Terms and Conditions
LAST UPDATED JANUARY 22, 2020.
HOUSE RULES | CONSUMER FIRST
Here at CYTAE we believe that all influencer posts should be transparent and put consumers first. Therefore, both influencers and brands need to ensure that no campaign or post is false or misleading and must disclose the fact that the influencer is being paid by the brand. CYTAE expects that all users comply with all applicable Laws and industry self-regulation relating to influencer marketing, including the AANA Guidelines (AU), CAP Code (UK), and Federal Trade Commission’s Guides Concerning Endorsements and Testimonials in Advertising (USA) (“FTC Guides”). This means that all influencer marketing posts which are being facilitated through CYTAE should be transparent and labeled with appropriate disclosures, such as #ad. We expect influencers and brands to keep themselves up to speed with the latest best practice on how to label influencer marketing posts in a transparent way in order to make sure that consumers are clear about the commercial nature of the sponsored posts.
HOUSE RULES | BRAND
BE RESPONSIVE: Please appreciate the energy each Influencer has invested into their submission by responding to each one quickly. This will also prevent Influencers having a negative experience with your brand.
BE BRAVE: Resist the urge to micro-manage. Everything from bad grammar to shaky footage makes up a unique dialect an Influencer has crafted with their CYTAE over thousands of posts. If you change the language, you’ll change the response.
BE OPEN: This platform is for Influencers, not celebrities. You may not recognize them, but rest assured their followers do. We believe accessing countless pockets of influence is far more meaningful than a large celebrity endorsement.
BE AWARE: Feel free to share an Influencer's post within the same social platform, however content cannot be used in any additional or other marketing material, nor should it be used outside of the original platform without getting their additional approval.
BE TRANSPARENT: Be aware of the need to be transparent when engaging with influencers, and the requirement to label influencer posts with #ad to tell consumers that it is a paid for post.
HOUSE RULES | INFLUENCER
BE TRANSPARENT: Keep up to speed with the latest developments and best practice on how to label your posts in a transparent way to show that it is paid for by the brand. Normally, that will mean labeling your content with #ad or ADVERT in the title or thumbnail of your content. Don’t try to hide the fact that it the content is paid for; both you and the brand will lose credibility if you do.
BE GENEROUS: Post must stay on the top of your feed for minimum 5 hours and on your platform for 30 days.
BE AUTHENTIC: If you wouldn't recommend the brand for free - don't recommend it for money.
BE GENUINE: We work exclusively with Influencers who’ve organically grown their audience. If you’re misrepresenting the size of your audience or engagement in your content, we reserve the right terminate your CYTAE account.
BE MINDFUL: If you’re seen to be recommending competing brands in quick succession or over-populating your feed with sponsored posts, you’ll lose credibility with your CYTAE.
Any costs associated with downloading, installing, accessing and using this Application, Campaign Builder, or any other element of the CYTAE Platform remain your responsibility and are dependent on the service provider used.
CYTAE makes no representation that the CYTAE Platform (or any element of the CYTAE Platform) is appropriate or available for use in all locations.
If you are the driver of a vehicle (or other form of transport), you must not use the CYTAE Platform while the vehicle (or other form of transport) is moving or is stationary but not lawfully parked. You may only use the CYTAE Platform when the vehicle is lawfully parked. You must comply with all applicable road rules and regulations before and while using the CYTAE Platform. In the interests of safety at all other times, CYTAE recommends that you only use the CYTAE Platform when it is lawful and safe to do so.
USING THE CYTAE PLATFORM
The CYTAE Platform allows Brands to create Influencer Marketing Campaigns and Content Only Campaigns via Campaign Builder, which are then shared with Influencers via the Application. Influencers using the Application can respond to a Campaign by creating a Post or Paid Content and submitting it to the relevant Brand for approval. Influencers earn compensation when:
In relation to Influencer Marketing Campaigns, a Brand approves a Post and the Post is published to the Influencer’s Community via his or her Channels, as selected; or
In relation to Content Only Campaigns, a Brand approves Paid Content and acquires rights to use that Content in accordance with a Rights Licence.
Influencers and Brands agree that they will not attempt to negotiate terms or payment with each other outside of the CYTAE Platform. Without limiting any other rights or remedies available to CYTAE, any attempt to circumvent the CYTAE Platform may result in removal from the CYTAE Platform at CYTAE’s sole discretion. You may not remove any watermarks or copyright notices contained in any Content on the CYTAE Platform.
You must not:
decompile, reverse engineer, disassemble, convert or authorize any third party to decompile, reverse engineer, disassemble or otherwise convert any element of the CYTAE Platform to a human perceivable form;
distribute or republish any element of the CYTAE Platform in any way;
resell, rent, lease, licence or lend any element of the CYTAE Platform;
defeat, disable or circumvent any security feature of the CYTAE Platform;
transfer any element of the CYTAE Platform to any third party;
use any data mining, robots or similar data gather or extraction methods;
register, subscribe or unsubscribe, or attempt to subscribe or unsubscribe, any party to any product or service if you are not expressly authorised by such party to do so; or
sell, licence, lease or in any way seek to commercialise any component of the CYTAE Platform without specific written authorisation from CYTAE.
