Terms of Service
These Terms and Conditions (this “Agreement”) are between you (“User”, “you” or “your”) as influencer or creator and KOLHUB Sdn. Bhd. (“KOLHUB”, “us”, “we” or “our”) which owns and operates KOLHUB™ mobile application and any of its products or services (collectively, “Mobile Application”, “Services”, “KOLHUB” or “Platform”), an online influencer marketing platform that connects the brand with content creators (the “Platform Services”) on a variety of sites hosted by KOLHUB and operated by KOLHUB or its partners (the “Sites”).
Access to the Marketplace, Sites, and any features, is made available under these Terms of Service (“Terms”) and the Privacy Notice. To the extent any terms herein conflict with negotiated agreements between KOLHUB and a party, the negotiated language controls. If you do not agree to these Terms, please do not use any service or access the Sites. Accordingly, when you use the Marketplace, you should check the date of these Terms (which appears at the top of this document) and review any changes since the last version. The most current version of the Terms will be available at all times at https://kolhub.com/my/terms.
In the Terms,
(i) a “Marketer” means any person or entity who participates in the Marketplace Services directly or by KOLHUB authorized personnel on behalf of Marketer for the purpose of creating Opportunities to use the services of a Creator,
(ii) “Creator” means any person, entity, or group that creates and distributes the original content or sponsored social content, and/or performs an action, including but not limited to content posted through their associated social networks (i.e. Twitter, Facebook, blogs, etc.), requested via the Marketplace, and receives compensation for such content or an action via the KOLHUB services,
(iii) “Affiliate” means any authorized entity or person that directly or indirectly controls the transactions of the Marketer or Creator. The term “control” with regard to this definition means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of voting securities, written voting rights agreement, written agreement, title or other influence,
(iv) “Opportunity” means a request by a Marketer for a Creator to create content, distribute sponsored social content, and/or perform an action through their social network or in person. These Terms shall apply to all transactions conducted through the Marketplace.
Participating Marketers create and list opportunities, often as part of a larger marketing goal (“Campaign”), in the Marketplace, which offer Creators the chance to receive compensation (e.g. cash, free products, publicity, etc.) in exchange for creating and/or distributing sponsored social content and/or performing an action through their social network or in person. There is no maximum number of Opportunities per Campaign. All Opportunities accepted by the Creator must comply with the requirements set forth by the Marketer (herein referred to as the “Requirements”) in the Opportunity. Each Opportunity listing should contain a complete description of the requirements and the compensation to be paid by the Marketer. Marketers can also request that other ads be disabled on the paid content of an Opportunity. Once an Opportunity is accepted by a Creator, the Marketer is solely responsible for the review and approval of the Creator’s content and for the payment of any compensation (to be received and then distributed to Creator(s) by KOLHUB) as stated in the Opportunity. KOLHUB is not liable if payments are not made by the Marketer. Marketer retains responsibility for payment of any or all approved offers and content under review, which will become immediately due and payable, regardless of whether or not Marketer’s access to the Platform is terminated.
KOLHUB Discovery fees are non-refundable and billed in advance. Subscriptions will automatically renew unless cancelled prior to the next scheduled payment term. Marketers cannot sell, publish, or make any other use of Creator data beyond evaluating Creator for a marketing opportunity or similar permissible use. Marketers must comply with all applicable laws, including privacy laws, in the collection, storage, and usage of any Creator or other Platform data.
1.3. REVIEWS & APPROVALS
While KOLHUB personnel may assist in reviewing and identifying Creator’s posts or actions that violate an Opportunity’s Requirements and attempt to resolve disputes, KOLHUB does not have privity of contract with the Creator and cannot enforce the terms agreed to between Creator and Marketer. KOLHUB reserves the right to review and reject Opportunities from Marketers that do not meet the Guidelines. Posts that do not comply with the requirements of the Opportunity will not be entitled to the compensation associated with such Opportunity. After the Creator accepts an Opportunity and delivers the requested content to the Marketer, the Marketer may respond with any requested modifications or may reject the post for failure to meet any agreed-upon criteria or for legal compliance issues. Final approval and payment to the Creator will occur upon approval, following all disclosure guidelines and required elements. The Platform will automatically check for active posts and make payments to the Creator on behalf of the Marketer. If the automated system fails to locate required elements and disclosure, no payment will be made to the Creator, and funds for the Opportunity will be returned to the Marketer unless manually verified by KOLHUB with permission from the Marketer or unless Creator makes the required edits. Should Marketer alter the forty-five-day payment terms with Creator, whether within or outside of the Platform, KOLHUB shall not be held liable for any failure to make timely payment(s) to a Creator. Instead, Marketer shall be responsible for delivery of funds as agreed upon with Creator. Further, if Marketer decides to pay Creator prior to the forty-five day mark at which Content is automatically verified in the Platform, the obligation to keep Content live for those initial 45 days is rendered null and void.
If a Marketer makes changes to an Opportunity or approves content outside of the Platform,
(i) those terms may not be enforceable as they are not contained within the terms and conditions of the Opportunity that are digitally agreed to by Creators,
(ii) any failure of the Content during the verification process due to such changes will be Marketer’s responsibility, including any payments owed to Creators for delivering such content, and
(iii) KOLHUB shall not be responsible for ensuring that any items or advertising disclosures appear in the content. For the avoidance of doubt, KOLHUB shall take no responsibility for non-compliance with contract terms, enforcement of terms entered into outside of the Platform, or any claims, fines, or violations resulting from Marketer’s actions or directions to KOLHUBb
Marketer shall comply with all applicable rules and regulations and other truth-in-advertising laws regarding content Marketer provides or has produced and/or published utilizing the Platform. The marketer is ultimately responsible for any Malaysian Communication And Multimedia Content Code regarding the content it chooses to publish, regardless of whether or not KOLhub pushes through approvals in the Platform as directed by Marketer. If Marketer chooses not to use KOLhub’s automated FTC-compliant disclosures when publishing through the Platform or encourages a Creator to publish outside the Platform, Marketer shall defend, indemnify, and hold KOLhub harmless from and against any claims arising in connection therewith. For the avoidance of doubt, KOLhub’s verification of any such content at Marketer’s direction or as a function of the platform does not shift liability to KOLhub or waive KOLhub’s rights to indemnification.
