Updated August 9, 2020
HelloConvo LLC ("HelloConvo") owns and operates the HelloConvoTM Influencer Marketing Platform (the "Platform"), an online marketing platform that connects leading brands with influencers/content creators (the "Platform Services").
To the extent any terms herein conflict with negotiated agreements between HelloConvo and a party, the negotiated language controls. If you do not agree to these Terms, you will not be permitted to use the Platform. Accordingly, when you use the Platform, you should check the date of these Terms (which appears at the top of this document) and review any changes since the last version. The most current version of the Terms will be available at all times at helloconvo.com.
In the Terms, (i) a "Marketer" means any person or entity who participates in the Platform Services directly or by HelloConvo authorized personnel on behalf of Marketer for the purpose of creating Opportunities to use the services of an Influencer, (ii) "Influencer" means any person, entity or group that creates and distributes the original content or sponsored social content, and/or performs an action, including but not limited to content posted through their associated social networks (i.e. Twitter, Facebook, blogs, etc.), requested via the Platform, and receives compensation for such content or action via the Platform, (iii) "Affiliate" means any authorized entity or person that directly or indirectly controls the transactions of the Marketer or Influencer. The term “control” with regard to this definition means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of voting securities, written voting rights agreement, written agreement, title or other influence, (iv) “Opportunity” means a request by a Marketer for an Influencer to create content, distribute sponsored social content, and/or perform an action through their social network or in person. These Terms shall apply to all transactions conducted through the Platform.
Participating Marketers create and list Opportunities, often as part of a larger marketing goal (“Campaign”), in the Platform, which offer Influencers the chance to receive compensation (e.g. cash, free products, publicity, etc.) in exchange for creating and/or distributing sponsored social content and/or performing an action through their social network or in person. There is no maximum number of Opportunities per Campaign. All Opportunities accepted by the Influencer must comply with the requirements set forth by the Marketer (herein referred to as the "Requirements") in the Opportunity. Each Opportunity listing should contain a complete description of the requirements and the compensation to be paid by the Marketer. Marketers can also request that other ads be disabled on the paid content of an Opportunity. Once an Opportunity is accepted by an Influencer, the Marketer is solely responsible for the review and approval of the Influencer’s content and for the payment of any compensation (to be received and distributed to Influencer(s)) as stated in the Opportunity. HelloConvo is not liable if payments are not made by Marketer. Marketer retains responsibility for payment of any or all approved offers and content under review, which will become immediately due and payable, regardless of whether or not Marketer’s access to the Platform is terminated.
1.3. REVIEWS & APPROVALS
While HelloConvo personnel may assist in reviewing and identifying Influencer's posts or actions that violate an Opportunity's Requirements and attempt to resolve disputes, HelloConvo does not have privity of contract with the Influencer and cannot enforce the terms agreed to between Influencer and Marketer. HelloConvo reserves the right to review and reject Opportunities from Marketers that do not meet the Platform Guidelines, as defined in Section 6 below. Posts which do not comply with the Requirements of the Opportunity will not be entitled to the compensation associated with such Opportunity. After Influencer accepts an Opportunity and delivers the requested content to Marketer, the Marketer may respond with any requested modifications or may reject the post for failure to meet any agreed-upon criteria or for legal compliance issues. Final approval and payment to the Influencer will occur if the link is active forty-five (45) days from approval, follows all disclosure guidelines and required elements. The Platform will automatically check for active posts and, upon confirmation of such activity, communicate such confirmation to Marketer so that Marketer can distribute the applicable compensation to the Influencer. If the automated system fails to locate required elements and disclosure, no payment will be made to the Influencer and compensation for the Opportunity will be retained to the Marketer, unless manually verified by HelloConvo with permission from the Marketer or unless Influencer makes the required edits. Should Marketer alter the forty-five-day payment terms with Influencer, whether within or outside of the Platform, HelloConvo shall not be held liable for any failure to make timely payment(s) to an Influencer. Instead, Marketer shall be responsible for delivery of funds as agreed upon with Influencer. Further, if Marketer decides to pay Influencer prior to the forty-five day mark at which Content is automatically verified in the Platform, the obligation to keep Content live for those initial 45 days is rendered null and void.
If a Marketer makes changes to an Opportunity or approves content outside of the Platform, (i) those terms may not be enforceable as they are not contained within the terms and conditions of the Opportunity that are digitally agreed to by Influencers, (ii) any failure of the Content during the verification process due to such changes will be Marketer’s responsibility, including any payments owed to Influencers for delivering such content, and (iii) HelloConvo shall not be responsible for ensuring that any items or advertising disclosures appear in the content. For the avoidance of doubt, HelloConvo shall take no responsibility for non-compliance with contract terms (including payment terms and the length of time content must remain live), enforcement of terms entered into outside of the Platform, or any claims, fines, or Federal Trade Commission (“FTC”) violations resulting from Marketer’s actions or directions to HelloConvo.
