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Standard Terms & Conditions Between Cohley, Its Clients and Creators

These terms and conditions, together with any documents referenced herein, (collectively, “Terms”) govern your access and use of www.cohley.com and its subdomains (collectively, the “Websites”), including any content, component, functionality and/or offered thereon (the “Platform”).  The Platform is a software platform furnished by Goldfish Social, Inc. d/b/a/ Cohley (“Cohley” or the “Company”). These Terms include any other policies, guidelines and instructions that are posted by Cohley on the Websites. You are deemed a “Creator” as further defined in Section 2 below.

The Platform is offered subject to your acceptance without modification of all the terms and conditions contained herein.  BY USING OR ACCESSING ANY PART OF THE PLATFORM, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN; IF YOU NOT AGREE, DO NOT USE THE PLATFORM. IF YOU REPRESENT A COMPANY OR OTHER ORGANIZATION, THEY ARE BOUND TO THESE TERMS TO THE SAME EXTENT AS YOU (AND YOU WARRANT YOU HAVE THE POWER AND AUTHORITY TO BIND THEM TO THESE TERMS).

Cohley reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of these Terms at any time. If we have your email address, we may notify you via email. In addition, we will update the “Last Updated” date above. 

1. Arbitration and class action waiver.

COHLEY HAS CERTAIN REQUIREMENTS THAT YOU AGREE TO ARBITRATE DISPUTES YOU MAY HAVE WITH COHLEY – AND WAIVE RIGHTS TO BRING CLASS ACTION LAWSUITS. PLEASE SEE SECTION 15 (“DISPUTES”) BELOW FOR MORE INFORMATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THESE TERMS AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF ENTERING THIS AGREEMENT.

2. Scope.

The Platform is a marketplace that connects clients (such as brands and advertising agencies) (“Clients”) with vetted, third party, content creators (such as influencers, photographers, videographers, and consumers) (“Creators”). Clients upload project briefs into the Platform and Creators can apply to participate. Clients then select the Creator(s) they want to engage with for the applicable project. Clients manage all communication (content approval, payment, shipping, etc.) with Creators through the Platform.

3. Access.

Cohley may change, suspend or discontinue any aspect of the Platform at any time.  Cohley may also impose limits on certain features and services or restrict Creator’s access to parts or all of the Platform without notice or liability.

The Platform is available only to individuals who are at least 18 years old.  Creator represents and warrants that if Creator is an individual, Creator is at least 18 years old. Creator also certifies that they take full responsibility for the selection and use of the Platform.  This Agreement is void where prohibited by law, and the right to access the Platform is revoked in such jurisdictions.

Creator is responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the Platform, including, without limitation, modems, hardware, software, and long distance or local telephone service.

4. Creator’s Account. 

Creator will provide Cohley with current, complete and accurate information as and when prompted or requested. Creator acknowledges and agrees not to (i) register an account on behalf of another person; (ii) register under the name of another person or under a fictional name or alias; (iii) choose a username that constitutes or suggests an impersonation of any other person (real or fictitious) or entity or that Creator is a representative of an entity when Creator is not, or that is offensive; (iv) choose a username for the purposes of deceiving or misleading our users and/or the Cohley as to Creator’s true identity; or (v) choose a username that incorporates a solicitation. Creator is entirely responsible for maintaining the confidentiality of Creator’s account information and password.

5. Creator Acceptance; Services; Payment; Disputes.

(a) Acceptance of Project. By submitting an application for any Client project, the Creator agrees that, if they are selected by the Client for the applicable project, they are bound to fully perform the project in accordance with the applicable creative brief provided by the Client (“Creative Brief”). 

