Effective date: 13 September 2018
Wetrend Media Ltd trading as WeTrend ("we", "us", "our") is a technology platform (the "Platform") and aims to connect individuals with a social media following ("Influencers") or their talent management representatives ("Agents") with companies or brands looking for Influencers to help promote their brand ("Advertisers") over Social Media Platforms (as defined below). References to Influencers shall, where the context permits, include their nominated Agents.
These Terms of Service constitute a binding legal agreement between you (as an Influencer, Agent or an Advertiser) (“you”) and us, an English company whose registered office is The Broadgate Tower, Third Floor, 20 Primrose Street, London EC2A 2RS.
These Terms of Service apply whenever you visit WeTrend, whether or not you have chosen to register with us, so please read them carefully. By accessing, using, registering for or receiving services offered on WeTrend you are accepting and agreeing to be bound by these Terms of Service.
1. ACCOUNT REGISTRATION
1.1 If you choose to register on the Platform, you agree to provide and maintain true, accurate, current and complete information about yourself, or if you are a corporate entity, the company's details, as prompted on the registration form, and keep this information up-to-date.
1.2 The Platform is intended for the use of adults over the age of 18. You are not authorised to use the Platform or to register for an account if you are under 18 years old.
1.3 You register and sign into the Platform through your Instagram account. You do so by inputting your Instagram username and password as requested and clicking “Log in”. It is your responsibility to ensure that you keep such details confidential and are fully responsible for any and all activities that occur under your password or account.
1.4 If you are concerned that your password has been disclosed to a third party or if you think there has been unauthorized use of your password or account you must notify us immediately, and then create a new password via Instagram. We will not be liable for any loss or damage arising from any unauthorized use of your password or account unless it is deemed to be as a result of our negligence.
2. THE PLATFORM
2.1 You acknowledge that the Platform, and the databases, software, hardware and other technology used by or on behalf of WeTrend to operate the Platform, and the structure, organization, and underlying data, information and software code comprising the Platform (collectively, the “Technology”), is owned by or licenced to WeTrend.
2.2 You will not, and will not permit any third party to: (i) access or attempt to access or use the Technology except as expressly provided in these Terms of Service; (ii) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (iii) use automated scripts to collect information from or otherwise interact with the Technology; (iv) alter, modify, reproduce, create derivative works of the Technology; (v) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of your rights to access or use the Technology or otherwise make the Technology available to any third party; (vi) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (vii) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (viii) monitor the availability, performance or functionality of the Technology; or (ix) interfere with the operation or hosting of the Technology.
3. INTELLECTUAL PROPERTY RIGHTS – THE PLATFORM
We retain all right, title and interest, including, without limitation, all Intellectual Property Rights (defined as all copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world), in and to the Technology and any additions, improvements, updates and modifications thereto. You receive no ownership interest in or to the Technology and you are not granted any right or licence to use the Technology itself, apart from your right to access the Platform and its content under these Terms of Service. The WeTrend name, logo and all product and service names associated with the Platform are trade marks of WeTrend and you are granted no right or licence to use them.
4. INTELLECTUAL PROPERTY RIGHTS - ADVERTISERS
This clause 4 only applies to Advertisers
4.1 The Platform provides you with the ability to upload your Promotion (as defined as the marketing campaign of the Advertiser) to the Platform for use by the Influencers you select. We will not have any ownership rights in your Promotion, or your Marks (as defined below).
4.2 In return for the services provided by the Platform you hereby grant to us a worldwide, non-exclusive, royalty-free, sublicensable right for the duration of the Promotion to:
4.2.1 share the Promotion with Influencers in order to offer them the opportunity to incorporate the Promotion into a social media post or link;
4.2.2 use, host, and display the Promotion on the Platform on your behalf (e.g., use, host, stream, transmit, playback, transcode, copy, display, feature, market, sell, distribute and otherwise exploit the Promotion along with all associated copyrightable works or metadata, including without limitation photographs, graphics, and descriptive text in connection with the Platform); and
4.2.3 allow us to allow an Influencer to post or link to the Promotion on any approved Social Media Platforms (defined as Facebook, Twitter, Instagram, Snapchat, YouTube) that the Influencer is required to use for the purpose of the Promotion to transmit, link, display, feature, distribute and otherwise use and exploit the Promotion in compliance with, and to the extent required by, the terms and conditions of the third party website.
4.3 To enable us to host your Promotion in accordance with clause 4.2.2 above, you hereby grant to us a worldwide, non-exclusive, royalty-free, sublicensable licence to use, reproduce, copy, and display your trade marks, service marks, slogans, logos or similar proprietary rights (collectively, the “Marks”) solely in connection with the Platform.
4.4 You are responsible for obtaining all permits, licences and authorisations to run the Promotion and shall ensure that the Influencer's possession and use of the Promotion in the exercise of the Influencer's obligations under these Terms of Service shall not infringe the Intellectual Property Rights or proprietary rights of any third party.
4.5 You represent and warrant that: (i) you own or otherwise control all rights to all content in the Promotion; (ii) you have full authority to act on behalf of any and all owners of any right, title or interest in and to any content in the Promotion; (iii) you have permission to use the name and likeness of each identifiable individual person whose name or likeness is contained or used within the Promotion, and to use such individual’s identifying or personal information (to the extent such information is used or contained in the Promotion) as contemplated by these Terms of Service; (iv) the Promotion shall not be defamatory, libellous, obscene or otherwise offensive; and (v) you are authorized to grant all of the rights granted in this clause 4 to us and the Influencers.
4.6 You represent and warrant that the use or other exploitation of the Promotion by us and/or by the Influencers as contemplated by these Terms of Service will not infringe or violate the rights of any third party, including without limitation any privacy rights, publicity rights, copyrights, contract rights, or any other Intellectual Property Rights or proprietary rights.
5. ADDITIONAL TERMS FOR INFLUENCERS
5.1 This clause 5 applies to Influencers. If you are an Influencer you are required to abide by these additional terms and conditions when using the Platform.
5.2 You shall:
5.2.1 perform any marketing services for a Promotion (the “Services”) with all due skill, care and diligence and upon the instructions notified to you at all times by us or the Advertiser;
5.2.2 comply with all instructions and reasonable timeframes directed to you by us or the Advertiser;
5.2.3 positively promote the Advertiser’s brand on the Social Media Platforms in accordance with any brand guidelines or house rules provided to you from time to time;
5.2.4 not publish a promotion for another Advertiser, on the Platform or any other platform, for 24 hours after uploading a post in connection with the Promotion;
5.2.5 not for three months after uploading a post in connection with the Promotion, promote any business which is (or intends to be) in competition with the Advertiser (a “Competitor”) on or off the Platform including any Competitors listed in house rules provided by Advertiser from time to time without prior written consent of the Advertiser;
5.2.6 immediately remove any posts, links or other media put into the public domain, or otherwise communicated to a third party in connection with the Promotion at our written request; and
5.2.7 not remove any posts, links or other media in connection with the Promotion that are already published and in the public domain at any time unless requested by us or the Advertiser.
5.3 You shall submit all materials incorporating or related to the Promotion to the Advertiser in writing, for prior written approval, at least 2 working days before you intend to use the materials on the Social Media Platforms. Any approval granted under this clause 5.3 is in the Advertiser's sole discretion and its decision is final.
5.4 You shall not do anything, nor permit anything to be done which is detrimental to our, the Advertiser's or the Promotion's reputation, image, value or goodwill.
5.5 You shall ensure that all the posts, links or other media you produce under these Terms of Service and their broadcast, publication or otherwise making available to the public, in all material respects as delivered by you, shall:
5.5.1 comply with relevant advertising requirements including the requirement that it is clear to consumers that payment has been made for promotional content.
5.5.2 comply with all applicable laws, regulations, regulatory policies, guidelines or codes in each case from time to time in force, including all such guidelines or codes issued by statutory, regulatory and industry bodies or brought to your attention by us or the Advertisers;
5.5.3 not infringe the Intellectual Property Rights or proprietary rights of any third party;
5.5.4 not be defamatory, libellous, obscene or otherwise offensive; and
5.5.5 comply with the terms and conditions of the Social Media Platforms or any other third party platforms or websites, including (but not limited to) the YouTube Terms of Service, available at: https://www.youtube.com/t/terms.
5.6 If there is a competition element to the Promotion you will include a working hyperlink to complete and accurate terms and conditions of the competition (Competition Terms) in the posting of the Promotion. The Platform or Advertiser may specify the Competition Terms. Alternatively, upon your request the Platform or Advertiser may provide a template which you will adapt to accurately set out the Competition Terms. You will adhere to the Competition Terms.
5.7 The Advertiser shall, immediately upon its creation, be the full owner of all and any intellectual property and other related rights in and to the services provided by the Influencers to the Advertiser.
6. ADDITIONAL TERMS FOR AGENTS
6.1 This clause 6 applies only to Agents. As an Agent, you are required to abide by these additional terms and conditions when using the Platform.
6.2 You shall:
6.2.1 procure that the Influencers represented by you shall comply with the terms and conditions contained herein;
6.2.2 perform your obligations hereunder in a professional manner in accordance with the Advertiser's guidelines, policies, instructions and/or house rules (as applicable) from time to time;
6.2.3 promptly notify the Advertiser if the Influencer represented by you is unable to perform their obligations for any reason; and
6.2.4 not do anything, nor permit anything to be done which is detrimental to the Advertiser's reputation, image, value or goodwill or the Marks.
6.3 Where payment of the Fee is made to an Agent rather than the Influencer pursuant to clause 7, payment to the Agent shall be a good and valid discharge of our obligations to pay the Fee in question, and we shall not be concerned to see the application of the monies so paid.
6.4 Agent and Influencer shall be jointly and severally liable for their obligations under this agreement.
7.1 We shall pay the Influencer the fee notified to them via the Platform for each Promotion they are involved in (the Fee).
7.2 We, or a nominee of our choosing, shall pay the Influencer directly via its selected payment method within 3 – 5 working days after receiving notification from the Advertiser that they are satisfied with the posting of the Promotion on the Social Media Platform.
7.3 The Influencer shall be solely responsible for all taxes payable in respect of the Fee and shall indemnify the Advertiser and us against any tax liability which arises out of or in connection with the Fee and we or the Advertiser may satisfy such amounts by way of deduction from the amount due.
7.4 The Fee shall be invoiced on a self-billing basis as set out below:
7.4.1 WeTrend agree:
(a) to issue self-billed invoices for all the services delivered under this agreement by the Influencers for 12 months from the date the Influencer accepts these terms.
(b) to complete self-billed invoices showing the Influencer’s name, address and VAT registration number, together with all the other details which constitute a full VAT invoice.
(c) to make a new self-billing agreement in the event that our VAT registration number changes.
(d) to inform the Influencer if the issue of self-billed invoices will be outsourced to a third party.
7.4.2 The Influencer agrees:
(a) to accept invoices raised by WeTrend on the Influencer’s behalf.
(b) not to raise sales invoices for the transactions covered by these Terms of Service.
(c) to notify WeTrend immediately if they:
(i) become VAT registered;
(ii) change their VAT registration number;
(iii) cease to be VAT registered; or
(iv) sell their business, or part of their business.
7.5 In the event there is any dispute over the Fee or its payment, the Influencer shall resolve this dispute with the Advertiser via the Platform.
8. ACCESS TO THE PLATFORM
8.1 We cannot guarantee that the Platform will be up and running at all times because sometimes we have to carry out maintenance to the Platform or it may be affected by a fault or circumstances which are outside our control, so the Platform is provided on an “as is” basis. No warranty is given about the quality, accuracy, functionality, availability or performance of the Platform and we reserve the right to suspend, withdraw, amend, modify or vary the service provided on the Platform without notice and without incurring any liability to you.
8.2 If you access the Platform by a mobile device you are responsible for making all the necessary arrangements to ensure you can access the Platform (including, but not limited to Internet provider and mobile internet provider fees and, any other charges associated with such access). We shall not be held responsible for any reduced functionality you may encounter as a result of or in connection with accessing the Platform through mobile services or any similar service currently known or developed in the future.
8.3 By accessing the Platform or agreeing to receive messages or notifications from us through your mobile phone and/or any other connected media device, you accept that you may incur charges from your internet or mobile service provider. We shall not under any circumstances be liable for such charges.
9.1 These Terms of Service may be terminated by the Advertiser at any time, in the Advertiser’s sole discretion. Influencer may terminate these Terms of Service giving not less than 7 working days’ written notice to the Advertiser. Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect, including but not limited to clauses 5, 10 and 11.
9.2 We may also terminate these Terms of Service immediately if we, in our sole opinion, consider that you are in breach of any of the terms.
9.3 Upon termination or expiration of these Terms of Service for any reason:
9.3.1 all rights granted to you will terminate;
9.3.2 you will immediately cease all use of and access to the Platform; and
9.3.3 we may delete your account and any of your Promotions (as applicable).
11. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
11.1 We expressly disclaim any and all responsibility and liability for your conduct or the conduct of any other user including the posts made by the Influencers on the Social Media Platforms, and expressly disclaim any liability for content or Promotions uploaded by you, an Advertiser or by any other user.
11.2 Nothing in the Terms of Service limits or excludes our liability for:
11.2.1 death or personal injury caused by our proven negligence; or
11.2.2 any liability which cannot be limited or excluded by law.
11.3 To the fullest extent permitted by law, we expressly exclude:
11.3.1 all conditions, representations, warranties and other terms which might otherwise be implied by statute, common law or the law of equity; and
11.3.2 any liability incurred by you arising from use of the Platform or these Terms of Service, including without limitation for any claims, charges, demands, damages, liabilities, losses or expenses of whatever nature including direct, indirect, incidental, special, exemplary, punitive or consequential damages (however arising including negligence), loss of use, loss of data, loss caused by a computer or electronic virus, loss of income or profit, loss of or damage to property, wasted management or office time, breach of contract or claims of third parties or other losses of any kind or character, even if we have been advised of the possibility of such damages or losses, arising out of or in connection with the use of the Platform.
12.1 If we are sued as a result of your use of the Platform in breach of these Terms of Service then we have the right to defend or settle the relevant claim as we see fit. If we ask, you will co-operate fully and reasonably as required by us in the defence of any relevant claim.
12.2 You agree to hold harmless and indemnify us and our officers, directors, employees, agents, representatives and licensors from and against any third party claims, damages (actual and/or consequential), actions, proceedings, demands, losses, liabilities, costs and expenses (including reasonable solicitor’s fees) suffered or reasonably incurred by us arising as a result of, or in connection with, your access to and use of the Platform, the uploading or submission of any material onto the Platform by you or your conduct, other than in accordance with the Terms of Service or any applicable law or regulation (“Claim”). We retain the exclusive right to settle, compromise and pay any and all Claims or causes of action which are brought against us without your prior consent.
12.3 The Advertiser hereby indemnifies the Influencer from and against any third party claims, damages (actual and/or consequential), actions, proceedings, demands, losses, liabilities, costs and expenses (including reasonable solicitor’s fees) suffered or reasonably incurred by the Influencer arising as a result of, or in connection with, its use of the Promotions in accordance with these Terms of Service.
12.4 The Influencer hereby indemnifies the Advertiser from and against any third party claims, damages (actual and/or consequential), actions, proceedings, demands, losses, liabilities, costs and expenses (including reasonable solicitor’s fees) suffered or reasonably incurred by the Advertiser arising as a result of, or in connection with, the Influencer's use of the Promotion in breach of these Terms of Service.
12.5 The Agent hereby indemnifies us and the Advertiser from and against any and all third party claims, damages (actual and/or consequential) actions, proceedings, demands, losses, liabilities, costs and expenses (including reasonable solicitor’s fees) suffered or reasonably incurred by us or the Advertiser as a result of or in connection with any breach by the Agent or the Influencer of these Terms of Service.
13.1 We have taken reasonable steps to ensure the currency, availability, correctness and completeness of the information contained on the Platform and provide that information on an "as is", "as available" basis. We do not give or make any warranty or representation of any kind about the information contained on the Platform, whether express or implied. Use of the Platform and the materials available on it is at your sole risk. We cannot be held responsible for any loss arising from the transmission, use of data, or inaccurate content posted by users. You are responsible for taking all necessary precautions to ensure that any material you may obtain from us or from each other is free of viruses or other harmful components. We reserve the right to modify, amend or change these Terms of Service at any time (a “Change”). If we do this then the Changes will be posted on this page and we will indicate the effective date of the updates at the top of the terms. In certain circumstances, we may send an email to you notifying you of any Change. You should regularly check this page to take notice of any Changes.
13.2 If you do not accept any Change to the Terms of Service, you should stop using the Platform immediately. Your continued use of the Platform following any Change constitutes your acceptance of the Change and you will be legally bound by the new updated Terms of Service.
13.3 If, for any reason, any of the Terms of Service are declared to be illegal, invalid or otherwise unenforceable by a court of a competent jurisdiction, then to the extent that term is illegal, invalid or unenforceable, it shall be severed and deleted from these Terms of Service and the remainder of these Terms of Service shall survive, remain in full force and effect and continue to be binding and enforceable.
13.4 These Terms of Service set out the entire agreement and understanding between us and you in relation to your use of the Platform, and between the Advertiser and the Influencer, and supersedes all previous agreements, representations and arrangements between us or you both (either oral or written). Nothing in this clause shall limit or exclude any liability for fraudulent misrepresentation.
13.5 No failure or delay by us in exercising any right, power or privilege under these Terms of Service shall operate as a waiver of such right or acceptance of any variation of these Terms of Service and nor shall any single or partial exercise by either party of any right, power or privilege preclude any further exercise of that right or the exercise of any other right, power or privilege.
13.6 Nothing in these Terms of Service shall confer or purport to confer on any other third party, any benefit or the right to enforce any term of these Terms of Service and the Contracts (Rights of Third Parties) Act 1999 shall not apply.
13.7 These Terms of Service and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.
13.8 Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms of Service or its subject matter or formation (including non-contractual disputes or claims).