THE INFLUENCER TERMS OF USE INCLUDE A CLASS ACTION WAIVER
The following Influencer Terms of Use (the “Influencer Terms of Use”) govern your access to and use of (1) the Mokcha website located at http://www.Mokcha.com (the “Website”), (2) the Mokcha online platform facilitating the matching of persons offering to create promotional content (each, a “Influencer”) and Brand Advertisers (as defined below), and (3) all other services provided by Mokcha, as described on the Website (collectively, the “Platform”). These Influencer Terms of Use form an agreement between Mokcha Media, Inc. (“Mokcha”, “us”, “we”, “our”) and you. The term “you” refers to the person or entity visiting, browsing or otherwise using the Platform and to Influencers using the Platform to connect with individuals or businesses registered with Mokcha (each, a “Brand Advertiser”) for the purpose of creating promotional content (“Promotional Content”) for Brand Advertiser’s products or services (each, a “Promotion”). By accessing and using (the term “use” when used herein in respect of the Platform shall mean access or use, and using shall have a corresponding meaning) the Platform, you accept and agree to be bound by and comply with these Influencer Terms of Use. If you do not accept and agree to be bound by these Influencer Terms of Use, please do not access or use the Platform. If you are accessing or using the Platform on behalf of another person or a corporate entity, you represent and warrant that you have the authority to bind such person or entity to these Influencer Terms of Use. If you are a Brand Advertiser, your use of the Platform is governed by our Brand Advertiser Terms of Use.
The Platform is provided solely (the “Permitted Use”) to: (1) assist you in gathering information about the various types of Promotion opportunities and Brand Advertisers available on the Platform, including profiles, price ranges, and Promotion descriptions (each, a “Brand Advertiser Profile”); (2) enable you to post information regarding yourself and to respond to any Promotion opportunities; (3) post reviews of Brand Advertisers; (4) facilitate communication with Brand Advertisers with the objective of entering into a Promotion Agreement; and (5) facilitate the transmission of payments from the Brand Advertiser to you under a Promotion Agreement (“Platform Services”).
Changes to these Influencer Terms of Use and Platform
Except where prohibited by applicable law, Mokcha reserves the right to change these Influencer Terms of Use at any time without notice. Your continued access to or use of the Platform after any changes to these Influencer Terms of Use indicates your acceptance of such changes. It is your responsibility to review these Influencer Terms of Use regularly.
Mokcha reserves the right to change any information, material or content (including, but not limited to, price, features, availability of Brand Advertisers, Brand Advertiser Profiles, types of Promotions, and reviews of Promotions and Brand Advertisers) contained on or provided through the Platform (the “Content”) at any time, and from time to time, without notice.
Use of the Platform
As a condition of your use of the Platform, you warrant that: (a) you have reached the age of majority in your jurisdiction of residence; (b) you possess the legal authority to create a binding legal obligation; (c) you shall use the Platform in accordance with these Influencer Terms of Use; and (d) all information supplied by you on the Platform is true, accurate, current and complete.
Mokcha retains the right, at its sole discretion, to deny access to anyone to the Platform or the services it offers, at any time and for any reason, including, but not limited to, for violation of these Influencer Terms of Use. You shall cease and desist from any such access or use immediately upon request by Mokcha.
License Grants
Subject to these Influencer Terms of Use, Mokcha grants you a personal, revocable, non-exclusive and non-transferable license during the Term to permit you to access and use the Platform in accordance with these Influencer Terms of Use.
Subject to these Influencer Terms of Use, you grant to Mokcha a perpetual, transferrable, irrevocable, royalty-free, fully paid-up, worldwide and fully sublicensable license to access, collect, store and use any data, information, records and files that (1) you load, transmit to or enter into the Platform, or (2) we collect from your local computer system or from third-parties with your permission, and (in each case) including all results from processing such data, including compilations, and derivative works thereof solely for the purpose of: (A) providing the Platform, (B) complying with applicable law, and (C) Mokcha’s reasonable audit and data retention policies.
User Account
You will be required to successfully sign up for a user account (the “User Account”) using the available interfaces at the Platform and be issued with a username and password login credentials by Mokcha (“User ID”) in order to use the Platform and communicate with Brand Advertisers through the Platform. If you are issued with a User ID, you shall keep your User ID secure and shall not share your User ID with anyone else, and you shall not collect or harvest any personal data of any other user of Mokcha, including account names. Mokcha reserves the right to disable any User Account issued to you at any time in Mokcha’s sole discretion. If Mokcha disables access to a User Account issued to you, you may be prevented from accessing the Platform, your account details or any Promotions that are associated with your account.
Term and Termination
We may terminate your access to and use of the Platform, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending an email to us at support@mokcha.com. Upon any termination, discontinuation or cancellation of your Account or access to the Platform, all provisions of these Influencer Terms of Use which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
Promotion Agreements with Brand Advertisers
The Platform permits you to view the Brand Advertiser Profiles of Brand Advertisers who have registered on our Platform and have chosen to allow you to view their Brand Advertiser Profiles. If a Brand Advertiser selects you for a Promotion through the Platform, you may separately enter into an agreement with that Brand Advertiser on such terms and conditions as may be agreed to between you and that Brand Advertiser (“Promotion Agreement”). For example, the Promotion Agreement may contain (a) a description of the services you will provide to the Brand Advertiser, (b) payment terms, and (c) any other terms and conditions as communicated between you and the Brand Advertiser through this Platform or otherwise. You understand that you are performing services for the Brand Advertiser, and not Mokcha, and that Mokcha is not a party to and will be in no way responsible for the performance of either you or the Brand Advertiser under any Promotion Agreement, except for facilitating the transmission of payment from the Brand Advertiser to you on their instructions in accordance with these this Terms of Use.
No Employment Relationship
As an influencer making use of the Platform, you acknowledge and agree that you and Mokcha are in a direct business relationship, and the relationship between the parties under this Agreement is solely that of independent contracting parties. These Terms of Use are not an employment agreement and do not create an employment relationship between you and Mokcha. No partnership, agency, joint venture, or employment relationship can be created between Mokcha and Influencers through the Platform.
You will take no position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving Mokcha that you are an employee of Mokcha.
You are not the agent of Mokcha and you are not authorized, and must not represent to any third party that you are authorized to make any commitment or otherwise act on behalf of Mokcha.
You are solely responsible for determining which Promotions you will choose to accept, the manner in which you will perform your obligations under Promotion Agreements, and how, when, where, and how long you will use the Platform.
Mokcha does not restrict your right to provide services through other platforms or to other parties, including competitors of the Mokcha. Mokcha anticipates and expects that Influencers performing Promotions through the Platform will provide services through other platforms. You acknowledge and represent you can earn income from other sources. Mokcha does not guarantee you any minimum amount of Promotions or that you will derive any minimum amount of income through the Platform.
Mokcha does not assess the performance of Influencers , and does not oversee the performance of the Promotion Agreements or instruct the Influencer as to how the Promotion Agreements will be performed.
Mokcha does not pay a salary or hourly rate but rather facilitates payment of the rate set by the Brand Advertiser.
Mokcha does not direct or control Influencers generally or in their performance under these Influencer Terms of Use specifically, including in connection with performance of Promotion Agreements.
Mokcha does not provide training, tools, equipment, benefits, or expense reimbursement to Influencers.
Mokcha does not dictate the time of performance of the Promotion Agreements, and you retain the option to accept, decline, or ignore Promotions.
Mokcha does not combine its business operations in any way with your business, but instead maintains its operations as separate and distinct.
You are responsible for obtaining and maintaining any required registration, licenses, or other authorization necessary for the services you render.
Without limiting the generality of the foregoing:
Benefits and Contributions. You are not entitled to or eligible for any benefits that Mokcha, its parents, subsidiaries, affiliates or other related entities may make available to their employees, such as group insurance, profit-sharing or retirement benefits. Mokcha will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on your behalf. If, notwithstanding the foregoing, you are classified as an employee of Mokcha, or any affiliate of Mokcha (“Affiliate”), by the U.S. Internal Revenue Service (“IRS”), the U.S. Department of Labor (“DOL”), or any other federal, state or foreign court or agency, you agree that you will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by either the Customer and its parents, subsidiaries, affiliates or related entities or by Mokcha, its parents, subsidiaries, affiliates or other related entities.
Taxes. You are solely responsible for filing all tax returns and submitting all payments as required by any federal, state, local, or foreign tax authority arising from payments to you under these Influencer Terms of Use, and you agree to do so in a timely manner. You will comply with all applicable federal, state, local, and foreign laws governing self-employed individuals, including laws requiring the payment of taxes, such as income and employment taxes, and social security, disability and other contributions. To the extent required by the IRS, Mokcha will report the payments paid to you under Promotion Agreements by filing Form 1099-MISC with IRS. You consent to electronic delivery of Form 1099-MISC, if such form is required or filed. You agree to indemnify Mokcha for the cost of any tax liabilities incurred by Mokcha as a result of your failure to pay all applicable taxes in a timely manner.
Facilitated Payments Withholding Consent
If Mokcha facilitates the transmission of any payments from the Brand Advertiser to you in connection with a Promotion Agreement (each, a “Facilitated Payment”), Mokcha may in its sole discretion withhold from any such Facilitated Payment any amounts that are payable to Mokcha by the applicable Brand Advertiser in connection with that Promotion Agreement. Mokcha is not your trustee or fiduciary in respect of any Facilitated Payments or any Promotion Agreements. Mokcha reserves the right, at its sole discretion, to place a hold on a Facilitated Payment if Mokcha determines that the funds may be subject to a breach of applicable law (e.g. fraud or money laundering), or if Mokcha is required to cooperate with law enforcement.
Off-Platform Agreements Prohibited
Neither you nor your agents or affiliates will directly or indirectly enter into an agreement for the creation of any Promotional Content with a Brand Advertiser that you contacted or connected with through the Platform except for Promotion Agreements for which Mokcha will receive a fee as provided for thereunder. Mokcha reserves the right, in its sole discretion, to ban Influencers that engage in such prohibited agreements. Mokcha will not be responsible and bears no liability for the consequences of any such prohibited agreements.
No Unlawful or Prohibited Use
You shall not, without Mokcha’s prior written permission, use the Platform and the Content for purposes other than the Permitted Use. Without limiting the generality of the foregoing, you shall not, and shall not permit anyone else to:
(a) “frame”, “mirror” or otherwise incorporate the Platform or the Content or any part thereof on any commercial or non-commercial website;
(b) access, monitor or copy any part of the Platform or the Content using any robot, spider, scraper or other automated means or any manual process for any purpose without our express written permission;
(c) violate the restrictions in any robot exclusion headers on the Content or the Platform or bypass or circumvent other measures employed to prevent or limit access to the Platform;
(d) take any action that imposes, or may impose, in Mokcha’s discretion, an unreasonable or disproportionately large load on the Platform;
(e) deep-link to any portion of the Platform for any purpose;
(f) remove (or permit anyone else to remove) any watermarks, labels or other legal or proprietary notices included in any Promotion, the Platform or the Content;
(g) modify or attempt to modify (or permit anyone else to modify or attempt to modify) the Platform or any Promotions, including any modification for the purpose of disguising or changing any indications of the ownership or source of the Platform or a Promotion
(h) use the Platform or any Promotion or Content as part of any service for sharing, lending or multi-person use, or for the purpose of any other institution, except as specifically permitted by an applicable Promotion Agreement and only in the exact manner specified and enabled by therein;
(i) attempt to, assist, authorize or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption, that protect the Platform;
(j) copy, reproduce, modify, distribute, transfer, sell, publish, broadcast, perform, transmit, publish, license or circulate in any form any part of the Platform or the Content;
(k) create derivative works based on the Platform or the Content, in whole or in part, or to decompile, disassemble, reverse engineer or other exploit any part of the Platform or the Content;
(l) use of access the Platform in a manner that violates the rights (including, but not limited to intellectual property rights) of any third party; or
(m) upload to or transmit through the Platform any information, images, text, data, media or other Content that is offensive, pornographic, hateful, obscene, defamatory or violates any laws or regulations (including but not limited to criminal laws and FTC regulations), in each case as determined by Mokcha in its sole discretion,
(n) post, upload, publish, submit or transmit any Content that:
(i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
(ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
(iii) is fraudulent, false, misleading or deceptive;
(iv) is defamatory, obscene, pornographic, vulgar or offensive;
(v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
(vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or
(vii) promotes illegal or harmful activities or substances.
