INTRODUCTION
We are 8 Journeys Pty Ltd (ACN 603 036 513) as trustee of for the 8 Journey’s Unit Trust trading as Gaibo Influencers ABN 62 910 868 200. Our Platform enables you the opportunity to engage our Influencers to run your Campaigns.
By applying for an account on the Platform or by using the Platform or otherwise engaging an Influencer (whether through the Platform or outside of the Platform), you agree that you shall be bound by these terms and conditions (Terms) in relation to your use of the Platform, our provision of the Platform and our provision of the Services as set out in these Terms. Please read these Terms carefully as they contain important information about your rights and responsibilities when using the Platform and Services.
DEFINITIONS
In these Terms, we have defined some words to assist both of us to understand our rights and obligations:
Brand Account means an account you apply for, and on approval from us, set up and complete for the purposes of engaging an Influencer to execute a Campaign on your behalf.
Campaign means your marketing campaign and includes but is not limited to brand promotion via online social media channels, event campaigns and gifting campaigns.
Campaign Agreement is the agreement that is formed between you and an Influencer when you formally engage an Influencer to execute your Campaign.
Campaign Brief means a brief of Content and materials and anything else required by you and the Influencer to execute a Campaign. This might include:
Social media platform targets;
The deadline for applications for each Campaign (Application Deadline);
The deadline for Influencers to have submitted the Influencer Content to you for approval (Draft Deadline);
the date following or on which the Influencer is to upload their Content to their social media accounts (Campaign Live Date).
Contract means the legal agreement between us that is created at the time you select a upload a Campaign and we accept it.
Fees means the fees and charges payable to the Influencer pursuant to the terms of the Campaign Agreement.
Influencer means the person who is contracted to us and available to you to engage for the purposes of executing a Campaign.
Influencer Content means the content created by our Influencers in conjunction with you for the purposes of a Campaign but may also include the manner in which a Campaign will be conducted if for instance a Campaign is an event campaign or a gifting campaign.
Platform means the Gaibo Influencers platform which delivers the Services to you.
Services means the services we provide from time-to-time to enable you to engage an Influencer to execute your Campaign.
Your Content means the content you create and upload on the Platform to form part of your Campaign.
PLATFORM
In consideration of us providing the Services and making the Platform available to you, you provide us with information about yourself and your Campaign needs via your Brand Account.
In order to use the Platform and the Services, and when applying for a Brand Account, you will be required to provide us with certain details, as indicated on the Platform. We shall be under no obligation to accept an application from you and any application shall only be accepted following our written confirmation that the application has been successful.
You must treat your login details (including any password) as confidential and not disclose them to any third party.
The Platform contains a tools which enable you to upload details of proposed Campaigns in relation to which you would like Influencers to create and upload Content. To upload a Campaign you will be required to add certain details and criteria about the Campaign as indicated on the Platform including but not limited to a Campaign Brief.
Proposal is an offer either by you to an Influencer or an Influencer to you setting out the basis on which you will contract with the Influencer in relation to a Campaign including:
The platforms that the Influencer will upload too;
The fees charged by the Influencer.
By submitting a brief on the Platform we will review and approve your Campaign before it may be listed on the Platform via the Gaibo Influencer app (App). The Campaign will be featured on the App on the start and end dates as outlined by you in the Campaign.
As a brand you are solely responsible for reviewing and approving all content and posts for your Campaign and you are solely responsible for anything that arises out of the content and posts of your Campaign.
When creating a Campaign, you can choose for it to be: “cancelled” whereby only you can send Proposals to Influencers; or “open” whereby you can send Proposals to Influencers and any Influencers can send a Proposal to you.
Platform facilitates the negotiation between you and the Influencer regarding the terms of a Proposal. We shall have no involvement with such negotiations, any terms agreed or any involvement in the contractual relationship between you and the Influencer. The Campaign Agreement is your contract with the Influencer regarding their participation in your Campaign.
