SocialMob Influencer Terms and Conditions
Last Modified: May 22, 2018
The SocialMob website located at
AGE REQUIREMENT: IN RESPECT TO BECOMING A MEMBER OF THIS SITE AND USING OUR SERVICES, YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT (ARE AT LEAST 18 YEARS OLD) AND ARE NOT A PERSON BARRED FROM RECEIVING SERVICES UNDER THE LAWS OF THE UNITED STATES OF AMERICA OR OTHER APPLICABLE JURISDICTION. IF YOU ARE UNDER THE AGE OF 18 YEARS OLD OR DO NOT AGREE TO THIS AGREEMENT, YOU ARE PROHIBITED FROM BECOMING A SOCIALMOB INFLUENCER.
I. USING OUR SERVICES
SocialMob provides You with access to the Service, subject to Your compliance with the Terms and Conditions. Please read the Terms and Conditions carefully prior to becoming a SocialMob Influencer. This Agreement governs Your access to and use of the Services, and constitutes a binding legal Agreement between You and SocialMob.
IF YOU RESIDE OUTSIDE THE EUROPEAN ECONOMIC AREA AND/OR ARE NOT SUBJECT TO THE PROTECTIONS OF THE EU GENERAL DATA PROTECTION REGULATION 2016/679 (“GDPR”), THEN YOU ACKNOWLEDGE AND AGREE THAT, BY (1) CLICKING ON THE "I AGREE" OR "I ACCEPT" BUTTON, (2) REGISTERING TO BE A SOCIALMOB INFLUENCER, (3) ANSWERING A QUESTIONAIRE FORM SUBMITTED BY US, (4) ACCESSING OR USING ANY PORTION OF THE SITE RESTRICTED TO SOCIALMOB INFLUENCERS, (5) BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE OR THROUGH THE SERVICE, OR (6) ANY OTHER CONDUCT INDICATING YOU ACCEPT THESE TERMS OF SERVICE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT. THIS AGREEMENT SHALL BECOME EFFECTIVE ON THE DATE ANY OF THE EARLIEST ABOVE NUMBERED EVENTS OCCURS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS, PARTICIPATE IN THE SERVICE, OR TO USE THE SITE OR RELATED SERVICES. IF YOU ACCEPT OR AGREE TO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY TO THIS AGREEMENT AND, IN SUCH EVENT, "INFLUENCER", "YOU" AND "YOUR" WILL REFER AND APPLY TO THAT COMPANY OR OTHER LEGAL ENTITY.
EU RESIDENTS – NOTWITHSTANDING THE FOREGOING, IF YOU ARE A CURRENT RESIDENT OF, OR ENTITY ESTABLISHED IN THE ECONOMIC EUROPEAN AREA, AND SUBJECT TO THE PROTECTIONS OF THE GDPR, THEN YOU ACKNOWLEDGE AND AGREE THAT BY ACTIVELY CONSENTING TO THESE TERMS AND CONDITIONS, BY CLICKING THE “I AGREE” OR “I ACCEPT” BUTTON, OR REGISTERING TO BECOME A SOCIALMOB INFLUENCER, THEN YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF WE MODIFY THE AGREEMENT, WE WILL PROVIDE NOTICE TO YOU ON THE SOCIALMOB.COM WEBSITE AND YOU MUST CONSENT TO THE CHANGES TO CONTINUE USING THE SOCIALMOB WEBSITE AND/OR RELATED SERVICES. IF YOU ACCEPT OR AGREE TO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY TO THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT COMPANY OR OTHER LEGAL ENTITY. IF YOU DO NOT ACTIVELY AGREE TO THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS, PARTICIPATE IN THE PROGRAM, OR USE THE SOCIALMOB WEBSITE OR RELATED SERVICES.
NOTWITHSTANDING THE FOREGOING, YOUR PARTICIPATION AS A SOCIALMOB INFLUENCER IS SUBJECT TO SOCIALMOB’S PRIOR APPROVAL AND SOCIALMOB RESERVES THE RIGHT TO REJECT YOUR APPLICATION TO BE A SOCIALMOB INFLUENCER, IN ITS SOLE DISCRETION FOR ANY REASON OR NO REASON. IF YOUR APPLICATION TO BE A SOCIALMOB INFLUENCER IS REJECTED, THIS AGREEMENT SHALL BECOME NULL AND VOID.
