AGREEMENT – TERMS & CONDITIONS
1.0 THE AGREEMENT
This agreement set out below by and between:
Cubus AS, Nesøyveien 4, 1377 Billingstad (with its successors and assigns called “Client”);
You, the Influencer (hereinafter referred to as the “Influencer” or “You”).
The Parties are herein separately referred to as a “Party” or jointly referred to as the “Parties”.
a) The Client operates and administrates the Influencer Marketing Program, which allows the Influencer to earn payment, commission or other advantages on Qualified Actions.
b) The Influencer is rewarded a revocable, non-transferable and non-exclusive right to use the Influencer Marketing Program and the Campaigns provided by the Client limited to use for the purposes of Promotion of the Client.
c) The Influencer must accept the conditions of this Agreement to become authorised by the Client as an Influencer. You are not allowed to use the Influencer Marketing Program or perform the Promotion of the Client or Campaigns if you do not accept the provisions of this Agreement.
d ) By agreeing to the terms and conditions of this Agreement, and when you register for an account on the Influencer Marketing Program, you accept that the Client use a password-protected third party portal to store your personal information, and that the Client may share your personal information with such third party as is necessary for the performance of your account. The Client have data processing agreement with third party that clearly set out how they may use your personal information in accordance with applicable privacy regulations.
The personal data transferred concern the following categories of data:
Email, full name, year of birth, gender, address, picture, IP address, company name, corporate identity number, website, social media accounts and channels
e) If you are a legal entity with employees, you shall make sure that any and all employees (if applicable) that are using the Influencer Marketing Program have taken note of this Agreement.
The Client will make available various content, programs, intellectual property and marketing proposals (“Campaigns”) through individual direct message or e-mail communication and/or through an affiliate platform, influencer platform and tracking system (“Influencer Marketing Program”), to commercial legal entities or self-employed individuals (“Influencers”) for posting on blogs, websites, media sites, discount sites, viral and social media platforms, apps and others (“Marketing channels”) in order to promote the Client (“Promotion”) through displaying products, various marketing proposals or personalised trackable links (“Links”) and earn payments, commission or other advantages by generating sales or other conversions on the Client’s website (“Qualified Actions”).
The terms and conditions set out below governs the use of the Campaigns and the Influencer Marketing Program and the obligations towards the Client when the Influencer, by means of the Influencer Marketing Program, performs the Promotion of the Client’s products on the Marketing Channels and generates Qualified Actions and the permission to use the Influencer’s content in the Client’s marketing and advertising. Furthermore, each Campaign may have additional terms and conditions within the Influencer Marketing Program which, when agreed upon, are incorporated as part of this Agreement. By submitting an application or participating in the Influencer Marketing Program, you expressly consent to all the terms and conditions of this Agreement.
2.0 ELIGIBILITY TO PARTICIPATE
The Influencer Marketing Program is only available to commercial legal entities and self-employed individuals aged 18 years or older with a registered company. If you are a self-employed individual, you hereby confirm that you are 18 years or older.
It is strictly required by the Influencer to create payable invoices to the Client for the incurred commission.
When you apply to the Influencer Marketing Program, you have to provide various information. All information you provide shall be true and correct. In connection with your application, you also have to select a username and a password. It is your responsibility to keep such login information secret and confidential.
By applying to the Influencer Marketing Program, you accept and authorize the Client to send you email and other communication.
2.3 SELECTED APPROVAL
The Influencer Marketing Program is for selected self-employed individuals and entities only. Thus, the Client will evaluate each and every application and may, at its sole discretion, deny your application to the Influencer Marketing Program for whatever cause. If and when the Client approves your application, you will receive an email confirmation.
3.0 DURATION AND TERMINATION
This Agreement shall be effective by signing or accept of the Agreement, and shall thereafter continue in full force until terminated by either party in accordance with this Agreement.
The Client may, at its sole discretion, terminate your participation in one or more Campaigns or this Agreement and thereby your use of the Influencer Marketing Program immediately, with or without notice, for whatever cause. The Client may also suspend your access to the Influencer Marketing Program and the Campaigns at any time at its sole discretion. Upon termination of the Influencer Marketing Program, one or more Campaigns or this Agreement for any reason, the Influencer will immediately cease all use of and delete all related Links and Campaigns.
You, the Influencer, may terminate this Agreement upon written notice to the Client.
All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
4.0 USE OF OFFERS CONTENT
4.1 INTANGIBLE CONTENT
Ownership and any other rights (e.g. intellectual property rights) to all software, marketing, prices, campaigns, information and other material including, but not limited to, images, videos, graphics, text, logotypes, articles, sounds, trademarks and other characteristics at the Client’s website and the Influencer Marketing Program vests solely with the Client.