Marketer shall comply with all applicable FTC and similar rules and regulations and other truth-in-advertising laws regarding content Marketer provides or has produced and/or published utilizing the Platform. Marketer is ultimately responsible for any FTC violations regarding the content it chooses to publish, regardless of whether or not HelloConvo pushes through approvals in the Platform as directed by Marketer. If Marketer encourages an Influencer to publish outside the Platform, Marketer shall defend, indemnify, and hold HelloConvo harmless from and against any claims arising in connection therewith. For the avoidance of doubt, HelloConvo’s verification of any such content at Marketer’s direction or as a function of the Platform does not shift liability to HelloConvo or waive HelloConvo’s rights to indemnification.
You must be an adult (as defined by the jurisdiction in which you reside) to register as a Marketer or Influencer on the Platform. By registering on the Platform, you are representing and warranting that all information you submit is truthful and accurate, and that you agree to maintain the accuracy of such information. You understand and agree that HelloConvo will use the information you provide in accordance with the terms of the HelloConvo Privacy Notice (“Privacy Notice”), which is integrated into and included as part of these Terms. HelloConvo accounts are not transferable, assignable or resalable under any circumstances.
Minors and their account profiles will be notated in the Platform with a special designation. Minors (as defined by the jurisdiction in which you reside) must have a parent or legal guardian register for and establish an Influencer account in the Platform. Parents or legal guardians may also allow minors to use their accounts on the Platform. Legally emancipated minors do not need a parent or legal guardian but may be required to show proof of emancipation. All minors must have executed and completed all required waivers and releases in order to participate in an Opportunity. For the avoidance of doubt, Minors are bound by the Terms, but this Section 2.1 controls in the event of any conflict with any other section or clause within the Terms.
Only parents or legal guardians may bid on Opportunities, agree to terms and conditions, execute publicity releases and waivers, and receive payment for any opportunities accepted on the Platform. In addition, any Opportunities in the system pertaining to alcohol, tobacco, drugs, medication, or other similar products or services that are illegal (as defined by the jurisdiction in which you reside) or intended for adults are not available for the minor (or their parent or legal guardian) to bid on or participate in. Whenever a Marketer engages with a Minor, it is the Marketer’s responsibility to follow all applicable laws.
- MARKETER TERMS
This Section 3 applies only to Marketers participating on the Platform.
3.1. TRANSPARENCY & DISCLOSURE
HelloConvo requires clear and conspicuous disclosure by all Platform participants. More specifically, the connection between the Marketer and the Influencer that would affect how people evaluate the Influencer’s message must be disclosed. Any attempt to instruct, coerce or manipulate an Influencer into hiding the commercial relationship between the Marketer and the Influencer may result in immediate removal from the Platform and may be cause for HelloConvo’s termination of any related contracts between HelloConvo, Marketer, or Influencer. Marketer agrees to comply with the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (see generally https://www.ftc.gov/news-events/media-resources/truth-advertising/advertisement-endorsements, and the FTC’s Dot-Com Disclosures (https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf) and all applicable laws and regulations, including but not limited to Section 5 of the Federal Trade Commission Act.
Unless otherwise agreed to in a separate contract between the parties, Marketer agrees to pay HelloConvo all charges made to Marketer’s account for agreed-upon fees or use of the Platform Services in accordance with these Terms. If HelloConvo does not receive timely payment and the balance in the Marketer account is not enough cover agreed upon fees or Platform Services hereunder: (i) a charge will be made to the Marketer’s credit card or other preferred payment method for the balance owed, (ii) Marketer agrees to pay all amounts due on its account upon demand, and (iii) HelloConvo reserves the right to either suspend or terminate a Marketer’s account, including deletion of Marketer’s Opportunities from the Platform until the balance is paid in full. All fees for the Platform Services which are charged to Marketer account, as well as all deposit(s) for future Platform Services, are non-refundable. Marketer agrees to submit any disputes regarding any charge in writing to HelloConvo within thirty (30) days of such charge, otherwise such dispute will be waived, and such charge will be final and not subject to challenge. In the event Marketer’s payment method cannot be charged, Marketer account will be locked until an alternative or updated method of payment is provided.
If Marketer fails to make payment as set forth herein, Marketer will be responsible for all reasonable expenses (including attorneys’ fees and costs) incurred by HelloConvo in collecting such amounts. All prices are in United States dollars and do not include taxes that may be assessed by any jurisdiction. If withholding taxes or any other fees are imposed by any jurisdiction on the transactions pursuant to these Terms, Marketer shall pay such taxes to ensure that HelloConvo receives the full amount invoiced without offset or deduction. Marketer agrees to promptly: (i) update all information to keep account and credit card billing current, complete and accurate (such as a change in billing address or e-mail), (ii) notify HelloConvo in writing if it becomes aware of a potential breach of security, such as the unauthorized disclosure or use of Marketer’s user name or password, and (iii) notify HelloConvo in writing if its credit card is canceled. Upon termination, suspension or discontinuation of the Platform or Marketer’s participation therein, all outstanding payment obligations incurred by Marketer under the Platform will become immediately due and payable.