A. Influencer Data Obligations
B. Data Communications Security
You acknowledge and agree email communications are generally not an encrypted form of communication, and SocialMob shall not be responsible for any interception of Data by third parties, that is sent to SocialMob by way of email or other form of unencrypted electronic communication.
C. Cooperation for Regulatory Compliance
Influencer shall provide reasonable assistance to SocialMob immediately upon request to enable SocialMob to respond to requests from data subject(s) seeking to exercise their rights under GDPR, or similar applicable data protection laws, rules, or regulations.
D. Prohibited Data
In no event shall Influencer send SocialMob any data that is generally considered highly sensitive or falls under the “special categories of personal data” under the GDPR. This includes, but is not limited to, personal data revealing racial or ethnic origin, religious beliefs, genetic data, data concerning a person’s health, a person’s sexual orientation, trade union membership, or biometric data.
You will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted and/or provided to You from time to time, when using the Site ("Guidelines"). If You receive an email from a SocialMob account manager, You agree and acknowledge you will comply with the Guidelines within twenty-four (24) hours from the time it was emailed to You. All such Guidelines are hereby incorporated by reference into this Agreement.
V. SOCIALMOB ACCOUNT
A. Account Creation
As a condition to accessing and using the Service, You will be required to create an account (“Account”) on the Site by following the instructions as provided on the Site. SocialMob shall have the right to deny, approve, or terminate any entity or person wishing to be a SocialMob Influencer and/or any Accounts at any time in its sole discretion with or without cause. You shall provide SocialMob with accurate, complete, and updated registration information. Failure to do so may result in immediate termination or suspension of Your Account. Your Application will not be valid, unless it contains all information requested by SocialMob, such as Your full name, contact address, e-mail address, bank account information, and any requested Social Media information at the time Your Application is submitted to SocialMob. You acknowledge and agree that Your payments may be delayed in the event that Your account information is not up-to-date, complete and accurate. Misrepresenting ownership or fraudulently claiming control over Social Media platforms is strictly prohibited and may result in a permanent ban from use of the Site and/or Service. SocialMob reserves the right to suspend, deny and/or revoke access to the Site, Service, and/or Account at its discretion if Your activities are reasonably deemed a threat to the integrity of the Site, Service, or Clients.
B. Account Security
Any passwords used for this Site are for individual use only. You will be responsible for the security of Your password(s). From time to time, SocialMob may require that You change Your password. You are prohibited from using any services or facilities provided in connection with this Site to compromise security or tamper with system resources and/or Accounts. The use or distribution of tools designed for compromising security (e.g., password crackers, rootkits, Trojan horses, or network probing tools) is strictly prohibited. If You become involved in any violation any system security, SocialMob reserves the right to release Your Account details to system administrators at other websites and/or the authorities in order to assist them in resolving security incidents. SocialMob reserves the right to investigate suspected violations of these Terms and Conditions and to fully cooperate with any law enforcement authorities or court order requesting or direction SocialMob to disclose the identity of anyone publishing or otherwise making available any materials that are believed to violate these Terms and Conditions.
BY ACCEPTING THIS AGREEMENT YOU WAIVE ALL RIGHTS AND AGREE TO HOLD COMPANY HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY COMPANY DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER COMPANY OR LAW ENFORCEMENT AUTHORITIES.
C. Unauthorized Access
Account access is provided on a password-protected basis. SocialMob
Influencer will be solely responsible for keeping its Account password confidential and for all use of its password and Account, including any unauthorized use. If You become aware of any unauthorized use of Your Account, You must notify Us immediately by writing to [email protected]
. SocialMob will not be liable for any loss or damage arising from the unauthorized access to or use of Your Account. Upon termination of this Agreement for any reason, SocialMob may disable and/or delete Your Account.