The CYTAE Platform is designed for use by people aged 16 years and over. Users under the age of 16 years may only use the CYTAE Platform with the consent of a parent or legal guardian. To use the CYTAE Platform, you must be eligible to use the social media platforms (under the relevant platforms prevailing terms and conditions) upon which you intend to publish Posts.
You are solely responsible for your interactions with other users of the CYTAE Platform. You agree that CYTAE is not responsible for the conduct of any user.
You must not engage in crawling, scraping, caching or otherwise accessing any content on the CYTAE Platform via automated means, except with CYTAE’s written consent.
The CYTAE Platform may contain links to other sites not maintained by CYTAE (“Linked Sites”). CYTAE is not responsible for the content of any Linked Sites, whether or not CYTAE is affiliated with the Linked Sites. CYTAE makes no claim or representation regarding, and accepts no responsibility, directly or indirectly, for the quality, nature or reliability of Linked Sites. Such Linked Sites are not under the control of CYTAE and CYTAE provides links to the Linked Sites only as a convenience to users of the CYTAE Platform. The inclusion of a link to any Linked Site does not imply any affiliation with or endorsement by CYTAE. You should review and applicable terms and policies (including privacy policies) of any Linked Site you visit.
The CYTAE Platform may also utilise social network or share functionality and may contain social media links, applications or features (including but not limited to Facebook, Twitter and Instagram). Your use of any social media platforms is subject to the particular social media platform's prevailing terms and conditions of use. By using any social media applications or features on the CYTAE Platform, you consent and agree to be bound to the particular terms and conditions of use of the social media platform. You also acknowledge and consent to the CYTAE Platform accessing information you may have shared with the particular social media platform and contacting you via the social media platform or via the information you have shared (for example, sending an email directly to you to the email address provided to the social media platform), in accordance with the permissions you have granted via the social media platform. You are encouraged to review the terms and conditions of use of each social media platform before engaging or interacting with the social media links, applications or features on the CYTAE Platform. The CYTAE Platform is in no way sponsored, endorsed or administered by, or associated with, any social media platform.
REGISTERING AN ACCOUNT
CYTAE reserves the right to refuse or cancel registration of an Account for any reason in its sole discretion. Any decision of CYTAE is final and no correspondence will be entered into.
All information provided when registering an Account must be current, correct and complete. Incomplete, ineligible or incomprehensible Account registrations will not be valid. You must be logged in to your Account in the manner required each time you wish to use the CYTAE Platform. You may never use another’s Account without their permission.
You are responsible for maintaining the strict confidentiality of your Account details and for any activity under your Account. You agree to immediately notify CYTAE of any unauthorised use of your Account or any other breach of security. It is your sole responsibility to control access to and use of your Account and to notify CYTAE when you desire to cancel your Account. CYTAE will not be responsible or liable for any loss or damage arising from your failure to comply with this provision.
The use of any automated software or any other mechanical or electronic means allowing a member to create Accounts is prohibited. CYTAE reserves the right to suspend or terminate your Account if it believes you are engaging in such activity.
Users understand that in creating an Account they are providing their information to CYTAE and not to any social media platform. Users of the CYTAE Platform (whether Influencers or Brands) are solely responsible and liable for any Content or information they transmit to other users. To the extent permitted by law, each user of the CYTAE Platform agrees to indemnify, defend and forever hold harmless, all social media platforms and their associated agencies and companies, against any and all losses, actions, claims, costs, expenses and damages (of any nature) which may be incurred by the user in respect of their use of the CYTAE Platform. Any questions, comments or complaints about the CYTAE Platform must be directed to CYTAE and not to any media or social media platforms. For the purposes of this provision, CYTAE contracts on its own behalf and also on behalf of the social media platforms and, accordingly, may take action in that capacity to recover on behalf of the social media platforms where acts or omissions cause loss or damage to such social media platforms or to CYTAE.
ADDITIONAL TERMS FOR INFLUENCERS
Conditions 28-57 apply only to Influencers participating in the CYTAE Platform.
Any person over the age of 16 years, or over the age of 13 years with the written consent of a parent or legal guardian, may register an Influencer Account, but in order to participate in any Campaigns and earn compensation via the CYTAE Platform, Influencer’s must meet the following minimum standards:
at least 3000 followers on the Influencer’s Channels;
Influencer’s Channels must be public (viewable by anyone); and
If you do not meet the minimum standard in condition 29 above, you may not be able to participate in Campaigns or access the full functionality of the Application.
Further Terms for Influencer Account
In relation to Influencer Marketing Campaigns, once a Post has been approved by a Brand, you are required to publish the Post to your relevant Channel through the CYTAE platform in the manner required within 48 hours of the Post being approved. You will not have an opportunity to edit a Post after a Brand has approved the Post. You agree you are solely responsible for the publication of Posts. CYTAE merely provides a service allowing Brands to approve Posts before publication, but the publishing of Posts via the CYTAE Platform remains your responsibility.
In relation to Content Only Campaigns, once Paid Content has been approved by a Brand, you agree that you must not share the Paid Content on your Channels or elsewhere.