3.3. CREDIT CARD CHARGES
If a Marketer does not wish to send money directly to HelloConvo via check or ACH, Marketer authorizes HelloConvo to charge Marketer’s credit card, as approved and provided by the Marketer, in advance to deposit funds into the Marketer’s account. Once funds are deposited into the Marketer’s account, they may be used at the Marketer’s discretion, to purchase Platform Services or pay for agreed upon fees. Marketer will be responsible for charges resulting from the use of Platform Services and any applicable service fees will be automatically withdrawn.
Marketer represents and warrants that it has the legal right to use any credit card utilized in connection with any transaction. By submitting such information, Marketers grants HelloConvo the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by the Marketer. If the credit card provided was not authorized, then all amounts in the Marketer’s account will immediately be forfeited. Marketer’s non-termination or continued use of the Platform reaffirms that HelloConvo is authorized to charge Marketer’s credit card.
HelloConvo reserves the right to modify, suspend or terminate the required method of payment for use of the Platform at any time, although any pending Opportunities will be completed using the method current when the Opportunity was listed. If HelloConvo modifies the terms of the method of payment as outlined in this Section 3.3, the Marketer will be contacted by HelloConvo or the modifications will be reflected in an updated version of these Terms. If a user does not consent to such modified Terms, such user must immediately discontinue using the Platform. A user’s continued enrollment after any modifications constitutes its acceptance of the terms and method of payment as modified.
Unless Marketer or HelloConvo discontinues enrollment or participation in the Platform Services, Marketer understands that this pre-authorization is valid until the termination of these Terms or the applicable service arrangement with HelloConvo. For your future reference, you agree to retain, either by printing or otherwise saving, a copy of these Terms, which provides the terms of your pre-authorization.
[3.4. MANAGED SERVICES
If a Marketer would like to ensure an Influencer’s content is manually reviewed for compliance with the Opportunity criteria by HelloConvo, such service is available for an additional fee. Marketers may also request to have HelloConvo manage part or all of its advertising Campaign for a fee as agreed upon through a separate managed service agreement. Interested parties should contact HelloConvo directly.]
3.5. CONTENT INFORMATION
Marketer agrees that HelloConvo is not responsible for any aspect of Marketer's content or product to be reviewed, shared, sponsored, or advertised by the Platform’s contracted Influencers. Marketer represents, warrants and covenants that: (i) all information it provides or approves or that is provided on its behalf in connection with the Terms and on Marketer’s website(s) is, and will be updated to remain, current and accurate, (ii) the website to which any links are included in a listed Opportunity will look substantially the same to all end users regardless of the end users' location or device, (iii) the Marketer’s website(s) does not contain any HelloConvo-owned or licensed content, except pursuant to a separate signed agreement with HelloConvo, (iv) Campaigns are run in compliance with third party platform terms, and HelloConvo takes no responsibility for such compliance or third parties. Marketer acknowledges that Influencers are independent third parties and not directly controlled by HelloConvo. As a consequence, any blog postings or sponsorship of Marketer’s content or product(s) will inherently risk negative or unflattering comments about Marketer’s content, product(s) or company. Marketer specifically acknowledges and agrees that HelloConvo (unless the Campaign is being fully managed by HelloConvo) has no control over any content that may be available or published on any blog (or otherwise), and that Marketer, [even if being fully managed by HelloConvo,] is solely responsible (and assumes all liability and risk) for determining whether or not such Content is appropriate or acceptable to Marketer.
Third party organizations and/or partners that utilize their own networks of influencers are responsible for their own review and acceptance process. HelloConvo takes no responsibility for any submission, response, comment, or other feedback provided or obtained from any third party in response to any Content or use of any Content.
3.6. OPPORTUNITY DISPUTES
Marketer may not discriminate based on the racial, physical, political, spiritual, age, gender or sexual orientation characteristics of the Influencer, nor shall the Marketer violate any applicable labor or employment law. Forty-five (45) days after verification of the Opportunity, payment will be made to the Influencer by Marketer for services unless the Influencer has violated these Terms, the specific terms of the Marketer’s Opportunity. In the event that Marketer cancels or delays a Campaign or Opportunity and the Influencer has submitted work in accordance with the Opportunity guidelines, the Influencer may be entitled to some compensation from Marketer if and as indicated in the Opportunity.
The terms of the Opportunity as mutually agreed upon by the Influencer and Marketer are supplemental to these Terms. Marketers are allowed to make reasonable changes to any non-monetary Opportunity terms without Influencer’s prior approval. Should an Opportunity contain supplemental terms between Marketer and Influencer, the Content shall also be subject to those supplemental terms, and Marketer is responsible for enforcing those supplemental terms.
In the event of a conflict between the Terms and the terms of an Opportunity that an Influencer accepts from Marketer, the terms of the Opportunity as mutually agreed upon by the Influencer and Marketer shall control as between that Influencer and that Marketer.
4. INFLUENCER TERMS
This Section 4 applies only to Influencers participating in the Platform.
4.1. TRANSPARENCY & DISCLOSURE
Influencers participating in the Platform must clearly disclose in their sponsored content the relationship between themselves and the Marketers. HelloConvo requires that disclosure be made in a meaningful way that makes clear to an ordinary consumer that there is a relationship between the Influencer and the Marketer. HelloConvo reserves the right to review and monitor the disclosure practices of all Influencers who participate in the Platform and to either require greater levels of disclosure (in the event that HelloConvo determines in its sole discretion that current disclosure practices – including placement of clear and conspicuous disclosure - are inadequate) or remove the Influencer or Influencer’s content from the Platform (in the event of inadequate disclosures). Influencer agrees to comply with the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (see generally https://www.ftc.gov/news-events/media-resources/truth-advertising/advertisement-endorsements); Disclosures 101 for Social Median Influencers (https://www.ftc.gov/system/files/documents/plain-language/1001a-influencer-guide-508_1.pdf); and to comply with all applicable local, state, federal and international laws and regulations, including but not limited to Section 5 of the Federal Trade Commission Act, in the preparation and delivery of Content. Any violations of the above terms by Influencer may be cause for termination of any relevant contracts or Opportunities involving Influencer.
4.2. INFLUENCER ELIGIBILITY
Any Influencer may register in the Platform (minors must comply with Section 2.1 above), but in order to participate in the Platform, Influencer’s social media channel must meet the following minimum standards:
Channel must be a minimum of 90 days old;
Channel must have a minimum number of followers/fans to be eligible (varies depending on connection);
Channel must not contain a content gap of more than 90 days;
Channel must be public (accessible to anyone);
Channel must contain a majority of original content;
Channel must be in a supported language (English, Spanish, other as required by the Opportunity);
Channel may not contain content that is inappropriate, obscene, violent (including hate speech), illegal, or violates the Platform Guidelines;
Influencer must not have made any material misrepresentations about the Channel’s history, scope, breadth, number of followers, type of followers, or anything similar.
Influencers must periodically review the materials available on the Platform. Influencers also agree that HelloConvo and/or the Marketer, in connection with the Opportunity, may use data collected from these connections, pursuant to applicable privacy policies.
HelloConvo may, at any time, remove or delete an Influencer’s account if HelloConvo deems the account is ineligible for participation in the Platform.
4.3. INFLUENCER FULFILLMENT OF AN OPPORTUNITY
By accepting an Opportunity, Influencer acknowledges that (i) it will follow the Opportunity’s parameters, instructions, and guidelines, (ii) it has the authority and ability to perform the requested service within the stated time period, as applicable, (iii) all submitted content will be in the English language or such other language as required in the Opportunity, (iv) all submitted content or action will be original (not repurposed) and does not infringe on any license, copyright, patent, trademark, trade secret or other intellectual property right of any third party, (v) All required releases and waivers will be timely executed and submitted, (vi) All ads will be disabled in paid social media posts, (vii) all submitted content or action is in compliance with the terms of necessary third party platforms, (viii) all submitted content or action does not include or support excessive profanity, violence, racial intolerance, illegal drugs or drug paraphernalia, pornography or any other content that promotes intolerance, illegal activity or infringes on the legal rights of others.
Sponsored content posted for an Opportunity must remain linked and live for a minimum of forty-five (45) consecutive days (unless otherwise specified in the Opportunity) in order for the Platform to validate the fulfillment of the Opportunity and to earn compensation for the posted Opportunity. As applicable, the Influencer will receive payment for the completion of the Opportunity as agreed upon between the Marketer and the Influencer in the Opportunity.
Influencers, as part of any Opportunity they are contracted for, have an obligation to keep confidential any and all materials provided to them by Marketers. This obligation survives the end, cancellation, or termination of any agreements between Marketers and Influencers.
4.3.1. INFLUENCER FAILURE TO FULFILL AN OPPORTUNITY
If Influencer accepts an Opportunity yet fails to fully perform and meet the obligations thereof, HelloConvo may lower Influencer’s rating in the system, post negative reviews, and potentially remove Influencer and Influencer’s account from any and all HelloConvo platforms, and Marketer may (i) deny payment to Influencer for such failure to perform, and/or, (ii) take back any products, documents, or other items Influencer received. Influencer shall promptly return any such items requested by Marketer. Any Influencer content prior to such failure or otherwise paid for is owned by the Marketer who posted the Opportunity.
4.3.2. CONTENT REMOVAL
If necessary, a Marketer may request that an Influencer’s post in response to an Opportunity be removed from the Influencer’s social media channel or personal website. HelloConvo may assist Marketer in requesting an Influencer to remove a post and additional fees may apply; however, HelloConvo cannot guarantee removal of the post by the Influencer. Marketer may also request that an Opportunity be closed and/or cancelled at any time.
Marketer may owe payment to Influencer, whether partial or full, based on how much Content was submitted or completed prior to Marketer’s request to remove Content or cancel an Opportunity.
Should Influencer be asked to reasonably modify or to remove content posted in connection with an Opportunity, Influencer must do so within twenty-four (24) hours of receiving such instruction. Failure to do so may result in a loss of compensation (including a clawback of monies already paid to Influencer) and other remedies, up to and including removal from the Platform and termination for cause of any related contracts.
4.4. INFLUENCER COMPENSATION
Influencer acknowledges and agrees that the obligation to compensate Influencer for Opportunity-related advertisements resides with the Marketer, not HelloConvo. Marketer is solely liable for providing the funds to Influencer. Under no circumstance does HelloConvo accept liability for payment to Influencer. A Marketer may deny payment to Influencer subject to any legal or lawful purpose. Influencer agrees that it will not pursue any actions, legal or otherwise, against HelloConvo for non-payment. Influencer waives any and all claims or rights of action against HelloConvo relating to the failure of a Marketer to compensate Influencer in connection with an Opportunity-related advertisement. In addition, Influencer acknowledges that Influencer is: (i) not an employee of HelloConvo, (ii) responsible for the payment of all federal, state and local taxes on compensation received from a Marketer, (iii) responsible for any reporting requirements imposed by the federal, state or local government, and (iv) responsible for compliance with all other applicable laws and regulations.
4.5. INFLUENCER CREDIT CARD CHARGES AND FEES
If Influencer enrolls in a subscription agreement or agrees to other charges to its account, Influencer may be asked to provide a form of payment such as a credit card or PayPal account. Influencer represents and warrants that it has the legal right to use such form of payment utilized in connection with any transaction. By submitting such information, Influencer grants HelloConvo the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by the Influencer. Influencer’s non-termination or continued use of the Platform reaffirms that HelloConvo is authorized to charge Influencer’s credit card for the use of the requested Platform Services. In the event Influencer’s payment method was not authorized or cannot be charged for any agreed upon fees, the Influencer’s account will be locked.
4.6. GRANT OF USAGE LICENSE
a. Sponsored Social Content – Content is created by an Influencer for Marketer’s marketing Campaign and is submitted, posted, displayed, or shared to Influencer’s followers through his or her personal social media platforms. Unless otherwise indicated in an Opportunity, Content is owned by Influencer, but HelloConvo and Marketer receive a worldwide, perpetual, fully paid-up, royalty-free, and fully sublicensable right and license to share, use, copy, process, adapt, translate, display, perform, reproduce, republish, and distribute the content or any portion thereof in any and all forms of media or distribution methods (now known or hereafter developed), including but not limited to television, radio, print, Internet site and other electronic communications. Any use, publishing, or distribution of an Influencer’s content must be accompanied by credit to the Influencer of that content by use of the Influencer’s name, likeness, image, username/handle or other identifying representation (to which Marketer will receive a limited license). While Marketer has the right to reuse the Content outside of its native platform, as described above, FTC guidelines state that the connection between the Influencer and the Marketer (or brand) must be disclosed and the Content must be attributed to the Influencer. The disclosure should also clearly and conspicuously communicate that the Influencer is paid by or works with the Marketer (or brand).
b. Content Production – Content is created as commissioned by Marketer, without limitation as to how that Content may be used now or in the future. HelloConvo will facilitate Influencer’s assignment of all rights in such Content to Marketer. Marketers purchasing Original Content shall own the copyright in and to the Content and may use, reproduce, have reproduced, edit for length or clarity, publish and exploit such Content in its sole discretion, including, without limitation, licensing the Content to any agent or third party, copying, distributing, displaying, publicly performing, and creating derivative works of the Content. Attribution to the Influencer is optional, unless the Content is created by a Celebrity.
c. Celebrity Influencer Content – Celebrity profile accounts are generally denoted with a unique banner within the Platform. Celebrity influencers may need a special contract between Marketer and celebrity Influencer to be completed, and any such contract shall be managed by the Marketer. Marketer understands and agrees that in the event a celebrity is requested to create, provide, or endorse any Sponsored Social Content pursuant to a statement of work between HelloConvo and such celebrity Influencer, the celebrity Influencer retains ownership rights to the Content and any terms surrounding its use must be negotiated in a separate agreement between HelloConvo and the celebrity Influencer. Marketer and its Client will be advised of all relevant use limitations for licensed celebrity Influencer content.
“Confidential Information” means any information disclosed by a disclosing party (e.g. HelloConvo, Marketer, Influencer) to a receiving party (e.g. Marketer, HelloConvo, or Influencer) either directly or indirectly, in writing, orally, or by inspection of tangible objects, other than information that you can establish: (i) was publicly known and made generally available in the public domain prior to the time of disclosure to the receiving party; (ii) becomes publicly known and made generally available after disclosure to the receiving party other than through the receiving party’s action or inaction; or (iii) is in receiving party’s possession, without confidentiality restrictions, prior to the time of disclosure by the disclosing party as shown by receiving party’s files and records. Receiving party shall not at any time (i) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information (except to those individuals who have a legitimate need to know such information and are bound in writing by confidentiality and non-use restrictions not less protective than those contained herein), or (ii) use, reproduce or copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to the receiving party and in accordance with the Terms. Receiving party agrees to take all measures to protect the secrecy, and avoid disclosure and unauthorized use, of the Confidential Information. Receiving party may disclose Confidential Information if required by law to disclose the Confidential Information, provided that receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. All Confidential Information shall remain the disclosing party’s personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to the disclosing party immediately upon its request, and also, upon termination of the Terms.
Nothing contained in the Terms will prevent HelloConvo and/or affiliates from complying with privacy laws and regulations, and if there is any conflict between the Terms and the terms of the applicable Privacy Notice, the Privacy Notice shall control. Marketer and/or Influencer may not issue any press release or other public statement regarding the Terms, HelloConvo and/or its affiliates without HelloConvo’s prior written consent.
6. PLATFORM GUIDELINES
All participants should observe these Guidelines, or risk being excluded from participation in the Platform:
Pornography or sexually explicit content, as well as violent content, is not allowed in the Platform.
Attacks on any group based on race or ethnic origin, religion, disability, gender, age, veteran status or sexual orientation/gender identity, etc. (also known as “hate speech”) is not permitted.
There will be no harassment, threats, invasion of privacy, predatory behavior, stalking, or revealing of other members’ personal information (without their permission).
Misleading descriptions, titles, thumbnails, tags, or large amounts of repetitive content are not allowed.
There will be no solicitation or spamming users in the Platform. Communication or “solicitation” should only be for paid Opportunities within the Platform.
There are to be no additional products, logos, third party sponsored links, ads, overlay ads on photos, or other detractors located within a sponsored post; competitor or otherwise.
Any attempt to access the Platform without authorization or by using another party’s account, utilize automated programs, bots, screen scraping, database calls, human initiated data collection or any other means of gathering data, content or other information for the purpose of reverse engineering our platform for commercial gain is strictly prohibited. Any manipulation of data, including click data, impressions, or any other relevant data or metric reported in the Platform, is strictly prohibited. Any such unauthorized attempt will be prosecuted to the fullest extent under the law, and each action is grounds for termination of Marketer and/or Influencer’s account in the Platform and/or termination for cause of any of Marketer and/or Influencer’s agreements.
THIRD PARTY WEBSITES AND SERVICES
Platform users may, from time to time, connect third party websites and accounts to their Platform account. By doing so, users consent to the release of user information on HelloConvo to those third parties, in accordance with the policies of those third parties. Users also consent to the release of user information on those third parties to HelloConvo, in accordance with HelloConvo’s Privacy Notice. Users also consent to HelloConvo sharing user information with third parties HelloConvo is contracted with in order to provide services or functionalities on behalf of Platform users.
PROVISION OF SERVICES
HelloConvo is constantly innovating and changing its Platform offerings in order to provide the best possible experience for its users. Marketers and Influencers acknowledge and agree that the form and nature of the Services which HelloConvo provides may change from time to time without prior notice to you. Marketers and Influencers acknowledge and agree that HelloConvo may stop (permanently or temporarily) providing the Platform Services (or any features or functionality within the Platform) to Marketers and Influencers or to users generally at HelloConvo’s sole discretion, without prior notice to you. Marketers and Influencers and/or HelloConvo may terminate these Terms and/or Marketer and/or Influencer’s participation in the Service at any time, for any reason or for no reason, and HelloConvo shall not have any liability regarding such decisions. Sections 3 through 19 of these Terms shall survive any termination of these Terms. In addition, HelloConvo has the ability to (i) modify user, account, or organization permissions at any level to add or remove users, or make any other changes as otherwise deemed reasonably necessary in the provision of services; and (ii) assume a user's account for the purposes of troubleshooting and resolving issues.
REPRESENTATIONS AND WARRANTIES
Influencers and Marketers participating in the Platform each represent, warrant and covenant that (i) you have sufficient authority to enter into the Agreement; (ii) your use of HelloConvo’s services is solely for lawful commercial and business purposes; (iii) the links contained in any content are directed to the intended and agreed upon destination and are not re-directed; (iv) you will not engage or cause others to engage in any form of spamming or improper or malicious, as determined by HelloConvo, clicking, impression or marketing activities through the Platform, and you will comply with all applicable laws including complying with all applicable laws such as the CAN-SPAM Act of 2003; and (iv) you have the necessary rights to provide all information provided to the Platform (including all content, data, claims, statements, products and services, Opportunities, titles, URLs and descriptions) for use as described in these Terms (the “Information”).
Influencers and Marketers participating in the Platform each represent, warrant and covenant that all such Information does not and will not: (a) violate any law, statute, ordinance, treaty or regulation or HelloConvo policy or guideline; (b) infringe any copyright, patent, trademark, trade secret, trade dress, or other intellectual property right of any third party; (c) breach any duty toward or rights of any person or entity including rights of publicity or privacy, and have not otherwise resulted in or are not likely to result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (d) advertise any unlawful product or service or unlawful sale of any product or service.
Additionally, Influencers and Marketers agree that all Information will (i) not be false, misrepresentative, deceptive or misleading; (ii) not be defamatory, libelous, slanderous, obscene or threatening; (iii) not target children under the age of thirteen (13), (iv) be free of viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that may potentially damage, interfere with, intercept, or expropriate any system data or personal information.
