectual property rights embodied in the work created by the Influencer will be owned by PMYB immediately, including all copyrights and trademarks. The Influencer hereby represents and warrants that the Product will be original work of the Influencer and that the Product will not infringe or misappropriate the intellectual property rights of any third party. If there is an event where the entirety of the Product is not considered as ‘work made for hire’ or is not considered wholly owned by PMYB on creation due to UK regulations, the Influencer will assign all rights, titles, and interest in the Product to PMYB. The Influencer agrees to sign additional documents if necessary to ensure that PMYB holds all rights, titles and interest in the Products. As to any portion of the Product created after the execution of these terms and Conditions, the assignment shall become effective immediately upon creation thereof, without need for further consideration or written agreement among the parties.
Fulfillment of Opportunity
By accepting an opportunity from PMYB, the Influencer acknowledges that they will fulfill the terms of the opportunity within the time period stated in the email with the terms in the email about the opportunity. The Influencer also acknowledges that they have the authority to do so. The Influencer agrees that the Product will be submitted in the language required by PMYB, and if no language is mentioned in the email with the terms of the opportunity, the Influencer acknowledges that they will complete the Product in English. The Influencer will only submit original content that does not infringe on any intellectual property rights of any third party, including but not limited to trademarks, patents or trade secrets. The Influencer agrees that all of the submitted content will not include or support excessive profanity, violence, racial intolerance, illegal drugs or drug paraphernalia, illegal pornography or any other content that promotes intolerance, illegal activity or infringes on the legal rights of others. The Influencer agrees to keep the Product on their social media profile unaltered for the period of time agreed with PMYB in the email with the terms on. The Influencer agrees that they will keep their social media profile on the “public” setting and not the “private” setting whilst fulfilling the opportunity provided to them by PMYB.
Intellectual Property Rights
PMYB does not license the Influencer to use PMYB’s or the Client’s intellectual property, including but not limited to copyrights, trademarks and trade names. The Influencer may not use any intellectual property except in the way that it is expressed in these terms and conditions or agreed in the limited extent for each client-related Opportunity offered to the Influencer by PMYB.
Content and attributes
The Influencer provides PMYB with the right to use the Product without limited the ownership of their work to PMYB as specified above. The Influencer gives PMYB the irrevocable right to sublicense the Product worldwide. The Influencer gives PMYB the irrevocable right and permission to use the Product in any way desired by PMYB and for any purpose. The Influencer gives PMYB and the client the right to use the whole or part of their work and gives PMYB and the client a worldwide, royalty-free, non-exclusive, sub-licensable, unconditional, perpetual and transferable license to share, use, copy, process, adapt, translate, display, perform, reproduce, republish, and distribute the content or any portion thereof. The Influencer provides PMYB with the right to use the whole or part of the Product on their website and social media platforms, including but not limited to Instagram, Twitter and Facebook. The Influencer provides PMYB the right to use the Product on websites or social media platforms owned by the client, including but not limited to Instagram, Twitter and Facebook. The Influencer gives PMYB and the client the right to use the whole or part of the Product in any advertising or marketing materials, publications, and all other forms of media or distribution methods, including but not limited to television and magazines, radio, print, Internet site and other electronic communications. The Influencer agrees that PMYB and the client can use content produced by the Influencer for PMYB as well as, including but not limited to, the name of the Influencer, likeness, social media handle, blog name and other attributes related to the Influencer in the way that PMYB and the client see fit with relation to the marketing aims and objectives of the client. This includes the inclusion of the link with the Influencer in media that accepts advertising or promotional content or communications such as, but not limited to, television, radio and magazines. The Influencer also agrees that PMYB or the client may contact the Influencer publicly or privately about content related to the client.
Content limited liability
The Influencer will not hold PMYB or their clients responsible for any liability resulting from use of the any part of the Product created by the Influencer. Influencer will not hold the licensees of PMYB responsible for any liability resulting from the use of any content relating to the client according to these Terms and Conditions. PMYB and their clients are not liable for lost profits, indirectly or directly, exemplary damages. The Influencer agrees that the combined, aggregate liability of PMYB and their licensees (including but not limited to the clients of PMYB) shall not exceed the fees payable to the Influencer as agreed by PMYB and the Influencer.
