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. Our Platform enables you the opportunity to be engaged to conduct Campaigns when you are engaged by a Brand.
By applying for an account on the Platform or by using the Platform or otherwise accepting a Campaign from a Brand (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.
As an Influencer you have other specific obligations and these are contained in clause 16. Please read these carefully. Do not apply to join the Platform unless you agree to be strictly bound by all Terms.
DEFINITIONS
In these Terms, we have defined some words to assist both of us to understand our rights and obligations:
Brands means the parties that create Campaigns and then engage Influencers via the Platform.
Influencer Account means an account you apply for, and on approval from us, set up and complete for the purposes of being engaged by a Brand to execute a Campaign.
Campaign means a Brand’s marketing campaign and includes but is not limited to engaging Influencers for brand promotion via online social media channels, event campaigns and gifting campaigns.
Campaign Agreement is the agreement that is formed between you and a Brand when you are formally engaged by a Brand to execute a Campaign.
Campaign Brief means a brief of Content and materials and anything else required by Brand and you to execute a Campaign. This might include:
Social media platform targets;
The deadline for applications for each Campaign (Application Deadline);
The deadline for you to have submitted the Influencer Content to Brands for approval (Draft Deadline);
the date following or on which you are to upload Your Content to your social media accounts (Campaign Live Date).
Contract means the legal agreement between us that is created every time you are engaged for a Campaign.
Eligibility means the eligibility criteria that must be met as a minimum before we will accept your application for an Influencer Account, such eligibility detailed on our website from time to time.
Fees means the fees and charges payable to you by the Brand pursuant to the terms of the Campaign Agreement.
Influencer means a person who is contracted to us and available to Brands to engage for the purposes of executing a Campaign.
Influencer Content means the content created by you in conjunction with a Brand 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 be engaged by a Brand to execute their Campaign.
Your Content means the content you create and upload on the Platform to form part of your response to a Campaign which is submitted to a Brand for approval and when approved uploaded to your social media platforms.
PLATFORM
In consideration of us providing the Services and making the Platform available to you, you provide us with information about yourself and apply for an Influencer Account.
In order to use the Platform and the Services, and when applying for an Influencer 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.
Before we consider your application you must provide us with reasonable evidence that you meet the Eligibility criteria.
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 Brands to upload details of proposed Campaigns in relation to which a Brand would like you to create and upload Your Content. To upload a Your Content you will be required to add certain details and criteria about Your Content including but not limited to a response to a Campaign Brief.
Proposal is an offer either by you to a Brand or a Brand to you setting out the basis on which you will contract with the Brand in relation to a Campaign including:
The platforms that you will upload too;
The Fees charged by you.
As an influencer you are solely responsible for all Your Content and posts for the Campaign you have been engaged to perform and you are solely responsible for anything that arises out of Your content and posts for the subject Campaign.
When creating a Campaign, a Brand can choose for it to be: “closed” whereby only a Brand can send Proposals to Influencers; or “open” whereby a Brand can send Proposals to Influencers and any Influencers can send a Proposal to the Brand.
Platform facilitates the negotiation between you and the Brand 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 Brand. The Campaign Agreement is your contract with the Brand regarding your participation in the Brand’s Campaign.
must be agreed and accepted by you and the relevant Brands through the Platform (Acceptance), following which an invoice will be issued on your behalf to the Brand’s Influencer Account and sent to the Brand by email.
Following Acceptance, you will submit Your Content (in draft) to the Brand via the Platform for the Brand to either approve or reject. If the Brand:
Approves Your Content, you will upload the approved Your Content onto the agreed social media platforms on or after the Campaign Live Date (as set out in the Campaign Agreement);
Reject the your Content, you will amend the Your Content in accordance with the Brand’s comments and re-submit it.
YOUR RESPONSIBILITIES
You agree that all Your Content you submit when creating your Influencer Account, responding to 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 the Brand selects the free gifting Campaign the Brand will provide the products and distribute to you within 7 days of approving Your Content. You must advise the Brand as soon as possible after you have received the products.