TRADEMARKS AND COPYRIGHTS
All graphics, logos, designs, page headers, button icons, scripts, and service names appearing on the Platform, www.helloconvo.com and/or any website owned, controlled or managed by Hello Convo, whether currently available or made available in the future (collectively, the “Sites”) are registered and unregistered service marks, trademarks, trade names, or trade dress of HelloConvo LLC or its subsidiaries and affiliates in the U.S. and/or other countries (collectively, “trademarks”). HelloConvo’s trademarks may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion. The images and icons available on our media page may be used by organizations and third-party sites in connection with journalistic promotion of our services; however, commercial applications are forbidden except where pre-approved by HelloConvo in writing. Nothing on these Sites shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark, logo or service mark displayed thereon without the owner's prior written permission, except as otherwise described herein. All proprietary rights and goodwill in HelloConvo’s trademarks shall inure to the benefit of HelloConvo. The Sites and all of their content, including but not limited to text, design, graphics, interfaces and code, and the selection and arrangement thereof, is protected as a compilation under the copyright laws of the United States and other countries. HelloConvo reserves all rights not expressly granted in and to the Sites and their content.
Influencers and Marketers each agree to indemnify, defend, and hold HelloConvo, its subsidiaries and affiliates, and its and their employees, officers, and directors (each, an “HelloConvo Entity” and collectively, the “HelloConvo Entities”), and each HelloConvo Entity’s licensors, organizations, licensees, consultants, contractors, agents, attorneys, owners, third party service providers and third parties authorized to make your listings, results, and/or Services available in connection with third party websites, Social Content and/or Action, blogs, postings, content, applications and/or e-mails (“Third Party Products”), harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees (collectively, “Claim(s)”), that actually or allegedly arise out of or result from your information or materials, use of the Service, any Social Content and/or Action, your website, or your breach of these Terms. You agree to be solely responsible for defending any Claim against or suffered by HelloConvo and/or any HelloConvo Entity, subject to HelloConvo and/or the HelloConvo Entity’s right to participate with counsel of its own choosing, and for payment of damages or losses resulting from all claims against HelloConvo, and/or any HelloConvo Entity provided that you will not agree to any settlement that imposes any obligation or liability on HelloConvo and/or an HelloConvo Entity without HelloConvo’s prior express written consent.
MARKETERS AND INFLUENCERS EXPRESSLY AGREE THAT THE SERVICES ARE AVAILABLE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND THAT YOUR USE THEREOF IS AT YOUR OWN RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HELLOCONVO DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY (i) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (ii) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, (iii) WARRANTIES RELATING TO DELAYS, INTERRUPTIONS, ERRORS, OR OMISSIONS IN THE SERVICE OR HelloConvo SITES, OR ANY PART THEREOF, (iv) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE SERVICE OR THE HELLOCONVO SITES, (v) WARRANTIES RELATING TO THE ACCURACY OR CORRECTNESS OF DATA, AND ANY OTHER WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NONPERFORMANCE, OR OTHER ACTS OR OMISSIONS BY HELLOCONVO. FURTHER, AND WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, THERE IS NO WARRANTY THAT THE SERVICE OR THE HELLOCONVO SITES WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT HELLOCONVO’S WARRANTY DOES NOT COVER TELECOMMUNICATIONS OR INTERNET OUTAGES CAUSED BY THIRD PARTIES OR OTHERWISE OUTSIDE OF HELLOCONVO’S CONTROL. SERVICES MAY BE LIMITED BY MANY FACTORS, INCLUDING INHERENT RISKS OF THE INTERNET.
BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES OR IMPLIED WARRANTIES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, HELLOCONVO’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
LIMITATION OF LIABILITY
ANY LIABILITY OF HELLOCONVO TO A MARKETER IN CONNECTION WITH THESE TERMS, REGARDLESS OF THE CAUSE OR FORM OF ACTION, SHALL BE STRICTLY LIMITED TO THE AMOUNT PAID BY MARKETER TO HELLOCONVO FOR THE SERVICES RELATED TO THE MARKETER’S MOST RECENT OPPORTUNITY. HELLOCONVO SHALL NOT BE LIABLE TO INFLUENCERS FOR DAMAGES OF ANY KIND ARISING OUT OF INFLUENCERS’ USE OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL HELLOCONVO OR ANY HELLOCONVO ENTITY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, ARISING OUT OF, OR IN CONNECTION WITH, THESE TERMS. MARKETER AGREES THAT MARKETER WILL NOT HOLD HELLOCONVO RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THESE TERMS, INCLUDING WITH RESPECT TO CLICKS BY ANY THIRD PARTY ON MARKETER’S LISTING(S) OF OPPORTUNITIES, REGARDLESS OF THE INTENT OF SUCH THIRD PARTY.