You shall be solely liable for any damages resulting from any violation of the foregoing restrictions, or any other harm resulting from your posting of Content to the Platform.
Third Party Websites
The Platform may provide links to third party websites. Mokcha does not endorse the information contained on those web sites or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability or fitness for any purpose. The content in any linked web site is not under Mokcha’s control, and if you choose to access any such website, you do so entirely at your own risk.
Mokcha may enable you to link your User Account with a valid account on a third party social networking, email or content service such as YouTube, or Twitter, (such service, a “Third-Party Service” and each such account, a ”Third-Party Account”) by allowing Mokcha to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Mokcha and/or grant Mokcha access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Mokcha to pay any fees or making Mokcha subject to any usage limitations imposed by such third-party service providers.
By granting Mokcha access to any Third-Party Accounts, you understand that Mokcha may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible that you have provided to and/or stored in your Third-Party Account (“TPS Content”) so that it is available on and through the Platform via your User Account. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your User Account on the Mokcha Platform. You hereby authorize Mokcha to retrieve information from, and submit information to, such Third Party Services at your request; and to provide Services relating to any information we retrieve from those Third-Party Accounts. Please note that if a Third-Party Account or associated service becomes unavailable or Mokcha’s access to such Third-Party Account is terminated by the third-party service provider, then TPS Content will no longer be available on and through the Platform. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section. In most cases, we do not actually store the entirety of your TPS Content, but instead we collect and store the metadata associated with such TPS Content. You hereby authorized such collection and storage.
Relationship with Third-Party Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND Mokcha DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Mokcha makes no effort to review any TPS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Mokcha is not responsible for any TPS Content. You should note that a Third-Party Service may change or amend its guidelines and our access to it at any time, and we cannot guarantee that our Services will always include a connection to such Third Party Service.
We may hire other companies to perform certain business-related functions such as processing payments on our behalf. Our payment processing partner may request that you provide certain personal data (e.g., a valid government-issued ID, your legal name, address, and data of birth) for the purpose of making payment through its financial institutions and complying with any federal and state laws and regulations. They may also communicate directly with you regarding any issues with a payment. Any information provided to our third party will be confidential and only be used for intended purposes.
DISCLAIMER AND LIMITATION OF LIABILITY
THE PLATFORM AND THE CONTENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. USE OF THE PLATFORM OR THE CONTENT IS AT YOUR OWN RISK. MOKCHA DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS ABOUT THE QUALITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, OR TIMELINESS OF THE PLATFORM OR THE CONTENT. THE PLATFORM AND THE CONTENT MAY INCLUDE ERRORS, OMISSIONS AND INACCURACIES, INCLUDING, WITHOUT LIMITATION, PRICING ERRORS. MOKCHA DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY ERRORS, OMISSIONS OR INACCURACIES IN THE PLATFORM OR THE CONTENT. IN ADDITION, MOKCHA EXPRESSLY RESERVES THE RIGHT TO CORRECT ANY PRICING ERRORS ON THE PLATFORM.
BUSINESS AND PROMOTION REVIEWS DISPLAYED ON THE SITE ARE INTENDED AS ONLY GENERAL GUIDELINES, AND MOKCHA DOES NOT GUARANTEE THE ACCURACY OF THE REVIEWS. MOKCHA MAKES NO GUARANTEES ABOUT THE AVAILABILITY OF SPECIFIC BUSINESSES, PROMOTIONS OR TYPES OF PROMOTIONS.
