Terms of Service

For Brands
For Creators

Contents

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Terms of Service for Creators

Last modified: September 19, 2023

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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 (“Creator”), 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.

These Terms of Service” apply to you if you are a Creator that uses the Platform. If you are a Sponsor (as defined below), these Terms of Service do not apply to you and you should review our Terms of Service for Clients at https://insense.pro/terms-of-service.

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Platform

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Services

Insense provides a proprietary platform (“Platform”) and campaign management services (“Services”) to help social media celebrities, influencers and creators (i.e. Creators) connect and collaborate with brands, advertisers and marketing agencies (“Sponsor” or “Client”) to create content for sponsored marketing campaigns (each, a “Campaign”).

Collaboration on Campaigns

Creator may use the Platform and Services to submit details regarding the fees that Creator may charge to create content (“Creator Fees”), the services Creator provides with respect to collaborations with Sponsors and details regarding Creator’s social media accounts, location and demographics, in addition to other details required by Insense. 

If a Sponsor is interested in collaborating with Creator on a Campaign, Insense may ask Creator to participate in the Campaign via the Platform or email (at the email address provided when you creating an account) or and may deliver a campaign brief outlining Sponsor’s requirements for the Campaign (“Campaign Brief”). In the Campaign Brief, Creator may be informed about the budget, design and creative, target audience and duration of the Campaign. 

If Creator agrees to participate in the Campaign, Insense may provide Sponsor with notice of Creator’s acceptance via the Platform. 

Work Product

  1. Insense will coordinate the development of the content produced by Creator for a Campaign (“Work Product”).
  2. Sponsor will have an opportunity to review and approve all Work Product, with up to 3 round of revisions included in the Creator Fees and any further rounds of revisions subject to additional fees.
  3. Creator will only post Work Product approved by Sponsor (“Campaign Content”) on social media.

Campaign Launches; Communications; Changes

  1. Insense will help to facilitate the launch of each Campaign and the posting of Campaign Content on the specified social media platforms in accordance with Sponsor’s requirements for the applicable Campaign. Collaboration and communication between Creator and Sponsor related to a Campaign may occur through a designated Insense account manager (“Account Manager”).

Additional Terms

  1. All Campaign Content and posting of Campaign Content on social media will be subject at all times to Insense’s approval, direction and control and Creator will abide by all reasonable instructions, directions and recommendations given from time to time by Insense and the Account Manager.
  2. Insense retains the right to reasonably hold-back and adjust Creator Fees where Creator does not provide the Campaign Content to the reasonable satisfaction of Sponsor.
  3. If a Sponsor shall send a product to a Creator for use in connection with creation of Campaign Content for a Campaign, and the Creator shall fail to deliver the Campaign Content after the agreed upon deadline has passed and every effort has been made by Insense’s to solicit the Campaign Content from the Creator, then the Sponsor reserves the right to charge the Creator for the product by sending an invoice to the Creator. The Creator is responsible for the return of the product to the Sponsor or payment for the value of the product if they fail to complete the Campaign.
  4. The Creator shall keep all communication with a Sponsor related to a Campaign within and on the Platform. Insense shall not be responsible or liable for any agreements resulting from discussions between a Sponsor and a Creator held outside of the Platform.

Access

Subject to Creator’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 Creator 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 Creator’s access to or use of the Platform; or (ii) make any modifications to the Platform.

Technical Support

Insense will provide Creator with technical support for the Platform: (i) via email at help@insense.pro, 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/; and (iii) via native Platform chat messenger. Insense will use its commercial reasonable efforts to respond to all technical support requests from Creator within 24 hours from the time the request is received.

Service Levels 

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 maintenances within normal business hours.

Account and Subscription Term

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Eligibility 

If Creator is an individual, Creator 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. Creator is solely responsible for ensuring that the use of the Platform and Services in accordance with these Terms of Service in Creator’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 Creator is a corporation, partnership, association or other business entity, Creator agrees that Creator has the authority to bind the corporation, partnership, association or other business entity to these Terms of Service.

Account Term

The term of these Terms of Service will commence upon the Effective Date and will continue until Creator’s Account is closed either by Creator or by Insense at Insense’ sole discretion.

