Terms of Service for Brands
Last modified: September 18, 2023
This is an agreement between you and Insense Ads, Inc. (“we,” “us,” “Insense” or “our”). By clicking on the button accepting these Terms of Service set forth below (as amended from time to time, the “Terms of Service”), by visiting our website, www.insense.pro (the “Website”), downloading and installing our mobile application(s) (the “App”), or by using the Platform (as defined below), you acknowledge that you are a user of the Platform for commercial purposes (“Client” or “Sponsor”), and in either instance you have the authority to enter this agreement and that you have read it, understand it and agree to be bound by its terms and conditions.
Insense provides an online marketplace (the “Platform”) for the production of advertising and advertising campaign management services (the “Services”) to help brands, advertisers and marketing agencies create and run a sponsored marketing campaign (a “Campaign”) by connecting and collaborating with social media celebrities, influencers and creators (“Creators”) to create content for marketing campaigns.
Subject to Client’s compliance with the terms and conditions of these Terms of Service (including signing up for an account and complying with the code of conduct set out below), Insense will make the Platform available to Client on the terms and conditions set out in these Terms of Service.
Suspension of Access; Modification
Insense may, from time to time and at Insense’ discretion without limiting any of Insense’ other rights or remedies at law or in equity under these Terms of Service: (i) suspend Client’s access to or use of the Platform; or (ii) make any modifications to the Platform.
Insense will provide Client with technical support for the Platform: (i) via email at firstname.lastname@example.org, Monday to Friday from 9:00 AM to 5:00 PM EST; and (ii) via Insense’ knowledge base and documentation available online at [https://intercom.help/Insense/en/]. Insense will use its commercial reasonable efforts to respond to all technical support requests from Client within 24 hours from the time the request is received.
Insense will use commercially reasonable efforts to achieve 99% Platform uptime and will use commercially reasonable efforts to provide notice at least 48 hours in advance for scheduled maintenance within normal business hours.
Campaign products. Sponsors may send products to Creators as part of sponsored campaigns. Sponsors, however, send such products at their own risk. Insense does not guarantee that products will be received by a Creator, nor does Insense guarantee that receiving a product will guarantee a Creator shall agree to produce Content for the Sponsor. Insense makes every reasonable effort to hold each Creator accountable to campaign commitments, but in the rare instance that a Creator has been sent product, but in the end does not create any Content for the Sponsor, Insense shall not be liable to the Client for the value of the product.
If a Sponsor sends a product to a Creator for use in connection with content creation for a Sponsor's campaign, and the Creator fails to deliver the content after the agreed upon deadline has passed and every effort has been made by Insense's managers to solicit the content from the Creator, then the Sponsor reserves the right to charge the Creator for the product by sending an invoice to the Creator's provided address.
Content Revision. Sponsor shall be entitled to up to three (3) revisions of the content produced by the Creator(s) for a Campaign (including by providing feedback on how the content should be adjusted), provided such revisions are within the scope of the original campaign brief. Sponsor shall not be entitled to request revisions which are outside the scope of the original campaign brief, without additional compensation to the Creator(s).
Account and Subscription Term
If Sponsor is an individual, Sponsor must be over the age of majority in Sponsor’s jurisdiction of residence who can form legally binding contracts to register for an account on the Platform (“Account”) and to be accepted by Insense as a member (“Member”) of the Platform. Sponsor is solely responsible for ensuring that the use of the Platform and Services in accordance with these Terms of Service in Sponsor’s jurisdiction of residence is permitted by law or regulation. If such use is not so permitted by applicable law, Insense prohibits all use and access to the Platform and Services. If Sponsor is a corporation, partnership, association or other business entity, Sponsor agrees that Sponsor has the authority to bind the corporation, partnership, association or other business entity to these Terms of Service.
The term of these Terms of Service will commence upon the Effective Date and will continue until Sponsor’s Account is closed either by Sponsor or by Insense at Insense’ sole discretion.
Sponsor agrees to provide current, complete and accurate information and to promptly update all account information to keep Sponsor’s Account current, complete and accurate. Sponsor may change or update Sponsor’s Account information at any time.
