Influencer Program Policy
Thanks for considering our BRAND INFLUENCER Program! Since the Internet is a wild place and we don’t know every one of our BRAND INFLUENCERs super personally, we’ve created some terms to set everyone’s expectations.
PLEASE READ THIS DOCUMENT IN ITS ENTIRETY BEFORE AGREEING TO BECOME OR TO CONTINUE AS A Cloudy BRAND INFLUENCER.
When we say “Company,” “Cloudy,” “we,” “our,” or “us” in this document, we are referring to Hive Endeavors, LLC.
When we say “Products,” we mean any product created by Cloudy.
When we say “INFLUENCER”, “you” or “your,” we are referring to the individual who wishes to be a Cloudy BRAND INFLUENCER, and his or her employees, agents and business affiliates (as applicable).
We sometimes refer to INFLUENCER and Company individually as a “Party” or collectively as the “Parties.”
BY ACCEPTING THESE BRAND INFLUENCER TERMS AND CONDITIONS (THE “TERMS”), YOU EXPRESSLY AGREE TO BE BOUND BY, AND STRICTLY ADHERE TO, ALL OF THE TERMS. THESE TERMS WILL GOVERN YOUR RELATIONSHIP WITH Cloudy AND YOUR PARTICIPATION IN THE Cloudy BRAND INFLUENCER PROGRAM (THE “PROGRAM”). IF YOU DO NOT AGREE TO OR DO NOT UNDERSTAND ANY OF THE TERMS, PLEASE DO NOT ACCEPT THE TERMS. IF AT ANY TIME YOU NO LONGER WISH TO BE BOUND BY THESE TERMS, YOU MUST IMMEDIATELY PROVIDE WRITTEN NOTICE TO Cloudy AND CEASE ACTING AS A BRAND INFLUENCER.
By accepting these Terms and participating in the Program, INFLUENCER agrees as follows:
To become an INFLUENCER of the Company, you must:
- Be the greater of both: 18 years of age or older & the minimum legal age in your jurisdiction.
- Have read, understand, and agreed to the Terms;
- Have no medical condition that prevents you from taking the Products;
- Maintain and actively use at least one personal social media account on Facebook, Instagram, Twitter, Pinterest, Snapchat, or YouTube (collectively, “Approved Media”). Your accounts on Approved Media are referred to in these Terms as “Accounts.”
- Be in good standing with the Federal Trade Commission (“FTC”) & the Food and Drug Administration (“FDA”); and
- Comply with all FTC & FDA guidelines, including but not limited to the FTC’s Disclosure Requirements for Social Medial Influencers, the FDA’s Guidance Documents and other applicable laws and regulations.
- Be in one of the following countries, provided our products are permitted in your local jurisdiction: United States, Canada, Australia, United Kingdom, Italy, New Zealand, Thailand, Germany, Brazil, Switzerland, Ireland, France, Mexico, United Arab Emirates, Saudi Arabia, Sweden, Norway, Netherlands, Indonesia, Israel, Denmark, Puerto Rico, Colombia, Austria, Ecuador
Cloudy reserves the unconditional right to deny or terminate an INFLUENCER. It is understood and agreed that by becoming an INFLUENCER, Cloudy is under no obligation to provide you with any free Product. INFLUENCER is responsible for purchasing any Product in order to fulfill your obligations under the Terms.
In exchange for certain compensation, products and/or experiences, and other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), you agree to use your best efforts to market and promote the Products and Cloudy brand on your Accounts (the “Services”), subject to these Terms.
By accepting these Terms, you agree to perform the following Services:
- Create and post photo, video and/or written content promoting Cloudy, Products and/or any related campaigns or services as Cloudy may request from time to time (“Content”). For avoidance of any doubt, Content includes any and all content, posts, photos, videos, pictures, writings, or any other work product that you create as part of the Services or otherwise related to the work product you create for Cloudy or at Cloudy’s request.
- Share and promote your Promo Code to encourage your followers to purchase Cloudy Products.
- Promptly respond to communications from any of your followers related to Cloudy or Products.
- Promptly respond to communications from Cloudy representatives in text, email, phone or any other form.
- If requested by Cloudy, participate in educational and training programs related to Cloudy, Products or the Program.