Must be agreed and accepted by you and the relevant Influencers through the Platform (Acceptance), following which an invoice will be issued to your Brand Account and sent to you by email.
Following Acceptance, the Influencer will submit draft Influencer Content to you via the Platform for you to either approve or reject (with your comments). If you approve the draft Content, the Influencer will upload the approved Content onto the agreed social media platforms on or after the Campaign Live Date (as set out in the Campaign Agreement);
Reject the draft Content, the Influencer will amend the draft Content in accordance with your comments and re-submit it.
YOUR RESPONSIBILITIES
You agree that all Your Content you submit when creating your Brand Account, creating a Campaign Brief or otherwise make available through the Platform is accurate, complete and not misleading, and that you shall immediately inform us of any changes to or inaccuracies in such information.
If you select the free gifting campaign you agree to provide the products and distribute within 7 days of approving the influencer/s and also agree to pay the Fees as requested by the Influencer. Gaibo does not accept any liability if the goods do not reach the influencer/s.
If you select the gifting exchange campaign you agree to provide the good/s and distribute within 7 days to enable the Influencer/s to create content. Gaibo does not accept any liability if the goods do not reach the influencer/s.
You represent and warrant on an on-going basis that your use of the Services and Platform, and each Campaign and all of Your Content does not infringe the rights of any other person or body and complies with all applicable laws, regulations, codes and standards, including without limitation all applicable advertising standards and regulations concerning sponsored or advertorial content. Such obligation includes but is not limited to a responsibility on you to ensure that all of Your Content include the necessary hash tag requirements that exist in respect of all applicable advertising standards and regulations.
You agree to promptly provide us with all such assistance and information in relation to the Services as we may reasonably request from time to time.
You shall ensure that you have and will maintain all necessary licences, consents and permissions necessary for you to make use of the Platform, conduct Campaigns, and engage Influencers.
You shall ensure that your use of the Platform and the Services does not infringe the rights of any other person or body.
You agree that you shall not do any of the following without our prior written consent, either solely or jointly with or on behalf of any third party directly or indirectly:
Reproduce or copy information or material from the Platform or any other material sent or made available to you by us or by an Influencer (Material) or create derivative works from, modify or in any way commercially exploit any of the Material; distribute, transmit or publish any of the Material (including using it as part of any library, archive or similar service); or create a database in electronic or structured manual form by downloading and storing all or any of the Material for any purpose whatsoever.
Except as expressly set out in these Terms you undertake that you shall not, either solely or jointly with or on behalf of any third party directly or indirectly:
Attempt to copy, duplicate, adapt, modify, create derivative works from or distribute all or any portion of the Platform or the Services;
Rent, lease, sub-license, assign, sell, encumber, loan, translate, merge, adapt, vary or modify the Platform or the Services;
Attempt to re-use, reproduce, reverse compile, disassemble, reverse engineer, attempt to discern any software, including source code, used by or otherwise relating to the Platform or the Services or otherwise reduce to human-perceivable form all or any part of the Platform or the Services;
Use the Platform or the Services on behalf of any other party nor allow or permit a third party to do so or to have access to the Platform or the Services;
Do (or by omission do) anything which may damage our reputation;
Access, store, distribute or transmit any viruses, during the course of your use of the Platform or the Services;
Remove or alter any copyright or other proprietary notice on any of the Platform or the Services; or
Access or use all or any part of the Platform or the Services in order to build a product or service which competes with the Platform or the Services.
You undertake that you shall not access, store, distribute or transmit any material during your use of the Platform or the Services, in relation to Your Content or in relation to your relationship with the Influencer that:
Is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
Facilitates illegal activity;
Depicts sexually explicit images;
Promotes unlawful violence;
Is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
In manner or content is otherwise illegal or causes damage or injury to any person or property.
In the event of a breach by you of clauses 4.7 or 4.8 we reserve the right, without liability or prejudice to our other rights under these Terms, to:
Disable your access to the Platform or the Service; and
To remove from the Platform any Campaign that we believe, acting reasonably breaches clause 4.8.and in such circumstances no compensation will be payable to you.