If the Brand selects the exchange gifting Campaign the Brand will provide the good/s and distribute to you within 7 days of approving Your Content.
You represent and warrant on an on-going basis that your use of the Services and Platform, 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, upload and publish Your Content, and your engagement by Brands.
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 a Brand (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 Brand that:
Ss 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 Your Content 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 Brand or you in any way whatsoever, including the Brand’s 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 be paid the Fees when the Brand approves you for their Campaign, approves Your Content and you post Your Content in accordance with the Campaign Agreement.
We collect the Fees on behalf of you.
We will hold your Fees until the Brand approves Your Content and you have uploaded it. Once Your Content is uploaded onto the agreed social media platforms we will submit the Fees to you within 5 days.
If you terminate a Campaign Agreement after the Brand approves Your Content, no Fees are payable to you.
All amounts we pay to you 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.
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 Brand with whom you have entered into a Campaign Agreement in association with Your Content for each Campaign you conduct.
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 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):
We shall immediately pay to you all sums outstanding as at the date of termination (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 Brands;
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 (including Your Content) during the term of the Contract.
Owing termination of the Contract by us, we have the right to cancel any existing Campaigns that you are a party to 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 Brands which we reasonably consider to be confidential, including but not limited to details of our relationships with or knowledge of the Brands; 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 each Campaign a Brand engages you and for one year following termination (and, to the extent any Campaign Agreement persists longer than this, for one year following the completion of any Campaign Agreement after termination), you shall not attempt to engage (whether directly or indirectly) any Brand that you have had contact with via the Platform, other than through us or the Platform without our prior written consent.
You agree that you will not attempt to negotiate terms or payment with Brands outside of the Platform.
each Campaign you may be subject to a non-compete obligation pursuant to the terms of a Campaign Agreement. If a Brand has activated the non-compete obligation and an you enter into a Campaign Agreement with you in respect of a Campaign, you agree that you 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 Your Content has been uploaded, or if Your Content is not uploaded, for 30 days after the Campaign Agreement has been entered into.
NON-CIRCUMVENTION
You shall not in any manner, directly or indirectly attempt to circumvent the operation of this Agreement or the introduction of any Brand so as to otherwise deprive us of any of the benefits intended under or pursuant to 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 Influencer Account; or
Any claim made by a Brand 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.
To the extent permitted by law, you agree to indemnify, defend and forever hold harmless, all social media platforms and their associated agencies and companies, against any and all losses, actions, claims, costs, expenses and damages (of any nature) which may be incurred by you in respect of you use of the Platform.
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 we receive from the Brand 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% Campaign Commission paid by the Brand to us 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. 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 a Brand. We will not carry out any checks in relation to Brands 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 Brands and their Campaigns.
There is any dispute between you and a Brand 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 Brand who is responsible directly to you for such matters. We shall only refund, distribute, recover or assist in the recovery of any Fees at our sole discretion, and otherwise shall have no responsibility.
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 our 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 Influencer 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 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 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.
SPECIFIC CAMPAIGN TERMS FOR INFLUENCERS
If you are participating in a Campaign you must adhere to the times and location of the event as described in the Campaign Agreement.
You must clearly disclose in Your Content sponsored by a Brand your relationship with the Brand. We require that you make such disclosures in such a way so that it is clear to the ordinary consumer viewing your social media platforms that there is a commercial relationship between you and the Brand. This may be achieved through the prominent use of hashtags such as #advertisement or #ad or through other means suitable to your particular circumstances. We reserve the right, but is in no way obliged, to review and monitor your disclosure practices and to require greater levels of disclosure in Your Content or across your social media platforms generally or, if you do not agree to the required levels of disclosure, to terminate these Terms.
You must not misrepresent the size of your audience or their numbers of followers or engagement. Followers must be obtained organically and not through unethical or unsportsmanlike behaviour such as (but not limited to), purchasing followers, likes or engagement. In the event that we suspect that you are not complying with the requirement for followers to be authentic and organically grown, we reserve the right to terminate these Terms and cease your access to the Platform.