(b) Client Terms and Conditions. TO THE EXTENT THE CLIENT INCLUDES ANY ADDITIONAL TERMS OR CONDITIONS IN THE CREATIVE BRIEF, CREATOR ACKNOWLEDGES THEY ARE BOUND BY SUCH TERMS AND CONDITIONS. BY APPLYING TO WORK ON THE PROJECT SET OUT IN A CREATIVE BRIEF, CREATOR CONFIRMS THAT CREATOR HAS READ AND AGREED TO THE CREATIVE BRIEF’S TERMS AND CONDITIONS AND THAT CREATOR HAS ENTERED INTO A LEGAL, VALID AND BINDING OBLIGATION THEREUNDER WITH CLIENT. CREATOR IS FULLY RESPONSIBLE AND LIABLE FOR COMPLYING WITH ALL REQUIREMENTS OF EACH CREATIVE BRIEF THEY ENTER (INCLUDING, WITHOUT LIMITATION, ANY SPECIFICATIONS AND ANY REQUIREMENTS FOR DELIVERY TIMES). CREATOR ACKNOWLEDGES THAT EACH CREATIVE BRIEF IS A LEGAL AGREEMENT BETWEEN CREATOR AND THE APPLICABLE CLIENT - AND THAT COHLEY IS NOT A PARTY THERETO. NOTWITHSTANDING THE FOREGOING, CLIENT ACKNOWLEDGES THAT COHLEY IS A THIRD PARTY BENEFICIARY TO EACH CREATIVE BRIEF - MEANING COHLEY CAN, IN ITS SOLE DISCRETION, ENFORCE ANY TERMS OR CONDITIONS ON BEHALF OF A CLIENT.

(c) Services. Creator acknowledges and agrees to deliver all content and drafts, including Custom Materials (as defined below) in accordance with the Creative Brief. Creator shall use best efforts to address and resolve any reasonable concern of the Client, including with respect to Custom Materials, such as spelling errors, hashtag errors and hyperlink errors. Creator shall not remove posts relating to campaign deliverables from their social feeds. Additionally, Creator acknowledges that she/he has permission to shoot and produce content in the location by which she/he captures in images and/or video.

(d) Payment. Creator shall be paid by Client in accordance with the Creative Brief but not earlier than thirty (30) days after the end date for any campaign subject to a Creative Brief. Creator shall be responsible for all withholdings, taxes, agency and/or other fees, including Paypal fees (2.9% of total compensation), due on and/or in connection with total compensation payable by Client. Creator has no recourse against Cohley for any Client’s failure to pay or otherwise perform the terms and conditions of any agreement with Creator.

(e) Braintree. Cohley uses Braintree to house credit cards. With the credit card that is stored on file, Client will be automatically billed for creator payments that are 30+ days overdue (measured from the end date of the campaign) as well as for Cohley invoices that are 60+ days overdue (if and only if Cohley isn’t in communication with the Client). Charges will have a 2.9% credit card fee and a 30 cent transaction fee added on.

(f) Paypal. Creator will create a Paypal account to receive payment through the Platform not later than thirty (30) days after the end date for any campaign subject to a Creative Brief. If Creator fails to do so, Creator acknowledges and agrees that Creator will forfeit all compensation related to such Creative Brief and further agrees that Client will have no liability therefor.

6. Ownership; Licenses. 

Creator acknowledges and agrees that all creative assets and other deliverables provided by Creator to a Client pursuant to a Creative Brief (such as, any video, photo, audio-visual, composition, graphic, or textual materials) will be owned by the Client (collectively, the “Custom Materials”). Creator shall and hereby does make all assignments necessary to achieve such ownership. To the extent Creator incorporates their own intellectual property (“Creator IP”) into any Custom Materials, Creator hereby grants Client a worldwide, perpetual, irrevocable, fully paid-up, royalty free, license to use, reproduce, display, perform, and distribute such Creator IP solely as part of the Custor Materials into which they are incorporated by Creator.  Creator acknowledges and agrees that to the extent any of intellectual property related terms or conditions of a Creative Brief conflict with this Section 6, the Creative Brief will control.