OUR RESPONSIBILITIES
We shall have no responsibility for any act or omission of any Influencer in any way whatsoever, including their compliance with any Campaign Agreement or the processes set out in these Terms.
We do not warrant that the use of the Services or the Platform will be uninterrupted or error-free and you acknowledge that we may make changes to the Platform, or suspend or terminate the Platform or Services or your access to them for any reason without notice to you.
We do not guarantee that the Services or the Platform will be secure or free from bugs or viruses. You are responsible for configuring your information technology, mobile device, computer programs and platform in order to access the Platform.
We assume no responsibility and shall not be liable for any loss or damage caused by a virus, or other technologically harmful material that may infect your computer or other equipment or other property on account of your access to, use of, or browsing of the Platform or any website linked to it.
FEES AND PAYMENT
In relation to each Campaign, you will pay the required Fees when you approve the Influencer/s for your Campaign:
You agree to pay us a fee to submit a campaign on the IOS and Android app;
The Fees, which we collect on behalf of the Influencer;
You agree to pay us the Gaibo commission Fee upon approving the Influencer’s for your campaign in accordance with these Terms of Use.
We will hold your influencer/s payments until you approve the content submitted by the influencer/s. Once approved we will submit the payments to the influencers who have been approved to provide content for your campaign.
If you terminate a Campaign Agreement after your approve the influencer the Campaign Commission (and, subject to the Campaign Agreement, the Influencer Fees) shall become immediately payable and due.
All amounts payable to us under the Terms are provided by such payment processor as we use from time to time (Payment Processor such as Stripe and PayPal) and are subject to the Payment Processor terms of service (Terms of Service). By agreeing to these Terms, you agree to be bound by the Terms of Service, as the same may be modified by the Payment Processor from time to time.
As a condition of us enabling payment processing services through the Payment Processor, you agree to provide us with accurate and complete information about you, and you authorise us to share such info with the Payment Processor together with transaction information related to your use of the payment processing services provided by the Payment Processor.
All sums payable under these Terms shall be paid in Australian dollars and will be stated exclusive of GST which shall, if applicable, be payable in addition.
If you fail to make any payment to us in accordance with these Terms, we may charge you interest at the rate of 4% above our bankers base lending rate in force from time to time. Such interest shall accrue on a daily basis from the date the sums became due.
INTELLECTUAL PROPERTY & DATA PROTECTION
We, and/or our licensors, own all intellectual property rights (including but not limited to copyright, database rights, design rights and trade marks) (Intellectual Property Rights) in the Platform and the Services and your only right to use such rights is as set out in these Terms, any other use by you is prohibited.
The ownership of Intellectual Property Rights and all other rights in Your Content shall be as provided for in accordance with the Campaign Agreement.
To the extent the use relates to the Campaign and to your marketing activities, you may use the name of the Influencer with whom you have entered into a Campaign Agreement in association with the content of each Content produced by that Influencer.
You grant us the right to use any content, material or branding provided or made available by you, including but not limited to Your Content, Campaign and your trademarks, logos and other branding as we require in relation to the provision of the Services and in order to promote and market the Platform or Services, such right to survive termination. You warrant that our use of such material in accordance with this clause shall not infringe the Intellectual Property Rights or other rights of any third party and you indemnify fully if we suffer loss or damage because of a breach of this clause.
Our privacy policy contains details of how we use the information we hold about you and can be found on the Platform or such other website address as may be notified to you from time to time.
TERMINATION
Either of we or you may terminate the Contract immediately for any reason by giving written notice to the other party save that your right to terminate is subject to the completion of any live Campaigns.
