STANDARD TERMS AND CONDITIONS
BETWEEN COHLEY, ITS CLIENTS AND CREATORS
Creator acknowledges that Goldfish Social, Inc. d/b/a Cohley (“Cohley” or the “Company”) is a software platform that facilitates relationships between brands and creators. By using Cohley’s website (www.cohley.com) and all associates webpages, Creator agrees to the terms and conditions addressed herein.
1. Upon Creator submitting an application for any client of the Company (a “Client”), Creator agrees to be bound by all terms set forth in both Cohley’s Terms and Conditions, and the requirements specified in the Creative Brief. By ticking the checkbox upon the submission of a Creative Brief, Create confirms that Creator has read and agreed to all terms set forth therein.
2. Creator Ownership and License. The ownership of videos, photos, transmissions, creative, graphic, and textual materials created by Creator (collectively, the “Custom Materials”) shall be determined by the Client, as specified under the section entitled “Content Rights” in each Client’s “Creative Brief.”
3. FTC Disclosure Compliance. Without limiting any of the statutory and regulatory compliance requirements of this Agreement, Creator shall comply with the FTC and other disclosure and use requirements presently accessible at http://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf (“Guidelines”) as such Guidelines may be later updated by the FTC, in particular the June, 2015 What People Are Asking guidelines accessible at https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking#intro.
4. Non-Solicitation. Creator acknowledges that Cohley is a software platform providing, among other things, social media strategy and solutions for its clients. For the term of this Agreement and for six (6) months thereafter (the “Restricted Period”), Creator will not solicit or seek to secure, or cause any individual or entity to solicit or seek to secure, any other Creator or marketing opportunities from any Client with the intent to circumvent Cohley’s agency relationship with such client. Notwithstanding the foregoing, this provision does not restrict Creator from soliciting a Client for the purpose of notifying that Client of Creator’s resources and capabilities during the Restricted Period, as long as any resulting business relationship or undertaking with such Client is through Cohley’s platform.
5. Confidential Information. Cohley may furnish to Creator Confidential Information (as defined below) solely as is necessary to enable Creator to perform Services and for no other purpose or use. Creator agrees to keep confidential, and will not use for any other purposes other than in connection with its engagement with Cohley all confidential information of Cohley and Client. As used herein, the term “Confidential Information” shall mean all non-public information (whether written, oral or in another medium) of Cohley and/or its client(s) to which Creator comes into possession. Creator shall use at least the same degree of care in protecting Cohley’s Confidential Information as it uses in protecting its own confidential information, but in no events less than reasonable care. Creator recognizes that irreparable harm would be caused to Cohley and/or Client that is not capable of being compensated with money damages if Confidential Information were used or disclosed in violation of this Agreement and in such event and in addition to any other right or remedy available, 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 this Agreement for any reason.
6. Warranties and Disclaimers. Each party warrants and represents to the other that (a) it has the full power and authority to enter into this Agreement 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 provided or created and/or modified by such party shall violate or will violate or infringe upon the rights of any third party, or contain any material that is obscene, defamatory, libelous, slanderous or injurious to the user; (c) in the case of Creator, that the Services will be of a professional nature, performed with skills necessary to carry out the Services as contemplated under this Agreement; and (d) all acts, services and materials provided hereunder are in compliance with all applicable federal, state and local laws and regulations. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES MAKE NO OTHER WARRANTIES HEREUNDER AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Indemnification. Limitation of Liability.
(a) Creator shall indemnify, defend and hold harmless Cohley and its 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, judgments, costs and expenses, including reasonable and actual attorneys’ fees, of whatsoever nature (in the aggregate, “Claims”), arising from or relating to (i) the activities performed by Creator or any of Creator’s agents, employees or subcontractors incident to or under this Agreement which relate to such third-party claims; (ii) a breach of any of the representations and warranties made under this Agreement by Creator or any of its agents, employees or subcontractors; (iii) any failure of Creator or any of its agents, employees or subcontractors to comply with all applicable laws; and (iv) and any products claims related to products in Custom Materials. The indemnified party shall give prompt notice to the indemnifying party of any Claims.
(b) WITH THE EXCEPTION OF GROSS NEGLIGENCE AND/OR INTENTIONAL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS REPUTATION, LOST BUSINESS, OR LOST PROFITS), WHETHER FORESEEABLE OR NOT AND HOWEVER CAUSED, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MIGHT ARISE. THE FOREGOING RESTRICTIONS SHALL NOT APPLY TO A PARTY’S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS HEREUNDER.
8. Independent Contractor Relationship. The relationship created by this Agreement 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.
9. Choice of Law. This Agreement is governed by and construed in accordance with the laws of the State of New York without regard to its conflicts of law rules.
10. Arbitration; Injunctive Relief. 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”). The parties agree that the AAA proceedings and any hearing(s) associated therewith shall take place in the county and state of New York. 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.
11. This Agreement 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 this Agreement is held to be unenforceable, such shall not affect the validity of any other provision of this Agreement. This Agreement may only be amended in writing signed by authorized representatives of both parties. Any provision of this Agreement that by nature of its terms would reasonably be expected to survive termination shall survive termination of this Agreement for any reason. Either party may waive compliance by the other party with any covenants or conditions contained in this Agreement, 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. This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective heirs, representatives, successors and permitted assignees. This Agreement may not be assigned, transferred, shared or divided in whole or in part by Creator without Cohley’s prior written consent. Any other purported assignment or transfer by Creator is void and without any legal effect. Delivery of an executed copy of this Agreement, 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 this Agreement.
12. If there is a dispute regarding whether or not an Creator has fulfilled her or his duties in a campaign, the burden of proof lies on the Creator to demonstrate that he/she fulfilled the requirements of a Campaign. If Creator is unable to do so, the Client (or brand) does not bear the responsibility to compensate the Creator the originally agreed upon rate. Additionally, if Creator has not created her/his Stripe account to receive payment on the Cohley platform within 30 days of the end date of the campaign in which they participated and completed outlined deliverables in, the Brand is no longer mandated to complete payment. Additionally, the Brand retains the possibility to reduce payment to Creator if Creator does not complete the campaign deliverables by the dates specified in the campaign brief.
13. Payment. Creator shall be paid by Client within 30 days of the Campaign End Date, as defined in the Creative Brief.
14. Cohley reserves the right to remove any Creator from the platform at any given time for any reason it deems worthy of removal. If a Creator has adequately completed a campaign on time, has followed the content requirements specified and is owed compensation, Creator will be compensated fairly for her/his work regardless of profile status.
15. No Class Actions. YOU AND COHLEY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Cohley agree otherwise, 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.
END OF STANDARD TERMS AND CONDITIONS