7. FTC Disclosure Compliance.  

If applicable, without limiting these Terms, Creator represents and warrants that Creator has complied and will comply with all applicable law, including those promulgated by the Federal Trade Commission in 2020 (“FTC”), such as the disclosure and use requirements presently accessible at https://www.ftc.gov/news-events/media-resources/truth-advertising/advertisement-endorsements (“Guidelines”).

8. Non-Solicitation; Disintermediation for Cohley Clients and Creators.

Creator and Client acknowledges and agrees that Cohley has developed its business, the Platform and goodwill through the substantial investment of time, effort and expense, and that Cohley’s relationships and assets must be subject to reasonable safeguards and protections, including, from the poaching of its relationship and the financial benefits derived therefrom by the circumvention of the Platform or Cohley. Thus, and to the extent not prohibited by law, Creator and Client hereby covenants and agrees that during the term of these Terms and for a short and reasonable six (6) month period thereafter (together, the “Restricted Period”), Creator and Client shall not, directly or indirectly, on behalf of the Creator and Client, solicit, suggest, entice, encourage or otherwise seek to secure, or cause any individual or entity to solicit, suggest, entice, encourage or otherwise seek to secure, any opportunities with any Client with whom such Creator, individual or entity first entered into an understanding, agreement or contract with a Client by, through or under the Platform, to circumvent Cohley or any benefit to which Cohley could conceivably generate with respect to any other user of the Platform, including with respect to a Creator, Client, Customer Materials or Custom Materials. The same applies to Clients of Cohley. Notwithstanding the foregoing, nothing herein shall prohibit, preclude or restrict any Creator from communicating with, entering into a relationship with or rendering services for a Client, so long as the business relationship, undertaking and payments occur by, through or under the Platform. Any action by the Creator or the Client that encourages or solicits complete or partial payment and/or activity outside of the Platform is a direct violation of these Terms.

9. Confidential Information.  

Cohley may furnish Confidential Information (as defined below) to Creator solely as is necessary to enable Creator to perform the Creative Brief and for no other purpose or use. “Confidential Information” shall mean all confidential, proprietary or non-public information (whether written, oral or in another medium) furnished to Creator by Client or Cohley. Creator shall use at least the same degree of care in protecting Confidential Information as it uses to protect its own confidential information, but in no event less than commercially reasonable care.  Creator recognizes that irreparable harm will result from any breach or threatened breach of this section and, in such event, Cohley and/or Client shall have the right to equitable relief, including injunctive relief, without the need to secure a bond.  This section shall survive the termination or expiration of these Terms for any reason and is cumulative of all other rights.

10. Creator Warranties; Disclaimers. 

(a) Warranties. Creator represents and warrants to Cohley, and any Client it is engaged with via the Platform, that: (a) Creator has the full power and authority to enter into these Terms and to fully perform all of its obligations and grant all necessary rights hereunder without violating the legal or equitable rights of any third party; (b) none of the acts, services or materials, including original content and Custom Materials, delivered, provided, created and/or modified by Creator shall or will violate, infringe or misappropriate the rights of any third party, or contain any material that is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable; (c) Creator’s services hereunder (such as performance under any Creative Brief) will be of a highly professional nature, performed with skills necessary to carry out the services as contemplated under these Terms, and that Creator has sufficient right, title and interest in and to Custom Material and Custom Material to make all assignments (and grant all licenses) hereunder; and (d) all acts, services and materials provided hereunder are in compliance with all applicable federal, state and local laws and regulations. 

(b) Disclaimers. CREATOR EXPRESSLY AGREES THAT USE OF THE PLATFORM IS AT CREATOR SOLE RISK. THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER

EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO

APPLICABLE LAW, COHLEY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COHLEY DOES NOT WARRANT THAT THE PLATFORM WILL MEET CREATOR’S REQUIREMENTS, OR THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THE PLATFORM OR THE SERVERS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR ANY OTHER HARMFUL COMPONENTS. COHLEY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM. COHLEY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY SERVICES, PRODUCTS, MATERIAL, CUSTOMER MATERIALS, CREATIVE BRIEFS OR CUSTOM MATERIALS. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, COHLEY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN CLIENTS AND CREATORS. CREATOR SHOULD USE BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY.