Under no circumstances do you acquire any ownership to any part of the Campaigns, you only acquire a revocable, non-transferable and non-exclusive right to use the Influencer Marketing Program and Campaigns provided at the Influencer Marketing Program and the Client’s websites and only for the purposes of this Agreement. Thus, you are not allowed to use the Client’s name, logo or offers for other purposes than to generate traffic to the Client’s website via your Marketing Channels.
4.2 TANGIBLE CONTENT – PRODUCTS & SAMPLES
The Client may provide the Influencer with products or samples to be promoted on the Marketing Channel. All products and samples sent to the Influencer are strictly marketing associated and the sole purpose of the send-out is to promote the product or sample in question.
The Influencer do not acquire any ownership to any product or sample sent from the Client. After promotion on the Marketing Channels, the product or sample needs to be returned to the Client or immediately disposed of. A prepaid return form will be included with your products or samples. If the Influencer decides to keep the products or samples, the Influencer is responsible for the reporting and payment of any taxes, incl. social taxes, to relevant authorities in the Influencer’s market(s). The Client is not responsible for any punitive charges or delay interest incurred due to non-compliance with reporting and payment requirements.
5.1 INDEPENDENT CONTRACTOR
The Influencer act as an independent contractor. Thus, nothing in this Agreement and no action taken by the parties pursuant to this Agreement shall constitute, or be deemed to constitute, an employer-employee relationship between you, the Client and nor shall it constitute, or be deemed to constitute, a partnership, association, joint venture or other co-operative entity.
This Agreement does not constitute any form of exclusivity arrangement between the Parties, thus the Influencer is free to carry out assignments and promotions of other companies and products. However, if the Influencer do engage in assignments or promotions, that the Client at its sole discretion believes could harm the Client, the Client reserves the right to terminate this Agreement with the Influencer.
5.3 VOLUNTARILY USE
The Influencer act as an independent contractor and decide to what extent to use the Influencer Marketing Program and the Campaigns provided. The Client makes no demands whatsoever in terms of how much the Influencer shall promote and market The Client and the Client’s products by means of the Influencer Marketing Program.
5.4 COST OF OPERATION
The Influencer shall carry any and all costs which is, directly or indirectly, related to the Promotion of the Client and the Client’s products. Consequently, it lies entirely on the Influencer to acquire and pay e.g. office space and all equipment (such as computer, cameras, webhosting etc.) that you may need in order to promote and market the Client and the Client’s products.
6.0 INFLUENCER OBLIGATIONS
You hereby warrant that any activities (including, but not limited to, your Promotion of the Client and the Client’s products) performed in connection with this Agreement are undertaken in the strictest respect of any laws, regulations, directives etc. that apply in connection with your activities. The foregoing especially includes, but is not limited to, that you shall comply with the respective Marketing Act (“Markedsføringsloven”) and/or equivalent legislation in jurisdictions in which you operate.
6.2 UNAUTORIZED USE
You are solely responsible for any and all activities that are conducted through the Influencer Marketing Program account and it is your responsibility to keep your username and password confidential. You expressly acknowledge that you may not share, assign or otherwise transfer your account or login information to any other person or entity. In case you detect or suspect unauthorized use of your account, you shall notify the Client immediately.
When Promoting the Client and the Client’s products, you shall make sure that your marketing is consistent with good marketing practice. Among other things, you are obliged to design and present your marketing in such a way that it is clear to the recipient of the advertising that it is in fact a question of advertising. The Client may introduce policies, guidelines or other measures on the Influencer Marketing Program or in the Campaigns to assist in the compliance with good marketing practice in which case you shall follow such policies and guidelines, and apply such measures.
You shall not make use of inaccurate statements regarding the Client and the Client’s products which can affect the recipient’s ability to make a well-founded transaction decision or in any other manner use marketing methods which can be considered misleading or unfair.
The Client may request that you delete marketing related to the Client and the Client’s products if the Client believes the marketing is not in line with applicable law and/or good marketing practice. If you do not delete such marketing upon the Client’s request, the Client may terminate this Agreement with you.
6.4 INAPPROPRIATE MATERIAL
As a selected profile for the Client, you shall always act in a professional manner and with the Client’s best interest in mind. The foregoing includes, but is not limited to, that you shall only post material that;
(i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that the Client informs you that it considers objectionable.
If you post inappropriate material on your Marketing Channels or otherwise acts in a manner that may harm the Client or the Client’s reputation, it may result in that you will be banned from the Influencer Marketing Program and, in severe cases, the Client may also take legal actions against you.
