STANDARD TERMS AND CONDITIONS

BETWEEN COHLEY, ITS CLIENTS AND CREATORS

These Terms and Conditions, together with any documents referenced herein, govern your access and use of www.cohley.com and its subdomains, 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”) that facilitates relationships between brands and creators. Any use, including on behalf of any entity, of the Platform indicates the irrevocable commitment and agreement to the following terms and conditions (the “Terms”):

1. Creator Acceptance; Services; Payment; Disputes.

(a) Acceptance. By submitting an application for any client of the Company (a “Client”), the service provider (“Creator”) agrees to be bound by the Terms, and the terms and conditions set forth in the creative brief with the Client (the “Creative Brief”). By ticking the checkbox upon the submission of a Creative Brief, Creator confirms that Creator has read and agreed to its terms and conditions and that Creator has entered into a legal, valid and binding obligation thereunder.

(b) 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 legitimate concern of the Client, including with respect to Custom Materials, such as spelling errors, hashtag errors and hyperlink errors. Notwithstanding the foregoing, Creator’s obligation to so address or resolve after Client’s publishing any Custom Materials shall be limited solely and exclusively to fixing spelling errors, hashtag errors and hyperlink errors. Creator shall not remove posts relating to campaign deliverables from their social feeds.

(c) 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.

(d) Disputes. Any dispute concerning Creator’s performance of a Creative Brief with any Client shall be resolved fully and finally by Cohley. Creator shall have the burden of establishing performance and compliance therewith. Cohley will investigate the dispute between Creator and Client and, after its investigation, Cohley will notify Creator and Client of the outcome of the investigation and complete or terminate the relationship as Cohley, in its sole discretion, deems appropriate. If Cohley decides the dispute, in whole or in part, against the Creator, Creator acknowledges and agrees that Creator will forfeit all or such portion of such compensation attributable to Creator’s failure to perform and further agrees that Client will have no liability therefor.

(e) 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.

2. Ownership and Licenses.  Creator acknowledges and agrees that the intellectual property rights for any video, photo, audio-visual, composition, transmission, creative, graphic, and textual material created and delivered to Client by Creator (collectively, the “Custom Materials”) shall be controlled by the section entitled “Content Rights” in each Client’s “Creative Brief.” If not specified therein, however, Creator hereby grants to Client, subject to the all other provisions of the Creative Brief, a worldwide, transferable, sublicensable, perpetual, irrevocable and nonexclusive license to use, reproduce, display, electronically transmit, distribute, publish, broadcast, modify, edit, combine with the work of others, make derivative works from and otherwise exploit Customer Materials and to grant any of those rights to others, for any purpose whatsoever, and on any terms determined by us in our sole discretion.

Additionally, Client has the right to syndicate content amongst retail partners, partner brands, parallel internal teams, etc. without limitation.

By providing and submitting original content in the Cohley Platform, Creator thereby assigns to us and Cohley will own, all right, title and interest in and to that content submission, irrevocably, perpetually and without any limitation or restriction whatsoever. Without limiting the generality of the preceding sentence, upon receipt of each Paid Submission, we will have the exclusive, irrevocable, perpetual, worldwide right to use, reproduce, display, electronically transmit, distribute, publish, broadcast, modify, edit, combine with the work of others, make derivative works from and otherwise exploit Customer Materials, and to grant any of those rights to others, for any purpose whatsoever, and on any terms determined by us in our sole discretion.

3. 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 (“FTC”), such as the 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 amended from time to time, 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; Disintermediation. Creator 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 Cohely. Thus, and to the extent not prohibited by law, Creator 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 shall not, directly or indirectly, on behalf of the Creator or any other Creator, 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 Paid Submissions.  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 that encourages or solicits complete or partial payment outside of the Platform is a violation of these Terms.

5. 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.

6. Warranties and Disclaimers

 

(a) Warranties. Each party warrants and represents to the other that (a) it 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 Paid Submissions, delivered, provided, created and/or modified by such party 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) 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 these Terms, and that Creator has sufficient right, title and interest in and to Custom Material and Paid Submission; 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 PAID SUBMISSIONS. 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 TO YOU.

7. Indemnification; Limitation of Liability; Time Limitation Waiver

(a) Indemnification. 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 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) actions or inactions, including with respect to any claims relating to Paid Submissions or Custom Materials; (ii) breach of the Terms; (iii) violation of applicable laws; and (iv) negligence or willful misconduct.  The party seeking indemnification shall give prompt written to the indemnifying party of any Claims.

(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.

8. 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. 

9.  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. 

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”) 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. For all purposes of these Terms, 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.

11.  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. These Terms may only be amended in writing signed by authorized representatives of both parties.  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.  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.  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.

12. Cohley’s Discretion. Cohley reserves the right to remove any Creator and terminate or suspend any Creator’s access from the Platform at any time for any reason or no reason at all. Cohley has no obligation to monitor the Platform, but reserves the right to do so.

13. Audit Right. Creator irrevocably grants Cohley the right, upon written notice, to inspect, copy and audit any books, records, communications, systems and material to confirm Creator’s compliance with these Terms. 

14. 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.

15. 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.

16. 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.

17. Strict Age Limit For Creators. No creators under the age of 13 shall be permitted to create a “profile” on the Platform and shall not be permitted to participate in any campaign on Platform. Each Creator represents and warrants that Creator is over the age of 13 and otherwise of legal age to form a binding contract (or if not, such Creator received Creator’s parent’s or guardian’s permission to use the Platform and agree to these Terms on Creator’s behalf. 

18. 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.

19. Other Jurisdictions. By accessing or using the Platform, or submitting information, Creator acknowledges and agrees that Creator accepts the practices and policies outlined in these Terms and consents to having Creator’s data transferred to and processed in the United States. If Creator do not agree to these Terms, do not use the Platform. The Platform is controlled and operated by Cohley from and in the United States. Cohley does not represent or warrant that the Platform, or any part thereof, is appropriate or available for use in any particular jurisdiction. Those Creators who choose to access the Platform, do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. Cohley may limit the availability of the Platform, in whole or in part, to any person, geographic area or jurisdiction that we choose, at any time and in our sole discretion.

20. Contact Information If Creator has any questions, feedback or to report a violation regarding these Terms please email hello@cohley.com

END OF STANDARD TERMS AND CONDITIONS