You acknowledge and agree that the relevant Brand, not CYTAE, will be solely liable for Payment of the applicable Post Fee for the approved Post or Paid Content Fee for approved Paid Content. CYTAE merely facilitates such Payment on behalf of the Brand and, while CYTAE may remit payment to the Influencer directly to the account details provided by Influencer, under no circumstances does CYTAE accept liability for Payment of the Post Fee or Paid Content Fee. You agree that you will not pursue any actions, legal or otherwise, against CYTAE for any non-payment, and that this provision constitutes a bar to any such proceedings.
Terms for Participating in a Campaign
Influencers must clearly disclose in sponsored Posts their relationship with the Brand. CYTAE requires that you make such disclosures in such a way so that it is clear to the ordinary consumer viewing your Channels that there is a commercial relationship between Influencer and the Brand. This may be achieved through the prominent use of hashtags such as #advertisement or #ad or through other means suitable to your particular circumstances, Community and Channels. CYTAE reserves the right, but is in no way obliged, to review and monitor the disclosure practices of all Influencers in relation to particular Posts or your Channels generally and to require greater levels of disclosure (at CYTAE’s sole discretion) in particular Posts or across your Channels generally or, if you do not agree to the required levels of disclosure, to remove you from the CYTAE Platform. Influencers in the USA should have regard to the Federal Trade Commission’s Endorsement Guides available at: https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking.
Influencers must not misrepresent the size of their audience or their numbers of followers or engagement. Followers must be obtained organically and not through unethical or unsportsmanlike behavior such as (but not limited to), purchasing followers, likes or engagement. In the event that CYTAE suspects (in its sole discretion) that Influencers are not complying with the requirement for followers to be authentic and organically grown, CYTAE reserves the right to remove Influencers from the CYTAE Platform.
You warrant, in respect of each Post and all Paid Content you upload to the Application, submit to a Brand for approval, or publish to a Channel via the CYTAE Platform, that:
you are aged over 16 years or over 13 years and have your parent or legal guardian’s consent;
for Influencers aged over 16 years, if your Post or Paid Content features children aged 16 or younger, that you are the parent or legal guardian of those children;
for Influencers aged 13 years to 16 years, that you have your parent or legal guardian's consent and that your Post or Paid Content does not feature other children aged 16 years or younger;
the relevant Post or Paid Content does not violate the privacy rights, contract rights or other rights (including Intellectual Property Rights) of any person, corporation or entity;
the relevant Post or Paid Content does not contain any misrepresentation or suggestion that you or any entity has the approval or sponsorship of any other entity which you or it does not have;
any and all opinions and views stated in the relevant Post or Paid Content are genuinely held by you;
and any and all statements in the relevant Post or Paid Content regarding your use and experience of the Brand or the Brand’s products or services are true and correct and representative of your opinion regardless of whether you are paid for such content or not, and fairly represent your use and experience and you will promptly notify CYTAE if your opinion of the Brand changes from that which you have expressed to date;
the relevant Post or Paid Content does not contain any representations or material which you know or suspect (or ought reasonably to have known or suspected) to be false, misleading or deceptive;
the relevant Post or Paid Content is original and does not contain materials that have been previously broadcast, streamed, published, posted onto any social media channel, or otherwise communicated to the public by you in any way and does not contain materials that have been used in previous marketing materials or promotions for any third party or which otherwise infringe the rights of any third party;
if the relevant Post or Paid Content includes any Third Party Material (including music or personality/talent rights), that all such Third Party Material and any associated licence terms or use limitations have been fully disclosed to CYTAE and the Brand;
the use of the Post or Paid Content and the exercise of the Intellectual Property Rights in the relevant Post or Paid Content by the Brand and CYTAE will not infringe any legal rights, copyright or other Intellectual Property Rights of any person or entity nor give rise to a liability to pay compensation.
CYTAE and the relevant Influencer and Brand acknowledge and agree that any necessary public relations announcements regarding the removal or modification of a Post, as the case may be, will be agreed by CYTAE and the relevant Influencer and Brand before publication.
Influencer Marketing Campaigns - Rights in Posts
In consideration of Payment of the Post Fee, the Influencer agrees to grant in respect of each and every Post:
to CYTAE (and its agents) the right to edit and re-format the Post into such formats or versions for use by CYTAE in such media as CYTAE requires in accordance with this clause
to CYTAE (and its agents):
a royalty-free, perpetual, worldwide, irrevocable, unconditional, non-exclusive, transferable licence to use the Post for the purpose of marketing and promoting CYTAE (and its products and services) in any manner, without further notification to or consent of the Influencer or any further compensation payable to the Influencer;
the right to use the Influencer’s Identity and performances in the Post and to communicate the Post to the public in all languages, in all media including but not limited to: all online paid media (including but not limited to digital banners); in all online owned media (including but not limited to the website of CYTAE and internal communications of CYTAE); in all social media (including but not limited to the social media channels of CYTAE); and in any earned media or public relations activity published by a third party (including but not limited to print, digital and/or social media).
to the relevant Brand (and its agents):
the right to organically share, comment upon and organically re-post the relevant Post in the social media channel upon which the Post was published, for a period of thirty (30) days expiring at 11:59pm on the thirtieth day after the Post was first published; and
the right to use the Influencer’s Identity and performances in the Post and to communicate the post to the public in accordance with conditions 43(c)(i) above and in any earned media or public relations activity published by a third party (including but not limited to print, digital and/or social media).
