Terms & Conditions
These terms and conditions govern the relationship between you and The Lab Australia Pty Ltd trading as HooZu ABN 41 163 980 416 (“we“, “us” or “Company”)
1.1 Who do these Terms and Conditions apply to?
(a) These Terms and Conditions apply to any entity that uses the Services of HooZu. Use of HooZu’s Services is deemed to be acceptance of these Terms and Conditions.
(b) Section A of these Terms and Conditions contains specific terms and conditions for Media Agencies, Brand Owners and any other entity who books a Campaign with us.
(c) Section B of these Terms and Conditions contains specific terms and conditions for Influencers (also referred to as Talent).
(d) Section C of these Terms and Conditions apply to Media Agencies, Brand Owners and Influencers.
The Agreement between you and us comprises:
- the terms of the Insertion Order(s)
- the terms of the Booking Form(s)
- these Terms and Conditions;
- any Credit Application Form.
1.3 Entire agreement of parties
The Agreement constitutes the entire agreement between the parties and replaces any previous discussions, communications or other documents concerning the supply of the Services.
In the Agreement, the following words have these meanings, unless the context otherwise requires:
- Brand Owner is the owner of the product or service that is the subject of the Campaign.
- Content means all advertising, marketing or other material supplied by you (including, without limitation, text, graphics, video and URLs) for publication by Influencers or otherwise using our Services;
- Booking Form means a booking form outlining the social media promotion to be undertaken by the Influencer and the fee to be paid to the Influencer.
- Campaign means a brand promotion campaign HooZu is engaged to undertake in accordance with an Insertion Order, Booking Forms and the Agreement.
- Cancellation Fee means the estimated charges and costs we would have reasonably expected to have received for provision of Services but for your late cancellation including our charges for creating and producing any Custom Materials and our Fees for publishing any Custom Materials or Advertising Copy based on the applicable Insertion Order;
- Client means Media Agency or Brand Owner who has engaged HooZu to enact its Services
- Confidential Information means the terms and conditions of the Agreement and all information of a confidential nature disclosed or communicated by the disclosing party to the recipient including any financial and pricing data; business plans; policies; suppliers; inventions; product information and information about a party’s marketing and/or promotional activities but excludes any information which the recipient can establish:
- is or becomes generally available in the public domain otherwise than through a breach of this Agreement or any obligation of confidence owed to the disclosing party;
- is or becomes known to the recipient from a source other than the disclosing party otherwise than through a breach of an obligation of confidentiality owed to the disclosing party;
- is or has been independently developed or acquired by the recipient; or
- is approved in writing by the disclosing party for disclosure by the recipient;
- Creative Services means design, production and promotional services we provide in addition to Company services, including without limitation creating, producing and marketing Custom Materials, advertising marketing campaigns, e-direct marketing, developing and hosting integrated offerings such as competitions and associated creative services;
- HooZu Products means the websites, apps, software that HooZu owns or is the licensee of;
- Fees means our fees and charges for the provision of Services as specified in the Insertion Order;
- Indirect Losses includes losses of profits, revenue, opportunity, anticipated savings or data or any indirect or consequential loss or damage;
- Influencer means talent engaged to promote a product on social media or any other way as set out in the Booking Form.
- Insertion Order means an insertion order which specifies details of the Campaign and Services we agree to provide to you and the Fee you agree to pay us;
- Launch Date means the date at which we are scheduled to publish any Campaign as specified in the Insertion Order;
- Media Agency means an agency representing a Brand Owner or Client;
- Order means an order for Services described in an Insertion Order;
- Rate Card means our current standard rates and charges for the provision of Services as notified to you from time to time;
- Services means the services in relation to Campaigns to be supplied by Company to Media Agency or Brand Owner utilising Influencers and as described in any Insertion Order;
- User means a person on the internet
- you/your means a Brand Owner, Media Agency, Influencer or agent representing an Influencer or any person or entity who engages HooZu to undertake Services; and
- Value Credit means a credit we may issue to you upon your cancellation of an Order in accordance with clause 3.3(c) of this Agreement for the supply by us of replacement services of equivalent value to the Order.
SECTION A – MEDIA AGENCIES OR BRAND OWNERS
3.1 Provision of Services
We will provide to you, and you agree to use, the Services in accordance with this Agreement.
3.2 Orders for Services
- You may request Services from us by completing an Insertion Order.
- We will not be obliged to supply to you the particular Services set out in the Insertion Order until you have signed the Insertion Order.