Relationship of Influencer with PMYB
The Influencer is an independent contractor of PMYB. Therefore, the Influencer does not have authorisation to represent PMYB in any way. The Influencer cannot make a commitment on behalf of PMYB or their client unless specifically requested to do so in writing by an authorised stakeholder of PMYB or their client. PMYB is not responsible for the tax affairs of the Influencer and the Influencer agrees that PMYB cannot be held responsible for any tax liabilities of the Influencer. The Influencer is not entitled to any employee benefits of PMYB as they are not an employee or in a partnership or joint venture.
Representation and Warranty, Indemnity
The Influencer agrees that they will assign the Product to PMYB as noted in this agreement. The Influencer agrees that the quality of the Product will be first rate, and that the Product will not infringe on any intellectual property rights/laws as set out in these terms and conditions. The Influencer agrees that they will complete the Product within the time frame agreed with PMYB. The Influencer will not commit any act that brings PMYB or its clients into public disrepute; this includes insulting the public, causing scandal/ridicule, or trying to cause harm to PMYB or their clients. The statements made by the Influencer on their social media account in relation to the opportunities provided by PMYB are true and provide an accurate representation of the opinion and experiences of using the product/service of the client of PMYB or PMYB itself. The Influencer will also comply with all advertising standard laws, including but not limited to the FTC guide lines. The Influencer agrees to provide the Product to PMYB quickly and in good time. The Influencer will comply with all laws when dealing with PMYB including but not limited to communicating via email, communicating via phone and creating a Product.
In addition to this, PMYB retains all ownership rights of their proprietary platforms, software, websites and technology. PMYB grants Influencers a limited, non-exclusive, non-transferable license to access and use PMYB and its platforms solely as necessary in connection with the provision of Services and fulfilment of opportunities provided by PMYB. PMYB retains the right of any enhancements or modifications to the backend technology associated with PMYB. All users of the site including Influencers agree not to copy, rent, lease, sell, distribute, or create derivative works based on the PMYB Platforms in whole or in part, by any means, except as expressly authorized in writing by PMYB. Trademarks of PMYB will not be used except when authorised by PMYB in writing. Users will not launch any automated system, including but not limited to, “robots,” “spiders,” or “offline readers,” to send messages to the PMYB platform or systems. Users will not use PMYB in any manner that damages, disables, overburdens, or impairs any of PMYB’s websites or interferes with any other party’s use of the PMYB. Users will not attempt to gain unauthorised access (or exceed any authorized access) to PMYB. Users also agree not to use PMYB for any purpose or in any manner that is unlawful or prohibited by these terms and conditions.
INFLUENCERS 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, PMYB 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 PMYB WEBSITE, OR ANY PART THEREOF, (iv) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE SERVICE OR THE PMYB 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 PMYB. FURTHER, AND WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, THERE IS NO WARRANTY THAT THE SERVICE OR THE PMYB WEBSITE WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT PMYB’S WARRANTY DOES NOT COVER TELECOMMUNICATIONS OR INTERNET OUTAGES CAUSED BY THIRD PARTIES OR OTHERWISE OUTSIDE OF PMYB’S CONTROL. SERVICES MAY BE LIMITED BY MANY FACTORS, INCLUDING INHERENT RISKS OF THE INTERNET.
BECAUSE SOME AREAS OF THE WORLD 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, PMYB’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
The Influencer agrees to defend, indemnify and hold harmless PMYB, their clients and their respective officers, directors, employees, business partners and agents, from and against any and all third party claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to solicitor’s fees) arising from; Influencer’s misconduct or negligence, Influencer’s use of third party products or content in creating the Product, the authorised use of client-related products or content or exercise of the rights granted hereunder, or a breach of any of the Influencer’s representations or warranties hereunder.
