The Cirqle Campaigns Terms of Service
The Cirqle’s products and services are provided by Ballerton B.V. (“The Cirqle”) registered in the Netherlands. These Terms of Service ("Terms") govern the services you (“Publisher”) provide to The Cirqle for its Campaigns.
By providing the services to The Cirqle you acknowledge that you have read, understood and agree to be bound by these Terms and the Campaign Conditions. The Cirqle reserves the right, at its sole discretion, to modify, discontinue or terminate or to modify these Terms, at any time and without prior notice.
In these Terms, the following terms have the following meaning:
Terms: the terms of service between The Cirqle and Publisher;
Additions to the Campaign Brief Additional conditions not set out on thecirqle.com and (accepted) in your personal dashboard but mailed to you/agreed with you in writing;
Campaign Brief: the conditions as set out on thecirqle.com and (accepted) in your personal dashboard and/or mailed to you. The Campaign Brief will contain the details of the Services and the agreed pricing terms of the services (incl. VAT/Taxes).
Campaign Conditions Includes the Campaign Brief and the Additions to the Campaign Brief; The Campaign Conditions and these terms constitute a service agreement between Parties;
Campaign-Content any materials such as photos, (data)files, images, generated by the publisher on the basis of the Campaign Conditions;
Completion Date: the date on which all Services have been provided to The Cirqle to the satisfaction of The Cirqle;
Confidential Information any information relating to either (technical) operations, market opportunities, products and business affairs, including but not limited to trade secrets, know-how, designs, specifications, pricing, service and technical records and all other information with a proprietary or confidential nature disclosed to the other Party;
Content any materials, such as photos, (data)files, images, received by The Cirqle from the Customer which will be sent to the Publisher;
Customer the (third party) contracting party of The Cirqle;
Customer Agreement the agreement between the Customer and The Cirqle;
Goods products of the Customer which will be directly sent to the Publisher by the Customer;
Intellectual Property Rights all intellectual and industrial property rights including patents, know-how, registered trademarks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, unregistered trade names, copyright, neighboring rights, database rights, domain names and any other rights in any invention, discovery or process, in each case in the Netherlands and all other countries in the world and together with all renewals and extensions;
Likeness Publisher’s image, name, voice, signature, biography, social media handle and likeness;
Party The Cirqle or the Publisher (together referred to as “Parties”);
Publisher the publisher and or its company who has agreed to provide Services to The Cirqle for one of its Campaigns by registering for such Campaign via Cirqle’s Dashboard;
Services all services which Publisher must deliver or perform under the Campaign Conditions and the Terms;
Specifications the specifications of the Services as specified in these Terms and in the Campaign Conditions;
Third Party any person or legal entity not being The Cirqle or Publisher;
Website the website(s) of the Publisher, its profile page(s) and social media pages(s), as further specified in the Campaign Conditions;
Words indicating the singular only also include the plural and vice versa where the context requires. The heading of the terms shall not affect their interpretation.
These Terms are applicable to all Campaign Conditions of The Cirqle. Changes to these Terms are valid only if expressly agreed in writing or set out in the Campaign Conditions. The applicability of any purchasing or other terms or conditions from the Publisher is expressly rejected. If these Terms and Campaign Conditions are contradictory, the Campaign Condition will prevail.
If a court of law holds one or more of the provisions of these Terms or the Campaign Conditions are invalid or set aside, the remaining provisions of these Terms and the Campaign Conditions shall remain applicable in full. Parties will in that case enter into consultation with a view to making an agreement on the substitution of the invalid provisions with new ones that approach as closely as possible the purpose and the tenor of the original provisions.
Provision of the services
Publisher will deliver the Services set out in the Campaign Conditions to The Cirqle at first request. Until the Publisher has posted any Campaign Content online the Cirqle can terminate the Agreement without any further notice being required and without Publisher being entitled to any remuneration and/or damages.
The Terms shall not grant Publisher exclusive rights for the execution of the Services for The Cirqle nor does it imply any obligation for The Cirqle to purchase Services other then set out in these Terms or the Campaign Conditions. The conditions of these Terms shall also apply to orders for other products and services than the Services set out in the Campaign Conditions.
Publisher shall carry out the Services in accordance with these Terms and the Campaign Conditions. The Campaign Conditions will contain the details of the Services. The obligations of Publisher shall constitute obligations to achieve the result, unless otherwise explicitly agreed on in writing. The Services must be delivered on within the term set out in the Campaign Conditions or (otherwise) agreed by parties. If the Publisher receives any Goods these will deemed to be gifts and will not form compensation for the Services by the Publisher.