VI. SOCIALMOB INFLUENCER CODE OF CONDUCT
If You are approved by SocialMob to be a SocialMob Influencer, SocialMob will provide You with detailed instructions, which shall be exactly followed, as to how to be a SocialMob Influencer for any Campaigns sponsored by Our Clients (“Campaign”), provided You are approved by SocialMob to participate in a Campaign, which will be determined solely by SocialMob in its sole discretion. If You are approved to be a SocialMob Influencer, the following rules govern Your conduct as a SocialMob Influencer.
A. SocialMob Influencer Obligations
As a SocialMob Influencer You SHALL DO ALL of the following:
i) Ensure that at all times during this Agreement, You fully comply with the the Terms and Conditions and Privacy Policies of each approved Social Media platform in any Campaign offered by SocialMob.
ii) For EVERY posts You make on Social Media, You must clearly and conspicuously disclose the financial connection between You and the advertiser, regardless if You were paid with money, prizes, free samples, etc. For example, assuming space is not an issue, You could write “Client paid me to talk about this product.” If space is an issue, You could use hashtags such as #advertise, #sponsorship, or #paidcampaign.
iii) Ensure that any comments or testimonials You make on Social Media reflect ONLY Your honest opinions, beliefs, findings or experience as required by the FTC Guidelines. There is no SocialMob requirement that you ever post or comment on any Campaign products, services, and/or content.
iv) Ensure at all times You comply with all trademark, trade secret, copyright, and other applicable laws.
v) Ensure at all times You comply with all FTC Guidelines, including, but not limited to, the FTC Guidelines Concerning the Use of Endorsements and Testimonials in Advertising
and .com Disclosures How to Make Effective Disclosures in Digital Advertising.
vi) Only participate in a Campaign if you actually have experience using the product or services of the Campaign, and any post you make on Social Media in connection with the campaign, honestly reflects Your experience.
vii) Understand and agree that Your use of link shorteners may render Your shortened links to be untrackeable by SocialMob, and therefore You may not receive a click pay-out for such untrackable clicks. SocialMob highly discourages the use of link shorterners.
B. Prohibited Conduct
As a SocialMob Influencer You shall NOT DO ANY of the following:
i) Promote any SocialMob Campaigns without first having written authorization to do so by Client or SocialMob, and only on preapproved Social Media pages. This includes not offering or soliciting our Client’s products, services, and/or content without SocialMob’s prior written approval. Posting any SocialMob Campaigns on Social Media pages that have not first been reviewed and approved by Social Media is strictly prohibited.
ii) Publish any SocialMob Links on Social Media that alters the accompanying image selected by Advertisers to go with the article, and/or alter the content/article in any way whatsoever.
iii) Publish any SocialMob Links on any Social Media comment boxes that are directly related to any video, photograph, and/or article.
iv) Publish statements or other content, express or implied, on Social Media or to any person that are defamatory, obscene, discriminatory, harassing, have an abusive purpose, or damage or cause risk to Our businesses’ or any of Our Clients’ reputations.
v) Disclose any confidential information of SocialMob or Client on any Social Media or any other person, which includes, but is not limited to, trade secrets, business plans, strategies, methods and/or practices or other information that is not generally known to the public, including information about the Party’s personnel, products, customers, financial information, marketing and pricing strategies, services or future business plans, analyses, compilations, studies, notes or other materials prepared which contain or are based on confidential information.
vi) Make any false, dishonest, and/or misleading statements or claims about a Client’s products or services so as to mislead consumers. All statements and claims regarding Client’s products and services must be completely supportable by You.
vii) Alter, reverse engineer, decompile, circumvent, damage, interfere, disassemble, sell, rent, lease, sublicense, transfer, distribute, or otherwise make available, any part of the Site, Materials (as defined in Section X below), or any link or landing page of Our Clients.
viii) Upload, post, display, or transmit any content on Social Media You do not have the right to post, including any proprietary material of any third party protected by intellectual property laws (or by rights of privacy or publicity).
ix) Upload, post, email, transmit, link to, or otherwise make available on Social Media any material that contains computer viruses or is designed to destroy, interrupt, or limit the functionality of the Services, any computer hardware, software, or telecommunications equipment, including but not limited to, by using adware, worms, spyware, or other malicious code;
x) Adapt, translate, modify, or create derivative works based upon the Site, Materials, or links of Our Clients.;
xi) Impersonate or misrepresent Your connection to any entity person or otherwise manipulate or forge headers, handle names, or identifiers to disguise the origin of Your published Submission (defined below);
IN ADDITION TO ANY OTHER RIGHTS AND REMEDIES SOCIALMOB MAY HAVE, SOCIALMOB RESERVES THE RIGHT TO WITHHOLD PAYMENT OR CHARGE BACK YOUR ACCOUNT DUE TO ANY OF THE FOREGOING VIOLATIONS, OR ANY BREACH OF THIS AGREEMENT BY INFLUENCER.