You acknowledge and agree that the relevant Brand will not be required to remove from its social media channels any Post or any comment, share or re-post of a Post after the period in condition 43(c)(i) has expired.
As an Influencer, in respect of each Post, you consent to the relevant Brand and its successors, licensees, and assigns, and anyone authorised by them, changing, copying, adding to, taking from, adapting or translating, in any manner or context or doing any other act in respect of the Post notwithstanding that such conduct may infringe your moral rights or performer’s rights (or similar laws in any territory or jurisdiction) in the Post, and, to the extent possible, your grant a waiver of all moral rights and performer’s rights in each Post.
Content Only Campaigns - Rights in Paid Content
Content Only Briefs give Influencer’s the opportunity to sell Content without the need to post the Content to their Channels.
When you upload Paid Content in response to a Content Only Brief, you will be presented with CYTAE’s Content Rights Terms document, which contains terms and conditions for the assignment of Paid Content to CYTAE. You must agree to the Content Rights Terms document each time you submit Paid Content.
You agree that all right, title and interest in all Intellectual Property Rights in Paid Content is absolutely and unconditionally assigned to CYTAE on the terms and conditions stated in the Content Rights Terms document, upon payment to you of the Paid Content Fee. For the avoidance of doubt, the assignment of Intellectual Property Rights is only effective upon your Paid Content being accepted and CYTAE making payment of the Paid Content Fee.
You acknowledge and agree that upon payment of the Paid Content Fee the Paid Content and all Intellectual Property Rights subsisting in Paid Content irrevocably becomes the property of CYTAE. This assignment is absolute, worldwide and for all uses and purposes including, without limitation the re-assignment of the Paid Content to any other person or entity (including a Brand), licensing the Paid Content to any other person or entity (including a Brand), the making of any modifications, enhancements, adaptations or versions of the Paid Content, creating derivative works, and including any releases of the Paid Content in any medium. You must, upon request by CYTAE, execute all documents and perform all acts necessary to vest all intellectual property rights in the Paid Content in CYTAE.
Influencers acknowledge and agree that Paid Content must not be posted to their Channels or published in any other way under any circumstances, including re-posting or commenting upon the Content after it has been posted or shared by CYTAE or a Brand. Upon payment of the Paid Content Fee, Paid Content becomes the property of CYTAE, pursuant to the Content Rights Term document.
By submitting Paid Content, Influencers grant to CYTAE and its successors, licencees and assigns, to the maximum extent permitted by law, an unconditional and irrevocable waiver of all Moral Rights in the Paid Content, and genuine consent to CYTAE and its successors, licencees and assigns, to use, deal, reproduce, publish, transmit, adapt, edit, change, modify or relocate the Paid Content, whether in whole or in part, and whether alone or in combination with any other materials, including where such acts involve an infringement of any Moral Rights subsisting in the Paid Content. For the purposes of this Agreement, Moral Rights means moral rights within the meaning of Part IX of the Copyright Act 1968 (Cth), and any analogous rights arising under statute or otherwise, anywhere in the world, and whether now in existence or arising in the future.
As an Influencer, you agree that you will not:
delay posting your Post after the Brand has given its approval to your Post and you must publish your approved Post no later than 48 hours after receiving notification of the Brand’s approval (unless the Brand stipulates a different timeline);
for a period of five (5) hours after a Post is published, post, share, re-tweet or re-gram any other posts or content to that Channel where the effect of publishing such additional posts or content would be to reduce the prominence of the Post;
remove the Post from your Channels for a period of 30 days after the Post is published, expiring at 11:59pm on the thirtieth calendar day after the Post is published;
parody, disparage, give any adverse comment or make fun of the Brand or its products of services generally in any way;
create any contextual or surrounding posts or other material on a Channel that in any way detracts from, dilutes the effect of, or undermines a Post or the Brand or its products or services;
grant any further rights in a Post to a Brand without the written permission of CYTAE and appropriate fees being negotiated on a reasonable basis. CYTAE will charge a reasonable service fee for negotiating any use extensions between you and a Brand; and
accept or attempt to negotiate with a Brand more than one Post per Post Fee.
Influencer Relationship with CYTAE and the Brand
As an Influencer, you will at all times perform your obligations and provide Posts or Paid Content to CYTAE and the Brand as an independent contractor and not in the capacity of an employee, partner or agent or in any other capacity. You agree that neither CYTAE nor the Brand will be obliged to pay to you or recover from you any amount as a result of you being deemed to be an employee of either CYTAE or the Brand, including in respect of annual leave, superannuation, withholding tax, income tax, workers compensation contributions or any similar payments or deductions.
You acknowledge that CYTAE has not made any guarantees in respect of the success of a Post or that a Post will be approved by a Brand or in respect of your business or commercial performance or otherwise.
You agree that you (and your agents) will not negotiate terms or payment from Brands outside the CYTAE Platform. Any attempt to circumvent the CYTAE Platform may result in the removal of you from the CYTAE Platform in CYTAE’s sole discretion.
ADDITIONAL TERMS FOR BRANDS
Conditions 58-95 apply only to Brands participating in the CYTAE Platform.
Further Terms for Brand Accounts
CYTAE may, at its sole discretion, implement a minimum spend for Brand Accounts. You will be notified in writing of any such minimum spend.