You must be an adult (as defined by the jurisdiction in which you reside) to register as a Marketer or Creator in the Marketplace. Authorized agents may create accounts, with proof of authorization from the individual on whose behalf the account is created, and both the agent and the individual will be deemed bound by these Terms of Service. By registering in the Marketplace, you are representing and warranting that all information you submit is truthful and accurate, and that you agree to maintain the accuracy of such information. You understand and agree that KOLhub will use the information you provide in accordance with the terms of the KOLhub Privacy Notice (“Privacy Notice”), which is integrated into and included as part of these Terms. KOLhub accounts are not transferable, assignable or resalable under any circumstances.
Minors and their account profiles will be notated in the platform with a special banner. Minors (as defined by the jurisdiction in which you reside) must have a parent or legal guardian register for and establish a Creator account in the Marketplace. Parents or legal guardians may also allow minors to use their accounts in the Marketplace. Legally emancipated minors do not need a parent or legal guardian but may be required to show proof of emancipation. All minors must have executed and completed all required waivers and releases in order to participate in an Opportunity. For the avoidance of doubt, Minors are bound by the Terms, but this Section 2.1 controls in the event of any conflict with any other section or clause within the Terms.
Only parents or legal guardians may bid on Opportunities, agree to terms and conditions, execute publicity releases and waivers, and receive payment for any opportunities accepted in the platform. In addition, any Opportunities in the system pertaining to alcohol, tobacco, drugs, medication, or other similar products or services that are illegal (as defined by the jurisdiction in which you reside) or intended for adults are not available for the minor (or their parent or legal guardian) to bid on or participate in. Whenever a Marketer engages with a Minor, it is the Marketer’s responsibility to follow all applicable laws.
3. MARKETER TERMS
This Section 3 applies only to Marketers participating in the Marketplace.
3.1. TRANSPARENCY & DISCLOSURE
KOLhub requires clear and conspicuous disclosure by all Marketplace participants. More specifically, the connection between the Marketer and the Creator that would affect how people evaluate the Creator’s message must be disclosed. Any attempt to instruct, coerce or manipulate a Creator into hiding the commercial relationship between the Marketer and the Creator may result in immediate removal from the system and maybe cause for KOLhub’s termination of any related contracts between KOLhub, Marketer, or Creator. Marketer agrees to comply with the Malaysian Communication And Multimedia Act 1998 Guides Concerning the Use of Endorsements and Testimonials in Advertising (see generally https://www.mcmc.gov.my/en/legal/acts, and the Federal Trade Commission’s Dot-Com Disclosures (https://www.mcmc.gov.my/skmmgovmy/files/attachments/ContentCode.pdf) and all applicable laws and regulations, including but not limited to Section 5 of the Federal Trade Commission Act. In addition, those Marketers who choose not to use the approved pre-set FTC disclosures for posts publishing through the Platform, or who encourage creators to publish outside of the Platform, acknowledge and agree that
(i) Marketer, not KOLhub, is liable for any MCMC violation, and
(ii) KOLhub’s manual verification of any such post in the Platform does not shift liability to KOLhub.
Unless otherwise agreed to in a separate contract between the parties, Marketer agrees to pay KOLhub all charges made to Marketer’s account for agreed-upon fees or use of the Marketplace Services in accordance with these Terms. If KOLhub does not receive timely payment and the balance in the Marketer account is not enough cover agreed upon fees or Marketplace Services hereunder:
(i) a charge will be made to the Marketer’s credit card or other preferred payment method for the balance owed,
(ii) Marketer agrees to pay all amounts due on its account upon demand, and
(iii) KOLhub reserves the right to either suspend or terminate a Marketer’s account, including deletion of Marketer’s Opportunities from the Marketplace until the balance is paid in full. All fees for the Marketplace Services which are charged to the Marketer account, as well as all deposit(s) for future Marketplace Services, are non-refundable. Marketer agrees to submit any disputes regarding any charge in writing to KOLhub within thirty (30) days of such charge, otherwise such dispute will be waived, and such charge will be final and not subject to challenge. In the event Marketer’s payment method cannot be charged, Marketer account will be locked until an alternative or updated method of payment is provided.
If Marketer fails to make payment as set forth herein, Marketer will be responsible for all reasonable expenses (including attorneys’ fees and costs) incurred by KOLhub in collecting such amounts. All prices are in United States dollars and do not include taxes that may be assessed by any jurisdiction. If withholding taxes or any other fees are imposed by any jurisdiction on the transactions pursuant to these Terms, Marketer shall pay such taxes to ensure that KOLhub receives the full amount invoiced without offset or deduction. Marketer agrees to promptly:
(i) update all information to keep account and credit card billing current, complete and accurate (such as a change in billing address or e-mail),
(ii) notify KOLhub in writing if it becomes aware of a potential breach of security, such as the unauthorized disclosure or use of Marketer’s user name or password, and
(iii) notify KOLhub in writing if its credit card is canceled. Upon termination, suspension or discontinuation of the Marketplace or Marketer’s participation therein, all outstanding payment obligations incurred by Marketer under the Marketplace will become immediately due and payable.