WHILE SOCIALMOB EXPLICITLY PROHIBITS THE ABOVE CONDUCT, AND YOUR USE OF THE SITE AND SERVICES IS ENTIRELY AT YOUR OWN RISK. SOCIALMOB SHALL HAVE NO LIABILITY OF ANY KIND FOR SUCH CONDUCT.
You hereby grant to SocialMob and Client a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display all content, remarks, suggestions, ideas, graphics, or other information communicated by You to the Site and/or Social Media websites (“Submission”), and to incorporate any Submission in other works in any form, media, or technology now known or later developed. You agree that SocialMob and Client will not be bound to treat any Submission as confidential and may use any Submission in its business (including without limitation, for products or advertising) without incurring any liability for royalties or any other consideration of any kind, and will not incur any liability as a result of any similarities that may appear in future SocialMob or Client operations or business. Accordingly, notwithstanding this right and license, You hereby acknowledge and agree that by merely permitting Your information, content, and materials to appear on the Site and/or a Social Media website, SocialMob and Client have not become and are not a Influencer of such information, content, and materials and each is merely functioning as an intermediary to enable You to provide and display the Submission.
You acknowledge that the Site may or may not pre-screen any Submissions to the Social Media website, but that the Site and its designees shall have the right, but not the obligation, in its sole discretion to pre-screen, refuse, remove, or delete any Submission that violates this Agreement or is otherwise objectionable as determined by SocialMob in its sole discretion. You acknowledge and agree You will take down any SocialMob Link within twenty-four (24) hours upon request by SocialMob for any reason or no reason whatsoever. You further acknowledge and agree that SocialMob has the right to show any Social Media post by You to SocialMob Advertisers, and You shall make Your Social Media post containing any SocialMob Link available for SocialMob and/or Our Advertisers’ review upon request.
ALL USERS SHALL REMAIN SOLELY AND EXCLUSIVELY RESPONSIBLE FOR ANY LIABILITY ARISING FROM THEIR SUBMISSIONS.
VIII. THIRD PARTY WEBSITES
SocialMob expressly disclaims any responsibility for the content, materials, accuracy of information, and/or quality of the products or services provided by, available through, or advertised on any third party web sites. Any links provided on the Site to third party websites do not imply an endorsement with respect to any third party or any website, or the products or services provided by any third party.
If You choose to access web sites, services or content, or purchase products from third parties, including without limitation through third-party payment vendors through advertisements, Your personal information may be available to the third-party provider. If You choose to visit or use any third-party products or services, please note that SocialMob policies will not apply to Your activities or any information You disclose while using third-party products or services or otherwise interacting with third parties. How third parties handle and use Your personal information related to their sites and services is governed by their security, privacy and other policies, if any, and not Our policies. SocialMob has no responsibility for any third party's policies, or any third party's compliance with them.
A. Termination by SocialMob
SocialMob may modify, suspend, or terminate, any part of the Site and any Services, including Your access to and use of the Site and Services, and/or cancel any of Your pending registrations with SocialMob at any time, with or without notice to You, for any reason or no reason, and without liability to You, or any third party. SocialMob reserves the right to monitor use of this Site and its Services to determine compliance with this Agreement, as well as the right to edit, refuse to post, or remove any information or materials, in whole or in part, at its sole discretion. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. Additionally, SocialMob reserves the right to withhold any payments owed to You for fraudulent activities, as determined by SocialMob in its sole discretion. These remedies are in addition to any other remedies SocialMob may have at law or in equity.