Endorsement disclosure requirements
Publisher shall carry out all actions required by the applicable laws or regulations regarding endorsement disclosure. Next to that the publisher will fulfill the endorsement disclosure requirements as set out in the Campaign Conditions. If no specific requirements are mentioned in the Campaign Conditions each Post regarding the Campaign Content must include at least the following in the caption:
- Instagram and Twitter: #ad or #advertisement
- Facebook: Sponsored by @[Customer] or Advertisement
- Publisher’s blogs: include the phrase “I was asked to promote this by [link to Customer]”
- Publisher’s vlogs: within the first ten seconds of the vlog include the phrase “I was asked to promote this by [Customer]”
Price and Payment
The Services will be carried out by Publisher at prices as specified in the Campaign Conditions. The prices are inclusive of all duties, taxes, payment costs of the receiving party, and other levies. Publisher will send one invoice to The Cirqle after the Completion Date. Payment will take place ultimately 30 days after the Customer has paid The Cirqle according to the Customer Agreement. In no event shall Publisher have any right to suspend its performance of the Services as the result of the non-compliance of The Cirqle with its obligations under these Terms and the Campaign Conditions.
Publisher represents warrants and covenants that:
- It is entitled to enter into these Terms and to perform its obligations hereunder and that the execution of its obligations under these Terms does not infringe upon any Intellectual Property Rights and/or other rights of Third Parties; and the Services supplied are in accordance with the Specifications and quality requirements laid down in these Terms; and it will not communicate about the Customer and/or The Cirqle in a negative manner which can damage the Customer or The Cirqle;
- The Publisher has connected the Google Analytics and its social accounts so far as applicable for the relevant Campaign that it is the owner of these webpages and social accounts used in the Campaign;
- The personal- and banking details as set out in The Cirqle’s dashboard are up to date;
- The Publisher will respond to any e-mails and or telephone call within 24 hours during the term of the Campaign;
- The Campaign-Content will remain on the Publisher’s website(s) and/or social channels for a minimum period of twelve (12) months after the completion date. Prior to that date the Campaign-Content and or the websites and/or social channels can only be removed with The Cirqle’s written consent;
- The Campaign-Content shall not infringe upon the copyright, trademark or any other intellectual or proprietary rights of any third party (specifically including, without limitation, any rights of publicity or privacy of any and all individuals appearing in the Campaign-Content or the copyrights of any third party with respect to any audio included within the Campaign-Content);
- All statements in the Campaign-Content shall not contain any defamatory or unlawful statements and/or misrepresentations;
- The Campaign-Content shall be produced and delivered in accordance with the highest standards in the industry;
- The Campaign-Content in its present form, is not in the public domain;
- Publisher has not, and will not be, accused of any felony, misdemeanor or any crime or act of moral turpitude or other actions that could or would likely bring The Cirqle and/or the costumer into disrepute;
- Except with respect to material delivered by The Cirqle or the Costumer to Publisher, Publisher represents, warrants, and covenants that Publisher is the sole author, creator, producer and developer of the Content.
In the event Publisher breaches or acts contrary to its obligations under these Terms or the Campaign Conditions shall immediately and without notice for each offense forfeit a penalty to The Cirqle of EUR 1,000 and a fine of EUR 150 for each day that the violation continues. This is without prejudice to the right to claim the damage actually suffered by The Cirqle.
Intellectual Property Rights
Unless otherwise expressly agreed in writing, the Intellectual Property Rights of the Content provided to Publisher under these Terms shall remain with The Cirqle or the Customer and shall not be assigned to Publisher. Without the prior written permission of The Cirqle, Publisher is not permitted to use logos, trademarks, trade names or other Intellectual Property Rights of The Cirqle or the Customer in its communications (e.g. advertisements and other advertising expressions included) with Third Parties other than the Content. These Terms do not lead to any transfer of Intellectual Property Rights or license agreements other than the rights on the Campaign-Content as set out below to the Customer or The Cirqle.
The Cirqle will become the unencumbered co-owner of the Campaign-Content and all the rights hereto. The Cirqle can transfer this (co)-ownership to the Customer. The Cirqle will strive to communicate this transfer in the Campaign Conditions however The Cirqle can transfer the (co)-ownership without informing Publisher. Insofar as any Intellectual Property Rights are not transferred to the The Cirqle by operation of law or this agreement, the Publisher covenants that he will transfer them to the The Cirqle, should the The Cirqle so demand, and, if legally possible, hereby transfers those rights to The Cirqle, which transfer is hereby accepted by The Cirqle.
Publisher further hereby grants The Customer and The Cirqle the right and license to use Publisher’ Likeness as it appears within and in connection with the Campaign-Content for a period of one (1) year from the date the Campaign-Content is posted (the “Likeness Term”). Notwithstanding the foregoing, Content posted by The Customer or The Cirqle during the campaign period which remain on display following the expiration of the Likeness Term shall not give rise to a claim by Publisher against The Customer and/or The Cirqle; provided, however, after expiration of the Likeness Term, The Customer and/or The Cirqle (as applicable) will remove the Campaign-Content posted to any channels under its control upon Publisher’s written request.
Insofar as any personal rights on the Campaign-Content can not be transferred and insofar as permitted by law, the Publisher hereby waives all of his personal rights, including but not limited to the right to have one’s name stated
Pursuant to the Dutch Copyright Act of 1912 (Auteurswet 1912). The Publisher acknowledges that the Campaign Conditions includes reasonable compensation for the loss of intellectual property rights.
The Publisher guarantees that the results of the Services do not infringe upon any rights (including intellectual property rights) of third parties and that they are not unlawful vis-à-vis third parties in any other manner. The Publisher will indemnify the The Cirqle against any and all damage and costs ensuing from claims brought by third parties in that respect.
For purposes of clarification and the avoidance of doubt, Publisher acknowledges and agrees that the Campaign-Content will be used by the Costumer and/or The Cirqle for advertising, promotional and other commercial purposes and, as such, Publisher covenants and agrees to obtain all necessary consents, approvals, waivers and other agreements necessary to permit The Costumer and The Cirqle to use the Campaign-Content for such purposes including, but not limited to, all releases, consents and approvals of all persons appearing in the Campaign-Content.
Liability and Indemnification
Publisher shall not limit or restrict its liability for any losses, costs and damages on account of default in the performance of these Terms, or tort by Publisher. Publisher indemnifies The Cirqle and holds The Cirqle harmless against all financial consequences of claims by Publisher’s Personnel and contractors or claims by Third Parties as a result of one or more acts and/or omissions, in connection with the fulfillment of its obligations under the Terms and the Campaign Conditions.
The Cirqle is only liable for actually suffered and proven direct property damages suffered by Publisher as a result of attributable shortcomings of The Cirqle up to a maximum of the value of the Campaign Conditions. No limitation or exclusion of liability of a Party shall be valid if the damages are the result of gross negligence or intention of the Party causing the damage.
The prices set out in the Campaign Conditions shall include any and all taxes, duties and levies imposed, levied or assessed, as a result of the acquisition of Services made by The Cirqle from Publisher under the Terms. For the avoidance of doubt, Publisher shall be responsible for any withholding taxes, taxes related to permanent establishments or similar taxes imposed, levied (such as but not limited to social security contributions) or assessed as a result of the acquisition of Services made by The Cirqle from Publisher under the Terms.
The Cirqle shall not be responsible for and shall, if ordered to pay by the tax authorities, be reimbursed by Publisher for any and all taxes, duties and levies (such as but not limited to including social security contributions) for which Publisher is responsible as stated above.
Neither Party shall be liable for non-performance or defective or late performance of any of their obligations hereunder to the extent and for such periods of time as such non-performance, defective or late performance is due to causes outside of the performing Party’s reasonable control (“Force Majeure Event”). A Force Majeure Event shall not include illness or incapacity of personnel or of Third Parties used by the Publisher, delay or failure in manufacture, production or supply by Third Parties of products or services, material shortages, defective (reserve) parts, liquidity and/or solvability problems of Publisher, motorway traffic jams, the impossibility of obtaining the required permits or permission, strikes and labour disputes. If one of the Parties is delayed in the fulfillment of the Services as a consequence of a Force Majeure Event, this Party shall immediately inform the other Party thereof, stating all details, and shall exercise best efforts to limit the consequences of this delay to the maximum degree and to take necessary measures to remedy the situation. In the event the Force Majeure Event in question continues or will continue for an uninterrupted period in excess of two (2) months after the date on which the Force Majeure Event began, the other Party will be entitled to terminate the Campaign Conditions in writing while respecting a two week notice period.
Neither Party will use, copy, adapt, alter or part with possession of any information of the other which is disclosed or otherwise comes into its possession under or in relation to these Terms and which is of a confidential nature. This obligation will not apply to information which the recipient can prove was in its possession at the date it was received or obtained or which the recipient obtains from some other person with good legal title to it or which is in or comes into the public domain otherwise than through the default or negligence of the recipient or which is independently developed by or for the recipient.
Assignment and Subcontracting
Publisher shall not assign or transfer the Campaign Conditions and these Terms and/or any of its rights or obligations hereunder, in whole or in part, to any person or entity without the prior written consent of The Cirqle, which The Cirqle may withhold at its discretion. The Cirqle may, at its sole discretion, assign these Terms, without prior written approval.
Publisher is permitted to use subcontractors in connection with the provision of Services upon prior written consent of The Cirqle. If Publisher uses any subcontractor in the provision of Services, it shall cause such subcontractor to enter into an agreement that reflects all of the subcontracted Services and shall contain all such other provisions as are necessary to allow subcontractor to comply with these Terms
Terms and termination
These Terms enters into force upon accepting the Campaign Conditions and will remain into force after the Completion Date. The Campaign Conditions can be terminated without any right for compensation if the Customer terminates the Customer Agreement before the Agreed Publish date of the Campaign (on the Website). In the event the Campaign Conditions are terminated while there are still assignments or other agreements referencing the Campaign Conditions and these Terms in force, these Terms are considered to be still in force for those orders or other agreements.
Governing Law and Dispute Resolution
The laws of the Netherlands shall govern the Campaign Conditions and these Terms and any agreement in conjunction therewith. The Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods) shall not be applicable and is explicitly excluded. All disputes arising in connection with the Campaign Conditions and these Terms, or further agreements resulting therefrom, shall be finally settled by the Court of Amsterdam, the Netherlands.
The Cirqle 2018