3.3. CREDIT CARD CHARGES
If a Marketer does not wish to send money directly to KOLhub via check or Direct Transfer, Marketer authorizes KOLhub to charge Marketer’s credit card, as approved and provided by the Marketer, in advance to deposit funds into the Marketer’s account. Once funds are deposited into the Marketer’s account, they may be used at the Marketer’s discretion, to purchase Marketplace Services or pay for agreed-upon fees. The marketer will be responsible for charges resulting from the use of Marketplace Services and any applicable service fees will be automatically withdrawn.
Marketer represents and warrants that it has the legal right to use any credit card utilized in connection with any transaction. By submitting such information, Marketers grants KOLhub the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by the Marketer. If the credit card provided was not authorized, then all amounts in the Marketer’s account will immediately be forfeited. Marketer’s non-termination or continued use of the Marketplace reaffirms that KOLhub is authorized to charge Marketer’s credit card.
KOLhub reserves the right to modify, suspend or terminate the required method of payment for use of the Marketplace at any time, although any pending Opportunities will be completed using the method current when the Opportunity was listed. If KOLhub modifies the terms of the method of payment as outlined in this Section 3.3, the Marketer will be contacted by KOLhub or the modifications will be reflected in an updated version of these Terms. If a user does not consent to such modified Terms, such user must immediately discontinue using the Marketplace. A user’s continued enrollment after any modifications constitutes its acceptance of the terms and method of payment as modified.
Unless Marketer or KOLhub discontinues enrollment or participation in the Marketplace Services, Marketer understands that this pre-authorization is valid until the termination of these Terms or the applicable Master Services Agreement with KOLhub. For your future reference, you agree to retain, either by printing or otherwise saving, a copy of these Terms, which provides the terms of your pre-authorization.
3.4. MANAGED SERVICES
If a Marketer would like to ensure a Creator’s content is manually reviewed for compliance with the Opportunity criteria by KOLhub, such service is available for an additional fee. Marketers may also request to have KOLhub manage part or all of its advertising campaign for a fee as agreed upon through a separate managed service agreement. Interested parties should contact KOLhub directly.
3.5. CONTENT INFORMATION
Marketer agrees that KOLhub is not responsible for any aspect of Marketer’s content or product to be reviewed, shared, sponsored, or advertised by the Marketplace’s contracted Creators. Marketer represents, warrants and covenants that:
(i) all information it provides or approves or that is provided on its behalf in connection with the Terms and on Marketer’s website(s) is, and will be updated to remain, current and accurate,
(ii) the website to which any links are included in a listed Opportunity will look substantially the same to all end users regardless of the end users’ location or device,
(iii) the Marketer’s website(s) does not contain any KOLhub-owned or licensed content, except pursuant to a separate signed agreement with KOLhub,
(iv) Campaigns are run in compliance with third party platform terms, and KOLhub takes no responsibility for such compliance or third parties. Marketer acknowledges that Creators are independent third parties and not directly controlled by KOLhub. As a consequence, any blog postings or sponsorship of Marketer’s content or product(s) will inherently risk negative or unflattering comments about Marketer’s content, product(s) or company. Marketer specifically acknowledges and agrees that KOLhub (unless the Campaign is being fully managed by KOLhub) has no control over any content that may be available or published on any blog (or otherwise), and that Marketer, even if being fully managed by KOLhub, is solely responsible (and assumes all liability and risk) for determining whether or not such Content is appropriate or acceptable to Marketer.
Third party organizations and/or partners that utilize their own networks of creators are responsible for their own review and acceptance process. KOLhub takes no responsibility for any submission, response, comment, or other feedback provided or obtained from any third party in response to any Content or use of any Content.
3.6. OPPORTUNITY DISPUTES
Marketers may not discriminate based on the racial, physical, political, spiritual, age, gender or sexual orientation characteristics of the Creator, nor shall the Marketer violate any applicable labor or employment law. Thirty (30) days after verification of the Opportunity, payment will be made to the Creator by KOLhub for services unless the Creator has violated these Terms, the specific terms of the Marketer’s Opportunity, or the Marketer has not remitted fees per the term of its contract. In the event that Marketer cancels or delays a Campaign or Opportunity and the Creator has submitted work in accordance with the Opportunity guidelines, the Creator may be entitled to some compensation from Marketer if and as indicated in the Opportunity.
The terms of the Opportunity as mutually agreed upon by the Creator and Marketer are supplemental to these Terms. Marketers are allowed to make reasonable changes to any non-monetary Opportunity terms without Creator’s prior approval. Should an Opportunity contain supplemental terms between Marketer and Creator, the Content shall also be subject to those supplemental terms, and Marketer is responsible for enforcing those supplemental terms.
In the event of a conflict between the Terms and the terms of an Opportunity that a Creator accepts from Marketer, the terms of the Opportunity as mutually agreed upon by the Creator and Marketer shall control as between that Creator and that Marketer
4. CREATOR TERMS
This Section 4 applies only to Creators participating in the Marketplace.
4.1. TRANSPARENCY & DISCLOSURE
Creators participating in the Marketplace must clearly disclose in their sponsored content the relationship between themselves and the Marketers. KOLhub requires that disclosure be made in a meaningful way that makes clear to an ordinary consumer that there is a relationship between the Creator and the Marketer. KOLhub reserves the right to review and monitor the disclosure practices of all Creators who participate in the Marketplace and to either require greater levels of disclosure (in the event that KOLhub determines in its sole discretion that current disclosure practices – including placement of clear and conspicuous disclosure – are inadequate) or remove the Creator or Creator’s content from the Marketplace (in the event of inadequate disclosures). Creator agrees to comply with the Malaysian Communication And Multimedia Consent Code Concerning the Use of Endorsements and Testimonials in Advertising (see generally https://www.mcmc.gov.my/skmmgovmy/files/attachments/ContentCode.pdf);and to comply with all applicable local, state, federal and international laws and regulations, in the preparation and delivery of Content. Any violations of the above terms by Creator may be cause for termination of any relevant contracts or Opportunities involving Creator.