B. Termination by SocialMob Influencer
Your only remedy with respect to any dissatisfaction with (a) the Site, and/or any Services provided in connection with the Site, (b) any term of this Agreement, or (c) any policy or practice of SocialMob in operating the Site, is to terminate this Agreement and cease using the SocialMob Site and any Services provided in connection with the Site.
X. INTELLECTUAL PROPERTY RIGHTS
The Site is owned and operated by SocialMob. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Site provided by SocialMob (the "Materials") are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained on the Site (excluding any Materials on third-party websites) are the property of SocialMob or its affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to SocialMob or its affiliates and/or third-party licensors. Except as expressly authorized by SocialMob, You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. SocialMob reserves all rights not expressly granted in this Agreement.
You agree to indemnify and hold SocialMob and its officers, directors, agents, affiliates, licensors and employees harmless from and against any and all claims, actions, liabilities, losses, expenses, damages, and costs, whether based on active negligence, passive negligence or gross negligence (including without limitation all attorneys’ fees and costs of every kind, including expert fees and not limited to statutory costs), arising out of or relating to (a) Your use or misuse of the Site and/or Service, (b) any violation by You of this Agreement, including, but not limited to, violation of Other Materials provided to You in writing by SocialMob, (c) any breach of the representations, warranties, and covenants made by You herein, (d) any claims brought by third parties arising out of Your Submission(s) on Social Media, (e) any claims based upon or arising out of any actual or alleged fraud, dishonesty, criminal conduct, or any knowingly wrongful, malicious, or intentional acts or omissions by You or anyone acting on behalf of You, or (f) a governmental investigation or enforcement of any state or federal regulation, including but not limited to any regulation promulgated by the Federal Trade Comission. SocialMob reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify SocialMob, and You agree to cooperate with SocialMob's defense of these claims. SocialMob will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.
XII. DISCLAIMERS; NO WARRANTIES
A. Warranty Disclaimer
YOU EXPRESSLY AGREE THAT USE OF THE SITE AND SERVICE IS AT YOUR SOLE RISK. THE SITE, SERVICES, AND ALL OTHER CONTENT, DATA, MATERIALS AND DOCUMENTATION PROVIDED IN CONNECTION WITH THIS AGREEMENT BY SOCIALMOB ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. SOCIALMOB MAKES NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOCIALMOB DOES NOT WARRANT THAT THE SERVICES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, COMPLETELY SECURE OR VIRUS-FREE. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SOCIALMOB OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION XII(A), THE TERM SOCIALMOB INCLUDES SOCIALMOB’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.
B. Use At Your Own Risk
YOU AGREE AND ACKNOWLEDGE THAT YOUR USE AND ACCESS OF THE SITE AND SOCIALMOB SERVICE IS AT YOUR OWN DISCRETION AND RISK. YOU FURTHER AGREE AND ACKNOWLEDGE THAT SOCIALMOB SHALL NOT BE LIABLE IF YOUR SOCIAL MEDIA ACCOUNT IS BLOCKED, CLOSED, RESTRICTED, OR OTHERWISE BY THE THIRD PARTY SOCIAL MEDIA PLATFORM IN CONNECTION WITH YOUR USE OF THE SOCIALMOB SERVICE AND SITE.
XIII. LIMITATION OF LIABILITY
A. Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL SOCIALMOB OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES, OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THAT RESULT FROM YOUR USE OF OR YOUR INABILITY TO USE THE SERVICE, OR ANY OTHER INTERACTIONS WITH SOCIALMOB, EVEN IF SOCIALMOB OR A SOCIALMOB AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, SOCIALMOB’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
B. Limitation of Damages
ANY LIABILITY OF SOCIALMOB, ITS INFORMATION PROVIDERS, LICENSORS, LICENSEES, EMPLOYEES, AGENTS, CONSULTANTS OR CONTRACTORS, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, FAILURE OF DELIVERY OF MERCHANDISE OR INFORMATION, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL USE OF SOCIALMOB’S RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL NOT EXCEED AGGREGATE DAMAGES IN EXCESS OF THE FEES ALREADY PAID BY SOCIALMOB TO YOU IN THE SIX (6) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
XIV. ALLOCATION OF RISKS
YOU ACKNOWLEDGE AND AGREE THAT (A) THE REMEDIES, EXCLUSIONS, LIMITATIONS OF LIABILITY, AND LIMITATION OF DAMAGES HEREIN, REFLECT A REASONBLE ALLOCATION OF RISKS; (B) THAT YOU AND SOCIALMOB WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE EXCLUSIONS, LIMITATIONS OF LIABILITY, AND ALL OTHER TERMS IN THIS AGREEMENT. YOU ACKOWLEDGE THAT THE TERMS CONTAINED IN THIS AGREEMENT ARE A FAIR ALLOCATION OF RISKS BETWEEN YOU AND SOCIALMOB.