- We may require you to submit a completed Credit Application Form prior to our signature of the Insertion Order.
3.3 Cancellation of Services
- You may cancel an Order for any Services at any time without charge provided that you give us at least thirty (30) days’ notice prior to the Launch Date for Orders.
- In the event you cancel an Order for Services within 72 hours of the Launch Date for the Campaign you will be charged the full remaining Fees for the Services. No Value Credit or other compensation will be issued by Us to You or Your client.
- In the event that you cancel your Booking between 3-30 days prior to the Launch Date of the Campaign, you will be liable to pay the full amount of remaining Fees owed for the Services. We will, however, issue you with a Value Credit equivalent to the total Fees paid by you for the cancelled Services. Details of the Value Credit will be documented in a formal Campaign Cancellation form provided by us to you.
- All Value Credits issued pursuant to this clause 3.3 must be used within three (3) months of the issue date or they will be forfeited by you. You agree to alert Us to the redemption of any Value Credit by you at the time of completing a new Order for Services.
- You further acknowledge that use by you of any Value Credit is subject to the availability of replacement services.
- In the event that you cancel your Booking with less than twenty-four (24) hours prior notice, you agree that it may take us up to twenty-four (24) hours to disable your campaign (if it has already launched) and that you will be liable for all Fees incurred by you, including but not limited to Influencer fees, during that period until the Booking has been cancelled (as well as any Fees under this clause).
- Regardless of the period of notice you have provided to us, if you cancel any Order for Creative Services we will charge you for any production costs and charges we have incurred as of the date of the cancellation.
- We may cancel an Order or part Order at any time without giving you any reasons for the cancellation. If we exercise this right we will at our option:
- refund to you any Fees that you have already paid to us;
- issue you with a Value Credit; or
- reschedule the Launch Date to another date within sixty (60) days of the cancellation date; and you agree that this is our sole liability to you in relation to that particular Order or part Order.
For the avoidance of doubt, a cancellation of an Order or part Order by either party pursuant to this clause 3.3 will be deemed to be a termination of this Agreement by that party in relation to such Order or part Order.
3.4 Payment Terms
- You will pay 50% of the Fee, as stated in the Insertion Order, upon signing the Insertion Order. We will provide you with an invoice for this amount.
- You will pay the remaining 50% of the Fee, as stated in the Insertion Order, upon completion of the Campaign or such other date as specified in the Insertion Order.
- These payment terms may be varied in writing in the Insertion Order.
- All invoices are payable within 14 days of date of invoice.
4.1 Form of Content
- You acknowledge that we do not control or guarantee the way the Campaign is implemented by the Influencer.
- You acknowledge that we may label any Content as an advertisement when we publish it.
- You will ensure all Content complies with Australian laws and regulations and also our specifications that we may advise you of.
- Company and Influencers may adjust Advertising Copy, if required and at our discretion, to ensure it is clearly identifiable to users as advertising material and does not contain any material which could be confused by Users
4.3 Promotion of Competitions
You warrant that any Content or Campaign which references any trade promotions, games or competitions complies with all laws and regulations and has all necessary permits.
4.4 Website Links
You will ensure that any URL referenced in any Campaign will link Users to the intended website. We may test whether the URL is functional and may in our discretion remove any URL which does not meet with our approval.
4.5 Supply of Content
- You will supply us with Content (including any creative instructions, logos, art work or materials which we will need to carry our Services for you) for our approval at least five (5) days prior to the Launch Date. You acknowledge that time is of the essence in your provision of the Content to us.
- If we do not receive your Content on time we may treat this as a cancellation of the applicable Order or part thereof and we may charge you a Cancellation Fee.
4.6 Right to Publish Advertising Copy
You represent and warrant to us that you are fully authorised to publish, and that you authorise us to publish on your behalf, Content by Influencers.
SECTION B – INFLUENCERS
5. For each branded campaign:
- HooZu will advise Influencer from time to time of campaigns and provide details of the Campaign in a Booking Form.
- The Booking Form will outline the brand, details of the campaign, what is required from the Influencer and the fee to be paid to Influencer.
- Influencer or Influencer’s representative must sign the Booking Form to indicate agreement with terms of the Campaign and these Terms and Conditions.
- Within 7 days of the end of the campaign, Influencer must invoice HooZu for payment of the Influencer’s fee. Invoices will be paid within 30 days of receipt of invoice or 5 days after payment from Brand or Media Agency, whichever is the latest.