4.2. CREATOR ELIGIBILITY
Any Creator may register in the Marketplace (minors must comply with Section 2.1 above), but in order to participate in the Marketplace, Creator’s social media channel must meet the following minimum standards:
- Channel must be a minimum of 90 days old;
- Channel must have a minimum number of followers/fans to be eligible (varies depending on connection);
- Channel must not contain a content gap of more than 90 days;
- Channel must be public (accessible to anyone);
- Channel must contain a majority of original content;
- Channel must be in a supported language (English, Bahasa,Chinese,and other as required by the Opportunity);
- Channel may not contain content that is inappropriate, obscene, violent (including hate speech), illegal, or violates the Marketplace Guidelines;
- Creator must not have made any material misrepresentations about the Channel’s history, scope, breadth, number of followers, type of followers, or anything similar.
Creators must periodically review the training materials available on the Platform. Creators also agree that KOLhub and/or the Marketer, in connection with the Opportunity, may use data collected from these connections, pursuant to applicable privacy policies.
KOLhub may, at any time, remove or delete a Creator’s account if KOLhub deems the account is ineligible for participation in the Marketplace.
4.3. CREATOR FULFILLMENT OF AN OPPORTUNITY
By accepting an Opportunity, Creator acknowledges that
(i) It will follow the Opportunity’s parameters, instructions, and guidelines,
(ii) It has the authority and ability to perform the requested service within the stated time period, as applicable,
(iii) All submitted content will be in the English language or such other language as required in the Opportunity,
(iv) All submitted content or action will be original (not repurposed) and does not infringe on any license, copyright, patent, trademark, trade secret or other intellectual property right of any third party,
(v) All required releases and waivers will be timely executed and submitted,
(vi) All ads will be disabled in paid social media posts,
(vii) All submitted content or action is in compliance with the terms of necessary third party platforms,
(viii) all submitted content or action does not include or support excessive profanity, violence, racial intolerance, illegal drugs or drug paraphernalia, pornography or any other content that promotes intolerance, illegal activity or infringes on the legal rights of others.
Sponsored content posted for an Opportunity must remain linked and live for a minimum of thirty (30) consecutive days (unless otherwise specified in the Opportunity) in order for the Marketplace to validate the fulfillment of the Opportunity and to earn compensation for the posted Opportunity. After thirty (30) days from publication and upon successful validation of the Opportunity, the Creator will receive payment for the completion of the Opportunity as agreed upon between the Marketer and the Creator in the Opportunity.
Creators, as part of any Opportunity they are contracted for, have an obligation to keep confidential any and all materials provided to them by Marketers. This obligation survives the end, cancellation, or termination of any agreements between Marketers and Creators.
4.3.1. CREATOR FAILURE TO FULFILL AN OPPORTUNITY
If Creator accepts an Opportunity yet fails to fully perform and meet the obligations thereof, KOLhub may lower Creator’s rating in the system, post negative reviews, and potentially remove Creator and Creator’s account from any and all KOLhub platforms, and Marketer may (i) deny payment to Creator for such failure to perform, and/or, (ii) take back any products, documents, or other items Creator received. Creator shall promptly return any such items requested by Marketer. Any Creator content prior to such failure or otherwise paid for is owned by the Marketer who posted the Opportunity.
4.3.2. CONTENT REMOVAL
If necessary, a Marketer may request that a Creator’s post in response to an Opportunity be removed from the Creator’s social media channel or personal website. KOLhub may assist Marketer in requesting a Creator to remove a post and additional fees may apply; however, KOLhub cannot guarantee removal of the post by the Creator. Marketers may also request that an Opportunity be closed and/or cancelled at any time.
Marketer may owe payment to Creator, whether partial or full, based on how much Content was submitted or completed prior to Marketer’s request to remove Content or cancel an Opportunity.
Should Creator be asked to reasonably modify or to remove content posted in connection with an Opportunity, Creator must do so within twenty-four (24) hours of receiving such instruction. Failure to do so may result in a loss of compensation (including a clawback of monies already paid to Creator) and other remedies, up to and including removal from the Marketplace and termination for cause of any related contracts.
4.4. CREATOR COMPENSATION
Creator acknowledges and agrees that the obligation to compensate Creator for Opportunity-related advertisements resides with the Marketer, not KOLhub. KOLhub merely facilitates such compensation on behalf of the Marketers. Marketer is solely liable for providing the funds to KOLhub for payment to Creator. While KOLhub may be remitting payment to Creator directly; under no circumstance does KOLhub accept liability for payment to Creator. KOLhub may also deny payments to the Creator subject to any legal or lawful purpose. Creator agrees that it will not pursue any actions, legal or otherwise, against KOLhub for non-payment. Creator waives any and all claims or rights of action against KOLhub relating to the failure of a Marketer to compensate Creator in connection with an Opportunity-related advertisement. In addition, Creator acknowledges that Creator is:
(i) not an employee of KOLhub,
(ii) responsible for the payment of all federal, state and local taxes on compensation received from a Marketer,
(iii) responsible for any reporting requirements imposed by the federal, state or local government, and
(iv) responsible for compliance with all other applicable laws and regulations.
4.5. CREATOR CREDIT CARD CHARGES AND FEES
If Creator enrolls in a subscription agreement or agrees to other charges to its account, Creator may be asked to provide a form of payment such as a credit card or bank account. Creator represents and warrants that it has the legal right to use such form of payment utilized in connection with any transaction. By submitting such information, Creator grants KOLhub the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by the Creator. Creator’s non-termination or continued use of the Marketplace reaffirms that KOLhub is authorized to charge Creator’s credit card for the use of the requested Marketplace Services. In the event Creator’s payment method was not authorized or cannot be charged for any agreed upon fees, the Creator’s account will be locked.
