TRIBE Platform Terms of Use
Last updated November 20, 2023HOUSE RULES | CONSUMER FIRST
Here at TRIBE we believe that all influencer posts should be transparent and put consumers first. Therefore, both Creators and Brands need to ensure that no campaign or post is false or misleading and must disclose the fact that the Creator is being paid by the Brand. TRIBE expects that all users comply with all applicable Laws and industry self-regulation relating to influencer marketing, including the AANA Guidelines (AU), CAP Code (UK), and Federal Trade Commission’s Guides Concerning Endorsements and Testimonials in Advertising (USA). This means that all influencer marketing posts which are being facilitated through TRIBE should be transparent and labeled with appropriate disclosures, such as #ad. We expect Creators and Brands to keep themselves up to speed with the latest best practice on how to label influencer marketing posts in a transparent way in order to make sure that consumers are clear about the commercial nature of the sponsored posts.
HOUSE RULES | BRAND
BE RESPONSIVE: Please appreciate the energy each Creator has invested into their submission by responding to each one quickly. This will also prevent Creators having a negative experience with your brand.
BE BRAVE: Resist the urge to micro-manage. Everything from bad grammar to shaky footage makes up a unique dialect a Creator has crafted with their tribe over thousands of posts. If you change the language, you’ll change the response.
BE OPEN: This platform is for influencers, not celebrities. You may not recognize them, but rest assured their followers do. We believe accessing countless pockets of influence is far more meaningful than a large celebrity endorsement.
BE AWARE: Feel free to share a Creator's post within the same social platform, however content cannot be used in any additional or other marketing material, nor should it be used outside of the original platform without getting additional approval from TRIBE
BE TRANSPARENT: Be aware of the need to be transparent when engaging with influencers, and the requirement to label Creator posts with #ad to tell consumers that it is a paid for post.
HOUSE RULES | CREATOR
BE TRANSPARENT: Keep up to speed with the latest developments and best practice on how to label your posts in a transparent way to show that it is paid for by the brand. Normally, that will mean labeling your content with #ad or ADVERT in the title or thumbnail of your content. Don’t try to hide the fact that the content is paid for; both you and the Brand will lose credibility if you do.
BE GENEROUS: Posts must stay on the top of your feed for minimum 5 hours and on your platform for 30 days.
BE AUTHENTIC: If you wouldn't recommend a Brand for free – don't recommend it for money.
BE GENUINE: We work exclusively with Creators who’ve organically grown their audience. If you’re misrepresenting the size of your audience or engagement in your content, we reserve the right terminate your TRIBE account.
BE MINDFUL: If you’re seen to be recommending competing brands in quick succession or over-populating your feed with sponsored posts, you’ll lose credibility with your tribe.
Introduction
1. The TRIBE Platform is owned and operated by the TRIBE Group. By using the TRIBE Platform, you agree to accept these Terms of Use which includes the House Rules.
2. TRIBE has created the TRIBE Platform to allow Brands and Creators to interact, form relationships, buy and sell Paid Content, and create and distribute sponsored Posts through the Creator Channels, with facilitation, support, control and direction provided by TRIBE and in accordance with these Terms of Use. In these Terms of Use, Brands and Creators are collectively and individually referred to as “you” as the context requires.
3. The TRIBE Platform allows Brands to create Influencer Marketing Campaigns and Content Only Campaigns via the Campaign Builder, which are then shared with Creators via the Application. Creators using the Application can respond to a Campaign brief by creating a Pitch, Post or Paid Content and submitting it to the relevant Brand. A Brand will pay, and the Creator will earn, compensation when:
(a) in relation to an Influencer Marketing Campaign, the Brand provides Final Approval of a Post and the Post is published to the Creator’s Channels, as selected; or
(b) in relation to a Content Only Campaign, the Brand provides Final Approval of Paid Content submitted by the Creator and acquires rights to use that Paid Content in accordance with a Rights Licence.
4. TRIBE also provides to Brands a range of manual and automated services to facilitate the development, conduct and evaluation of Campaigns, both through the operation of the TRIBE Platform and by way of TRIBE Additional Services as agreed between TRIBE and a Brand from time to time in a Statement of Work.
5. Your access to and use of the TRIBE Platform is conditional upon your agreement to and acceptance of these Terms of Use. Each time you use the TRIBE Platform, you agree to be bound by these Terms of Use, and these Terms of Use apply to all transactions conducted through the TRIBE Platform. If you do not wish to be bound by these Terms of Use, do not use the TRIBE Platform.