THE FOREGOING LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF HELLOCONVO OR ITS AFFILIATES OR ANY OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, HELLOCONVO’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
HelloConvo may give general notices to parties by posting on its Sites, or by electronic mail to the e-mail address provided by a Marketer or Influencer to HelloConvo. It is the party’s responsibility to ensure that their e-mail address and any other contact information provided to HelloConvo is updated, current and correct. It is a Marketer or Influencer’s responsibility to also check these Terms to see if there has been a modification. All notices to HelloConvo shall be sent via nationally recognized overnight courier or certified mail, return receipt requested, to: HelloConvo LLC, 201 Marin Boulevard, Jersey City, New Jersey 07302, USA, Attn: Legal Notices.
CHOICE OF LAW
These Terms shall be governed by and interpreted under the laws of the State of Delaware, U.S.A. without regard to its conflicts of laws provisions. Marketers and Influencers agree to submit to the exclusive jurisdiction of the state and federal courts located in Hudson County, New Jersey. Any claim against HelloConvo arising from the Terms shall be adjudicated on an individual basis, and shall not be consolidated in any proceeding with any claim or controversy of any other party. Marketers and Influencers further agree that, to the extent allowed by applicable law, (i) any and all disputes, claims, and causes of action arising out of or in connection with the Terms, shall be resolved individually without resort to any form of class action; (ii) any claims, judgments and awards shall be limited to reasonable and actual out-of-pocket costs incurred, but in no event attorney's fees; and (iii) under no circumstances will Marketers and Influencers be permitted to obtain any award for, and Marketers and Influencers hereby waive all rights to claim, punitive, incidental, indirect or consequential damages and any and all rights to have damages multiplied or otherwise increased and any other damages, other than damages for reasonable and actual out-of-pocket expenses.
ELECTRONIC ACCEPTANCE EFFECTIVE
These Terms set out the legally binding terms for use of HelloConvo’s Services, and/or the Platform. Marketers and Influencers indicate acceptance of the Terms and all of the terms and conditions contained or referenced in these Terms by creating an account and accessing the Platform. Please print and save a copy of these Terms for record-keeping purposes and be mindful that these Terms may be updated by HelloConvo at any time.
The Terms constitute the entire terms of service and understanding between the parties regarding the subject matter contained herein and supersedes all previous and contemporaneous terms of service, agreements, proposals and communications in all forms of media (including all instructions, advertisements, messages and policies), written and oral, between any party and HelloConvo regarding the subject matter contained herein. Only a written instrument executed by the party waiving compliance may waive the terms or covenants of the Terms. No waiver by either party of a breach of any provision hereof shall be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself. If any provision of the Terms is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of the Terms, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the parties to the Terms and has like economic effect. HelloConvo shall have no liability under the Terms by reason of any failure or delay in the performance of its obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, computer virus, Acts of God, pandemic, war, governmental action, or any other cause that is beyond its reasonable control. The parties are independent contractors and nothing in the Terms shall be construed to create, evidence, or imply any agency, employment, business relationship, or joint venture between the parties. Neither Marketer nor Influencer are employees of HelloConvo. None of HelloConvo, Marketer, or Influencer shall have any right, power, or authority to create any obligation or responsibility on behalf of the other party. The Terms are not intended to benefit, nor shall it be deemed to give rise to any rights in, any third party. Influencers and Marketers may not assign or transfer the Terms, or sublicense, assign or delegate any right or duty under the Terms without HelloConvo’s prior written consent. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. HelloConvo and its subsequent assignees may assign the Terms, in whole or in part, or any of its rights or delegate any of its duties, under the Terms to any party. Any rights not expressly granted in the Terms are reserved by HelloConvo, and all implied licenses are disclaimed. Headings used in the Terms are for reference purposes only and in no way affect the Terms. The term “including” is a term of enlargement meaning “including without limitation,” and does not denote exclusivity. HelloConvo may change the Terms and/or the Privacy Notice at any time upon notice published on its Site(s). Any use by an Influencer or Marketer, their affiliates, agents, representatives, employees, or any person or entity acting on their behalf, of the Service after such notice shall be deemed to be continued acceptance by them of the Terms and Privacy Notice, including any amendments and modifications thereto. All information or material in connection with a Service must be submitted in the form requested by HelloConvo. HelloConvo reserves the right to discontinue offering, and/or modify the Services at any time. Except as otherwise specified by HelloConvo, parties agree that they will direct all communications relating to the Service or their participation therein directly to HelloConvo and not to any other entity. The organization, specifications, structure or appearance of any HelloConvo property or any page where a party’s information (including listings) may be displayed may be redesigned or modified at any time.
SAFE HARBOR NOTICE
Forward-looking statements in the Sites, if any, are made under the Safe Harbor provisions of Section 21E of the Securities Exchange Act of 1934, the Private Securities Litigation Reform Act of 1995, and any other applicable regulation. Certain important factors could cause results to differ materially from those anticipated by the forward-looking statements, including the impact of changing economic or business conditions, the impact of competition, the availability of favorable credit and trade terms, the impact of changes in the cost or availability of resources, government regulation, and other factors discussed from time to time in reports filed by HelloConvo with the Securities and Exchange Commission.
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