4.6. GRANT OF USAGE LICENSE
- Sponsored Social Content – Content is created by a Creator for Marketer’s marketing Campaign and is submitted, posted, displayed, or shared to Creator’s followers through his or her personal social media platforms. Unless otherwise indicated in an Opportunity, Content is owned by Creator, but KOLhub and Marketer receive a worldwide, perpetual, fully paid-up, royalty-free, and fully sublicensable right and license to share, use, copy, process, adapt, translate, display, perform, reproduce, republish, and distribute the content or any portion thereof in any and all forms of media or distribution methods (now known or hereafter developed), including but not limited to television, radio, print, Internet site and other electronic communications. Any use, publishing, or distribution of a Creator’s content must be accompanied by credit to the Creator of that content by use of the Creator’s name, likeness, image, username/handle or other identifying representation (to which Marketer will receive a limited license). While Marketer has the right to reuse the Content outside of its native platform, as described above, MCMC guidelines state that the connection between the Creator and the Marketer (or brand) must be disclosed and the Content must be attributed to the Creator. The disclosure should also clearly and conspicuously communicate that the Creator is paid by or works with the Marketer (or brand).
- Content Production – Content is created as commissioned by Marketer, without limitation as to how that Content may be used now or in the future. KOLhub will facilitate Creator’s assignment of all rights in such Content to Marketer. Marketers purchasing Original Content shall own the copyright in and to the Content and may use, reproduce, have reproduced, edit for length or clarity, publish and exploit such Content in its sole discretion, including, without limitation, licensing the Content to any agent or third party, copying, distributing, displaying, publicly performing, and creating derivative works of the Content. Attribution to the Creator is optional, unless the Content is created by a Celebrity.
- Celebrity Creator Content – Celebrity profile accounts are generally denoted with a unique banner within the Platform. Celebrity creators may need a special contract between Marketer and celebrity Creator to be completed, and any such contract shall be managed by the Marketer. Marketer and its Client (if applicable) understand and agree that in the event a celebrity is requested to create, provide, or endorse any Sponsored Social Content pursuant to a Statement of Work between KOLhub and such celebrity Creator, the celebrity Creator retains ownership rights to the Content and any terms surrounding its use must be negotiated in a separate agreement between KOLhub and the celebrity Creator. Marketer and its Client will be advised of all relevant use limitations for licensed celebrity Creator content.
5. USING DIRECT PAY
The Marketplace offers Marketers and Creators the voluntary opportunity to use the “Direct Pay” feature to efficiently conduct financial transactions for expenses to be reimbursed and special payment requests that may occur in connection with a marketing Campaign but that need to be paid to Creators immediately.
Marketers may choose to use this feature within the platform to reimburse Creators for expenses incurred on an Opportunity, transactions completed outside of the workflow or platform, or for payments that must be released outside the typical 30-day payment window. Creators may submit items for payment, but Marketers have discretion regarding what will be approved. Funds will be issued from a Marketer’s account immediately upon authorization of the payment, and any amounts issued through the Direct Pay feature are not refundable. A transaction fee will be assessed to Marketers for any payments facilitated using Direct Pay within the Platform. This transaction fee is assigned upon account creation. The Direct Pay feature is also subject to a monthly maximum dollar amount, which is set and controlled by KOLhub.
Direct Pay is solely to facilitate financial transactions via Marketers and Creators within Workflow. Direct Pay is not a vehicle through which Marketers and Creators can enter into agreements or contracts or amend the terms of the approved Campaign or Opportunity.
By using Direct Pay, Marketers and Creators agree that KOLhub:
- Shares no responsibility or liability for any requests made via Direct Pay;
- Shares no responsibility or liability for the approval or disapproval of any request;
- Shares no responsibility or liability for completed or incomplete requests; and
- Shares no responsibility or liability for any disputes in payments received or not received.
Unless stated otherwise in the terms of the Campaign, Opportunity, or other related contract, any disputes over transactions made or other failures to act via Direct Pay are not considered a breach of the Campaign, Opportunity, or other related contract.
“Confidential Information” means any information disclosed by a disclosing party (e.g. KOLhub, Marketer/Partner, Creator) to a receiving party (e.g. Marketer/Partner, KOLhub, or Creator) either directly or indirectly, in writing, orally, or by inspection of tangible objects, other than information that you can establish:
(i) was publicly known and made generally available in the public domain prior to the time of disclosure to the receiving party;
(ii) becomes publicly known and made generally available after disclosure to the receiving party other than through the receiving party’s action or inaction; or
(iii) is in the receiving party’s possession, without confidentiality restrictions, prior to the time of disclosure by the disclosing party as shown by receiving the party’s files and records.
Receiving party shall not at any time
(i) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information (except to those individuals who have a legitimate need to know such information and are bound in writing by confidentiality and non-use restrictions not less protective than those contained herein), or
(ii) use, reproduce or copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to the receiving party and in accordance with the Terms.
Receiving party agrees to take all measures to protect the secrecy, and avoid disclosure and unauthorized use, of the Confidential Information. Receiving party may disclose Confidential Information if required by law to disclose the Confidential Information, provided that receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. All Confidential Information shall remain the disclosing party’s personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to the disclosing party immediately upon its request, and also, upon termination of the Terms.