11. Indemnification; Limitation of Liability; Time Limitation Waiver. 

(a) Indemnification. Creator shall indemnify and hold harmless Cohley, and any Client that Creator is engages with via the Platform, and Cohley’s and the Client’s respective parent companies, affiliates and subsidiaries, and their respective officers, directors/managers, shareholders, agents, representatives, employees and affiliates from and against all third-party claims, demands, causes of action, damages, losses, liabilities, penalties, fines, judgments, costs and expenses, including attorneys’ fees, of whatsoever nature (in the aggregate, “Claims”), arising from or out of, concerning, relating to or by reason of the fact of Creator’s or any of Creator’s agent’s, employee’s or subcontractor’s (i) Custom Materials (other than with respect to any assets, text copy, materials, or other intellectual property provided by any Client); (ii) breach of the Terms; (iii) violation of applicable laws; and (iv) negligence or willful misconduct. Cohley reserves the right to solely control all defense and settlement activities. But at Cohley’s request, Creator will defend the Claims (and allow Cohley to participate in all defense and settlement activities). Any settlement must be approved by Cohley in writing

(b)     Limitation of Liability.   TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL COHLEY (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE UNDER THESE TERMS FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS ACTUALLY PAID BY CLIENT TO CREATOR IN THE THREE (3) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (C) ANY MATTER BEYOND COHLEY’S REASONABLE CONTROL.  SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

(c) Time Limitation Waiver. CREATOR HEREBY WAIVES AND FOREVER RELINQUISHES ANY STATUTE OF LIMITATIONS OR STATUTE OF REPOSE RELATING IN ANY CLAIM ARISING FROM OR OUT OF, CONCERNING, RELATING TO OR BY REASON OF THE FACT OF THE PLATFORM. CREATOR AGREES THAT ANY CAUSE OF ACTION THERETO MUST COMMENCE WITHIN SIX (6) MONTHS AFTER THE CAUSE OF ACTION ACCRUES, REGARDLESS OF WHEN CREATOR FIRST DISCOVERED OR SHOULD HAVE DISCOVERED THE FACTS SUPPORTING THE CAUSE OF ACTION. CREATOR HEREBY WAIVES, AND AGREES NOT TO ASSERT, ANY ARGUMENT TO TOLL OR OTHERWISE DELAY THE BEGINNING OF ANY TEMPORAL LIMITATIONS TO BRING SUCH CLAIM. CREATOR FURTHER AGREES THAT UPON EXPIRATION OF THE TIME LIMITATION HEREIN CREATOR SHALL NO LONGER HAVE ANY CAUSE OF ACTION OR REMEDY ARISING FROM OR OUT OF, CONCERNING, RELATING TO OR BY REASON OF THE FACT OF THE PLATFORM.

12. Independent Contractor Relationship. 

The relationship created by these Terms is that of an independent contractor and neither Creator nor Cohley are joint venturers, partners, employees or agents of each other.  Neither party shall bind the other to any agreement without the express written consent of the other. 

13.  Disputes with Clients. 

Creator acknowledges and agrees that Cohley is under no obligation to become involved in any disputes between Creators and Clients (including, without limitation, for issues involving Custom Materials). If Cohley elects to help resolve any such dispute, it does so only as a courtesy. In the event that Creator has such a dispute, they release Cohley, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or the Platform. If Creator is a California resident, they shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor." 

14.  Choice of Law. 

These Terms are governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of law rules. 

15. DIsputes. 

All parties shall use their best efforts to settle any dispute arising among and between them. If any dispute arises between the parties that cannot be reasonably resolved, the parties agree to submit to binding arbitration pursuant to the American Arbitration Act (“AAA”) before one commercial arbitrator governed by the Federal Arbitration Act. The parties agree that the AAA proceedings and any hearing(s) associated therewith shall take place in the county and state of New York and, except as otherwise expressly provided herein, shall not take place in any other county or state. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, if any claims for injunctive relief arise, the parties agree that any such claim may be raised in a court of competent jurisdiction located in the county and state of New York. If a claim cannot legally be arbitrated (as determined by an arbitrator), the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, New York County, New York, or the United States District Court for the Southern District of New York. Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. Unless the parties otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND COHLEY ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

16. Audit Right. 

Creator irrevocably grants Cohley the right, upon email notice, to inspect, copy and audit any of Creator’s books, records, communications, systems, networks, equipment, and materials to confirm Creator’s compliance with these Terms. 

17. Cohley’s Intellectual Property Rights. 

All copyright rights and other intellectual property rights in the Platform and its contents, including any and all trademarks, content, data, databases, information, text, music, sound, photos, images, graphics, audio, video, software, code, technology, methods, analyses, studies, reports, and other intellectual property contained therein (“Cohley IP”) are owned by or licensed to Cohley, and protected by law, including copyright, database, trade secret, and trademark laws of the United States and all applicable jurisdictions, as well as other applicable state, national, and international laws and regulations. Creator does not and will not have or acquire any rights in or to such intellectual property rights, except as otherwise provided herein. Creator represents, warrants and covenant that Creator will not, directly or indirectly, reverse engineer, duplicate, replicate, remove, transfer, reveal, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform or any software, documentation or data related to the Platform (“Software”); modify, translate, or create derivative works based on the Platform or any Software; use the Platform or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.

18. Copyright Policy; Copyright Agent. 

Cohley respects the intellectual property rights of others and expects users of the Platform to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to our designated copyright agent (“Copyright Agent”). Our designated Copyright Agent to receive notifications of claimed infringement is:

For clarity, only Digital Millennium Copyright Act (DMCA) notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to hello@cohley.com. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.

19. Notice for California Users. 

Under California Civil Code Section 1789.3, California users of the online services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Platforms of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.

20.  Notices. 

All legal notices to Cohley must be addressed in writing, and sent by registered or certified mail, to: Goldfish Social, Inc, 28 West 17th Street, 10th Floor, New York, New York 10011, Attn: Legal.  If you have questions regarding this Agreement, you may also email us at hello@cohley.com

Cohley may provide notices to you via email and to any other address you provide.

21.  Entire Agreement. 

These Terms sets forth the entire understanding of Cohley and Creator with respect to the subject matter hereof and supersedes all prior agreements, whether oral or written, between the parties.  If any provision of these Terms is held to be unenforceable, such shall not affect the validity of any other provision of these Terms.  Any provision of these Terms that by nature of its terms would reasonably be expected to survive termination shall survive termination of these Terms for any reason.  These Terms may only be modified or amended as set forth herein. Either party may waive compliance by the other party with any covenants or conditions contained in these Terms, but only by written instrument signed by the party waiving such compliance.  No such waiver, however, shall be deemed to waive any other circumstance or any other covenant or condition not expressly named in the written waiver.  These Terms will be binding upon and will inure to the benefit of the parties hereto and their respective heirs, representatives, successors and permitted assignees.  These Terms may not be assigned, transferred, shared or divided in whole or in part by Creator without Cohley’s prior written consent, which may be withheld, conditioned, delayed for any reason whatsoever.  Any other purported assignment or transfer by Creator is void and without any legal effect. Cohley may assign these Terms without Creator’s consent. Delivery of an executed copy of these Terms, by facsimile, electronic mail in portable document format (.pdf) or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document has the same effect as delivery of an executed original of these Terms.

22. Contact. 

For any general questions about the Platform, feel free to reach out to us at hello@cohley.com.