- Create 2 pieces of content within 15 days of receiving any product.
- In the case that the Influencer has a change of mind or is otherwise unable to deliver as agreed upon, they are obligated to return any and all Product and/or pay full retail value of Product.
In consideration of the Services you provide and the rights you grant to Cloudy with respect to the Content, as further provided herein, you will be entitled to the following:
$60 Welcome Bonus & $50 per 100k Views Performance Bonus, subject to change by the Company at any time. After 2 million views, the Performance Bonus drops to $20 per 100k views. After 4 million views, the Performance Bonus Drops to $10 per 100k views. After 10 million views, the Performance Bonus drops to $5 per 100k views. Minimum 100,000 views for Performance Bonus payment. Performance Bonus payment is only valid for views that are captured within the first 72 hours of a post being made. Additional views will not be recorded for additional Performance Bonus payments after you've already requested payment. Your total payment with be the lesser of your total earned commission (Welcome Bonus + Performance Bonus) and any promotion price that you previously provided or advertised. In some cases, Cloudy may override the commission structure to accomodate for custom collaboration Services.
Payments may be paid out upon request, as long as your commissions earned are at least fifty ($50) (in other words, your commission may be paid out as soon as it reaches $50). You may request payout of your commission no more than once daily. Commissions paid on a daily basis will be based on the previous day’s sales. Commissions will not be paid based on any posts or views or engagement that Cloudy, in its sole discretion, determines to be attributed to spam, fraud, bots, unauthorized use of Cloudy’s trademarks, copyrights, logos or other intellectual property, or use of any unauthorized claims. If a post is deleted for any reason, any paid commission will be deducted from the amount Cloudy owes to you and any subsequent payout of your commissions. Commissions are counted and final numbers are deemed final at the sole discretion and decision of Cloudy. Cloudy also reserves the right to change the frequency and dates of your commission payouts. Cloudy will aim to try to pay commissions within 30 days of your request. In some cases, Cloudy may face delays in paying commissions, or may choose to delay payment of commissions while investigating any fraudulent activity or violation of any of these terms.
While Cloudy makes every reasonable effort to accurately track and pay commissions for all INFLUENCER posts & views, Cloudy is not responsible for and will not be held liable for any technical difficulties, outside events, actions by other INFLUENCERs, or other uncontrollable events that may disrupt or interfere with Cloudy’s ability to track views or posts, or pay commissions. Cloudy has the right to pay commissions to any other person, in its sole discretion.
You are solely responsible for any and all tax obligations, if any, due to any taxing authorities arising from or in connection with commissions paid to you by Cloudy in connection with the Program. Cloudy reserves the right to withhold payment pending an investigation of suspected fraud or misrepresentation of associated commissions for posts or views that were obtained fraudulently or through misrepresentation.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF INFLUENCER
By accepting these Terms, you represent and warrant that:
- You have the capacity and authority to enter into these Terms;
- You are responsible for any and all activity undertaken in connection with your participation in the Program and performance of the Services;
- You are not a party to any agreement or subject to any law that restricts your performance of your obligations under these Terms;
- You have the right to assign the Content to Cloudy (as further discussed above), and the Content will be original and does not and will not infringe upon any copyright, patent,
- trademark, right of publicity or privacy, or any other proprietary or other right of any person;
- You will include “#CloudyPartner” in the caption or other text accompanying Content posted to Approved Media and/or your Accounts;
- You will at all times market, promote, and sell the Products in compliance with all applicable laws, regulations, rules, administrative guidelines, policies, codes, orders and ordinances, including without limitation, all privacy and data security laws and the terms and conditions of all applicable third-party websites, platforms or applications, including by making disclosures in accordance with the FTC's requirements for social media influencers, compliance with FDA Guidlines & requirements, as further provided herein, in rendering the Services;
- You will conduct yourself at all times with the highest degree of professionalism, provide the Services with commercially reasonable skill and care in a competent and professional manner, behave in a legal, ethical and business-like manner, and maintain the highest standards of integrity, honesty and responsibility in your dealings with Cloudy, its staff, customers, followers and representatives;
- You will represent Cloudy Products in a positive, truthful and sincere manner and not engage in any activity or action that may damage or be harmful to the reputation, goodwill or interests of Cloudy, any Product, or any of Company’s associates, employees, directors, officers, agents, partners or affiliates;
- You will not commit any act which brings Cloudy into public disrepute, contempt, scandal, or ridicule, or which insults or offends any of Cloudy’s customers, competitors or the general community to which Cloudy’s advertising materials are directed, or which might tend to harm Cloudy or any of Cloudy’s Products and/or services including, without limitation, disparaging Cloudy or any of Cloudy’s Products and/or services;
- You will not use Cloudy’s name, or any trademarks, copyrighted materials, or other intellectual property of Cloudy in any advertising, social media, or in literature other than material published by Cloudy, without first obtaining the express written permission of Cloudy, except as expressly provided in these Terms; and
RESTRICTIONS / PROHIBITIONS
By accepting these Terms, you agree and understand that if any Content posted by or associated with you is deemed offensive, inappropriate or used incorrectly, Cloudy has the right, at its sole discretion, to suspend or terminate your account and/or participation in the Program. Cloudy reserves the right to withhold and shall not be liable to pay any commissions or other compensation to you for any such Content, or if you do any of the following, each a material breach of the Terms:
- Make any representations or warranties on behalf of Cloudy, other than the ones contained in Cloudy’s published marketing and promotional information (e.g., Cloudy provided Talking Points);
- Make unsubstantiated claims about Products, including but not limited to claims that the Products are intended to diagnose, treat, cure or prevent any disease;
- Promote any use of Products that has not been approved by Cloudy, including but not limited to claims that the Products are intended for or suitable for use by children;
- Fail to comply with any of the Terms;
- Promote Cloudy Products through unsolicited or spam emails or otherwise violate any laws, regulations, rules, administrative guidelines, policies, codes, orders and ordinances, regulating electronic communications;
- Engage in, promote, link or contribute to, or create a platform for, the publishing, hosting, or promotion of sexually explicit materials, scantily clad images or video, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, or of any content that is unlawful, illegal, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable to Cloudy in Cloudy’s sole discretion;
- Are convicted of or are alleged to have committed any illegal activity;
- Transmit messages or images inconsistent with the positive images and/or goodwill with which Cloudy wishes to associate, in Cloudy’s sole discretion;
- Engage in, promote, or contribute to any activity, software, or materials that may divert commissions from other participants in the Program;
- Engage in, promote, or contribute to any illegal activity or violate Cloudy’s or any third party’s legal rights, and/or intellectual property rights;
- Engage in “spam” advertising, send unsolicited commercial email, post commercial messages to any forum that prohibits such messages, or engage in any other advertising or marketing practices that are deceptive, misleading, false, fraudulent, or otherwise objectionable, in Cloudy’s sole discretion;
- Generate or send any email messages using or containing Cloudy’s brand name, logos, or any variation thereof, trademarks, likeness, images, and videos, without Cloudy’s express prior written permission, except as expressly provided in these Terms;
- Use Cloudy’s banners, brand name, logos, trademarks, likeness, images, and videos, on your own website(s) in a manner that is likely to cause market and/or consumer confusion, in Cloudy’s sole discretion;
- Use Cloudy’s brand name or trademarks in connection with your name, username or social media handle;
- Create or link to a website that copies, resembles, has the look and feel of or creates the impression that it is the Cloudy website or any other platform of Cloudy, in Cloudy’s sole discretion;
- Read, intercept, record, redirect, interpret or fill in the contents of any electronic form or other materials submitted to Cloudy by any person or entity;
- Use any promotional coupon or code that is not provided to you by Cloudy for the Program, or run any ad with any of Cloudy’s URLs offering BRAND INFLUENCER commissions;
- Sell or re-sell any of the Cloudy Products, or offer a cash incentive or discount on Cloudy Products as a means of promotion other than Promo Codes provided to you as part of the Program;
- Uses your credit or debit card to purchase Products for a customer or another BRAND INFLUENCER, or place a product order using someone else’s credit or debit card without the credit or debit card owner’s written permission;
- Engage in any fraudulent activity or other activity that would falsely or artificially increase or affect the number of your followers, “likes” or other indicators of your audience or reach on any applicable Approved Media;
- Modify price information regarding Cloudy’s Products or offers on your own website;
- Create, link to or host any type of shopping cart between Cloudy’s website and your own website; or
- Take any action (or fail to take an action), that is deemed to be unsuitable to Cloudy, in Cloudy’s sole discretion.
By agreeing to these Terms, you agree that Cloudy has the unconditional right to:
- Preview your Content from time to time upon request and to request changes to and/or removal of Content in its sole discretion;
- Monitor your Accounts at all times to ensure compliance with the Terms;
- Notify you of any changes to your Content or Accounts that Cloudy feels should be made;
- Pause, suspend or terminate your participation in the Program if you do not make any changes to your Content or Accounts that Cloudy feels, in Cloudy’s sole discretion, are necessary or appropriate;
- Withhold any commissions on any sales deemed, in Cloudy’s sole discretion, to have been made in violation of the Terms; and
- Suspend or terminate your participation in the Program immediately and without notice to you should Cloudy suspect that you have committed fraud or otherwise violated the Terms. If such fraud or abuse is detected, Cloudy shall not be liable to you for any commissions for such fraudulent sales.
DISCLOSURE OF MATERIAL CONNECTION
As otherwise provided herein, you must include a disclaimer with all Content that you share publicly stating your “material connection” (as defined by the FTC) to Cloudy and the fact that you have been compensated or otherwise incentivized to post the Content. For example, you must disclose the fact that Content is “sponsored by Cloudy” (such as by prominently displaying “#sponsored”) or an “advertisement” (such as by prominently displaying “#ad”) or that you are paid commissions (such as by prominently displaying “#paid”). Such disclosure must be made in close proximity to any statements that you make about Cloudy or Cloudy’s Products and must comply with any instructions or directions provided by Cloudy and all applicable laws, regulations, administrative guidelines, codes, orders and ordinances, including but not limited to the FTC’s Disclosure Requirements for Social Medial Influencers. This disclosure should be clear and prominent enough for customers to view it when they are reading or otherwise viewing any of the Content. In addition, the customer should not be required to click on, scroll down or mouse over a link in order to view the disclosure. Further, if the Content includes a video, the disclosure should be made both verbally during the video and displayed in text accompanying the video. Please note that this disclosure is required regardless of any space limitations of the medium, where the disclosure can be made via hashtags, such as #sponsored, #paid or #ad.
Note that while Cloudy may provide required disclosures (e.g., #CloudyPartner”) and recommended promotional verbiage, Cloudy shall not be responsible for any failure by you to comply with any applicable laws, regulations, administrative guidelines, codes, orders and ordinances or any
failure by you to obtain all third-party clearances and permissions with respect to Content you post.
IF YOU FAIL TO MAKE THE REQUIRED DISCLOSURES, SUCH FAILURE SHALL BE DEEMED A MATERIAL BREACH OF THE TERMS THAT MAY RESULT IN IMMEDIATE TERMINATION, WITHOUT ANY COMPENSATION OR COMMISSIONS OR LIABILITY TO YOU.
INTELLECTUAL PROPERTY RIGHTS
INFLUENCER’s Content and Attributes. For the Services which you are providing under these Terms, and without limiting Cloudy’s ownership of the Cloudy Intellectual Property (as defined below) as provided herein, you hereby grant Cloudy the irrevocable, sublicensable, worldwide right and permission to use any Content, in any manner, in whole or in part, and for any purpose in any and all media (now existing or hereinafter developed), including without limitation, on Cloudy’s owned or controlled websites and platforms, third-party websites (including retailer websites and/or third-party marketplaces), social media, television, billboards, any advertising materials, publications, marketing materials, point-of-sale displays, and/or presentations, and in any and all other media, in perpetuity. You acknowledge and agree that your Content, including any statements, comments, posts and/or feedback that you provide in connection with the Services or the Program, may be paraphrased, amplified, shortened, put into conversational form, and/or edited to correct grammatical and/or spelling errors.
By accepting these Terms, you acknowledge that participation in the Program means Cloudy has the irrevocable right to use your Content and include your name, likeness, image, photograph, voice, videos, distinctive appearance, gestures, mannerisms, biography, statements, avatar, and/or social media name and/or handle and any other indicia or other attributes in any manner that Cloudy determines supports the purposes of the Program, in Cloudy’s sole discretion, including but not limited to use in any media that accepts advertising or promotional content or communications. Further, you acknowledge and agree that the rights granted by you to Cloudy with respect to your Content are granted without compensation to you other than what is provided in the Terms.
INFLUENCER’s Rights to Cloudy Intellectual Property and Cloudy Platforms. Cloudy hereby grants you, a non-exclusive, non-transferable, revocable, limited license to use and display Cloudy’s trade name, logos and trademarks, slogans, domain names, trade dress, coupons, hypertext links, promotional codes, designs, works of authorship, and other advertising and marketing material (collectively, “Cloudy Intellectual Property”) solely in the form and format provided to you through the Program, and solely for the purpose and in the manner specifically authorized by Cloudy. You acknowledge Cloudy’s exclusive right, title and interest in and to the Cloudy Intellectual Property and the goodwill pertaining thereto, that any use of the Cloudy Intellectual Property by you does not create any ownership, license or other right or interest in or to the Cloudy Intellectual Property by you except as specifically set forth herein and that all use of the Cloudy Intellectual Property by you shall inure to the benefit of Cloudy. You agree that you shall not, challenge, or assist in any challenge to, the validity or exclusivity of Cloudy’s ownership of the applicable Cloudy Intellectual Property.
Further, Cloudy and its licensors retain all ownership rights in their proprietary platforms, software, websites and technology, including any updates, enhancements, modifications thereto or any back-end technology associated therewith (collectively, “Cloudy Platforms”).
By accepting these Terms, you agree that you will not:
- Copy, rent, lease, sell, distribute, or create derivative works based on the Cloudy Platforms in whole or in part, by any means, except as expressly authorized in writing by Cloudy;
- Use any Cloudy Intellectual Property without Cloudy’s prior written permission;
- Use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” to send messages to the Cloudy Platforms or systems;
- Use the Cloudy Platforms in any manner that damages, disables, overburdens, or impairs any of Cloudy’s websites or interferes with any other party’s use of the Cloudy Platforms;
- attempt to gain unauthorized access (or exceed any authorized access) to the Cloudy Platforms;
- Access the Cloudy Platforms other than through the Cloudy interface; or
Use the Cloudy Platforms for any purpose or in any manner that is unlawful or prohibited by these Terms.
EXCEPT AS OTHERWISE SET FORTH HEREIN, TO THE EXTENT PERMITTED BY LAW, THE Cloudy PLATFORMS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. EXCEPT AS OTHERWISE SET FORTH HEREIN, Cloudy DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE Cloudy PLATFORMS INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
Third-Party Licenses. You shall be solely responsible for obtaining any required licenses, permissions or approvals from third parties, contributors, and/or other affected rights-holders with regard to third-party content incorporated into the Content by you, as necessary for Cloudy to make full and unrestricted use of the Content as set forth herein, including by way of example and without limitation, requiring all individuals appearing in any Content, to sign an authorization, consent and release form and granting to Cloudy all license and publicity rights necessary for Cloudy to make use of the name, likeness, image, photograph, distinctive appearance, gestures, mannerisms, biography, statements, avatar, and/or social media name and handle and other indicia of such individual contained in the Content. Upon request by Cloudy, you will provide Cloudy with copies of such licenses, permissions, approvals or consents.
Cloudy may disclose to you confidential or proprietary information and trade secrets from time to time (collectively, “Confidential Information”). Cloudy’s Confidential Information includes, without limitation, all non-public or proprietary information and Cloudy Intellectual Property, including, but not limited to specifications, ingredients and other proprietary information relating to the Cloudy Products, sales figures, software passwords, customers, names and contact information, event format, presentation content, inventions, financial information, business plans, business processes, marketing plans, marketing strategies, marketing copy, financial projections, financial plans, personal information of employees and agents, sponsorship strategies, relationships with vendors, technical data, software designs, drawings, specifications, models, source code, object code, documentation, diagrams, flow charts, inventions, techniques, marketing, product, business and other future plans. For the avoidance of doubt, Confidential Information includes non-public information shared with you via email or other communications from Cloudy related to the Program. You agree to hold all Confidential Information in the strictest confidence and not to disclose the Confidential Information to any third party. You agree that Cloudy is (and will remain) the sole and exclusive owner of all right, title and interest in and to the Confidential Information, and all Cloudy Intellectual Property. You further agree that you will not, and will cause any of your employees other agents to not, use Cloudy’s Confidential Information for the benefit of anyone other than Cloudy. You agree not to use Cloudy’s Confidential Information for any purpose except in the performance of your obligations under these Terms. You acknowledge and agree that the disclosure of the Confidential Information to third parties or the unauthorized use of the Confidential Information or Cloudy’s Intellectual Property would cause substantial and irreparable harm and injury to Cloudy’s ongoing business for which there would be no adequate remedy at law. Accordingly, in the event of any breach or attempted or threatened breach of any of the terms of this Section, Cloudy shall be entitled to receive injunctive and other equitable relief, without limiting the applicability of any other remedies.
TERM AND TERMINATION
The term of these Terms shall begin upon your acceptance of these Terms and will end when terminated by either Party in writing (the “Term”). Your participation in the Program and these Terms may be terminated by Cloudy immediately at any time, with or without cause, upon Cloudy’s written notice to you; and by you upon thirty (30) days written notice by you to Cloudy. In the event of cancellation or termination by you for any reason or by Cloudy for a breach of the Terms by you, in addition to the termination rights hereunder, Cloudy shall be entitled to recover all costs (including attorney’s fees) in the enforcement of Cloudy’s rights hereunder and, if you have been paid in advance, Cloudy shall be entitled to a refund of any fees advanced to you; or, as applicable, you shall waive all rights you have hereunder, including but not limited to any rights to commissions otherwise earned prior to the applicable payment date. Cloudy may terminate these Terms and all other agreements between Cloudy and other BRAND INFLUENCERs if Cloudy elects to cease business operations, dissolve Cloudy or terminate its business. Upon the termination of these Terms, all limited licenses granted to you hereunder shall cease and you shall cease to hold yourself out as BRAND INFLUENCER of Cloudy.
The rights and obligations related to Intellectual Property Rights, Confidentiality, Indemnification, Limitation of Liability and Miscellaneous shall survive any cancellation or termination of these Terms.
In providing the Services to Cloudy, you acknowledge and agree that your relationship with Cloudy is that of an independent contractor and it is expressly understood and agreed that nothing in these Terms is intended to create, and does not create, any employee, partnership, agency, joint venture or similar relationship between yourself and Cloudy. You are solely responsible for all of you own income, social security, unemployment, sales, disability and any other applicable taxes
arising out of your performance of the Services under these Terms, as required by applicable laws and regulations. You understand and agree that Cloudy will not withhold or make payments or contributions on your behalf. You agree to indemnify and defend Cloudy against any and all such taxes or contributions. You are also responsible for all costs, liabilities and expenses you may incur in connection with performing the Services under these Terms.
INDEMNITY; LIMITATION OF LIABILITY
Indemnity. You agree to at all times defend, indemnify and hold harmless Cloudy (including, without limitation, its parent entities, all related and affiliated entities and their respective directors, officers, shareholders, employees, agents and representatives) from and against any and all claims of whatever nature, including without limitation: (i) any violation of any law, regulation, rule, administrative guideline, policy, code, order and ordinance committed by you or your agents; (ii) your negligence or willful misconduct and/or (iii) your participation in the Program, and/ or your breach of any obligation, representation or warranty set forth in the Terms. Your obligation to indemnify and defend Cloudy as set forth in this Section shall include reimbursement of any and all legal fees and related costs and expenses incurred by Cloudy in connection with any such claim.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Cloudy OR ITS REPRESENTATIVES OR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS) ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS REGARDLESS OF (I) WHETHER SUCH DAMAGES WERE FORESEEABLE, (II) WHETHER OR NOT INFLUENCER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE TERMS, IN NO EVENT SHALL Cloudy’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THE TERMS, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED 50% OF THE COMMISSIONS PAID TO INFLUENCER PURSUANT TO THE TERMS IN THE 1-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Disclaimer. Cloudy MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING Cloudy’S WEBSITE(S) OR ANY OTHER WEBSITES MAINTAINED AND OPERATED BY Cloudy OR THE PRODUCTS OR SERVICES PROVIDED THEREON OR OTHERWISE OFFERED BY Cloudy, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, Cloudy MAKES NO REPRESENTATION THAT THE OPERATION OF ANY Cloudy WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, AND Cloudy IS NOT LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
NO CLASS ACTIONS
To the extent allowed by law, you waive your right to pursue any claim or dispute on a class wide basis or to join your claim or dispute with any other person or entity or assert a claim in a representative capacity on bahlaf of any other party in any lawsuit, arbitration, or other proceeding.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF ALL DISPUTES AND CLAIMS, EXCEPT FOR CLAIMS CONCERNING THE UNAUTHORIZED RESALE, EXPORT, ALTERATION, AND/OR TAMPERING OF YOUR CLOUDY PRODUCTS, THROUGH BINDING ARBITRATION INSTEAD OF SUING IN COURT IN THE EVENT THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE OR CLAIM IN GOOD FAITH. ARBITRATION IS BINDING AND SUBJECT TO ONLY A VERY LIMITED REVIEW BY A COURT. THIS ARBITRATION CLAUSE SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
This provision is intended to encompass all disputes or claims arising out of Your relationship with Cloudy, arising out of or relating to the purchase of any products by You from Cloudy, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory. Notwithstanding, nothing contained in this arbitration provision shall preclude Cloudy from bringing claims concerning the unauthorized resale, export, alteration, and/or tampering of any product purchased by You, in state or federal court. All claims will be resolved by binding arbitration where permitted by law. The arbitration of any dispute or claim shall be conducted by one neutral arbitrator in accordance with the rules and regulations of American Arbitration Association (“AAA”).
You and Cloudy agree that the purchase of a product from Cloudy evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law. All issues are for the arbitrator to decide, including the scope of this arbitration clause, but the arbitrator is bound by the terms of this Agreement. Unless Cloudy and You otherwise agree in writing, the location of any arbitration shall be Los Angeles, California. Except where prohibited by law, Cloudy and You agree that no arbitrator has the authority to award punitive damages or any other damages not measured by the prevailing party’s actual damages. Any notice to be provided under this provision by You must be sent, by mail, to 3575 Long Beach Blvd, Long Beach, CA 90807
SMS/MMS Mobile message Marketing Program Terms and Conditions
User Opt In
The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Message frequency varies.
User Opt Out
If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
Duty to Notify and Indemnify
If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
MISCELLANEOUS; ADDITIONAL TERMS
These Terms constitute the entire agreement between the Parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.
In the event any provision, clause, sentence, phrase, or word hereof, or the application thereof in any circumstances, is held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder hereof, or of the application of any such provision, sentence, clause, phrase, or word in any other circumstances.
The waiver by either Party of a breach of any provision of these Terms by the other Party shall not operate or be construed as a waiver of any other or subsequent breach by the other Party.
Cloudy may modify these Terms at any time and its sole discretion. These modifications may include, but are not limited to, changes in the amount of compensation, rate of commission fees, fee schedules, payment procedures, etc. If any of the modifications are unacceptable to you, your only recourse is to terminate your relationship with Cloudy. If you continue providing Services following the posting of any modification or change to any of the Terms, it will be considered as your acceptance of the change.
You may not subcontract or otherwise assign, transfer or delegate any of your rights, duties or obligations under these Terms.
Cloudy may assign, transfer or delegate its rights, duties and obligations hereunder to any third- party acquirer of the business of Cloudy, and following such an assignment, transfer and delegation, Cloudy shall have no further duties or obligations hereunder.
The Terms shall be governed in accordance with the laws of California and subject to the exclusive jurisdiction of the courts of the judicial district of Los Angeles, California.
All claims, disputes, or causes of action under these Terms, must be brought in an individual capacity, and shall not be brought as a class member in any purported class or representative proceeding, nor joined or consolidated with the claims of any other person or entity.
Each Party agrees to do all such acts, matters and things and shall sign or execute and deliver all such documents as may in the reasonable opinion of the other Party be necessary or expedient to further and more effectually carry into effect the provisions of these Terms.