Account Information

Upon registering for an Account, Creator may decide to or be required to integrate Creator’s Account with a third-party social media account (e.g., Instagram). In connection with such integration, Creator authorizes Insense to obtain certain information about Creator from Creator’s social media account, including certain personal information, such as Creator’s name, profile information, profile picture, social media account metrics, number of followers and any information that Creator may make publicly available on or through the social media account (“Social Media Information”). Insense may include some or all of this Social Media Information in Creator’s Account, and this information may be visible to other Members or visitors to the Platform. Creator agrees to provide current, complete and accurate information and to promptly update all account information to keep Creator’s account current, complete and accurate. Creator may change or update Creator’s account information at any time.

Account Confidentiality

Creator is responsible for maintaining the confidentiality of Creator’s user ID and password and Insense strongly recommends that Creator does not disclose Creator’s user ID or password to anyone. Creator agrees to notify Insense if Creator becomes aware of a potential breach of security, such as unauthorized disclosure of Creator’s user ID and password. Creator 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, Creator’s Account, Campaigns, Work Product and Campaign Content, and take technical and legal steps to prohibit Creator from using the Platform or the Services for any reason and without prior notice.

Account Closure by Member

Creator’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 Creator and Creator has provided written notice to help@insense.pro or native Platform chat messenger and received written confirmation from Insense. See Termination for more details.

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Member Conduct and Member Content

Member Conduct

Creator must use Creator’s Account in a responsible manner and respect Members’ privacy. Creator will not access or use the Platform or Services to:‍

  1. sub-license, sell, rent, lend, lease or distribute the Platform or any intellectual property rights therein, or otherwise make the Platform available to any third parties;
  2. permit timesharing, service bureau use or commercial exploitation of the Services;
  3. violate any applicable law or intellectual property right;
  4. threaten the security or functionality of the Platform;
  5. create, collect, transmit, store, use or process any data:
    1. that Sponsor does not have the lawful right to create, collect, transmit, store, use or process;
    2. that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property rights or other rights of any third party (including any moral right, privacy right or right of publicity); or
    3. that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
  6. attempt to reverse engineer, decompile or disassemble the Platform;
  7. access or use the Platform for the purpose of building a similar or competitive product or service;
  8. upload, post or otherwise make available any material that contains viruses, malware or other malicious software;
  9. perform any vulnerability, penetration or similar testing of the Platform;
  10. promote or engage in any unlawful or illegal activities or internet abuse, including unsolicited advertising and spam;
  11. promote, upload, post, or otherwise make available any material that is abusive, harassing, obscene, vulgar, hateful, sexually explicit, invasive of another’s privacy, defamatory or otherwise objectionable or illegal, or that discriminates based on race, gender, religion,nationality, disability, sexual orientation, age, family status or any other legally protected class;
  12. engage in any activity that may reasonably injure or adversely reflect on the name, goodwill or reputation of Insense or Client;
  13. make any false representation, including creation of a false identity, impersonation of any person or entity or misrepresentation of Creator’s affiliation with any person or entity; or
  14. track, trace, harvest, or otherwise collect or store any information, including personal information, on any Account or any other Member of the Platform, without the express consent of such Member(s).

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Member Content

Insense allows Creator to interact in and publish information on the Platform (“Member Content”). Member Content includes any and all Work Product or Campaign Content. 

  1. Creator agrees and understands that any Member Content that Creator posts, provides or accepts may be viewed by the general public and will not be treated as private, proprietary or confidential.
  2. Creator is solely responsible for the Member Content that Creator makes available through the Platform and Creator will ensure that (A) Creator owns or has all necessary rights to use the Member Content; (B) the provision of the Member Content will not infringe or violate any patent, copyright, trade-mark, or other intellectual property right, or any right of privacy or publicity of any third party; and (C) the Member Content does not violate any applicable law or regulation.
  3. While participating in a Campaign, Creator will not promote or endorse any ware, service or brand that directly competes with the ware, service or brand being promoted in the Campaign.
  4. While Creators maintain editorial control over Campaign Content, Creator agrees to adhere to the following professional standards, in addition to the requirements set out under the “Member Conduct” section above, when approving Campaign Content:
    1. Campaign Content must not contain material that violates or infringes another’s rights, including but not limited to privacy, publicity or intellectual property rights, or that constitutes copyright infringement, or that is unlawful, in violation of or contrary to any applicable law or regulations;
    2. Campaign Content must comply with applicable laws as well as with any applicable and mutually agreed-upon guidelines relating to a Campaign;
    3. Campaign Content must not directly or indirectly disparage any party or person affiliated with a Campaign;
    4. Campaign Content must not contain material that is inappropriate, indecent, obscene hateful, tortious, defamatory, slanderous or libelous, threatening, indecent, violent, offensive, refers to dangerous, unlawful or illegal acts, promotes a political agenda or contains any criminal or civil liability;
    5. Campaign Content must not contain material that promotes bigotry, racism, hatred or harm against any group or individual or promotes discrimination based on race, gender, religion or religious beliefs, nationality, disability, sexual orientation or age;
    6. Creator must provide appropriate notice and obtain all necessary consents from any individuals depicted in the photographs submitted as Work Product and Campaign Content for the purposes of reproducing such photographs in connection with the Work Product and Campaign Content, as outlined in these Terms of Service; and
    7. Creator will not assign any other person to create Campaign Content or perform Creator’s obligations hereunder.

  5. Insense reserves the right to delete Campaign Content and Member Content that Insense, at Insense’s sole discretion, deems to be in violation of the law (including trademark and copyright law), to be in violation of these Terms of Service, or to be abusive, defamatory, obscene or otherwise unacceptable.
  6. Insense does not guarantee that it will pre-screen Campaign Content or Member Content. Insense does not guarantee that the Platform will be free from Campaign Content or Member Content that is inaccurate, deceptive, offensive, threatening, defamatory, unlawful or otherwise objectionable. Even in the event that Insense chooses to monitor any Campaign Content or Member Content, Insense assumes no responsibility for, or any obligation to monitor or remove, such Campaign Content or Member Content. Insense reserves the right to edit, remove, or refuse to post any Campaign Content or Member Content or terminate Creator’s Account for any reason.
  7. If Creator is required to post Campaign Content to social media channels as part of a Campaign, Creator will not delete any Campaign Content that Creator has posted on a social media channel for at least 30 days from the date that the Campaign Content was posted, subject to the terms and conditions of a Collaboration Agreement, or unless otherwise instructed pursuant to these Terms of Service.

Compliance with Applicable Laws

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In certain jurisdictions, the law requires Creator to identify when posts are paid for, or other compensation is given, by a Sponsor (which compensation may include payments in cash, free or discounted products, trips, meals, or other incentives), and also when Creator has any other material connection to a Sponsor (for example, a partnership or other interest in Sponsor’s company). 

Creator 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). 

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.

Creator 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 help@insense.pro. Creator agrees that any use of the Content by Creator authorized by Insense and the goodwill associated with such use will inure to Insense’s benefit. Creator 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 Creator’s use of the Content.

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.

License to Campaign Content

  1. Notwithstanding the foregoing and subject to having performed its obligations required hereunder, Creator will grant to Insense, for sub-licensing 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”). Insense cannot sub-license Social Rights to Sponsor 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.
  2. 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.
  3. 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”).
  4. Without limiting the generality of anything in these Terms of Service, Creator hereby grants to Insense and its affiliates, a non-exclusive, royalty-free, worldwide, unrestricted, irrevocable and unlimited right and permission, but not the obligation, to utilize, distribute, publish, exhibit, digitize, broadcast, display, reproduce, prepare derivative works of, and otherwise exploit Campaign Content as it appears when posted, in any and all manner and media throughout the world and in perpetuity for uses deemed by Insense or its affiliates in their sole discretion to be reasonable and prudent uses for the purpose of furthering its valid business objectives. Creator also hereby waives all moral rights in the Campaign Content. For greater certainty, this includes including the Campaign Content in a portfolio of work to market Insense’s Platform and Services. Creator understands that any such content may be edited in the sole discretion of Insense.
  5. Creator further grants Insense an exclusive, royalty-free, fully-paid up, worldwide right to amplify or license any Campaign Content on any platform or service during and, subject to Creator’s consent.