Brands are able to create two types of Campaigns using Campaign Builder: Influencer Marketing Campaigns and Content Only Campaigns.
Brand agrees to grant in respect of all Content uploaded to the CYTAE Platform as part of a Campaign:
to grant to CYTAE (and its agents), a royalty-free, perpetual, worldwide, irrevocable, unconditional, non-exclusive, transferable licence to use the Content for the purpose of marketing and promoting CYTAE (and its products and services) in any manner, without further notification to or consent of the Brand or any compensation payable to the Brand; and
CYTAE has the right to cancel, suspend, restrict services to and/or terminate a Brand’s account if CYTAE believes (in its sole discretion) that the Brand is not using the CYTAE Platform in a fair and reasonable way, or are attempting to use the CYTAE Platform in a way which does not treat the Influencers or the CYTAE Platform in a fair and reasonable way and/or in accordance with the purposes for which the CYTAE Platform were intended.
Payment Terms for Brands
You must pay all charges in the manner set out in Campaign Builder or as otherwise advised by CYTAE in writing from time to time. If no manner for payment is stated, the payment must be made by credit card using a provider authorised by CYTAE. CYTAE reserves the right to charge a credit card surcharge.
Brands and Media Agencies may request that CYTAE issue an invoice for fees and charges expected to be incurred by the Brand or Media Agency during the course of a Campaign (“Invoice”), prior to the commencement of the Campaign.
CYTAE reserves the right to refuse any Invoice request in its sole discretion.
In the event that a Brand or Media Agency requests an Invoice and CYTAE approves the Brand or Media Agency to pay by Invoice, a minimum Invoice amount of $5000 (excluding GST in Australia), £3000 (excluding VAT in UK), or $5000 US (excluding Sales Tax) will apply, unless otherwise approved in writing by CYTAE. If a Brand or Media Agency is not domiciled in Australia, the UK, or U.S., then Invoices will not include GST, VAT, Sales Tax (but may include other applicable tax where relevant).
Where no terms of payment are stated on an Invoice or otherwise agreed with CYTAE in writing, the following standard payment terms apply:
14 days from date of invoice for approved Brands and Agencies.
Where a Brand or Media Agency is approved to pay by Invoice, the Brand or Media Agency must provide CYTAE with a purchase order or insertion order (or similar) approving the fees and charges to be included on the Invoice and including a purchase order or insertion order number. CYTAE may, in its sole discretion, accept written confirmation (including via email) approving an invoice in lieu of a purchase order or insertion order being provided.
Fees and charges paid to CYTAE pursuant to an Invoice will be allocated to the relevant Campaign as credit for use in that Campaign (“Credit”).
Where CYTAE approves a Brand or Media Agency to pay by Invoice, the Brand or Media Agency irrevocably authorizes CYTAE, its employees, servants and agents to make such enquiries as CYTAE deems necessary to investigate the Brand or Media Agency’s credit worthiness, including, without limitation, making inquiries from referees, banks or any other credit providers (“Information Sources”), and the Brand or Media Agency hereby authorizes such Information Sources to disclose to CYTAE, its employees, servants and agents, all information requested by CYTAE for the purpose of assessing your credit worthiness. Any terms of credit offered by CYTAE, including where CYTAE approves payment by Invoice, may be varied by CYTAE in its sole discretion and advised to you in writing.
Media Agencies using the CYTAE Platform acknowledge and agree CYTAE is a cost of good and is non-commissionable. No agency rebates will be given.
When you approve a Post or Paid Content, you undertake that you are an authorised user of the card or account (as applicable) nominated on your Brand Account and to pay the applicable charges, that the card details provided are current, correct and complete and that your nominated card or account (as applicable) will cover the full amount of the charges. You must not pay, or attempt to pay, any charges through any fraudulent or unlawful means. Upon receiving your Campaign (including your Campaign Budget), we may carry out a standard pre-authorisation check of your nominated card or account (as applicable) to verify the details provided and to ensure there are sufficient funds to fulfil the Campaign Budget. The relevant Campaign may not be shared with Influencers via the Application until this pre-authorisation check has been completed.
In relation to Influencer Marketing Campaigns upon an Influencer publishing an approved Post, you authorise us to debit the Brand Fee that is payable for the Post from your nominated card or account (as applicable) in order to pay the charges. You must pay all charges in full strictly within 7 days or as otherwise advised by us in writing from time to time. If no timeframe for payment is stated, the payment must be received by us no later than 7 days from the date of the corresponding tax invoice for those Posts.
In relation to Content Only Campaigns, upon an Influencer submitting Paid Content, you authorize us to debit the applicable Rights Fee that is payable for the Paid Content from your nominated card or account (as applicable) in order to pay the charges. You must pay all charges in full strictly within 7 days or as otherwise advised by us in writing from time to time. If no timeframe for payment is stated, the payment must be received by us no later than 7 days from the date of the corresponding tax invoice for the applicable Paid Content. The applicable Rights Fee will depend on the nature of the Rights Licence you select at the time of selecting and approving the Paid Content.