Nothing contained in the Terms will prevent KOLhub, its parent and/or affiliates from complying with privacy laws and regulations, and if there is any conflict between the Terms and the terms of the applicable Privacy Notice, the Privacy Notice shall control. Marketer and/or Creator may not issue any press release or other public statement regarding the Terms, KOLhub or its parent and/or its affiliates without KOLhub’s prior written consent.
7. MARKETPLACE GUIDELINES
All participants should observe these Guidelines, or risk being excluded from participation in the Marketplace:
- Pornography or sexually explicit content, as well as violent content, is not allowed in the Marketplace.
- Attacks on any group based on race or ethnic origin, religion, disability, gender, age, veteran status or sexual orientation/gender identity, etc. (aka “hate speech”) is not permitted.
- There will be no harassment, threats, invasion of privacy, predatory behavior, stalking, or revealing of other members’ personal information (without their permission).
- Misleading descriptions, titles, thumbnails, tags, or large amounts of repetitive content are not allowed.
- There will be no solicitation or spamming users in the Marketplace. Communication or “solicitation” should only be for paid Opportunities within the Marketplace.
- There are to be no additional products, logos, third party sponsored links, ads, overlay ads on photos, or other detractors located within a sponsored post; competitor or otherwise.
8. UNAUTHORIZED USE
Outside of an API provided by KOLhub, any attempt to access the Marketplace without authorization or by using another party’s account, utilize automated programs, bots, screen scraping, database calls, human initiated data collection or any other means of gathering data, content or other information for the purpose of reverse engineering our platform for commercial gain is strictly prohibited. Any manipulation of data, including click data, impressions, or any other relevant data or metric reported in the Marketplace, is strictly prohibited. Any such unauthorized attempt will be prosecuted to the fullest extent under the law, and each action is grounds for termination of Marketer and/or Creator’s account in the Marketplace and/or termination for cause of any of Marketer and/or Creator’s agreements.
9. THIRD PARTY WEBSITES AND SERVICES
Marketplace users may, from time to time, connect third party websites and accounts to their Marketplace account. By doing so, users consent to the release of user information on KOLhub to those third parties, in accordance with the policies of those third parties. Users also consent to the release of user information on those third parties to KOLhub, in accordance with KOLhub’s Privacy Notice. Users also consent to KOLhub sharing user information with third parties KOLhub is contracted with in order to provide services or functionalities on behalf of Marketplace users.
10. PROVISION OF SERVICES
KOLhub is constantly innovating and changing its Marketplace offerings in order to provide the best possible experience for its users. Marketers and Creators acknowledge and agree that the form and nature of the Services which KOLhub provides may change from time to time without prior notice to you. Marketers and Creators acknowledge and agree that KOLhub may stop (permanently or temporarily) providing the Marketplace Services (or any features or functionality within the Marketplace) to Marketers and Creators or to users generally at KOLhub’s sole discretion, without prior notice to you. Marketers and Creators and/or KOLhub may terminate these Terms and/or Marketer and/or Creator’s participation in the Service at any time, for any reason or for no reason, and KOLhub shall not have any liability regarding such decisions. Sections 3 through 20 of these Terms shall survive any termination of these Terms. In addition, KOLhub has the ability to (i) modify user, account, or organization permissions at any level to add or remove users, or make any other changes as otherwise deemed reasonably necessary in the provision of services; and (ii) assume a user’s account for the purposes of troubleshooting and resolving issues.
11. REPRESENTATIONS AND WARRANTIES
Creators and Marketers participating in the Marketplace each represent, warrant and covenant that
(i) you have sufficient authority to enter into the Agreement;
(ii) your use of KOLhub’s services is solely for lawful commercial and business purposes;
(iii) the links contained in any content are directed to the intended and agreed upon destination and are not redirected;
(iv) you will not engage or cause others to engage in any form of spamming or improper or malicious, as determined by KOLhub, clicking, impression or marketing activities through the Marketplace, and you will comply with all applicable laws including complying with all applicable laws,
(v) you have the necessary rights to provide all information provided to the Marketplace (including all content, data, claims, statements, products and services, Opportunities, titles, URLs and descriptions) for use as described in these Terms(the “Information”).
Creators and Marketers participating in the Marketplace each represent, warrant and covenant that all such Information does not and will not:
(a) violate any law, statute, ordinance, treaty or regulation or KOLhub policy or guideline;
(b) infringe any copyright, patent, trademark, trade secret, trade dress, or other intellectual property right of any third party;
(c) breach any duty toward or rights of any person or entity including rights of publicity or privacy, and have not otherwise resulted in or are not likely to result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity;
(d) advertise any unlawful product or service or unlawful sale of any product or service.
Additionally, Creators and Marketers agree that all Information will
(i) not be false, misrepresentative, deceptive or misleading;
(ii) not be defamatory, libelous, slanderous, obscene or threatening;
(iii) not target children under the age of thirteen (13),
(iv) be free of viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that may potentially damage, interfere with, intercept, or expropriate any system data or personal information.
Marketer further represents that
(i) it has a reasonable basis for all claims made within its advertising and possesses appropriate documentation to substantiate such claims;
(ii) it will comply with the applicable Master Service Agreement (if applicable);
12. TRADEMARKS AND COPYRIGHTS
All graphics, logos, designs, page headers, button icons, scripts, and service names appearing on the Sites are registered and unregistered service marks, trademarks, trade names, or trade dress of KOLhub Worldwide, Inc. or its subsidiaries and affiliates in the U.S. and/or other countries (collectively, “trademarks”). KOLhub’s trademarks may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion. The images and icons available on our media page may be used by organizations and third-party sites in connection with journalistic promotion of our services; however, commercial applications are forbidden except where pre-approved in writing. Nothing on these sites shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark, logo or service mark displayed thereon without the owner’s prior written permission, except as otherwise described herein. All proprietary rights and goodwill in KOLhub’s trademarks shall inure to the benefit of KOLhub. The KOLhub Sites and all of their content, including but not limited to text, design, graphics, interfaces and code, and the selection and arrangement thereof, is protected as a compilation under the copyright laws of the United States and other countries. KOLhub reserves all rights not expressly granted in and to the sites and their content.