The Influencer agrees for herself, her heirs, executors and administrators, to release, waive, discharge, absolve, agree to hold harmless, and covenants not to sue, PMYB, Client and their respective agents, employees, officers, directors, successors and assigns, from and/or in relation to any and all liability, loss, harm, damage, injury, cost or expense whatsoever which Influencer, his/her heirs, executors, administrators and assigns had, now have or hereafter may have, by reason of any matter connected in any way with PMYB, Client and their respective agents, employees, officers, directors, successors and assigns exercise of their express or implied rights hereunder, including but not limited to the right to use Influencer’s name, voice or likeness, it being understood that PMYB, Client and their respective agents, employees, officers, directors, successors and assigns shall be free to use Influencer’s name, voice and likeness in any manner in connection with the Client-Related Content or otherwise in support of the purposes of these terms and conditions.
CHOICE OF LAW
This Agreement shall be governed by and interpreted under the laws of the England and Wales in all respects. The Influencer agrees that any action relating to or arising from these terms and conditions, unless otherwise indicated by PMYB, will be dealt with in the courts located in England. Any claim against PMYB arising from the terms and conditions will be adjudicated on an individual basis and will not be consolidated in any proceeding with any claim or controversy of any other party. By engaging with PMYB as an Influencer or otherwise, you agree that, to the extent allowed by applicable law, any and all disputes, claims, and causes of action arising out of or in connection with the terms and conditions, shall be resolved individually without resort to any form of class action, any claims, judgments and awards shall be limited to reasonable and actual out-of-pocket costs incurred, but in no event solicitor’s fees; and under no circumstances will you be permitted to obtain any award for, and you hereby waives all rights to claim, punitive, incidental, indirect or consequential damages and any and all rights to have damages multiplied or otherwise increased and any other damages, other than damages for reasonable and actual out-of-pocket expenses.
If you are a resident of a country outside of the European Union, you also agree that, in the event any dispute or claim arises out of or relating to these terms and conditions, you and PMYB will attempt in good faith to directly negotiate a written resolution of the matter. You agree that if the matter remains unresolved for forty-five (45) days after notification (via certified mail or personal delivery) that a dispute exists, all parties shall join in mediation services in Nottingham, UK with a mutually agreed mediator in an attempt to resolve the dispute. Should you file any arbitration claims, or any administrative or legal actions without first having attempted to resolve the matter by mediation, then you agree that you will not be entitled to recover attorney’s fees, even if you would otherwise be entitled to them.
ELECTRONIC SIGNATURES EFFECTIVE
This document which we is the terms and conditions of PMYB is an electronic contract that sets out the legally binding terms. You indicate your acceptance of the terms and conditions and all of the terms and conditions contained or referenced in these terms and conditions by engaging with PMYB or applying to become a PMYB Influencer. Please print and save a copy of this Agreement for your records.
SAFE HARBOR NOTICE
Forward-looking statements in the Sites, if any, are made under the Safe Harbor provisions of the Private Securities Litigation Reform Act of 1995. Certain important factors could cause results to differ materially from those anticipated by the forward-looking statements, including the impact of changing economic or business conditions, the impact of competition, the availability of favorable credit and trade terms, the impact of changes in the cost or availability of food and real estate, government regulation, construction costs, weather conditions and other factors discussed from time to time in reports filed by the Company with the Securities and Exchange Commission.
PMYB shall not be liable to influencers for damages of any kind arising out of Influencers use of the services. without limiting the foregoing, in no event shall PMYB be liable for any indirect, special, incidental, consequential, punitive, or exemplary damages, arising out of, or in connection with, the agreement.
The foregoing limitations apply whether the alleged liability is based on contract, tort, negligence strict liability or any other basis, even if PMYB or any other party has been advised of the possibility of such damages.
Because some parts of the world do not allow the exclusion or limitation of incidental or consequential damages, PMYB’s liability in such parts of the world shall be limited to the extent permitted by law.