Rights Granted to Insense

Creator hereby grants Insense a non-exclusive, royalty-free, perpetual, and irrevocable right to use, reproduce, and communicate the name and trademark of Creator’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 Creator’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.

  1. Insense reserves the right to remove Member Content alleged to be infringing without prior notice, at Insense’s sole discretion.
  2. If Creator believes that any of Creator’s Member Content was subsequently removed from the Platform, or to which access was disabled, or was improperly removed or disabled, please provide the following Counter-Notification to Insense’s Copyright Agent (see 17 U.S.C. Section 512(g) for further detail):
    1. Creator’s physical or electronic signature;
    2. a description of the materials that have been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
    3. a statement, under penalty of perjury, that Creator has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
    4. Creator’s name, address and telephone number, and a statement of Creator’s consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, and that Creator will accept service of process from the person who provided notification of the alleged infringement.
  3. See 17 U.S.C. Section 512(c)(3) for further detail about the Digital Millennium Copyright Act. Insense’s designated copyright agent for notice of alleged copyright infringement is:

    Copyright Agent:

    Insense Ads, Inc
    31 West 34th Street, Suite 8189, New York, NY, 10001
    E-mail: hello@insense.pro

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Privacy

Creator understands that information about an identifiable individual or information that is subject to applicable privacy or data protection laws (“Personal Information”) will be treated in accordance with Insense’s privacy policy located at https://insense.pro/privacy-policy. 

Confidentiality

Creator will maintain the confidentiality of all Confidential Information disclosed to Creator. “Confidential Information” shall include, but not be limited to, business and marketing plans, technology and technical information, product plans and designs, customers, pricing, anything identified as confidential or communicated to the Creator as confidential, business or operational processes disclosed to the Creator, or any of the foregoing that the Creator becomes aware of as a result of participating in a campaign. Creator will take all necessary precautions against unauthorized disclosure of the Confidential Information. Creator will not directly or indirectly disclose, allow access to, transmit or transfer any Confidential Information to any third party without the prior written consent of Insense. Upon request of Insense, and in any event upon the termination or expiration of a Campaign, Creator will immediately return to Insense all materials, including Work Product and Campaign Content containing any Confidential Information which are in Creator’s possession or under Creator’s control.

Warranties

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Creator represents and warrants that: (i) Creator has the authority and right to enter into these Terms of Service and has obtained all rights and waivers necessary to grant the rights, titles and interests granted thereunder; and (ii) Creator 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.

Disclaimer

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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 CREATOR, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO SPONSOR AND SPONSOR MAY HAVE ADDITIONAL RIGHTS.

CREATOR’S USE OF THE PLATFORM AND THE SERVICES IS ENTIRELY AT CREATOR’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 CREATOR’S REQUIREMENTS. CREATOR ASSUMES ALL RISKS ASSOCIATED WITH USING OR RELYING ON THE PLATFORM AND SERVICES, INCLUDING ANY LISTINGS BY MEMBERS.

Limitation of Liabilities 

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THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW CERTAIN EXCLUSIONS OR LIMITATIONS OF LIABILITY OR CERTAIN DAMAGES. IF THESE LAWS APPLY TO CREATOR, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO CREATOR, AND CREATOR 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 CREATOR’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 TO CREATOR, IF APPLICABLE, FOR THE PLATFORM AND SERVICES IN THE PRECEDING 6 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.

Indemnity

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Creator 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: (a) Creator’s use of the Platform and Services, (b) any representation or misrepresentation by Creator in any content that Creator (or anyone acting in Creator’s Account which Creator owns) submits, posts, transmits or makes available on the Platform or through the Services, including with respect to information in Creator’s Member profile or Campaign, (c) Creator’s completion or failure to complete a Campaign with another Member, (d) any liability arising from the tax treatment of payments or any portion of such payments, (e) Creator’s dispute of any amounts owing, (f) Creator’s liability arising from violation of any law, including intellectual property laws, (g) any violation by Creator of these Terms of Service, and (h) Creator’s negligence or willful misconduct.