Sponsor is responsible for maintaining the confidentiality of Sponsor’s user ID and password and Insense strongly recommends that Sponsor does not disclose Sponsor’s user ID or password to anyone. Sponsor agrees to notify Insense if Sponsor becomes aware of a potential breach of security, such as unauthorized disclosure of Sponsor’s user ID and password. Sponsor may not transfer or sell Member’s Account to another party.
Account Termination by Insense
Insense may terminate, suspend, or otherwise restrict or prohibit access to the Platform and Services, remove hosted Member Content including but not limited to Sponsor’s Account, Campaigns, Work Product (as defined below) and Campaign Content (as defined below), and take technical and legal steps to prohibit Sponsor from using the Platform or Insense’s Services for any reason and without prior notice.
Account Closure by Member
Sponsor’s Account can only be closed once all obligations (including payment obligations) in association with the Account or Campaigns (as defined below) have been satisfied by Sponsor and Sponsor has provided written notice to email@example.com and received written confirmation from Insense. See Termination and Suspension for more details.
The Platform and Services related to initiating and running a Campaign may be offered on a subscription basis. The term of the Subscription (“Subscription Term”) will commence on the date Sponsor activates a Subscription through the Platform requiring the Subscription as a condition for the provision of the Services, as applicable, and will remain in effect for an initial term of 3 months (“Quarterly”) or 12 months (“Annual”), or as described under Sponsor’s Account.
Any Subscription that is on a trial basis shall automatically upgrade to a Quarterly one and Sponsor shall be charged a corresponding fee upon expiration of the trial Subscription.
Subscription Renewal and Conversion
The Subscription Term will automatically renew for the same term as the term of the Subscription at the same Subscription Fee described under Sponsor’s Account requiring the Subscription as a condition for the provision of the Services, as applicable, unless Sponsor provides advance written notice to Insense as follows:
(i) for Sponsors that are enterprise clients (and Sponsors with Campaigns that do not have a Subscription), upon 30 days’ notice to Insense; or
(ii) for Sponsors that are non-enterprise clients, upon 48 hours’ notice.
At the end of the Subscription Term, Sponsor may choose to have the Subscription: (i) automatically renew on a quarterly basis at the same Subscription Fee described under Sponsor’s Account requiring the Subscription as a condition for the provision of the Services, as applicable; or (ii) convert into an annual Subscription with then-available annual discount pricing offered by Insense.
Either Sponsor or Insense may terminate a Subscription (“Termination Date”) upon 48 hours’ advance written notice to Insense by email at firstname.lastname@example.org, taking effect either: (1) on the upcoming billing date, if notice of termination is provided 48 hours prior to the subscription renewal date; or (2) on the subsequent billing date, if notice of termination is provided later than 48 hours prior to the subscription renewal date. Any termination of a Subscription will automatically lead to termination of any Campaigns active under Sponsor’s Account or any applicable Campaign Brief, effective as of the Termination Date. In the event of any such termination, Sponsor will pay Insense all amounts due to Insense up through the Termination Date, including without limitation any applicable Subscription Fees (as defined below), Creator Fees (as defined below), actual approved costs, expenses and any fees incurred by Insense on Sponsor’s behalf prior to the Self-Serve Subscription Termination Date.
Member Conduct and Member Content
Sponsor must use Sponsor’s Account in a responsible manner and respect Members’ privacy. Sponsor will not access or use the Platform or Services to:
Insense allows Sponsor to interact in and publish information on the Platform (“Member Content”). Member Content includes any and all content produced by the Creator(s) for a Campaign (“Work Product”) as well as any Work Product approved by Sponsor (“Campaign Content”).
Compliance with Applicable Laws
Sponsor agrees to comply with any and all laws, rules, regulations and other legal requirements with respect to sponsored posts, including, if applicable, 16 CFR Part 255 – Guides Concerning the Use of Endorsements and Testimonials in Advertising and any other applicable laws and requirements published by the Federal Trade Commission.