- Influencer agrees that if the Content does not comply with the campaign specifications in the Booking Form or as provided in writing to the Influencer, the Influencer will not get paid.
6. The Influencer agrees;
- To comply with the brief specifications for each Campaign as provided in the Booking Form or otherwise in writing.
- To comply with all policies and requirements with any and all social media platforms used by the Influencer.
- That he/she voluntarily assumes all risks, known or unknown, associated with his/her participation in the campaign.
- The Influencer confirms that all statements made by him/her for the purpose of the campaign are honest statements that the Influencer genuinely believes in.
7. Licence to Content
- The Influencer grants to HooZu an irrevocable, royalty-free, perpetual, assignable, exclusive world wide licence in and to the Influencer’s Content and anything published by the Influencer pursuant to performance of the Campaign for any purpose, including for commercial or advertising purposes.
- The Influencer waives all rights, including all so-called ‘moral rights’ and releases and discharges HooZu from any claim, demand or cause of action whether now known or unknown relating to the use and exploitation of the Content or anything published by the Influencer pursuant to performance of the Campaign.
8. Influencer Warranties and Indemnities
- These are in addition to the general warranties and indemnities set out below and in the case of a conflict these will prevail.
- The Influencer warrants that he/she will not engage in any behaviour that will embarrass or have negative impact on HooZu or the Brand Owner in relation to any Campaign.
- The Influencer warrants and confirms that he/she has not purchased any social media followers or ‘likes’ and that all of the Influencer’s social media followers and/or likes are genuine.
- The Influencer warrants that he/she does and will continue to comply with all policies and requirements of all relevant social media platforms.
- The Influencer agrees to fully indemnify HooZu against any legal actions, claims, losses, damages and costs associated with any defamation, violation of right of privacy or publicity, breach of any third party intellectual property rights, including copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability, violation of any law or regulation throughout the world or any other claim in connection with the Content or the Influencers performance or non-performance of the Campaign.
SECTION C – GENERAL
9. Your Warranties
You warrant to us that:
- you have all applicable licenses and consents necessary to enter into and perform your obligations under this agreement;
- if you are a media agency or agent:
- you are fully authorised to act on behalf of any advertiser, Brand Owner or Influencer on whose behalf you are requesting Services and to bind such entity or person to this Agreement;
- both you and the entity or person on whose behalf you are requesting Services agree to be jointly and severally liable for all applicable responsibilities stated in this Agreement, including (without limitation) the payment obligations set out below.
- you have complied and will continue to comply with all applicable laws and regulations in performing your obligations under this Agreement;
- you will not breach any agreement, arrangement or understanding with a third party as a result of entering into or performing any part of this Agreement;
- you will only use the Services during the period stated in the Insertion Order and will not use the Services or any product of the Services outside this period or for any other purpose other than that stated in Insertion Order;
- the Content complies with all applicable laws and regulations and industry guidelines and social media policies;
- the Content does not and will not infringe the intellectual property rights of any person;
- the Content does not and will not include content, or contain a link to any content, that is illegal, obscene, violent, defamatory, pornographic, offensive or discriminatory based on considerations of race, national origin, gender, age, disability, religion, sexual orientation or expression, that facilitates or promotes the unauthorised downloading, uploading, peer-to-peer sharing or streaming of copyrighted content, or promotes any companies, products or services that are in contravention of applicable Australian law, codes or regulations;
- Neither you or other party will insert any tag, code, cookie, pixel or other data tracking or collection device into the Content without our express permission;
- you will not use or redistribute to any third party without our permission any information or reports we may supply to you other than for the purpose of evaluating the performance of our Services.
10. Our Warranties
We warrant to you that:
- we have the right to supply the Services to you;
- we will use reasonable care and skill in supplying the Services; and
- we will comply with all applicable laws and regulations when supplying the Services.
11. Exclusion of Warranties
We exclude all implied conditions and warranties from this Agreement except any conditions or warranties (such as those implied by the Competition and Consumer Act 2010 (Cth)) which cannot by law be excluded.
12. Ownership of IP
- We own all intellectual property in and to the Services (excluding any Content supplied by you), including but not limited to our trademarks, logos, branding, software and systems and any other material created by us.
- You and your licensors own the intellectual property in any Content as provided to Us and your pre-existing intellectual property, including but not limited to your trademarks.
- Except as authorised by this Agreement, the parties agree not to:
- reproduce the other party’s intellectual property; or
- sub-license, on-supply or further syndicate the other party’s intellectual property to 3rd parties.