Unless otherwise specified in writing, You will receive a Commission ("Commission") calculated on a cost-per-click (“CPC”) basis from each Submission You make in relation to a SocialMob pre-approved Campaign on Social Media, provided that all clicks on the link in the Submission result from You following SocialMob’s exact instructions, which will be provided in writing on the Site in Your Account, and result from valid traffic as determined by SocialMob. The CPC will be based off a link You post on behalf of Client on Social Media, which will be tracked by SocialMob. You agree and acknowledge that link shorteners may interfere with Our ability to track clicks and may affect amounts owed under Your click payouts, which shall be calculated solely based on SocialMob’s click tracking system.
The Commission (defined below) You receive, which will be payable by Client or SocialMob depending on the Campaign, and will be based on the number of valid, non-fraudulent, third-party clicks the Client’s link receives in Your Social Media posts. You acknowledge and agree that the CPC rate offered by SocialMob for each Campaign, as displayed on the SocialMob Platform, is subject to change at any time by Advertisers at their sole discretion, even after a link has been posted. All CPC rate changes by Advertisers are effective immediately after the change is posted to the SocialMob Platform and may affect Your payout for new and existing SocialMob Links and Submissions. Subject to Your adherence to these Terms and Conditions and any instructions We provide to You relating to any Campaign, You will be paid a Commission based on a percentage of Net Revenues (defined below) received by Us from Clients for Your posts. For the purposes of this Agreement Net Revenues means revenue We receive from Clients adjusted for any bad debt, net credits or returns from previous payment periods, less any amount which We determine, in Our sole discretion was the result of improper use of the Services and as such revenue is otherwise calculated or adjusted by Us to take into account (i) any exclusions set forth in these Terms and Conditions, (ii) the results of Our traffic quality control and (iii) any other adjustments made by Us in Our sole discretion or as required by any Client. We may exclude from Net Revenue monies from traffic that originates from countries where traffic is, in Our sole reasonable discretion, suspect or difficult to track in the normal course of business or is determined to be invalid on a consistent and regular basis by Us or an Advertiser.
Unless otherwise provided, You will be paid on a weekly basis for all Commissions from any preceding week of a pre-approved Campaign as long as You have an account balance of $50.00. The number of clicks You received will be available to You in Your Account. Commissions will be paid in Your designated deposit account weekly as determined by SocialMob’s click tracking system, which is subject to deductions for fraudulent activity, violation of any terms in this Agreement, or tax withholdings if required by law. In the event that the Commission payable for a particular calendar month is less than U.S. $50.00, the amount earned will be rolled over to the next month and combined with that month's earnings until such Commissions total at least US $50.00. After twenty-four (24) weeks of any amount rolling over, it shall be Your responsibility to request payment as the amount will no longer continue to roll over in Your account. SocialMob shall have the right to offset any Commissions payable to SocialMob Influencer against any past due amounts owed by SocialMob Influencer to SocialMob.
Once an Advertiser pauses a Campaign, the paused Campaign will no longer be visible for You to select and share. However, Advertisers may continue to pay for clicks on links that have been previously shared, for a period of time as determined by SocialMob’s Advertisers in their sole discretion.
Your Social Media Submissions are subject to Our review and We reserve the right to monitor Your postings for compliance with Our instructions. Your Account with SocialMob may be adjusted by SocialMob at any time in Our sole discretion. If You do not agree with Our adjustments, Your only remedy is to terminate Your status as a SocialMob Influencer.