TO THE FULLEST EXTENT PERMITTED BY LAW, MOKCHA DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE PLATFORM AND THE CONTENT WHETHER EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OR THAT THE PLATFORM OR THE CONTENT ARE OR WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. IN NO EVENT WILL MOKCHA BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS, LOSS OF USE, LOSS OF DATA, PERSONAL INJURY, FINES, FEES, PENALTIES OR OTHER LIABILITIES), WHETHER OR NOT MOKCHA IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THE USE OF, OR THE INABILITY TO MAKE USE OF, THE PLATFORM OR THE CONTENT OR ANY PROMOTION AGREEMENT.
BUSINESSES ENGAGING YOUR SERVICES THROUGH THE PLATFORM ARE INDEPENDENT ORGANIZATIONS AND NOT CONTRACTORS, AGENTS OR EMPLOYEES OF MOKCHA. MOKCHA IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY BUSINESSES OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM AND TAKES NO RESPONSIBILITY WHATSOEVER RELATED TO ANY PROMOTIONS OR PROMOTION AGREEMENTS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. TO THE EXTENT THAT THE FOREGOING LIMITATION DOES NOT APPLY, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF MOKCHA IN CONNECTION WITH OR UNDER THESE Influencer TERMS OF USE, INCLUDING FROM A PROMOTION AGREEMENT, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE PLATFORM OR THE CONTENT, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO A PROMOTION AGREEMENT, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE PLATFORM OR THE CONTENT EXCEED ONE HUNDRED DOLLARS ($100) OR THE EQUIVALENT IN LOCAL CURRENCY. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE Influencer TERMS OF USE WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTION TITLED “DISCLAIMER AND LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
The limitations above reflect the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these Influencer Terms of Use is found to have failed of its essential purpose.
Limitations Period. YOU AND MOKCHA AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS, THE MOKCHA WEBSITE, THE PLATFORM OR THE PROMOTIONS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Mokcha Platform Brand Advertiser Terms of Use
The following Terms of Use (the “Brand Advertiser Terms of Use”) govern your access to and use of (1) the Mokcha website located at http://www.mokcha.com (the “Website”), (2) the Mokcha online platform facilitating the matching of Influencers (as defined below) and other users interested in retaining a Influencer to create promotional content (each, a “Brand Advertiser”), and (3) all other services provided by Mokcha, as described on the Website (collectively, the “Platform”). These Brand Advertiser Terms of Use form an agreement between Mokcha Media, Inc. (“Mokcha”, “us”, “we”, “our”) and you. The term “you” refers to the person or entity (including, but not limited to Brand Advertisers) visiting the Platform, browsing or otherwise using the Platform, or communicating with content creators registered with Mokcha (each content creator registered with Mokcha is referred to herein as a “Influencer”) for the purpose of creating promotional online media content for your products or services (each, a “Promotion”). By accessing and using (the term “use” when used herein in respect of the Platform shall mean access or use, and using shall have a corresponding meaning) the Platform, you accept and agree to be bound by and comply with these Brand Advertiser Terms of Use. If you do not accept and agree to be bound by these Brand Advertiser Terms of Use, please do not access or use the Platform. If you are accessing or using the Platform on behalf of another person or a corporate entity, you represent and warrant that you have the authority to bind such person or entity to these Brand Advertiser Terms of Use. If you are an Influencer, your use of the Platform is governed by our Influencer Terms of Use.
The Platform is provided solely (the “Permitted Use”) to: (1) assist you in gathering information about the various types of Promotions and Influencers available on the Platform, including profiles, price quotes, and audio files of Influencers (each, a “Influencer Profile”); (2) enable you to post information regarding yourself and your Promotion request; (3) post reviews of Influencers; (4) facilitate communication with Influencers with the objective of entering into a Promotion Agreement; and (5) facilitate the transmission of payments from you to the Influencer under a Promotion Agreement (“Platform Services”).
Changes to these Brand Advertiser Terms of Use and Platform
Except where prohibited by applicable law, Mokcha reserves the right to change these Brand Advertiser Terms of Use at any time without notice. Your continued access to or use of the Platform after any changes to these Brand Advertiser Terms of Use indicates your acceptance of such changes. It is your responsibility to review these Brand Advertiser Terms of Use regularly.
Mokcha reserves the right to change any information, material or content (including, but not limited to, price, features, availability of Influencers, Influencer Profiles and types of Promotions, and reviews of Promotions and Influencers) contained on or provided through the Platform (the “Content”) at any time, and from time to time, without notice.
Use of the Platform
As a condition of your use of the Platform, you warrant that: (a) you have reached the age of majority in your jurisdiction of residence; (b) you possess the legal authority to create a binding legal obligation; (c) you shall use the Platform in accordance with these Brand Advertiser Terms of Use; and (d) all information supplied by you on the Platform is true, accurate, current and complete.
Mokcha retains the right, at its sole discretion, to deny access to anyone to the Platform or the services it offers, at any time and for any reason, including, but not limited to, for violation of these Brand Advertiser Terms of Use. You shall cease and desist from any such access or use immediately upon request by Mokcha.
License Grants
Subject to these Brand Advertiser Terms of Use, Mokcha grants you a personal, revocable, non-exclusive and non-transferable license during the Term to permit you to access and use the Platform in accordance with these Brand Advertiser Terms of Use.
Subject to these Brand Advertiser Terms of Use, you grant to Mokcha a perpetual, transferrable, irrevocable, royalty-free, fully paid-up, worldwide and fully sublicensable license to access, collect, store and use any data, information, records and files that (1) you load, transmit to or enter into the Platform, or (2) we collect from your local computer system or from third-parties with your permission, and (in each case) including all results from processing such data, including compilations, and derivative works thereof solely for the purpose of: (A) providing the Platform Services, (B) complying with applicable law, and (C) Mokcha’s reasonable audit and data retention policies.
User Account
You will be required to successfully sign up for a user account (the “User Account”) using the available interfaces at the Platform and be issued with a username and password login credentials by Mokcha (“User ID”) in order to use the Platform and communicate with Influencers through the Platform. If you are issued with a User ID, you shall keep your User ID secure and shall not share your User ID with anyone else, and you shall not collect or harvest any personal data of any other user of Mokcha, including account names. Mokcha reserves the right to disable any User Account issued to you at any time in Mokcha’s sole discretion. If Mokcha disables access to a User Account issued to you, you may be prevented from accessing Mokcha, your account details or any Promotions that are associated with your account.
Term and Termination
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending an email to us at support@mokcha.com. Upon any termination, discontinuation or cancellation of your Account or access to the Platform, all provisions of these Brand Advertiser Terms of Use which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions. Furthermore, any Promotion Agreement shall be subject to the cancellation and payment provisions as specified in such Promotion Agreement.
Promotion Agreements with Influencers
The Platform permits you to view the Influencer Profiles of Influencers who have registered on our Platform and have chosen to allow you to view their Influencer Profiles. If you select an Influencer for a Promotion through the Platform, you may separately enter into an agreement with that Influencer on such terms and conditions as may be agreed to between you and that Influencer (“Promotion Agreement”). For example, the Promotion Agreement may contain (a) a description of the services to be provided by the Influencer, (b) payment terms, and (c) any other terms and conditions as communicated between you and the Influencer through this Platform or otherwise. You understand that you are engaging the Influencer you select and not Mokcha, and that Mokcha is not a party to and will be in no way responsible for the performance of either you or the Influencer under any Promotion Agreements, except for facilitating the transmission of payment from you to the Influencer on your instructions in accordance with these Brand Advertiser Terms of Use. Mokcha does not make any representations or warranties of any kind in respect of an Influencer or a Promotion Agreement. You are responsible for managing, inspecting, accepting and paying for services and deliverables provided under a Promotion Agreement in accordance with the terms and conditions thereof. You also agree to act in good faith when negotiating and performing your obligations under each Promotion Agreement.
Off-Platform Agreements Prohibited
Neither you nor your agents or affiliates will directly or indirectly enter into an agreement for the creation of any Promotional Content with an Influencer that you contacted or connected with through the Platform except for Promotion Agreements for which Mokcha will receive a fee as provided for thereunder. Mokcha reserves the right, in its sole discretion, to ban Brand Advertisers that engage in such prohibited agreements. Mokcha will not be responsible and bears no liability for the consequences of any such prohibited agreements.
Clear and Prominent Disclosure in Promotions of Material Connections Between Influencer and Brand Advertiser
Promotions are required to comply with the Federal Trade Commission’s Endorsement Guides. In the event you engage an Influencer for a Promotion, you understand and agree that the Influencer is required to clearly and conspicuously disclose any material connection between you and the Influencer. Material connections include, but are not necessarily limited to anything of value, such as free use of products or services, you provide to an Influencer in exchange for the Influencer’s participation in a Promotion. In general, disclosures should be: in clear and unambiguous language;
provided as close in time as possible to the native ads to which they relate; and read at a cadence that’s easy for consumers to follow and in words consumers will understand
As a Brand Advertiser, it is your responsibility to understand and ensure Promotions abide by the requirement imposed by the FTC and to ensure that a clear and conspicuous disclosure is made by the Influencer each and every time you approve content publication for a Promotion.
If Mokcha learns of Promotions you initiate that do not, in our sole discretion, abide by the FTC endorsement disclosure guides, we may require you and the Influencer to add appropriate disclosures, and we may require the Influencer to suspend the Promotion until such disclosures are added. Repeated failure to include appropriate disclosures in Promotions you initiate, or the failure to add disclosures upon request by Mokcha, may result in termination of your account.
No Unlawful or Prohibited Use
You shall not, without Mokcha’s prior written permission, use the Platform and the Content for purposes other than the Permitted Use. Without limiting the generality of the foregoing, you shall not, and shall not permit anyone else to:
(a) “frame”, “mirror” or otherwise incorporate the Platform or the Content or any part thereof on any commercial or non-commercial website;
(b) access, monitor or copy any part of the Platform or the Content using any robot, spider, scraper or other automated means or any manual process for any purpose without our express written permission;
(c) violate the restrictions in any robot exclusion headers on the Content or the Platform or bypass or circumvent other measures employed to prevent or limit access to the Platform;
(d) take any action that imposes, or may impose, in Mokcha’s discretion, an unreasonable or disproportionately large load on the Platform;
(e) deep-link to any portion of the Platform for any purpose;
(f) remove (or permit anyone else to remove) any watermarks, labels or other legal or proprietary notices included in any Promotion, the Platform or the Content;
(g) modify or attempt to modify (or permit anyone else to modify or attempt to modify) the Platform or any Promotions, including any modification for the purpose of disguising or changing any indications of the ownership or source of the Platform or a Promotion
(h) use the Platform or any Promotion or Content as part of any service for sharing, lending or multi-person use, or for the purpose of any other institution, except as specifically permitted by an applicable Promotion Agreement and only in the exact manner specified and enabled by therein;
(i) attempt to, assist, authorize or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption, that protect the Platform;
(j) copy, reproduce, modify, distribute, transfer, sell, publish, broadcast, perform, transmit, publish, license or circulate in any form any part of the Platform or the Content;
(k) create derivative works based on the Platform or the Content, in whole or in part, or to decompile, disassemble, reverse engineer or other exploit any part of the Platform or the Content;
(l) use or access the Platform in a manner that violates the rights (including, but not limited to intellectual property rights) of any third party; or
(m) upload to or transmit through the Platform any information, images, text, data, media or other content that is offensive, pornographic, hateful, obscene, defamatory or violates any laws or regulations (including but not limited to criminal laws and FTC regulations), in each case as determined by Mokcha in its sole discretion,
(n) post, upload, publish, submit or transmit any Content that:
(i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
(ii) violates, or encourages any conduct that would violate, any applicable law or regulation (including but not limited to any FTC regulation) r would give rise to civil liability;
(iii) is fraudulent, false, misleading or deceptive;
(iv) is defamatory, obscene, pornographic, vulgar or offensive;
(v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
(vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or
(vii) promotes illegal or harmful activities or substances.
You shall be solely liable for any damages resulting from any violation of the foregoing restrictions, or any other harm resulting from your posting of content to the Platform. You acknowledge that Mokcha may exercise its rights (e.g. use, publish, delete) to use any Submissions without any notice to you.
DISCLAIMER AND LIMITATION OF LIABILITY
THE PLATFORM AND THE CONTENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. USE OF THE PLATFORM OR THE CONTENT IS AT YOUR OWN RISK. MOKCHA DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS ABOUT THE QUALITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, OR TIMELINESS OF THE PLATFORM OR THE CONTENT. THE PLATFORM AND THE CONTENT MAY INCLUDE ERRORS, OMISSIONS AND INACCURACIES, INCLUDING, WITHOUT LIMITATION, PRICING ERRORS. MOKCHA DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY ERRORS, OMISSIONS OR INACCURACIES IN THE PLATFORM OR THE CONTENT. IN ADDITION, MOKCHA EXPRESSLY RESERVES THE RIGHT TO CORRECT ANY PRICING ERRORS ON THE PLATFORM.
INFLUENCER AND PROMOTION REVIEWS DISPLAYED ON THE SITE ARE INTENDED AS ONLY GENERAL GUIDELINES, AND MOKCHA DOES NOT GUARANTEE THE ACCURACY OF THE REVIEWS. MOKCHA MAKES NO GUARANTEES ABOUT THE AVAILABILITY OF SPECIFIC INFLUENCERS, PROMOTIONS OR TYPES OF PROMOTIONS.
TO THE FULLEST EXTENT PERMITTED BY LAW, MOKCHA DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE PLATFORM AND THE CONTENT WHETHER EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OR THAT THE PLATFORM OR THE CONTENT ARE OR WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. IN NO EVENT WILL MOKCHA BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS, LOSS OF USE, LOSS OF DATA, PERSONAL INJURY, FINES, FEES, PENALTIES OR OTHER LIABILITIES), WHETHER OR NOT MOKCHA IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THE USE OF, OR THE INABILITY TO MAKE USE OF, THE PLATFORM OR THE CONTENT OR ANY PROMOTION AGREEMENT.
INFLUENCERS MARKETING THEIR SERVICES THROUGH THE PLATFORM ARE INDEPENDENT ORGANIZATIONS AND NOT CONTRACTORS, AGENTS OR EMPLOYEES OF MOKCHA. MOKCHA IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY INFLUENCERS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM AND TAKES NO RESPONSIBILITY WHATSOEVER FOR PROMOTIONS CREATED BY INFLUENCERS.
TO THE EXTENT THAT THE FOREGOING LIMITATION DOES NOT APPLY, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF MOKCHA IN CONNECTION WITH OR UNDER THESE BRAND ADVERTISER TERMS OF USE, INCLUDING FROM A PROMOTION AGREEMENT, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE PLATFORM OR THE CONTENT, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO A PROMOTION AGREEMENT, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE PLATFORM OR THE CONTENT EXCEED ALL FEES MOKCHA HAS COLLECTED FROM YOU UNDER THESE BRAND ADVERTISER TERMS OF USE IN THE PRECEDING 12 MONTHS OR THE EQUIVALENT IN LOCAL CURRENCY. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE BRAND ADVERTISER TERMS OF USE WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT.
Limitations Period. YOU AND MOKCHA AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE Promotion Terms of Use, THE MOKCHA WEBSITE, THE SERVICES OR THE PROMOTIONS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
The limitations above reflect the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed of its essential purpose.