- Unless we provide express approval, you may not use our intellectual property for purposes other than the Campaign.
6.2 Licence of Intellectual Property
- You grant us and the Influencers a royalty-free, non-exclusive and non-transferable licence to reproduce and communicate to the public the Content in accordance with the Agreement.
- You grant us a royalty-free, non-exclusive right to copy, adapt, modify and otherwise use any logos or other materials you supply to us for the purposes of supplying you with Creative Services.
PAYMENT – GENERAL MATTERS
7.1 Rates and Fees
You will pay the Fees in accordance with the Agreement. There will be no set-off of Fees. If no Fees are specified in the Insertion Order, the charges for our Services will be as set out in our current Rate Card at the time of our acceptance of the Order.
7.2 Changes to Rates
We may change our Rate Card from time to time without notice.
7.3 Cost and Charges
We may charge you additional costs we incur in the provision of Services including (without limitation):
- the cost of obtaining any necessary licenses for any competitions which form part of Creative Services;
- any additional costs we incur in providing any talent, photography, filming, special effects or other special services which you request be supplied as part of the Campaign and which were not foreseen in the original Insertion Order;
- late payment charges for any overdue invoice which will be calculated monthly on the overdue amount at two per cent (2%) above the base rate of our nominated Banking Corporation.
7.4 GST and Taxes
You are responsible for computing and paying all taxes, duties and other government fees or charges payable or assessed in connection with this Agreement including (without limitation) goods and services tax, other value added tax, sales or use taxes, stamp duty and turnover tax, but excluding taxes, duties and government charges assessed on our income.
- We will provide a tax invoice for our Fees.
- You will pay the amounts invoiced within Fourteen (14) days of the date of the invoice.
- Payment must be made by electronic debit to our nominated account.
10.1 Each party must:
- take all action reasonably necessary to maintain the confidentiality of the other party’s Confidential Information; and
- not disclose the other party’s Confidential Information to any person except as permitted below.
10.2 A party (“recipient”) may disclose the Confidential Information of the other party:
- to a representative of the recipient who needs to know the Confidential Information for the purposes of this Agreement and subject to the recipient taking reasonable steps to ensure that any such representative is fully aware of the confidential nature of the Confidential Information of the disclosing party before the disclosure is made; or
- which is required or authorised to be disclosed by any law.
10.3 We may disclose and make available your Confidential Information to the Influencer on the condition that we take reasonable steps to ensure that such parties are made fully aware of the confidential nature of your Confidential Information before the disclosure is made.
INDEMNITY & LIABILITY
You indemnify us against all loss, damage or liability we may suffer or incur arising out of any claim made against us as a result of breach of your warranties in this Agreement or any act or omission by you in connection with the Content.
11.2 Limitation of Liability
- Neither party is liable for any Indirect Loss incurred by them or by any other person arising out of or in connection with this Agreement.
- Our liability to you for any claims made under this Agreement (whether such liability arises in contract, tort (including negligence) or otherwise) is, to the fullest extent permitted by law, limited at our option to resupplying the Services or paying the cost of having the Services resupplied.
11.3 No responsibility for Content
- We are not liable for any aspect of the Content, including any products or services referred to in the Content or the publishing of the Content by the Influencer.
- You are solely responsible for the Content and associated products and services, including any ancillary competitions and promotions.
If you wish to make a claim for a Value Credit, republication or any other remedy in respect of our Services you must send the claim to us no less than fourteen (14) days after the Launch Date, however we do not guarantee make good, value credit or bonus.
12.1 Applicable law
This Agreement is governed by the laws of New South Wales, Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales, Australia.
A notice must be in writing to the address of the addressee as stated in the Insertion Order.
12.3 Public statements
You may not issue any press release or make other public statement in relation to this Agreement or the relationship established by this Agreement without our prior written consent. We may, however, make informational references to your participation in HooZu campaigns in press releases without obtaining your consent.
12.4 No Agency
This Agreement will not create a joint venture, legal partnership, employment or agency relationship between you and us.
Neither party may transfer or assign this Agreement without the other party’s prior written consent (not to be unreasonably withheld).
12.6 Force Majeure
Neither party will be liable for its failure to perform any of its obligations under this Agreement due to any contingency beyond its reasonable control.
- You may not send us or our partners any personal information or data that can be used to identify or locate a natural person, or sensitive financial, medical or sexual data.
- We may collect your personal information to provide the Services to you and for invoicing purposes only.
- You agree to store and use all personal information which we may provide to you in accordance with the requirements of the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth)