Background
These Terms & Conditions govern your use of Beyond Reach, a platform operated jointly by We Are Era AB and Influeri AB. For the purposes of these Terms, Influeri AB ("Influeri," "we," "our," or "us") is the responsible party regarding your relationship and use of the Beyond Reach platform and shall be the responsible party regarding your relationship and use of the platform whenever Beyond Reach is referred to in these Terms & Conditions.
Note:
These Terms & Conditions have been translated from a Swedish original version that you can find here: Original Terms & Conditions
If any matter arises concerning these Terms & Conditions, the original Swedish version on Influeri AB's website shall be considered the only valid document.
1. Definitions
1.1 For the purposes of this Agreement, the following terms and expressions shall have the meanings set out below:
"Campaign Period" means the period of time during which the Campaign is to be conducted which is further specified in the Assignment Description;
"KPI" means Key Performance Indicators and is a measure of effectiveness in relation to a specified target;
"Media Budget" means the total amount (excluding VAT) payable by the Customer to Influeri for the Campaign, including the remuneration of the Profile and Influeri, as specified in the Framework Agreement;
2. Booking and follow-up of the Campaign
2.1 In order to use the Platform and initiate and book a Campaign, the Customer must create an account ("Account") through the Platform. An Account can be created through direct registration using an email address, or through registration via a third party social networking site.
2.2 Through the Account on the Platform, the Customer can book a Campaign. The booking of a Campaign must be made at least three (3) weeks before the Campaign is due to start. The Customer books Campaigns by entering, via his Account, all requested information such as Media Budget, Campaign objectives, target groups, Campaign period, social media platforms, KPIs and other information as summarised in the Mission Description. The Mission Description is used to match the Client's Campaign with relevant Profiles.
2.3 A selection of relevant Profiles that the Platform deems appropriate based on the Mission Description is presented to the Customer. The Customer selects the Profiles that it wishes to be a part of the Campaign according to the Mission Description. Selected Profiles shall respond as soon as possible and normally within three to five (3-5) working days whether or not they wish to be involved in the Campaign. The Profile's acceptance of the Mission Description constitutes an agreement between the Customer and the Profile for the Campaign ("Mission Agreement").
2.4 The Profile will provide the Customer with content suggestions for posts to the Campaign via the Platform at least one (1) working day before the Campaign begins. Influeri is not responsible in the event that the Profile publishes anything without the prior approval of the Customer.
2.5 The posts approved by the Customer ("Posts") are used by the Profile in the Campaign and the Profile grants a time-limited and non-transferable right to the Customer to use the Post for marketing purposes on its website and social media channels from the start of the Campaign and until one (1) year thereafter ("License Period") and only via Influeri’s Platform and its Boost-function. The Customer has the right to keep the Post up on their website and social media channels outside the License Period, but must be obliged to remove the Post after the end of the License Period if requested by Profiles or Influeri. To avoid misunderstandings, the previous sentence only applies to organic publication of the Post on the Customer's own channels and not to Boost or advertising of the Post. In case of Boost and advertising of the Post, the License Period must be adhered to regardless. Unless otherwise specifically agreed, the Customer shall not, except as provided above, distribute, exploit, modify, transfer, license or otherwise dispose of the Profile's name and/or image, Postings, or any other material produced and/or published in connection with the Campaign and this Agreement.
3. Influeri's commitment
3.1 Influeri undertakes to provide, via the Platform, a system for communication and the entering of Mission Agreements between the Customer and Profiles selected by the Customer. Influeri has no part in the communication or in the Mission Agreement concluded between the Customer and the Profile. Influeri cannot influence and has no responsibility for the selection of Profiles for or the content of the Campaign.
3.2 Upon completion of the Campaign, Influeri will provide the Customer with a report containing follow-up, including statistics, results and data ("Results Report"). In the event that the Customer, upon completion of the Campaign, wishes to receive an interim report and/or report at a time other than as provided for in this Agreement, the Customer shall notify Influeri of this at the start of the Campaign. Such reporting shall be for a fee as separately agreed between the Parties.
3.3 Influeri shall, through the design of its Platform, work to ensure that suitable Profiles are available as possible choices for the Campaign.
3.4 Nothing in this Agreement prevents Influeri from proposing the same Profiles selected by the Customer for its Campaign also to other customers.
3.5 Influeri undertakes to provide the postal address for products that the Profile will receive from the Customer if so requested by the Customer. Digital Products are communicated directly from the Customer to the Profile via the Platform.
3.6 Influeri undertakes to conduct its business in accordance with all applicable laws, regulations and governmental requirements, and otherwise in a manner that may be expected of a professional company in Influeri's industry, and to obtain and maintain the necessary permits for its business.
3.7 Influeri shall act ethically and professionally and refrain from actions that are or may be detrimental to the reputation of the Client.
3.8 Influeri undertakes to provide marketing guidelines to the Profile but accepts no liability in the event that the Profile acts in breach of such guidelines or applicable laws and regulations.
4. The Customer's obligations
4.1 The Customer grants Influeri the right to present proposals for suitable Profiles for the Campaign on behalf of the Customer, in accordance with the terms of the Agreement. The Customer shall independently assess and select the Profiles that the Customer wishes to be included in the Campaign from the selection of Profiles presented by Influeri via the Platform.
4.2 The Customer undertakes to review and approve or reject without delay, and at the latest within 3 working days, the posts that each Profile presents as proposals for the Campaign via the Platform. The Customer must explain to the Profile the reason why certain content is not approved for the Campaign in such a way that the Profile can easily produce a new proposal for a post. The Customer's failure to review the Profile's proposed posts does not in any way give rise to liability on the part of Influeri or any obligation to reimburse the Customer.
4.3 The Customer acknowledges that he/she may not use the Submissions in any manner other than as expressly set forth in Section 2.5 and understands that such use may constitute a violation of applicable law that may give rise to both civil and criminal liability and cause damage to Influeri. If the Customer breaches paragraph 2.5, he shall pay Influeri a penalty payment of a one-off sum of SEK 100,000. The penalty shall be paid immediately upon request by Influeri.
4.4 The Customer is responsible for providing all necessary products and/or services to the selected Profiles required for the implementation of the Campaign.
4.5 The Customer undertakes to conduct its business in compliance with all applicable laws, regulations and governmental requirements, and otherwise in a manner that may be expected of a professional business in the Customer's industry, and to obtain and maintain the necessary licenses for its business. Customer agrees and acknowledges that it may not use the Platform by:(a) violating or circumventing (or encouraging anything that would violate or circumvent) any laws, rules, regulations or the rights of third parties;(b) take any action that is or encourages actions that are expressly or impliedly unlawful, abusive, harassing, threatening, indecent, obscene, hateful, racist, defamatory, harmful to any person's reputation or good name, pornographic in nature or otherwise objectionable;(c) contact or attempt to contact a Profile that you do not have the right or permission to contact;(d) distribute or send spam or unsolicited electronic communications;(e) distribute viruses, malicious software, use worms, Trojan horses, spyware, corrupted files, time bombs, robots or similar means to access, damage, interfere with or disrupt the Platform for any reason;(f) modify any file or other portion of the Platform that Influeri does not specifically authorize you to modify;(g) collect information about other users without their consent;(h) take any action that imposes, or may impose, an unreasonable or disproportionately large load on the infrastructure of the Platform;(i) mirror or otherwise incorporate any part of the Platform into any other service, software or service without Influeri's prior written consent;(j) circumvent or interfere with technical measures used by Influeri to provide the Platform;(k) sell, buy, trade or otherwise transfer your Account, access to the Platform or content associated with your Account.
4.6 The Customer shall act ethically and professionally and refrain from actions that are or may be harmful to Influeri's reputation.
4.7 The Customer is responsible for ensuring that all instructions and assignments provided by the Customer to Influeri or Profiles via the Platform or otherwise in relation to the Campaign comply with applicable laws and regulations.
4.8 During the Contract Period and for three (3) months thereafter, the Customer agrees not to cooperate, either directly or indirectly, with selected Profiles who have entered into Mission Agreements.
5. Compensation and payment terms
5.1 The Campaign Budget is based on various of factors, such as but not limited to content creation, license rights, estimated reach and includes compensation to Influeri and the Creators. The estimated reach and other Campaign results shall be specified in the Assignment Description.
5.2 In the event that the Client does not use all of the Campaign Budget, the remaining portion ("Unused Budget") will be stored in the Client's Account to be used for future Campaigns.
5.3 In the event that the Creator receives products, gift cards or other forms of renumeration from the Client in addition to the Campaign Budget, the Client shall bear sole responsibility for all payment of taxes and other costs related to such renumerations. Should Influeri be required to pay taxes, tax surcharges or other costs relating to such remuneration, the Client shall reimburse Influeri for such costs.
6. Intellectual property rights etc.
6.1 Influeri is granted, by the conclusion of this Agreement, a non-transferable right to use the Customer's company name and/or other distinctive signs, trademarks and/or products, for the purpose of fulfilling its rights and obligations under this Agreement.
6.2 Nothing in this Agreement constitutes a grant or assignment of either Party's intellectual property rights to the other Party unless expressly stated.
6.3 The Customer or any other company in the Customer's group warrants that the Customer is the sole owner or controller of all intellectual property rights in the Customer's trade names, trademarks and all products and/or services that will be used by Profiles and/or Influeri under this Agreement. The Customer further warrants that Influeri's and/or Profiler's use of the Customer's trademarks and products in accordance with this Agreement does not infringe the rights of any third party.
7. Processing of personal data
7.1 Each Party is responsible for ensuring that its processing of the Profile's personal data complies with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC ("GDPR") and other applicable legislation concerning the processing of personal data, including informing the data subjects of the Party's processing of personal data, any data transfers between the Parties and the data subject's rights. The Customer hereby also confirms that they have reviewed and accept Influeri’s Privacy Policy, which provides additional information on the processing of personal data.
7.2 As part of the collaboration, the processing of the Profile’s personal data occurs to facilitate Mission Agreements, which entails joint data controller responsibility under GDPR between Influeri and the Customer. The Parties hereby commit to adhering to the allocation of responsibilities and obligations required by GDPR for joint data controller responsibility. This agreement thereby governs the respective responsibilities of the Parties within the scope of the joint data controller responsibility, without the need for additional agreements or appendices.
7.3 In order to ensure that Profiles can exercise their rights under the GDPR in an effective manner, the Parties have agreed that Influeri shall provide a single point of contact for the Profile. All requests for the exercise of the Profile's rights made within the framework of the joint personal data controller shall be promptly forwarded to info@influeri.com and that this shall be indicated in all information texts to the Profiles regarding the processing of their personal data.
8. Confidentiality
8.1 The Parties undertake not to disclose to third parties, during the term of the Agreement and for one (1) year thereafter, information relating to the content of the Agreement and other information received by the Parties in connection with the Agreement, whether provided in writing or orally and regardless of format ("Confidential Information"). The Parties undertake to use Confidential Information solely for the purpose of fulfilling their obligations under the Agreement and for no other purpose whatsoever. The Receiving Party further agrees to take reasonable steps to prevent any employee, sub-consultant or other intermediary from using or disclosing Confidential Information to third parties and to use the same level of care (but not less than reasonable care) to avoid disclosure or use of Confidential Information that the Party uses with respect to its own confidential or proprietary information.
8.2 The foregoing does not apply to information that(a) at the time of disclosure is or subsequently becomes available to the public other than by breach of the Agreement; or(b) was already available to the receiving Party or which it has developed on its own prior to the conclusion of the Agreement and which has not been obtained, directly or indirectly, through a breach of the Agreement.
8.3 This confidentiality undertaking does not prevent the Party from disclosing information that the Party is obliged to disclose by law, court or government order or agreement with a stock exchange or other market place. Should the Party have or be required to disclose such information, the Parties undertake to notify the other Party immediately. The Parties shall use their best efforts to ensure that information provided pursuant to this paragraph is, to the extent possible, treated as confidential by the recipient of the information.
8.4 In the event of termination of the Agreement, this confidentiality undertaking shall continue in force for one (1) year after termination of the Agreement.
9. Force majeure
9.1 The Party shall be entitled to suspend performance of its obligations and shall be exempt from any penalty for failure to perform its obligations under the Agreement if performance is prevented, materially impeded or unreasonably delayed by a circumstance beyond the control of the Party which the Party could not or reasonably should not have foreseen at the time of the conclusion of the Agreement. Such circumstance ("Exempting Circumstance") may, for example war or war-like conditions, civil war, mobilization or military conscription of similar magnitude, insurrection and riot, terrorism, sabotage, fire, flood, natural disaster, epidemic, pandemic, interruption of public communications, interruption of public energy supply, strike, lockout or other general or local labor dispute (even if the Partner is itself a party to the dispute), requisition, seizure, governmental order, trade, payment or currency restrictions, or any other similar circumstance. The same shall apply if an Exempting Circumstance exists for the Party's contractual assistants.
9.2 The Party shall notify the other Party if there is a risk that an obligation cannot be fulfilled or will be delayed due to an Exempting Circumstance. Failure to give such notice within a reasonable time shall give rise to an obligation to compensate the damage that could have been avoided if notice had been given in time.
9.3 When the Excusable Circumstance has existed for four (4) months, either Party shall have the right to terminate the Agreement with immediate effect.
10. Termination
10.1 A Party may terminate the Agreement with immediate effect if the other Party(a) the other Party is in material breach of its obligations under this Agreement and fails to remedy such breach within thirty (30) days after written request; or(b) the other Party repeatedly breaches its obligations under this Agreement; or(c) if the other Party becomes bankrupt, goes into liquidation, suspends payments or is otherwise deemed to be in default.
10.2 In the event of early termination of the Agreement, the Parties shall not exercise any of the other Party's rights referred to in paragraph 6 which shall cease to apply. The Customer shall pay compensation to Influeri for the Campaign already performed, calculated pro-rata over the Campaign period.
10.3 In the event that this Agreement is terminated for any reason, the provisions of paragraphs 2.5, 4.3, 4.8 and paragraphs 6 (Intellectual Property Rights), 8 (Confidentiality), 11 (Liability and Limitation of Liability), and 13 (Governing Law and Dispute Resolution) shall continue to apply.
11. Liability and limitation of liability
11.1 In the event that either Party breaches any provision of this Agreement, such Party shall be obligated to indemnify the other Party for any direct damages suffered by such Party as a result thereof.
11.2 Neither Party shall be liable for indirect damages such as loss of profits or other consequential damages other than in cases of wilful misconduct or gross negligence and except as provided in paragraph 11.4 below.
11.3 The aggregate amount of damages that the Party may be required to pay for breach of any of the provisions of this Agreement shall not exceed a total amount equal to the Media Budget. However, the aforementioned limitations of liability shall not apply to damage caused by intent or gross negligence or such damage resulting from the Customer's/Profile's breach of clause 6.3 above.
11.4 The limitations of liability in this clause 11 shall not limit the liability of the Party for the Party's express, infringement of third party intellectual property rights, breach of the GDPR or the Personal Data Agreement or breach of the confidentiality obligation of the Agreement.
12. Other provisions
12.1 Amendments and supplements to the Agreement are binding only if in writing and signed by both Parties.
12.2 The Party is not entitled to assign or pledge its rights or obligations under this Agreement, in whole or in part, to any third party without the written consent of the other Party.
12.3 This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior written or oral warranties, undertakings, representations and agreements between the Parties.
12.4 Should any provision of the Agreement or the application thereof be held invalid, this shall not mean that the Agreement or the provision as a whole is invalid. Instead, the Parties shall adjust the Agreement or provision, as far as possible, to give effect to the intent of the Agreement. If the Parties cannot agree on a modification of a provision that is invalid, such provision shall be deemed deleted and the other provisions of the Agreement shall continue to apply.
12.5 All correspondence and other communications under this Agreement shall be in writing and shall be deemed to have been received by the recipient (i) upon delivery, if delivered by hand or (ii) on the next business day at the location to which it was sent, if sent by email, provided that the recipient has acknowledged receipt thereof.12.6 Neither Party shall be entitled to represent, act on behalf of or legally bind the other Party in any respect without its consent.
13. Applicable law and dispute resolution
13.1 Swedish law shall apply to the Agreement (without regard to conflict of laws rules).
13.2 Disputes arising under the Agreement shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce ("SCC"). Rules for Simplified Arbitration shall apply unless the SCC, taking into account the complexity of the case, the value of the subject matter of the dispute and other circumstances, decides that Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the arbitration panel shall consist of one arbitrator or three arbitrators.
13.3 The seat of the arbitration shall be Stockholm. The language of the proceedings shall be Swedish.
13.4 Arbitration invoked with reference to this arbitration clause is subject to confidentiality. The confidentiality shall extend to all information obtained in the course of the proceedings and to any decision or award rendered as a result of the proceedings. Information covered by confidentiality shall not be disclosed to third parties without the consent of the other Party. The obligation of confidentiality does not extend to the disclosure of information required by mandatory law, court or governmental order, for the protection of legitimate legal interests, or for the enforcement of, appeal against, or challenge to a judgment or arbitral award.