The foregoing is provided for informational purposes only and does not constitute legal advice. It is Sponsor’s sole and exclusive obligation to consult Sponsor’s own professional legal advisors and ensure the compliance of all posts in the applicable jurisdiction(s).
To the extent a Sponsor submits Personal Information (as defined below) to Insense for processing, such Personal Information will be processed on behalf of Sponsor. Insense may process such Personal Information for the sole purpose of performing its obligations under these Terms of Service and any additional agreement and shall not use such Personal Information for any other purpose without the express written consent of Sponsor. Except as necessary to provide the Platform and perform the Services, required by applicable laws or approved and/or directed by Sponsor, Insense will not disclose, sell or use such Personal Information outside of Insense’s business relationship with Sponsor.
Grant of Rights and Ownership
Ownership of Platform
Any and all content, data, graphics, photographs, images, audio, video, software, trademarks, service marks, trade names, logos, trade dress, patents, copyrighted or copyrightable materials and other information (collectively, the “Content”) contained in or made available through the Platform and Services are proprietary to Insense, its affiliates and/or third party licensors. The Content is protected by international copyright and trademark laws and is the confidential information of Insense.
Sponsor may download, print and reproduce the Content for Sponsor’s purposes related to receipt of the Services during the term of these Terms of Service. Any other use of the Content in whole or in part, including but not limited to adapting, displaying, distributing, publishing, storing in a retrieval system, transmitting, converting, copying or issuing copies, lending or reproducing the Content in any other form or by any other means whatsoever, whether electronic or otherwise, and including making the same available to or via the internet or wireless technology or authorizing any of the foregoing without the prior written consent of Insense, is strictly prohibited. To obtain written consent for such use, please contact Insense at email@example.com. Sponsor agrees that any use of the Content by Sponsor authorized by Insense and the goodwill associated with such use will inure to Insense’s benefit. Sponsor agrees and acknowledges that it will not acquire any interest in the Content or the goodwill associated with the Content by virtue of these Terms of Service or Sponsor’s use of the Content.
License to Materials Used to Create Campaign Content
Sponsor hereby grants a non-exclusive, fully-paid up, royalty-free, perpetual, sublicensable worldwide license and irrevocable right for Insense to create, and to collaborate and permit Creator to create, Campaign Content using any intellectual property described in a Campaign Brief entered into by Sponsor.
Ownership of Campaign Content
All right, title and interest, including without limitation, all intellectual property rights in, and to any Campaign Content, including all photographs, images, videos, audio, works of art, original writing, drawings, derivatives, compositions, creations and inventions developed by Creator will be owned exclusively by Creator, unless otherwise agreed to with Insense pursuant to a Campaign Brief.
Limited Rights Granted to Sponsor
Notwithstanding the foregoing and subject to having received from Sponsor all payments required hereunder (including under any Campaign Brief), Insense will grant a non-exclusive, royalty-free, worldwide, perpetual, sub-licenseable, irrevocable right to use or sub-license the Campaign Content for the sole purpose of posting the content on digital marketing channels, including, without limitation, any and all social media channels that Sponsor, or its client(s), own or control and for which Sponsor has not received any compensation or other incentive to post (i.e., an ad) (“Digital Rights”). Sponsor does not have any right to use Campaign Content for any other purpose. For greater certainty, Sponsor does not have any right to use any Work Product that does not form part of Campaign Content. In addition to the Digital Rights referred to above, Sponsor can request non-exclusive, royalty-free, worldwide rights to use the Campaign Content on broadcasting channels (“Broadcasting Rights”) or non-digital marketing channels (“Offline Rights”), which are detailed in the respective Campaign Brief and purchased from the Creator(s) through Insense. Upon request, extended licenses to use Campaign Content for other purposes, or an assignment of all of the Creator’s rights, title and interest in Campaign Content, can be purchased from the Creator(s) through Insense (collectively, the “Extended Rights”).
Rights Granted to Insense
Sponsor hereby grants Insense a non-exclusive, royalty-free, perpetual, and irrevocable right to use, reproduce, and communicate the name and trademark of Sponsor’s company or organization (“Marks”) as a Member of Insense’s Platform or Services in any media whatsoever, including in Insense’s marketing materials during and after the term of these Terms of Service. Insense agrees that it will not acquire any interest in the Marks and the goodwill associated with Insense’s use of the Marks will inure to Sponsor’s benefit.
Copyright Policy (U.S. Members)
Insense respects copyright law and the intellectual property rights of others, and Insense expects Insense’s Members to do the same. Insense will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to Insense. In appropriate circumstances, Insense will terminate the accounts of Members who are repeated copyright infringers.
Changes to the Fees
Insense reserves the right to change Subscription Fees or other applicable fees as may be described under Sponsor’s Account or any applicable Campaign Brief and institute new charges upon reasonable notice to Sponsor.
Disputed Invoices or Charges
If Sponsor believes Insense has charged or invoiced Sponsor incorrectly, Sponsor must contact Insense no later than 30 days after having been charged by Insense or receiving such invoice in which the error or problem first appeared in order to request an adjustment or credit. In the event of a dispute, Sponsor will pay any undisputed amounts in accordance with the payment terms herein, and Sponsor agrees to discuss the disputed amounts with Insense in good faith in order to resolve the dispute as set out in these Terms of Service.
Sponsor may not withhold or setoff any amounts due under these Terms of Service. Insense reserves the right to suspend Sponsor’s access to the Platform and any delivery of the Services until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of two percent (2%) compounded monthly (26.82% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
Any permitted suspension of the Platform or Services by Insense pursuant to the terms of these Terms of Service will not excuse Sponsor from Sponsor’s obligation to make payments under these Terms of Service.
Currency and Processing Fees
All amounts on the Platform are listed in U.S. dollars. Insense is not responsible for changes in currency exchange rates or any processing fees charged by Insense’s or Sponsor’s payment processors.
Sponsor agrees that Sponsor will not take any action to circumvent any payment for the Platform or the Service to Insense or otherwise avoid Subscription Fees, Creator Fees and any other applicable fees.
Sponsor and Insense will maintain the confidentiality of all confidential information disclosed by each party to the other, including details in connection with or as a result of entering into these Terms of Service or any Campaign Brief, as applicable, including, without limitation, information concerning the other party’s past, present or future customers, suppliers, technology or business, marketing and consumer research, market potential information, consumer data, clinical data, formulas, product applications, potential consumer use information, operating plans, financial data, business and/or marketing plans, forecasts, designs, prototypes, concepts, trade secrets, software, know-how, formulae, and product specifications, as well as all data compilations, analyses, conversations, discussions, descriptions and expressions of opinions (“Confidential Information”). Confidential Information will not, however, include any information which: (i) was publicly known and made generally available in the public domain prior to the time of disclosure to the other party, (ii) becomes publicly known and made generally available to the public through no action or inaction of the other party, (iii) is obtained by the other party from a third party without a breach of such third party’s obligations of confidentiality, or (iv) is independently developed by the other party without use of or reference to the Confidential Information, as shown by competent evidence in the other party’s possession.
Sponsor and Insense agree that during and at all times thereafter they will not, except to exercise their rights or perform their obligations under these Terms of Service: (i) disclose Confidential Information of the other party to any person, except to their own personnel or affiliates that have a “need to know” and that have entered into written agreements no less protective of such Confidential Information than these Terms of Service, and to such other recipients as the other party may approve in writing, (ii) use Confidential Information of the other party, or (iii) alter or remove from any Confidential Information of the other party any proprietary legend. Sponsor and Insense will take industry standard precautions to safeguard Confidential Information, which will in any event be at least as stringent as the precautions that each party takes to protect its own Confidential Information of a similar type.
Notwithstanding anything to the contrary herein, Sponsor or Insense may disclose the other party’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the party required to disclose promptly notifies the other party in writing of such required disclosure and cooperates with the other party to seek an appropriate protective order, (ii) to Sponsor or Insense’s legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with Sponsor or Insense’s business, or (iii) to potential assignees, acquirers or successors of Sponsor or Insense if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Sponsor or Insense.
Sponsor represents and warrants that: (i) Sponsor has the authority and right to enter into these Terms of Service and any Campaign Brief and has obtained all rights and waivers necessary to grant the rights, titles and interests granted thereunder; and (ii) Sponsor will comply with all applicable laws, by-laws, rules, regulations and guidelines, including requirements and standards related to advertising and marketing, competition, consumer protection and privacy.
THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES AND THE EXCLUSION OR LIMITATION OF REPRESENTATIONS MADE CONCERNING INSENSE’ GOODS OR SERVICES. IF THESE LAWS APPLY TO SPONSOR, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO SPONSOR AND SPONSOR MAY HAVE ADDITIONAL RIGHTS.
SPONSOR’S USE OF THE PLATFORM AND THE SERVICES IS ENTIRELY AT SPONSOR’S OWN RISK. INSENSE DOES NOT CONTROL THE CONTENT OF POSTINGS BY ITS MEMBERS. THE PLATFORM, INCLUDING THE CONTENT AND SERVICES PROVIDED HEREIN, IS BEING PROVIDED ON AN “AS IS” AND “WHERE IS” BASIS AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
INSENSE HAS NO CONTROL OVER AND DOES NOT GUARANTEE THE TRUTH OR ACCURACY OF ANY CAMPAIGN DESCRIPTIONS CONTAINED IN THE PLATFORM, A CAMPAIGN BRIEF, OR THE ABILITY OF CREATOR TO COMPLETE THE CAMPAIGN TO THE SATISFACTION OF SPONSOR.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INSENSE AND ITS AFFILIATES AND ANY OF THEIR OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY REGARDING THE PLATFORM, THE SERVICES, THE CAMPAIGNS, AND RELATED MATERIALS, INCLUDING ANY WARRANTY AND CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY AND NON-INTERFERENCE OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION. INSENSE AND ITS AFFILIATES AND ANY OF THEIR OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS DO NOT WARRANT THE ACCURACY, RELIABILITY, COMPLETENESS, USEFULNESS OR QUALITY OF THE PLATFORM, THE SERVICES, OR THE POSTINGS OF ANY MEMBERS, INCLUDING CONTENT POSTED ON OR LINKED FROM THE PLATFORM OR THE SERVICES. INSENSE AND ITS AFFILIATES AND ANY OF THEIR OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS DO NOT WARRANT THAT THE PLATFORM IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION OR THAT THE PLATFORM AND SERVICES WILL MEET SPONSOR’S REQUIREMENTS. SPONSOR ASSUMES ALL RISKS ASSOCIATED WITH USING OR RELYING ON THE PLATFORM AND SERVICES, INCLUDING ANY LISTINGS BY MEMBERS.
Limitation of Liabilities
THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW CERTAIN EXCLUSIONS OR LIMITATIONS OF LIABILITY OR CERTAIN DAMAGES. IF THESE LAWS APPLY TO SPONSOR, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO SPONSOR, AND SPONSOR MIGHT HAVE ADDITIONAL RIGHTS.
TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, THE ENTIRE CUMULATIVE LIABILITY OF INSENSE AND ITS AFFILIATES, AND ANY OF THEIR OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS, AND SPONSOR’S EXCLUSIVE REMEDY, FOR ALL MATTERS OR CLAIMS ARISING FROM OR RELATING TO THE PLATFORM AND THE SERVICES WILL BE LIMITED TO THE FEES PAID BY SPONSOR, IF APPLICABLE, FOR THE PLATFORM AND SERVICES IN THE PRECEDING SIX MONTHS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INSENSE AND ITS AFFILIATES AND ANY OF THEIR OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL PUNITIVE, CONSEQUENTIAL DAMAGES, DAMAGES ON ACCOUNT OF LOSS OF PROFITS, OR OTHER DAMAGES ARISING OUT OF OR RELATING TO A COMPLETED OR NON-COMPLETED CAMPAIGN OR OTHER TRANSACTION BETWEEN MEMBERS OR ANY MISREPRESENTATION BY A MEMBER, INCLUDING WITH RESPECT TO A CAMPAIGN OR THE SUBJECT OF ANY TRANSACTION WITH A MEMBER. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY IRRESPECTIVE OF WHETHER THE ALLEGED LIABILITY IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF INSENSE OR ITS AFFILIATES OR ANY OF THEIR OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Insense agrees to indemnify and hold harmless Sponsor, its affiliates, officers, employees, and agents (each, a “Sponsor Indemnitee”) from and against any and all losses, expenses, damages, claims, fines, penalties, costs and liabilities (including all legal and accounting fees), arising from or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an affiliate of a Sponsor Indemnitee) that arise from or relate to any allegation that Insense’s Platform or Services infringe any third-party intellectual property right. The foregoing obligation does not apply to any Action or losses arising out of or relating to any: (i) incorporation of Insense’s Platform or Services into, or any combination, operation, or use of Insense’s Platform or Services with, any products or services not provided or authorized by Insense, unless such infringement would also have resulted solely from the use of Insense’s Platform or Services without their incorporation in, or combination, operation or use, with such other products or services, (ii) modification of Insense’s Platform or Services other than by Insense or with Insense’s express written approval, or (iii) unauthorized use of Insense’s Platform or Services.
Sponsor agrees to indemnify and hold harmless Insense, its affiliates, officers, employees, and agents from and against any and all losses, expenses, damages, claims, fines, penalties, costs and liabilities (including all legal and accounting fees), arising from or relating to: (i) Sponsor’s use of the Platform and Services, including any obligations to pay in association with a Subscription, Campaign Brief, or other agreement, (ii) any representation or misrepresentation by Sponsor in any content that Sponsor (or anyone acting in Sponsor’s Account which Sponsor owns) submits, posts, transmits or makes available on the Platform or through the Services, including with respect to information in Sponsor’s Member profile or Campaign, (iii) Sponsor’s completion or failure to complete a Campaign with another Member, (iv) any liability arising from the tax treatment of payments or any portion of such payments, (v) Sponsor’s dispute of or failure to pay any amounts owing in association with a Subscription, Campaign Brief, or other agreement, (vi) Sponsor’s liability arising from violation of any law, including intellectual property laws, and (vii) any violation by Sponsor of these Terms of Service.
Sponsor agrees that, at Insense’s option, Sponsor will conduct the defense of any such claim or action; provided that, notwithstanding Insense’s election that Sponsor conduct the defense, (i) Insense may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) Sponsor will not enter into any settlement or other compromise without the prior written approval of Insense (which approval will not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
Equitable or Implied Indemnification
No person or entity will be entitled to any form of equitable or implied indemnification at any time, except as provided by these Terms of Service.
Definitions and Capitalized Terms
All capitalized terms not defined herein will have the meanings set forth in the Campaign Brief, as applicable.
These Terms of Service are governed by the laws of the State of New York applicable therein without regard to the principles of conflict of laws.
Notices to Sponsor may be made via email or regular mail, or in cases of changes to these Terms of Service or to the Services offered through the Platform, by posting notices or links to such notices, or by posting an updated version of these Terms of Service on the Platform itself.
Changes to Terms of Service
Insense reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Platform and Services (or any part thereof) with or without notice. Insense reserves the right to change these Terms of Service at any time and from time to time. Any new features that may be added to the Platform or Services from time to time will be subject to these Terms of Service, unless stated otherwise. Sponsor is responsible for regularly reviewing these Terms of Service, including, without limitation, by checking the date of “Last Update” at the top of this document. Insense may also, at Insense’s option, choose to notify Sponsor of such changes by e-mail or other means. If the modified Terms of Service are not acceptable to Sponsor, Sponsor’s only recourse is to stop using the Platform and Services. Sponsor’s continued access to and use of the Platform or Services will constitute the Effective Date to such updated Terms of Service.
Neither party will have any liability for any failure or delay resulting from any event beyond the reasonable control of that party including, without limitation, fire, flood, storms, insurrection, war, terrorism, earthquake, power failure, civil unrest, explosion, embargo, or strike.