6.5 INVALID MARKETING CHANNELS
Coupons and Links provided by the Influencer Marketing Program are personal and only to be used on the Marketing Channels of the respective Influencer. The Influencer must make sure to not place the Client’s promotion on any online auction or discount Programs (i.e. eBay, Amazon, Groupon etc).
You hereby warrant that you have the authority to execute this agreement and that your obligations under this agreement are enforceable in accordance with their terms.
6.7 PERMISSION TO USE THE INFLUENCER'S CONTENT IN THE CLIENT’S MARKETING AND ADVERTISING
By accepting these terms and conditions, the Influencer hereby;
- provides the Client with a non-exclusive, sub-licensable, royalty-free, irrevocable worldwide license to use any pictures on the Influencer's Marketing Channel(s), hereinafter referred to as “pictures", in the Client’s marketing and / or advertising, including making the pictures available to the public and/or producing permanent or temporary copies of the pictures or other posting from the Influencer's Marketing Channel(s) on the Client's designated websites, social medias, newsletters, catalogues, e-mails, store materials and for other Client communications and marketing purposes, regardless of the manner and form in which it occurs.
-certifies that (i) the Influencer owns all rights to its pictures, (ii) the Influencer has been granted permission from any person appearing in the Influencer’s pictures to transfer the rights herein, and (iii) the use of the Influencer's pictures by the Client will not violate any third party's rights or violate any law.
-releases the Client from all obligations to pay the Influencer for the use of the pictures and for the intellectual property rights of those associated with the above-described uses, thereby freeing and agreeing to keep the Client and all persons acting for the Client free from all damages claims, claims and liabilities, irrespective of nature, in connection with the use of the pictures as described above.
Pictures of an individual may be considered as personal data in accordance with applicable data protection legislation. The Client will process the Influencer's personal data when the Influencer provides pictures to the Client based on the Influencer's consent. The Influencer's privacy is key to the Client and the Client want to make sure that the Influencer feels safe and informed when using the Client’s services, therefore the Client handles personal data with the utmost care. The Influencer may always reach out to the Client with questions about the Client’s services or regarding data protection: by the Client’s SPOC.
7.0 COMMISSION & PAYMENTS
7.1 COMMISSION RATES
The Influencer is entitled to commission payment based on Qualified Actions at the rate specified in each Campaign in the Influencer Marketing Program respectively. Some Campaigns may hold a 0% commission rate. Commission is based on actual sales after potential returns or order cancellations.
A Qualified Action exists only if an individual person who (i) accesses the Client’s website via the personalised and trackable link (“Link”) provided to the Influencer by the Influencer Marketing Program, where the Link is the last link to the Client’s website, or uses a valid individual coupon code provided to the Influencer by the Influencer Marketing Program (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields (iv) completes all of the information required for such action (such as completing a purchase) within the time period allowed by the Client (v) is not later determined by the Client to be fraudulent, incomplete, unqualified or a duplicate and (vi) makes a sale or other conversion that is registered client/browser-side by the Influencer Marketing Program.
7.2 FIXED PAYMENTS
The Influencer may be entitled to payment based on the rate specified in individual direct message or e-mail communication and/or through the Influencer Marketing Program.
7.3 COMMISSION CURRENCY AND VAT
All commissions or payments are exclusive of VAT and calculated in the Influencer’s local currency.
7.4 COMMISSION BY COUNTRY
The Influencer accept that some Campaigns might be country specific. Sales from Clients outside the specific country may not be a Qualified Action, and the Influencer may not be entitled to commission on this sale.
7.5 PAYMENT OF COMMISSIONS EARNED
The commissions earned, if any, will be displayed in the Influencer login in the Influencer Marketing Program, and is payable to the Influencer against an invoice to the Client in arrears on a monthly basis, with one month delay and payment terms Net 30 days. This means that January commissions can be invoiced the earliest in March with payment due in April, and so on. This allows for the Client to adjust for returns and cancellations and make payment in due time.
Once the invoice is received and payed by the Client, the correlating payed amount is cleared from the commission amount in the Influencer Marketing Program.
7.6 MINIMUM INVOICE AMOUNT
The minimum commission invoice amount is the equivalent of EUR 100. If the Influencer’s outstanding commission balance is less than the equivalent of EUR 100 the amount will roll over to the next month and will continue to roll over monthly until the equivalent of EUR 100 is reached. The Client reserve the right to a chargeback if any previously paid Qualified Actions, that are later determined to have not met the requirements to be a Qualified Action, occur.
7.7 INVOICE REQUIREMENTS & OBLIGATIONS
The Influencer is responsible for sending the Client invoices for agreed payments and/or incurred commission and is required to ensure that the invoice format complies with the respective legislation and jurisdiction.