Creators and Marketers each agree to indemnify, defend, and hold KOLhub, its subsidiaries and affiliates, and its and their employees, officers, and directors (each, an “KOLhub Entity” and collectively, the “KOLhub Entities”), and each KOLhub Entity’s licensors, organizations, licensees, consultants, contractors, agents, attorneys, owners, third party service providers and third parties authorized to make your listings, results, and/or Services available in connection with third party websites, Social Content and/or Action, blogs, postings, content, applications and/or e-mails (“Third Party Products”), harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees (collectively, “Claim(s)”), that actually or allegedly arise out of or result from your information or materials, use of the Service, any Social Content and/or Action, your website, or your breach of these Terms. You agree to be solely responsible for defending any Claim against or suffered by KOLhub and/or any KOLhub Entity, subject to KOLhub and/or the KOLhub Entity’s right to participate with counsel of its own choosing, and for payment of damages or losses resulting from all claims against KOLhub, and/or any KOLhub Entity provided that you will not agree to any settlement that imposes any obligation or liability on KOLhub and/or an KOLhub Entity without KOLhub’s prior express written consent.
14. WARRANTY DISCLAIMER
MARKETERS AND CREATORS EXPRESSLY AGREE THAT THE SERVICES ARE AVAILABLE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND THAT YOUR USE THEREOF IS AT YOUR OWN RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, KOLHUB DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
(i) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
(ii) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS,
(iii) WARRANTIES RELATING TO DELAYS, INTERRUPTIONS, ERRORS, OR OMISSIONS IN THE SERVICE OR KOLhub SITES, OR ANY PART THEREOF,
(iv) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE SERVICE OR THE KOLhub SITES,
(v) WARRANTIES RELATING TO THE ACCURACY OR CORRECTNESS OF DATA, ACCURACY OF COMMUNICATIONS, AND ANY OTHER WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NONPERFORMANCE, OR OTHER ACTS OR OMISSIONS BY KOLHUB. FURTHER, AND WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, THERE IS NO WARRANTY THAT THE SERVICE OR THE KOLHUB SITES WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT KOLHUB’S WARRANTY DOES NOT COVER TELECOMMUNICATIONS OR INTERNET OUTAGES CAUSED BY THIRD PARTIES OR OTHERWISE OUTSIDE OF KOLHUB’S CONTROL. SERVICES MAY BE LIMITED BY MANY FACTORS, INCLUDING INHERENT RISKS OF THE INTERNET.
BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES OR IMPLIED WARRANTIES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, KOLhub’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
15. LIMITATION OF LIABILITY
ANY LIABILITY OF KOLHUB TO A MARKETER IN CONNECTION WITH THESE TERMS, REGARDLESS OF THE CAUSE OR FORM OF ACTION, SHALL BE STRICTLY LIMITED TO THE AMOUNT PAID BY MARKETER TO KOLHUB FOR THE SERVICES RELATED TO THE MARKETER’S MOST RECENT OPPORTUNITY. KOLHUB SHALL NOT BE LIABLE TO CREATORS FOR DAMAGES OF ANY KIND ARISING OUT OF CREATORS’ USE OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL KOLhub OR ANY KOLhub ENTITY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, ARISING OUT OF, OR IN CONNECTION WITH, THESE TERMS. MARKETER AGREES THAT MARKETER WILL NOT HOLD KOLhub RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THESE TERMS, INCLUDING WITH RESPECT TO CLICKS BY ANY THIRD PARTY ON MARKETER’S LISTING(S) OF OPPORTUNITIES, REGARDLESS OF THE INTENT OF SUCH THIRD PARTY.
THE FOREGOING LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF KOLhub OR ITS AFFILIATES OR ANY OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, KOLhub’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
KOLhub may give general notices to parties by posting on its Sites, or by electronic mail to the e-mail address provided by a Marketer or Creator to KOLhub. It is the party’s responsibility to ensure that their email address and any other contact information provided to KOLhub is updated, current and correct. It is a Marketer or Creator’s responsibility to also check these Terms to see if there has been a modification.
17. CHOICE OF LAW
These Terms shall be governed by and interpreted under the laws of the Malaysian and Multimedia Commission. without regard to its conflicts of laws provisions. Marketers and Creators agree to submit to the exclusive jurisdiction of the state and federal courts located in Kuala Lumpur. Any claim against KOLhub arising from the Terms shall be adjudicated on an individual basis, and shall not be consolidated in any proceeding with any claim or controversy of any other party. Marketers and Creators further agree that, to the extent allowed by applicable law,
(i) any and all disputes, claims, and causes of action arising out of or in connection with the Terms, shall be resolved individually without resort to any form of class action;
(ii) any claims, judgments and awards shall be limited to reasonable and actual out-of-pocket costs incurred, but in no event attorney’s fees; and
(iii) under no circumstances will Marketers and Creators be permitted to obtain any award for, and Marketers and Creators hereby waive all rights to claim, punitive, incidental, indirect or consequential damages and any and all rights to have damages multiplied or otherwise increased and any other damages, other than damages for reasonable and actual out-of-pocket expenses.
18. ELECTRONIC ACCEPTANCE EFFECTIVE
These Terms set out the legally binding terms for use of KOLhub’s Sites, Services, and/or Marketplace. Marketers and Creators indicate acceptance of the Terms and all of the terms and conditions contained or referenced in these Terms by creating an account and accessing the Marketplace Services. Please print and save a copy of these Terms for record-keeping purposes and be mindful that these Terms may be updated by KOLhub at any time.
The Terms constitute the entire terms of service and understanding between the parties regarding the subject matter contained herein and supersedes all previous and contemporaneous terms of service, agreements, proposals and communications in all forms of media (including all instructions, advertisements, messages and policies), written and oral, between any party and KOLhub regarding the subject matter contained herein. Only a written instrument executed by the party waiving compliance may waive the terms or covenants of the Terms. No waiver by either party of a breach of any provision hereof shall be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself. If any provision of the Terms is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of the Terms, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the parties to the Terms and has like economic effect. KOLhub shall have no liability under the Terms by reason of any failure or delay in the performance of its obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, computer virus, Acts of God, war, governmental action, or any other cause that is beyond its reasonable control. The parties are independent contractors and nothing in the Terms shall be construed to create, evidence, or imply any agency, employment, business relationship, or joint venture between the parties. Neither Marketer nor Creator are employees of KOLhub. None of KOLhub, Marketer, or Creator shall have any right, power, or authority to create any obligation or responsibility on behalf of the other party. The Terms are not intended to benefit, nor shall it be deemed to give rise to any rights in, any third party. Creators and Marketers may not assign or transfer the Terms, or sublicense, assign or delegate any right or duty under the Terms without KOLhub’s prior written consent. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. KOLhub and its subsequent assignees may assign the Terms, in whole or in part, or any of its rights or delegate any of its duties, under the Terms to any party. Any rights not expressly granted in the Terms are reserved by KOLhub, and all implied licenses are disclaimed. Headings used in the Terms are for reference purposes only and in no way affect the Terms. The term “including” is a term of enlargement meaning “including without limitation,” and does not denote exclusivity. KOLhub may change the Terms and/or the Privacy Notice at any time upon notice published on its Site(s). Any use by a Creator or Marketer, their affiliates, agents, representatives, employees, or any person or entity acting on their behalf, of the Service after such notice shall be deemed to be continued acceptance by them of the Terms and Privacy Notice, including any amendments and modifications thereto. All information or material in connection with a Service must be submitted in the form requested by KOLhub. KOLhub reserves the right to discontinue offering, and/or modify the Services at any time. Except as otherwise specified by KOLhub, parties agree that they will direct all communications relating to the Service or their participation therein directly to KOLHUB and not to any other entity. The organization, specifications, structure or appearance of any KOLHUB property or any page where a party’s information (including listings) may be displayed may be redesigned or modified at any time.
20. Cancellation or Termination
20.1. You may cancel the Services at any time, with or without cause. You understand and accept that by cancelling the Services:
- i) you may not receive a refund;
- ii) you may be obligated to pay all charges due until the end of the subscription;
iii) you may lose access to and use of your keys or passwords and any Services.
20.2. You acknowledge and agree that KOLhub may terminate your keys or passwords for cause with or without prior notice to you. Cause for termination includes but is not limited to infringement or violation of the Terms, therefore partial or complete discontinuance of the Services and/or Site, extended periods of inactivity, request to do so by law, and non-payment of fees or charges owed by you to KOLhub.
20.3. Cancellation or termination will result in immediate cessation of access to the Services, and deletion of your keys or passwords and all Services contained therein. All terminations are at the sole discretion of KOLhub, and you agree that KOLhub shall not be liable to you or any third party as a result of termination.
20.4. Upon termination or expiration of this Agreement for any reason, all licensed rights granted in this Agreement to you will immediately cease to exist and you will irrecoverably delete any and all data you received from KOLhub, as well as your obligation to pay any fees applicable, including but not limited to those under sub-clause 20.1 (ii) above, will survive any expiration or termination of this Agreement for any reason.
20.5. There will be no refunds or credits for partial use of Service, upgrade/downgrade refunds, refunds for unused features, or refunds for failures or inaccessibility of Service due to circumstances beyond KOLhub’s control. In order to treat everyone equally, no exceptions will be made. Downgrading your Service may cause the loss of content, features. KOLhub does not accept any liability for such loss. KOLhub reserves the right to suspend or terminate your access to the Services for nonpayment. If your Subscription is terminated for any reason, you are still liable for a remaining unpaid period of your Subscription if your Subscription is purchased on a monthly basis. KOLhub may recover such payments due and in that case you will bear all the expenses related to such recovery or/and debt collection.
21. Refund Policy
You may ask for a refund at any time for any funds that you have paid into your Account except if the amount to refund relates to a Milestone Payment or relates to fees or charges payable to us.
We may refund funds to Brands irrespective of whether a Brand has requested funds be refunded if:
(1) we are required by law or consider that we are required by law to do so;
(2) we determine that refunding funds to the Brand will avoid any dispute or an increase in our costs;
(3) we refund funds to the Brand in accordance with any refund policy specified by us from time to time;
(4) we find out that the original payment made by the Brand is fraudulent;
(5) the Brand made a duplicate payment in error; or
(6) We consider, in our sole opinion, that it is likely that the refund of funds is necessary to avoid a credit card chargeback.
If we agree to the refund, the funds will be received by the Brand via the same payment method(s) that the User used to make the original payment to us. We may, in our sole discretion, use an alternative payment method in exceptional circumstances.
You can request a refund by going to our Contact us page or emailing us at email@example.com. If you have done so, you must not initiate a chargeback request with your credit card issuer until such time as all reasonable efforts have been exhausted with us to resolve your request.
If you have already initiated a chargeback request with your credit card issuer, you must not request a refund of funds by contacting us and must not seek double recovery.
If we reasonably determine, having considered all the relevant circumstances, that you have made an excessive or unreasonable number of requests to refund funds back to you or chargebacks, we may suspend, limit or close your Account.