In the event of a conflict between a Campaign Brief, as applicable, and the terms and conditions in these Terms of Service, the terms and conditions in the applicable Campaign Brief will govern.
Any controversy, claim or dispute arising out of, relating to, or in respect of these Terms of Service, including their negotiation, validity, existence, breach, termination, construction or application, or the rights, duties or obligations of any party, or the rights, duties or obligations of any party derived from or associated with these Terms of Service (a “Dispute”), will be handled according to the provisions set out below.
Insense is available by email to address any concerns Sponsor may have regarding Sponsor’s use of the Platform. Most concerns may be quickly resolved in this manner. If Campaign Content is not posted within the terms of the Campaign or is deemed to not be consistent with Campaign Content agreed to by Sponsor, Sponsor can contact Insense via email at firstname.lastname@example.org to submit a dispute. Insense reserves the right, in Insense’s sole discretion, to return any fees paid for the Campaign, less any applicable service fees and taxes, to Sponsor. Sponsor and Insense will use best efforts to settle any Dispute directly through consultation and good faith negotiations, which will be a precondition to either party initiating a lawsuit or arbitration.
If Sponsor and Insense do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution is pursued pursuant to the “Initial Dispute Resolution” section above then the Dispute will be referred to and determined by a single arbitrator in a final and binding arbitration administered under the rules of American Arbitration Association (“AAA”). If Sponsor and Insense have not agreed upon the arbitrator within 14 days, Sponsor and Insense will ask the AAA to appoint a single arbitrator. The seat of the arbitration will be the same as the provincial or territorial law governing these Terms of Service. The arbitration will be heard in the capital of the seat, unless Sponsor and Insense agree otherwise. The costs and expenses of the arbitrator will be shared equally between Sponsor and Insense. Sponsor and Insense have no right of appeal from any award of the Arbitrator, whether characterized as final, interim, interlocutory or partial. All Disputes referred to arbitration (including the scope of these Terms of Service to arbitrate, the law relating to the enforcement of these Terms of Service to arbitrate, any relevant limitation periods, the law governing the procedure of the arbitration, the law relating to available remedies, set-off claims and conflict of laws rules) will be governed by the law of the seat, and Sponsor and Insense hereby irrevocably consent to venue in the capital of the seat, and to the jurisdiction of competent courts in the capital of the seat for all litigation that may be brought, subject to the requirements for arbitration hereunder, with respect to the terms of, and the transactions and relationships contemplated by, these Terms of Service. Notwithstanding this provision, Sponsor or Insense may take such steps as are permitted or required to enforce an award made by an arbitrator. The existence of the arbitration and any element of the arbitration, including any award, will be confidential. The deemed undertaking rule will apply. No document or other evidence or information prepared for or produced by or on behalf of Sponsor or Insense will be disclosed to any non-party to the arbitration. Sponsor agrees that Sponsor will not contest venue, and Sponsor waives any rights that Sponsor may have to initiate, transfer, or change the venue of any litigation arising from or related to these Terms of Service.
Sponsor and Insense further agree that any lawsuit or arbitration will be conducted in their individual capacities only and not as a class action or other representative action, and Sponsor and Insense expressly waive the right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above will be deemed null and void in its entirety and Sponsor and Insense will be deemed to have not agreed to arbitrate disputes.
Notwithstanding Sponsor and Insense’s decision to resolve all disputes through arbitration, Sponsor or Insense may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice:
The name, and address of the provider of the Platform is:
Insense Ads, Inc.
31 West 34th Street, Suite 8189, New York, NY, 10001
Complaints regarding the Platform or requests to receive further information regarding use of the Platform may be sent to the above address or to email@example.com.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210. Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.
Insense may engage third parties to provide the Platform and Services.
Relationship with Insense
No agency, fiduciary, partnership, joint venture, employee/employer, franchisor-franchisee is intended or created by Sponsor’s use of Insense’s Platform or Services.
These Terms of Service will represent the entire agreement between Sponsor and Insense and cannot be overridden by terms contained in any later received document, unless the additional terms are accepted in writing by both Sponsor and Insense.