XVII. USE OF INFORMATION
Any dispute over sums owed pursuant to this Agreement shall be resolved by arbitration before a single arbitrator. Arbitration shall be conducted in accordance with California Code of Civil Procedure section 1280 et. seq. All arbitration-related hearings shall be conducted in Los Angeles, CA before ADR Services, Inc.. The arbitrator shall be from the Southern California area and the arbitrator will be selected by the mutual agreement of the parties. If the parties cannot agree on a single arbitrator, then the arbitrator shall be selected in accordance with the then in effect rules of ADR Services, Inc. Once selected, the Arbitrator shall be empowered to hear and resolve any and all issues related to, arising from, based upon or in any way related to the dispute, whether based in law or equity. The Arbitrator shall issue rulings, decisions, orders, judgments and permanent injunctions as applicable and appropriate. The prevailing party in said arbitration shall be awarded, Attorney’s fees and costs as well of the costs of the arbitrator. If a party is files a motion or petition to compel arbitration, then the prevailing party in said motion or petition shall be awarded interim attorney’s fees and costs related to the motion or petition.
B. Notice; Process
A Party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that We do not have a physical address on file for You, by electronic mail ("Notice"). SocialMob's address for Notice is: SocialMob Attention: Legal, 15445 Ventura Blvd., #318, Sherman Oaks, CA, 91403. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if We do not reach an agreement to do so within 30 days after the Notice is received, You or SocialMob may commence an arbitration proceeding.
C. Class Actions
You specifically agree that any claim or cause of action You may have arising out of this Agreement will be brought only in Your individual capacity. You agree and acknowledge that You will not be a Party, class member, or representative of any class action proceedings against Us. Also, an arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
XIX. TIME LIMIT TO FILE CLAIMS
Any claim or cause of action relating to or pertaining to this Agreement must be arbitrated as set out in Section XVIII above within one (1) year of the occurrence giving rise to the claim or cause of action. This time limitation applies to all terms and conditions set out in this Agreement. All claims or causes of action not initiated within the time restriction as set forth in this Section XIX are permanently barred.
A. Governing Law and Jurisdiction
This Agreement will be governed by and construed in accordance with the laws of the State of California, notwithstanding the actual state or country of residence or incorporation of the parties. Abritration hearings shall be held solely in Los Angeles, California for all actions arising out of or related to this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND SOCIALMOB ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
Any notice or other communication to be given hereunder will be in writing and will be (as elected by the Party giving such notice): (i) personally delivered; (ii) sent by prepaid overnight delivery services such as FedEx or USPS Express Mail, with delivery confirmation and/or return receipt; or (iii) by email, which is effective upon delivery confirmation. If the email is to SocialMob, the email address is [email protected]
. If the email is to SocialMob Influencer then the email address is the one provided in the Site registration information. Unless otherwise provided herein, all notices will be deemed to have been duly given on the date of receipt (or if delivery is refused, the date of such refusal) if delivered personally. Either Party may change its address for purposes hereof on not less than three (3) business days prior notice to the other Party.
In the event that any of the provisions of this Agreement are held by to be unenforceable by a court or arbitrator, the remaining portions of the Agreement will remain in full force and effect.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by SocialMob without restriction. Any assignment attempted to be made in violation of this Agreement shall be void.
Upon termination of this Agreement, any provision which, by its nature or express terms should survive, will survive such termination or expiration.
F. Independent Contractors
Nothing contained in this Agreement or Your use of the Site, and/or any Services provided in connection with the Site, shall be construed to constitute either Party as a partner, joint venturer, employee, or agent of the other Party, nor shall either Party hold itself out as such. Neither Party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other Party, it being intended by both Parties that each shall remain independent contractors responsible for its own actions.
G. Export Control
The Services may be subject to export laws and regulations of the United States and other jurisdictions. You represent that You are not named on any U.S. government denied-party list, and You shall not permit third parties to access or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
The failure of SocialMob to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by SocialMob.
I. Entire Agreement
This Agreement is the complete and exclusive agreement between You and SocialMob with respect to the subject matter hereof, superseding and terminating all previous communications, representations, or agreements, whether written or oral between the parties relating to the services provided hereunder.