You warrant, in respect of Your Content you upload to the Platform, submit to a Brand for approval, or publish to a social medial platform, that:
You are aged over 18 years.
Your Content does not contain any misrepresentation or suggestion that you or any entity has the approval or sponsorship of any other entity which you do not have;
Any and all opinions and views stated in Your Content are genuinely held by you;
Any and all statements in Your Content regarding your use and experience of the Brand or the Brand’s products or services are true and correct and representative of your opinion regardless of whether you are paid for such content or not, and fairly represent your use and experience and you will promptly notify us if your opinion of the Brand changes from that which you have expressed to date;
Your Content does not contain any representations or material which you know or suspect (or ought reasonably to have known or suspected) to be false, misleading or deceptive;
Your Content is original and does not contain materials that have been previously broadcast, streamed, published, posted onto any social media channel, or otherwise communicated to the public by you in any way and does not contain materials that have been used in previous marketing materials or promotions for any third party or which otherwise infringe the rights of any third party;
if Your Content includes any Third Party Material (including music or personality/talent rights), that all such Third Party Material and any associated licence terms or use limitations have been fully disclosed to us and the Brand;
if you are a member of any guild, union or industrial organisation, you have not entered into any other agreement, arrangement or understanding which would or may prevent or limit you from adhering to these Terms, performing your obligations or granting the rights and benefits set forth in these Terms, or result in a conflict of interest;
if Your Content contains images or references to third parties or third party property, including music, that the third party (or third party property owner) has been informed and agrees in writing that such images, property or references may be included in Your Content and used by us, the Brand or any other third party in accordance with these Terms without remuneration or compensation to the third party (or third party property owner) for the purpose of promoting us, the Brand or any other third party in any media and in perpetuity and you do not need to obtain any licenses from any third party or pay royalties to any third party with respect to Your Content; and
the use of Your Content and the exercise of the Intellectual Property Rights.
You acknowledge and agree that we and the Brand have the right at any time to moderate Your Content after publication to a social media platform and that you will immediately make any reasonable modification or amendment requested by us or the Brand to the Post, subject to compliance with these Terms.
You acknowledge and agree that us and the Brand have the right at any time to request that you remove any Your Content from any social media platform and that you will comply with such a request immediately upon receipt of notification.
All parties acknowledge and agree that any necessary public relations announcements regarding the removal or modification of Your Content, as the case may be, will be agreed by us and you and Brand before publication.
All right, title and interest in all Intellectual Property Rights in Your Content will remain or be vested in you. Nothing in these Terms will be taken to constitute a transfer, assignment or grant of any ownership rights in Your Content to any other party, including us or the Brand.
In consideration of the Fee, you agree to grant in respect of all Your Content the right to use the your identity and performances in Your Content and to communicate Your Content to the public in all languages, in all media including but not limited to: all online paid media (including but not limited to digital banners); in all online owned media (including but not limited to our website and internal communications); in all social media (including but not limited to our social media channels); and in any earned media or public relations activity published by a third party (including but not limited to print, digital and/or social media).
As an Influencer, you agree that you will not:
delay posting Your Content after the Brand has given its approval to Your Content and you must publish Your Content as approved no later than 48 hours after receiving notification of the Brand’s approval (unless the Brand stipulates a different timeline);
for a period of five (5) hours after Your Content is published, post, share, re-tweet or re-gram any other posts or content to that social media platform where the effect of publishing such additional posts or content would be to reduce the prominence of Your Content;
Remove Your Content from your social media platforms for a period of 30 days after Your Content is published;
Edit Your Content before or after it has been published other than in accordance with these Terms;
Parody, disparage, give any adverse comment or make fun of the Brand or its products of services generally in any way;
Create any contextual or surrounding posts or other material on a social media platform that in any way detracts from, dilutes the effect of, or undermines Your Content, the Brand or its products or services;
Grant any further rights in Your Content to a Brand without our written permission; and
Accept or attempt to negotiate with a Brand more than one Post per Fee.