Creator agrees that, at Insense’s option, Creator will conduct the defense of any such claim or action; provided that, notwithstanding Insense’s election that Creator conduct the defense, (a) Insense may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (b) Creator 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.

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.

Termination

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Account Closure 

To close Creator’s Account, Creator must provide written notice to Insense by sending an email to help@insense.pro or via native Platform chat messenger. Accounts will be closed following 30 days’ notice with express written confirmation from Insense provided that (i) all Campaigns associated with Creator’s Account have been satisfactorily completed; (ii) any disputes in which Creator has been involved have been satisfactorily settled; (iii) any payments owing by Creator have been paid; (iv) there are no outstanding funds associated with the Account; and (v) Creator has completed any other obligation associated with Creator’s use of the Services. Following Creator’s Account closure, Creator will still be bound by all provisions of these Terms of Service.

Once Creator’s Account is terminated, Creator will no longer have access to any information within Creator’s Account.

Fees

  1. In consideration of the Work Product and Campaign Content provided by Creator to a Sponsor, Insense will pay to Creator the Creator Fees as agreed in the Campaign Brief. Subject to payment of fees by Sponsors, Insense will pay to Creator a mutually agreed proportional amount of the approved Campaign Content that was actually published, posted online, or in any other way made available to the public.
  2. Sponsor may agree to provide Creator with an additional amount of fees in excess of the Creator Fees. In the event Sponsor informs Creator that it intends to make such payment, Insense shall be unable to guarantee to Creator that such payment will in fact be made, and Insense shall have no influence over Sponsor on the matter, as said payment shall be beyond the scope of the Campaign Content accepted and paid for by Sponsor.

Changes to the Fees

Either Creator or Insense may request changes to Creator Fees by providing a written request detailing the proposed changes to Creator Fees to the other party. Changes to Creator Fees will only be effective upon the written acceptance of both parties to the proposed changes to Creator Fees.

Timeline of Payment

Insense shall make payment of Creator Fees in accordance with the following deadlines: (i) to a PayPal account within 3 working days after receiving the request for payment from Creator and upon confirming the email where the money is to be transferred to, and (ii) to a bank account within 5 working days receiving the request for payment from Creator, provided that Creator provides correct account information and submits a correctly completed W9 form.

Disputed Invoices or Charges

If Creator believes Insense has paid Creator incorrectly, Creator must contact Insense no later than 30 days after having been paid 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, Creator 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. In the event Creator enters incorrect payment requisites, then it will be Creator’s sole responsibility to correct the mistake.

Taxes

  1. Creator Fees set out in these Terms of Service do not include applicable sales, use, gross receipts, value-added, personal property or other taxes. Creator will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with these Terms of Service, other than taxes based on the net income or profits of Insense.
  2. Creator is responsible for determining whether any applicable income tax, goods and services tax or other taxes apply to any payments received by Creator in connection with a Campaign and to collect, report, and remit the correct tax to the appropriate tax authority. If Creator is required to charge or have tax withheld in respect of any Creator Fees associated with a Campaign, Creator is solely responsible for doing so.

Suspension

Any permitted suspension of the Services by Insense pursuant to the terms of these Terms of Service will not excuse Creator from Creator’s obligations under these Terms of Service.

Currency, Processing and Transfer 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 Creator’s payment processors, including PayPal or Creator’s bank. Insense may also charge a percentage of the amount of the Creator Fees as a commission for the transfer of the Creator Fees to the Creator.

Exclusivity 

Creator agrees that, for a period of 12 months after the date Creator agrees to these Terms of Service, Creator will only use the Platform or Services as Creator’s sole and exclusive method to communicate and engage with, or request or accept engagements from, Sponsor(s) that Creator has worked with directly or indirectly in respect of the Platform, such work to include, without limitation, sponsorships, marketing, promotional, or endorsement work.

Creator agrees that Campaign Content will only be amplified or licensed exclusively through Insense during and after the term of these Terms of Service. For greater clarity, Creator will permit the amplification or creator licensing of any Campaign Content only through Insense, and not through any other platform or service, during and after the term of these Terms of Service.

Educational Materials

Insense shall deduct any amounts owed to Insense by Creator for any educational materials purchased by Creator from Insense from the amounts of Creator Fees payable by Insense to such Creator.

Communications and Records

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Creator agrees that Creator will conduct all communications regarding a Campaign in the Platform provided for the Campaign, or to upload/transcribe all related communications, including written agreements and changes to a Campaign, Campaign Content, emails, telephone calls, and discussions regarding content requirements, through the Platform. This process is required to maintain an electronic record of all required elements of a Campaign.

Creator also agrees to keep and maintain accurate and complete records related to a Campaign for at least two years following the completion of the Campaign. Insense reserves the right to request these records and other relevant documentation, which Creator agrees to provide to Insense within 10 days of Insense sending the request.

Creator is responsible for maintaining copies of any records that Creator is legally required to maintain under applicable laws, including record retention obligations under applicable taxation legislation. Insense does not provide an archiving service. Once Creator’s Account is terminated, Insense may delete all of Creator’s Member Content. Insense only agrees that it will not intentionally delete Creator’s Member Content prior to termination of Creator’s Account, provided that Creator’s Member Content otherwise complies with these Terms of Service. Insense expressly disclaims all other obligations with respect to the preservation or storage of Creator’s Member Content.

Linking

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The Platform may offer Creator links to other sites on the Internet that are owned and operated by third parties and therefore not affiliated with Insense. Please understand that such linked websites are independent from Insense, and Insense has no control over the content of such websites. Consequently, Insense cannot be held liable for and makes no warranty or representation whatsoever as to the accuracy, timeliness and/or completeness of the information contained on such websites. Such websites may be governed by terms and conditions different from those applicable to Insense’s Platform, and Insense encourages Creator to review the terms and privacy policies of those third parties before using their websites.

The links which Insense might place on the Platform do not imply that Insense sponsors, endorses or is affiliated or associated with, or has been legally authorized to use any trade-mark, trade name, service mark, design, logo, symbol or other copyrighted materials displayed on or accessible through such sites.

Miscellaneous

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Definitions and Capitalized Terms

All capitalized terms not defined herein will have the meanings set forth in the Campaign Brief, as applicable.

Governing Law

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. 

Notice

Notices to Creator 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. Creator 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 Creator of such changes by e-mail or other means. If the modified Terms of Service are not acceptable to Creator, Creator’s only recourse is to stop using the Platform and Services. Creator’s continued access to and use of the Platform or Services will constitute the Effective Date to such updated Terms of Service.

Force Majeure

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.

Disputes

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 Creator may have regarding Creator’s use of the Platform. Most concerns may be quickly resolved in this manner. If Campaign Content is not approved within the terms of the Campaign or is deemed to not be consistent with Campaign Content agreed to by Creator, Creator can contact Insense via email at help@insense.pro to submit a dispute. Insense reserves the right, in Insense’s sole discretion, to withhold any Creator Fees paid for the Campaign, less any applicable service fees and taxes, to Creator. Creator 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 Creator 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 Creator and Insense have not agreed upon the arbitrator within 14 days, Creator 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 Creator and Insense agree otherwise. The costs and expenses of the arbitrator will be shared equally between Creator and Insense.  Creator 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 Creator 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, Creator 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 Creator or Insense will be disclosed to any non-party to the arbitration. Creator agrees that Creator will not contest venue, and Creator waives any rights that Creator may have to initiate, transfer, or change the venue of any litigation arising from or related to these Terms of Service.

Creator 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 Creator 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 Creator and Insense will be deemed to have not agreed to arbitrate disputes.

Notwithstanding Creator and Insense’s decision to resolve all disputes through arbitration, Creator or Insense may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.

California Residents

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 help@insense.pro.

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.

Subcontracting

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 Creator’s use of Insense’s Platform or Services.

Entire Agreement

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.

If Creator has any questions or comments regarding these Terms of Service please contact Insense at help@insense.pro

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