If you fail to pay any charges or we are unable to successfully process your payment of any charges within the timeframe required (as applicable), we reserve the right to charge a late payment fee calculated at a rate of ten percent (10%) per annum but no less than $10.00 per month. This amount represents a genuine and reasonable estimate of such costs and expenses associated with managing and processing late payments. We also reserve the right to withdraw credit facilities (where applicable) at any time or to remove your access to the CYTAE Platform. You may also be liable to pay interest on any amount outstanding at the ATO Benchmark interest rate (Australia) or Statutory rate (UK)]on the date the payment becomes due and you may also be responsible for all reasonable expenses incurred by us as a result of such late payment (including but not limited to costs incurred by us to recover any unpaid amounts). Without limiting our rights, in the event you fail to pay any charges within the timeframe and in the manner required, we reserve the right to suspend or terminate your access to the CYTAE Platform or to suspend or terminate any current Campaigns.
Brand acknowledges and agrees that it may not offer a product, service or other non-monetary arrangement to an Influencer as partial or full payment by a Brand for an Influencer’s Post or Paid Content.
If CYTAE is required to collect indirect taxes (such as sales tax, value-added tax, withholding tax, etc.) under the laws of your state or country of residence, you shall be liable for payment of any such indirect tax. You may be required to self-assess such taxes under the applicable laws of your country or residence.
Terms for Campaigns
You agree that you will not negotiate terms or payment to Influencers outside the CYTAE Platform. Any attempt to circumvent the CYTAE Platform may result in the removal of the Brand from the CYTAE Platform in CYTAE’s sole discretion. Each Post shall have a Post Fee and all Paid Content shall have a Paid Content Fee, and Brands and Influencers may not circumvent the Post Fee or Paid Content Fee by negotiating or attempting to negotiate multiple Posts or Paid Content for Post Fees or Paid content Fees.
You must not attempt to instruct, coerce or manipulate Influencer to hide the commercial relationship between the Advertiser and the Influencer. Such attempts may result in Brand being immediately removed from the CYTAE Platform.
You warrant that:
you will not encourage or facilitate any misrepresentation or suggestion that the Brand or any entity has the approval or sponsorship of any other entity which the Brand or entity does not have;
any Content you upload to the CYTAE Platform does not contain any representations or material which you know or suspect (or ought reasonably to have known or suspected) to be false, misleading or deceptive; and
where the Paid Content or Posts include Third Party Material, you will strictly comply with any use limitations notified to you in respect of the Third Party Material and will obtain all licences required for your intended use of the Post or Paid Content prior to use of such Post or Paid Content, including obtaining any licences required with respect to Third Party Material.
Brand agrees that CYTAE is not responsible for any aspect of the Brand’s Content to be reviewed, shared, sponsored or advertised by Influencers. Brand acknowledges and agrees that CYTAE is not responsible or liable for the content of any Post.
Brand acknowledges that Influencers are independent third parties and not directly controlled by CYTAE. As a consequence, any Posts will inherently risk negative or unflattering comments about Brand’s content, products or services. Brand specifically acknowledges and agrees that CYTAE has no control over any Post that may be published and that Brand is solely responsible (and assumes all liability and risk) for determining whether such Post are acceptable and appropriate to the Brand.
You acknowledge that CYTAE has not made any warranties in respect of the success of any Campaign in respect of your business or commercial performance or otherwise of any Post, Campaign, Channel or other media, marketing communications channel, marketing or advertising campaign, promotion or advertisement.
CYTAE’S INTELLECTUAL PROPERTY
All right, title and interest in all Intellectual Property Rights in all of CYTAE’s brands, logos, images, buttons, codes, layout, text, content and products and services as displayed on the CYTAE Platform (the “Brand Features”) are the property of CYTAE and will remain or be vested in CYTAE at all times. Your use of the CYTAE Platform will not under any circumstances be taken to constitute a transfer, assignment or grant of any ownership rights in any of the Brand Features or the CYTAE Platform. CYTAE, on a case by case basis and to the extent required, grants to you a limited, non-exclusive licence to use the Brand Features solely for the purpose, and to the extent necessary, to enable you to use the CYTAE Platform.
COPYRIGHT INFRINGEMENT POLICY & COMPLAINTS
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws, CYTAE has adopted a policy of terminating, where appropriate and at CYTAE’s discretion, access to the CYTAE Platform for account holders who infringe the intellectual property rights of CYTAE or any third party.
INFLUENCER & BRAND REPRESENTATIONS AND WARRANTIES
Influencers and Brands participating in the CYTAE Platform warrant, represent and covenant that:
all information you provide to CYTAE upon registering for an Account is true, accurate and complete and not misleading;
any third-party social media accounts to which you link are:
your own accounts;
if the Account refers to a Brand, that you are the authorised representative of the Brand with the right to access its social media accounts and represent its interests; and
if the Account refers to an individual other than you, you are the authorised representative of that individual with the right to access his or her social media accounts and control his or her interests;
You are authorised to submit Content, as applicable, in the manner invited via the CYTAE Platform;
any Content you submit to the CYTAE Platform will not contain anything that;
is illegal or contrary to any laws, applicable industry code or the requirements or directions or relevant regulators;
is copied or adapted either wholly or substantially from any other work or material;
is indecent, obscene, threatening, discriminatory, harassing, in breach of any confidence, defamatory, offensive or objectionable or contains, depicts or alludes to or promotes aggressive, unruly, antisocial, lewd or illegal behaviour or sexually suggestive imagery;
parodies, disparages or makes fun of CYTAE or its products of services or CYTAE generally in any way;
solicits passwords or personal information for commercial or unlawful purposes or provides any telephone numbers, street addresses, last names, URLs or email addresses (unless part of a Campaign);
promotes an illegal or unauthorised copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated materials;
involves the transmission of junk mail, chain letters, unsolicited mass mailing or spam; or
infringes the privacy rights, contract rights or other rights (including Intellectual Property Rights) of any person, corporation or entity;
constitutes, encourages or provides instructions for any criminal offence, violates the rights of any party, or otherwise violates any Laws including, without limitation, the regulations of any stock or securities exchange such as the New York Stock Exchange; or
contains any viruses, corrupted data or other harmful or malicious code of files.