On termination of the Contract (for any reason):
you shall immediately pay to us any and all sums outstanding as at the date of termination including the payment of all Campaign Commission and Influencer Fees (including in relation to any Campaign Agreements agreed following termination);
You shall (subject to any temporary use or engagement we allow at our discretion in relation to any existing Campaigns) stop all use of the Platform and engagement with Influencers;
All Campaign Agreements will terminate, unless otherwise permitted;
The accrued rights of us or you as at termination or the continuation of any provision expressly or by implication intended to survive termination shall not be affected or prejudiced; and
We shall have the right to delete any or all of the information you have uploaded to the Platform during the term of the Contract.
Termination of the Contract by us, we have the right to cancel any existing Campaigns and, to the extent we do not, any live Campaigns will continue to operate subject to these Terms until the Campaigns are completed
CONFIDENTIALITY
You undertake that you shall keep secure and not at any time disclose to any person any information relating to us or any of the Influencers which we reasonably consider to be confidential, including but not limited to details of our relationships with or knowledge of the Influencers; details of our business methods, finances, prices or pricing strategy, marketing or development plans or strategies and any other information made available to you via the Platform or Services which is or ought reasonably to be considered confidential in nature (Confidential Information) without our prior written consent, except as permitted by clause 9.2.
You may disclose Confidential Information as required by law or to your employees, officers, sub-contractors, representatives or advisers who need to know such information for the purposes of carrying out your obligations under the Contract, provided that you shall ensure that such employees, officers, sub-contractors, representatives and advisers comply with this clause 9.
You shall not use the Confidential Information for any purpose other than to perform your obligations under the Contract.
COMPETITION
For the duration of the Campaign and for one year following termination (and, to the extent any Campaign Agreement persists longer than this, for one year following any Campaign Agreement), you shall not attempt to engage (whether directly or indirectly) any Influencer that you have had contact with via the Platform, other than through us or the Platform without our prior written consent.
Influencers and Brands agree that they will not attempt to negotiate terms or payment with each other outside of the Platform.
Each Campaign you have the ability to impose a non-compete obligation on every Influencer that enters into a Campaign Agreement. If you have activated the non-compete obligation and an Influencer enters into a Campaign Agreement with you in respect of a Campaign, the Influencer agrees that it shall not be involved in activities whether online or otherwise in connection with any business involved in the manufacture or supply of goods or services which may compete with the goods or services to which the Campaign related. Such non-compete restriction shall continue for a period of 30 days after the Content has been uploaded, or if no Content is uploaded, for 30 days after the Campaign Agreement has been entered into.
Where you impose a non-compete obligation on an Influencer through a Campaign Agreement, we shall not be responsible in any way for enforcing such obligations on the Influencer or for restricting their activities on the Platform.
NON-CIRCUMVENTION
You shall not in any manner, directly or indirectly attempt to circumvent the operation of this Agreement or the introduction of any Influencer so as to otherwise deprive us of any of the benefits intended under or pursuant to this Agreement.
Parties acknowledge that the fee arrangement pursuant to this Agreement shall be applicable to all future business following the introduction of Influencers originally introduced by us to you through the Platform or otherwise in respect of any Campaign hosted by you on the Platform, for the duration of the Contract and one (1) calendar year thereafter. You acknowledge that any Fees payable will still be due to us. This provision and any other provision capable of surviving or intended to survive termination shall survive termination of this Agreement.
INDEMNITY
You agree to indemnify us and keep us indemnified against all and any expenses, losses, liabilities, damages, costs (including reasonable legal costs) incurred or suffered by us in relation to any claims or proceedings, which arise in any way from:
Your use of the Platform and the Services;
Any breach by you of these Terms;
Any use of the Platform or the Services by anyone using your Brand Account; or
Any claim made by a Influencer concerning your interaction with them.
This clause 12 shall survive termination of the Contract.
LIABILITY
Nothing in these Terms excludes or limits our liability for death or personal injury arising from our negligence, or our fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by Victorian law.
The extent permitted by law, we exclude all conditions, warranties, representations or other terms which may apply to this Contract or the Platform or the Services, whether express or implied and the Platform and the Services are provided on an “as is” basis.