Failure to send invoice, or proper format invoice, will prevent payment from the Client. The Influencer must invoice the Client within 2 years of the incurred Qualified Action. After 2 years the Client will write-off the outstanding amount, and the Influencer will forfeit all claims to the commission.
7.8 UNSUFFICIENT PAYMENT BY CUSTOMERS
Payment for commissions is dependent upon customers providing such funds to the Client and therefore, you agree that the Client shall only be liable to you for commissions to the extent that the Client has received such funds from the customers. You hereby release the Client from any claim for commissions if the Client has not received such funds from the customers.
As an independent contractor, you are responsible for the reporting and payment of any taxes and social security charges due on the payments and commissions received under this Agreement. You will be personally responsible for reporting the payments and commissions received to the relevant authorities in your market. The Client is not responsible for any punitive charges or delay interest incurred due to non-compliance with reporting and payment requirements.
8.1 NON-ERROR FREE
The Client provides the Influencer Marketing Program on an “as is” basis. Thus, the Client does not warrant that the access to or use of the Influencer Marketing Program will be error free. Furthermore, the Client may at its sole discretion and at any time, without previous notice, suspend or discontinue the operation of the Influencer Marketing Program or remove, amend or add Campaigns and/or services.
8.2 NO MONEY GUARANTEE
The Client makes no warranties as to your potential earnings by being a Client profile and using the Influencer Marketing Program in general.
8.3 GENERAL DISCLAIMER
The Client disclaims all warranties not specifically set forth in this Agreement, whether express or implied, including but not limited to warranties as to quality merchantability, operability, non-infringement or fitness for a particular purpose.
9 LIMITATION OF LIABILITY
The Influencer Marketing Program is provided to the Influencer on an “as is” and “as available” basis and your use of the Influencer Marketing Program is at your sole risk. The Client does not assume any liability whatsoever for any consequences arising directly or indirectly out of your use of the Influencer Marketing Program or the Campaigns provided, unless otherwise stated herein.
The Client shall under no circumstances be liable for any loss of sales, profits or revenue, loss of goodwill, loss of data or any other indirect or consequential loss or damage.
Under any circumstances, the Client’s total liability under this Agreement shall not exceed the equivalent of EUR 1000.
The Influencer shall defend, indemnify and hold the Client harmless from any liability, expense, cost, loss or damage incurred by the Client, directly or indirectly as a result of the Influencer’s (including your employees and/or other person or entity acting on the Influencer’s behalf) breach of this Agreement.
You may not assign or transfer any of your rights or obligations or in any other manner make over to any third party the benefit of any of its rights or obligations under this Agreement.
If any provision of this Agreement is held to be invalid or unenforceable by any competent court, authority or arbitral tribunal, the remainder of that provision and all other provisions will remain valid and enforceable to the fullest extent permitted by applicable law. Any provisions determined invalid or unenforceable will be substituted by a provision of the same spirit.
The Client’s failure to require or enforce strict performance of any term or condition under this Agreement shall not be construed as a waiver of any such term or condition.
Any notices or communication sent to you by the Client will be sent through individual direct message or to the email address you have registered at the Influencer Marketing Program. It is your responsibility to ensure that the Client has your current email address at all times.
Any notices or communications sent by you to the Client pursuant to this Agreement must be sent to the email address specified on the Influencer Marketing Program or such other email or post address as the Client may specify.
Except as otherwise provided in this Agreement or with the consent of the Client, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, Client and vendor lists, and pricing and sales information, concerning the Client or any of the Client’s Influencers provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Influencer Marketing Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. The Influencer shall not use any information obtained from the Influencer Marketing Program to develop, enhance or operate a service that competes with the Influencer Marketing Program, or assist another party to do the same.
The Influencer undertakes to similarly impose a duty of confidentiality on all employees, including sub-contractors' employees. The confidentiality obligation shall continue to apply after the expiry of the Agreement.
17 JURISDICTION AND GOVERNING LAW
Any disputes shall primarily be settled by agreement after discussions between you and the Client. In the event the parties cannot reach an amicable solution, any dispute regarding the interpretation or application of this Agreement shall be governed by and construed in accordance with Norwegian laws with the exclusion of its choice of law provisions and shall be exclusively settled by the courts of Norway.
18 DEFINITIONS AND INTERPRETATIONS
Means this mail agreement document together with any appendices or amendments attached thereto.
Product and Samples
Goods provided by the Client for the purpose of being promoted by the influencer.
Single Point Of Contact, a single person or team within a company who are designated as the point of contact for all incoming communications.
A person who buys goods from the Client