GST in Australia
The Brand and the Influencer acknowledge that:
neither the Influencer nor CYTAE is required to purchase any of the Brand’s products or services;
Brand may, in its sole discretion, arrange to send an Influencer a sample product. Influencer may request a Brand to send a sample product, but Brand is under no obligation to do so;
CYTAE will not be responsible or liable in any way for late delivery or non-arrival or any products sent from a Brand to an Influencer. Address provided by Influencer through the CYTAE Platform is not verified by CYTAE;
if Brand sends a sample product to an Influencer, there is no guarantee that the Influencer will submit a Post about the product or that any post submitted will be positive. All product reviews must reflect the Influencer’s genuinely held beliefs;
if an Influencer chooses to purchase a product, there is no guarantee that Influencer’s Post(s) about the product will be approved by the Brand;
a product, service or other non-monetary arrangement cannot be offered or used as partial or full payment by a Brand for an Influencer’s Post;
You agree to indemnify, and must defend and hold harmless, CYTAE and its related bodies corporate, personnel, servants and agent, from and against any claims, liabilities, damages, losses and expenses (including reasonable legal fees) arising out of or in any way connected with any of the following (including as a result of your direct activities on the CYTAE Platform):
your Content or access to the CYTAE Platform;
your use or inability to use the CYTAE Platform;
your claim against a Brand for any reason;
your claim against an Influencer for any reason;
any claim or allegation that your Content infringes a third party’s rights, including Intellectual Property Rights.
your violation of any applicable laws, rules or regulations; and
any misrepresentation made by you.
LIMITATION OF LIABILITY
In using the CYTAE Platform, you may be exposed to Content that is harmful, obscene, misleading or inaccurate. Under no circumstances will CYTAE be liable in any way for any Content, including but not limited to any errors or omissions in such Content or any loss or damage of any kind incurred as a result of any use of Content posted, transmitted or otherwise made available via the CYTAE Platform.
This entire clause does not apply to any Consumer Guarantee under the Australian Consumer Law and does not apply to any liability of CYTAE’s for failure to comply with a Consumer Guarantee under the Australian Consumer Law. Nothing in these Terms operates to exclude any liability for death or personal injury caused by negligence, nor for fraud, nor for any Consumer Guarantee under Australian Consumer Law. Whilst CYTAE endeavours to take all reasonable steps to ensure that the CYTAE Platform operates as expected, the CYTAE Platform and its entire contents are provided on an “as is” and “as available” basis without any warranties of any kind either expressed or implied, to the fullest extent permissible pursuant to applicable law. CYTAE disclaims all warranties of merchantability, non-infringement and fitness for a particular purpose. CYTAE does not make any guarantees and does not provide any undertaking that the CYTAE Platform will be available at all times or that it will be error free, reliable or secure or free from viruses or other harmful components or that any defects will be corrected. You agree that you use the CYTAE Platform at your own risk and that CYTAE disclaims any and all responsibility for any damage or loss that you may suffer or incur as a result of using the CYTAE Platform, whether they are direct or consequential (including loss of profits, loss of business revenue or loss of goodwill). This includes any loss that results from any interference, malfunction, delays, failures or damage that occurs to your device or that results from accessing, installing, updating or using the CYTAE Platform. You assume total responsibility for your use of the CYTAE Platform, including compliance with all applicable road rules and regulations. Subject to the Consumer Guarantees, your sole remedy against CYTAE for dissatisfaction with the CYTAE Platform or any content is to stop using the CYTAE Platform or such Content. This limitation of relief is a part of the bargain between the parties.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth);
Consumer has the same meaning as given in section 3 of the Australian Consumer Law;
Consumer Goods means 'goods of a kind ordinarily acquired for personal, household or domestic use or consumption', as that expression is used in section 3 of the Australian Consumer Law;
Consumer Guarantee means a Consumer Guarantee applicable to this Services Agreement under the Australian Consumer Law, including any Express Warranty;
Consumer Services means 'services of a kind ordinarily acquired for personal, household or domestic use or consumption', as that expression is used in section 3 of the Australian Consumer Law;
Express Warranty has the same meaning as given in section 2(1) of the Australian Consumer Law;
Fair or Reasonable means 'fair or reasonable' for the purposes of section 64A of the Australian Consumer Law.