Shall not be liable whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any loss of profits, reputation, business, goodwill, data, or for any special, indirect or consequential loss, costs or damages, whether it is foreseeable, known, foreseen or otherwise, under or in connection with the Platform, Services or this Contract. This exclusion of liability shall apply to all such losses whether they are direct, indirect or consequential losses.
Subject to clauses 13.1 and 13.3, our total aggregate liability in contract, tort (including negligence), breach of statutory duty, or otherwise, under or in connection with this Contract shall be limited:
To the extent that the liability relates to any specific Campaign, shall be limited to an amount equal to the Campaign Commission relevant to that Campaign; and
In any event, shall not exceed in any 12 month period (commencing on the Contract start date and its anniversary thereafter) 100% of the Campaign Commission paid by you under these Terms in such 12 month period.
We provide a facilitation Platform for brands and Influencers, we do not represent, investigate, or contract on behalf of any brands or Influencers. As such, by entering into a Campaign Agreement you agree that our only responsibility is as set out in clause 13.6 below and that we are not responsible for and shall not be liable to you, or to any third party, in relation to a Campaign or for any acts or omissions of an Influencer. We will not carry out any checks in relation to Influencers and shall in no way be responsible or liable for their acts or omissions or for any damage or problem caused by them. You must conduct your own due diligence and enquiries before entering into any Campaign Agreement. Our only obligation to you in relation to this shall be to provide you with the assistance set out at clause 13.6 below. You accept all risks in relation to the Influencers and their contributions to the Campaign.
If there is any dispute between you and an Influencer regarding a Campaign Agreement, we shall provide such assistance to you as we consider to be reasonable in the circumstances, but we will not be responsible for resolving or mediating such dispute. Any such disputes must be taken up by you with the relevant Influencer who is responsible directly to you for such matters. We shall only refund, distribute, recover or assist in the recovery of any Influencer Fees at our sole discretion, and otherwise shall have no responsibility. Any Campaign Commission is non-refundable.
CONTACT
If you wish to contact us in writing, or if any clause in these Terms requires you to give us notice in writing (for example, to terminate the Contract), you can send this to us by email to insert email address.
If we have to contact you or give you notice in writing, we will do so by e-mail or by sending a notification to your Brand Account.
OTHER IMPORTANT TERMS
We shall not be in breach of our responsibilities under these Terms nor liable for any delay in performing, or failure to perform, any of our responsibilities under these Terms if such delay or failure results from events, circumstances or causes beyond our reasonable control.
We shall be entitled to change these Terms at any time in our sole discretion by providing an updated copy of these Terms on the Platform. For the avoidance of doubt, your use of the Platform following any update to these Terms shall be deemed as acceptance of those updates which (following such acceptance) shall apply to the Contract with effect from the day they were uploaded to the Platform. Any other variation of the Contract (other than as permitted under these Terms), shall only be effective if it is agreed in writing and signed by us. If you do not agree to the Terms as varied you may terminate this Agreement in accordance with its terms.
We shall be entitled to change the Services or the Campaign Commission at our sole discretion. We will give you not less than one month’s notice of such changes unless there is an important business reason why shorter notice needs to be given. If you do not agree to the Services or Campaign Commission as varied you may terminate this Agreement in accordance with its terms.
Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between you and us, constitute either you or us as the agent of the other, or authorise either you or us to make or enter into any commitments for or on behalf of the other.
We may transfer our rights and obligations under these Terms to a third party. You are not entitled to assign or transfer your rights or obligations under these Terms unless we consent in writing.
The Contract is between you and us. No other person shall have any rights to enforce any of its terms.
The Contract constitutes the entire agreement between you and us in relation to your use of the Platform and the Services.
Each of the clauses of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining clauses will remain in full force and effect.
If we fail to insist that you perform any of your obligations under the Contract or in law, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
The Contract shall be governed and interpreted in accordance with Victorian law. You and we both agree to submit to the exclusive jurisdiction of the Victorian courts.