If the CYTAE Platform is not capable of running as planned for any reason beyond the reasonable control of CYTAE, including because of war, terrorism, state of emergency or disaster (including natural disaster), infection by computer virus, bugs, tampering, unauthorised intervention, technical failures or any which corrupt or affect the administration, security, fairness, integrity or proper conduct of the CYTAE Platform, or if any social media platform alters its terms of service, access or permission in such a way that affects the CYTAE Platform, CYTAE reserves the right, in its absolute discretion, to cancel, terminate, modify or suspend the CYTAE Platform.
“Account” means a Brand Account or an Influencer Account;
“Application” means the CYTAE Influencer App available for download via https://www.apple.com/itunes/
“ASA” means the UK’s Advertising Standards Authority
“Brand” means any person or entity, or its duly authorised agents or representatives, that use the CYTAE Platform for the purpose of creating Campaigns;
“Brand Account” means an account to use Campaign Builder as defined in paragraph 21.
“Brand Fee” means the stated fee payable by a Brand to CYTAE in respect of an approved Post plus any applicable GST,VAT, Federal Withholding Tax;
“Campaign” means an Influencer Marketing Campaign or a Content Only Campaign created by a Brand using Campaign Builder to be opened to Influencers via the Application for the purpose of finding appropriate Influencers to submit Content to the Brand or to submit Content to and publish Posts about the Brand;
“Campaign Budget” means the sum money a Brand nominates as the sum it is willing to spend during a Campaign;
“Campaign Builder” means the desktop platform for Brands to create Campaigns to be featured on the Application and available at https://brand.CYTAEgroup.co/;
“CAP Code” means the Committee of Advertising Practice Code, which is regulated by the ASA in the UK;
“Channels” means the social media channels of an Influencer, such as Twitter, Facebook or Instagram.
“CMA” means the Competitions and Markets Authority in the UK
“Community” means an Influencer’s social media following on its Channels.
“Content” means a Post, Paid Content, or any other content or materials uploaded to the CYTAE Platform by a Brand or an Influencer (but excludes any Third Party Material included in a Post or Paid Content that is expressly disclosed to CYTAE and the Brand)
“Content Only Campaign” means a Campaign created by a Brand using Campaign Builder to be opened to Influencers via the Application for the purpose of sourcing Paid Content to be used by the Brand directly in accordance with a Rights Licence, without the Influencer posting the Paid Content to their Channels.
“Dos and Don’ts” has the meaning given in paragraph 35.
“Influencer” means a social media influencer who registers to use the Application to create and distribute Posts and receive compensation for such Posts through the CYTAE Platform.
“Influencer Account” means an account to use the Application as defined in paragraph 21.
“Influencer Marketing Campaign” means a Campaign created by a Brand using Campaign Builder to be opened to Influencers via the Application for the purpose of finding appropriate Influencers to publish Posts about the Brand;
“House Rules” means the code of practice and conduct that must be adhered to by Influencer’s and Brands.
“Influencer’s Identity” means the name, image, likeness, character and online persona of the Influencer.
“Intellectual Property Rights” means all present or future intellectual property rights of whatever nature anywhere in the world including, but not limited to, rights in respect of or in connection with copyright, inventions (including patents), trade marks, service marks, trade names, domain names, designs, any rights in silicon chip topography, Confidential Information and Know-How and similar industrial, commercial and intellectual property rights, whether or not registered or registrable, and includes the right to apply for the registration of such rights, and whether existing in Australia or otherwise.
“Laws” means all applicable laws, codes of practice and guidance relating to influencer marketing in the UK, including the Consumer Protection from Unfair Trading Regulations 2008 and the CAP Code, as well as any applicable guidance issued by the ASA, CAP, CMA, and/or Federal Trade Commission’s Guides Concerning Endorsements and Testimonials in Advertising (“FTC Guides”) from time to time;
“Media Agency” means an authorised third party organisation acting on behalf of a Brand or Brands, including public relations, media, creative, design and digital agencies;
“Paid Content” means content created by an Influencer in response to a Content Only Brief.
“Paid Content Fee” means the fixed-fee as stated on the CYTAE Platform to be paid to an Influencer for Paid Content submitted to a Content Only Campaign and selected by the Brand.
“Payment” means payment from CYTAE to an Influencer for a Post or Paid Content or a payment from a Brand to CYTAE, as the context requires;
“Post” means a social media post created by an Influencer to be shared with the Influencer’s Community via the Influencer’s Channels.
“Post Fee” means the fee an Influencer nominates as the amount it will charge a Brand to share a Post with the Influencer’s Community via the nominated Channel.
“Rights Fee” means the fixed-fee as stated on the CYTAE Platform payable by a Brand to CYTAE for a Rights Licence in respect of approved Paid Content plus any applicable GST, VAT, or Federal Withholding or Sales Tax.
“Rights Licence” means a licence from CYTAE to the Brand for particular Paid Content on the terms and conditions stated on the CYTAE Platform and selected by the Brand, including in any specific content licence agreement.
“Third Party Material“ means any material included in a Post or Paid Content that is owned by or licensed from a third party, including material in relation to which there may be stated, inherent or industry practice-based use limitations as a result of the rights of third parties including, without limitation, rights in music, rights of personality, talent rights and similar.
“CYTAE Materials” means the CYTAE Platform and any associated materials owned, developed or licensed by CYTAE and made available via the CYTAE Platform;
“CYTAE Platform” means the Application, Campaign Builder and any associated CYTAE properties or websites.