Terms for Creators
6. Paragraphs 7 to 52 apply only to Creators participating in the TRIBE Platform and, along with paragraphs 1 to 5 and 107 to 163, govern use by Creators of the TRIBE Platform.
Registration of Creator Account
7. To register an account to use the Application as a social media Creator (“Creator Account”), an individual must download the Application and sign in to the Application with their Facebook, Instagram, TikTok, Pinterest and/or ‘X’ (formerly Twitter) accounts in the manner specified in the Application and these Terms of Use (including paragraphs 108 and 109).
8. In order to be able to submit Posts, you must connect your account to your Instagram account, TikTok account, Pinterest account, ‘X’ (formerly Twitter) account and/or Facebook page. By doing so, you are granting TRIBE permission to access historical account activity, usage data and audience insights, and to publish Posts directly to those of your Channels in accordance with these Terms of Use.
Creator Eligibility
9. Any person over the age of 16 years, or over the age of 13 years with the written consent of a parent or legal guardian, may register a Creator Account, but in order to participate in any Campaigns and earn compensation as a Creator via the TRIBE Platform, you must meet the following minimum standards:
(a) you must be eligible to use each of the social media platforms through which you sign in to the Application (under the relevant platform's prevailing terms and conditions);
(b) you must have at least 3000 followers on any of the Channels that you use to sign in to the Application, or you must submit an application and be approved by TRIBE to participate in Content Only Campaigns;
(c) each of those Channels must be public (viewable by anyone); and
(d) those Channels may not contain content that is contrary to these Terms of Use or to the terms of use of the relevant social media platform.
10. If you do not meet the minimum standards in paragraph 9, you may not be able to participate in Campaigns or access the full functionality of the Application.
11. You must not misrepresent the size of your audience or your numbers of followers or level of engagement. You must have obtained your followers organically and not through unethical or unsportsmanlike behaviour such as (but not limited to) purchasing or fabricating followers, likes or engagement.
Submission of Content for a Campaign
12. You are responsible for reviewing all of the information about a Campaign provided in the Application or by TRIBE and for verifying the suitability for you submitting Content to, or otherwise participating in, any Campaign.
13. You acknowledge that:
(a) a Brand may, in its sole discretion, arrange to send you a sample product, but the Brand is under no obligation to do so even if you request it to do so unless such an arrangement is agreed and approved by TRIBE upfront as part of the Campaign information;
(b) TRIBE will not be responsible or liable in any way for late delivery or non-arrival of any products sent to you from a Brand, and you are responsible for ensuring your address for delivery is accurate; and
(c) if you choose to purchase a product of a Brand, there is no guarantee that any of your Posts or Paid Content about the product will be approved or used by the Brand.
14. All Content that you upload to the Application, submit to a Brand for approval, or publish to a Channel via the TRIBE Platform must adhere to the requirements contained in these Terms of Use, the House Rules and any additional requirements imposed by TRIBE or the Brand as part of a Campaign and advised to you prior to or at the time of submitting the Content for approval.
15. You acknowledge and agree that TRIBE is not obliged to submit any Content to the Brand including Content that does not comply with paragraph 14 or that TRIBE otherwise considers unsuitable for the Campaign. The Content may be made inaccessible by the Brand and/or removed from the TRIBE Platform at TRIBE’s absolute discretion (whether or not they have been submitted to, or reviewed or approved by, the Brand).
16. You acknowledge and agree that TRIBE is entitled to intercept, review and moderate Content, provide feedback and direction to you in relation to the Content you submit, and approve or withhold approval of the Content on behalf of the relevant Brand.
17. You must clearly disclose in each sponsored Post your commercial relationship with the Brand in such a way that it is clear to the ordinary consumer. This may be achieved through the prominent use of hashtags such as #advertisement or #ad or through other means suitable to your particular circumstances, Community and Channels. TRIBE will monitor your disclosure practices in relation to particular Posts and may do so in relation to your Channels generally, and may require greater levels of disclosure (at TRIBE’s sole discretion) in particular Posts or across your Channels generally. If you do not agree to the required levels of disclosure, you may be removed from the TRIBE Platform. If you are in the USA, you should have regard to the Federal Trade Commission’s Endorsement Guides available at: https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking.
18. You warrant, in respect of all Content you upload to the Application, submit to a Brand for approval, or publish to a Channel via the TRIBE Platform, that:
(a) you are aged over 16 years, or are aged over 13 years and have your parent or legal guardian’s consent;
(b) if you are aged over 16 years and the Post or Paid Content features children aged 16 years or younger, you are the parent or legal guardian of those children;
(c) if you are aged 13 years to 16 years, the Post or Paid Content does not feature other children aged 16 years or younger;
(d) you own the Intellectual Property Rights in the relevant Post (other than any Third Party Material disclosed under paragraph (j)) and have all necessary rights to license the Post to TRIBE and the Brand or to sell the Paid Content to TRIBE for use by TRIBE, the Brand or any other third party (as applicable), in the manner set out in these Terms of Use;
(e) the Pitch, Post or Paid Content does not contain any misrepresentation or suggestion that you or any entity has the approval or sponsorship of any other entity which you or it does not have;
(f) any and all opinions and views stated in the Pitch, Post or Paid Content are genuinely held by you;
(g) any and all statements in the Pitch, Post or Paid Content regarding your use and experience of the Brand or the Brand’s products or services are true and correct and representative of your opinion (regardless of whether you are paid for such content or not), and fairly represent your use and experience, and you will promptly notify TRIBE if your opinion of the Brand changes from that which you have expressed in the Post or Paid Content;
(h) the Pitch, Post or Paid Content does not contain any representations or material which you know or suspect (or ought reasonably to have known or suspected) to be false, misleading or deceptive;
(i) other than any Third Party Material disclosed under paragraph (j), the Pitch, Post or Paid Content is original and does not contain materials that have been previously broadcast, streamed, published, posted onto any social media channel, or otherwise communicated to the public by you in any way and does not contain materials that have been used in previous marketing materials or promotions for any third party;
(j) if the Pitch, Post or Paid Content includes any Third Party Material (including music or personality/talent rights), you have procured all necessary licences, consents and permissions to include that Third Party Material in the Post or Paid Content, and for TRIBE, the Brand and any other third party to use that Post or Paid Content in accordance with these Terms of Use, and all such Third Party Material and any associated licence terms or use limitations have been fully disclosed to TRIBE and the Brand;
(k) if you are a member of any guild, union or industrial organisation, you have not entered into any other agreement, arrangement or understanding which would or may prevent or limit you from, in relation to the Pitch, Post or Paid Content, adhering to these Terms of Use, performing your obligations or granting the rights and benefits set forth herein, or result in a conflict of interest;
(l) if the Pitch, Post or Paid Content contains images or references to third parties or third party property (other than any Third Party Material disclosed under paragraph (j)), the third party (or third party property owner) has been informed and agrees in writing that such images, property or references may be included in the Pitch, Post or Paid Content and used by TRIBE, the Brand or any other third party in accordance with these Terms of Use without remuneration or compensation to the third party (or third party property owner) for the purpose of promoting TRIBE, the Brand or any other third party in any media and in perpetuity and neither you, TRIBE nor the Brand needs to obtain any licenses from any third party or pay royalties to any third party with respect to the Pitch, Post or Paid Content or such use of the Pitch, Post or Paid Content; and
(m) the use of the Pitch, Post or Paid Content and the exercise of the Intellectual Property Rights in the relevant Pitch, Post or Paid Content by the Brand and TRIBE will not infringe any legal rights, copyright or other Intellectual Property Rights of any person or entity nor give rise to a liability to pay compensation.
19. Nothing in these Terms of Use grants you any ownership of, or other rights in, the Intellectual Property Rights of the Brand.
20. Nothing in these Terms of Use requires a Brand to make use of any of the rights that you grant to the Brand under these Terms of Use.
Influencer Marketing Campaigns – Publication of Posts
21. Once a Post has been given Final Approval by TRIBE or the Brand, you are required to publish the Post to your relevant Channel through the Application in the manner required within 48 hours of the that Final Approval (unless TRIBE or the Brand stipulates a different timeline).
22. You will not have an opportunity to edit a Post after TRIBE or the Brand has given it Final Approval. You must publish the exact Post given Final Approval by TRIBE or the Brand, unless TRIBE or the Brand expressly agrees otherwise.
23. Once you publish a Post, you must reasonably engage and respond as required to comments on the relevant Channel in respect of the Post. However, it is acknowledged that it may not be possible for you to respond to every comment.
24. You agree that you will not:
(a) for a period of five (5) hours after a Post is published to a Channel, post, share, re-tweet or re-gram any other posts or content to that Channel where the effect of publishing such additional posts or content would be to reduce the prominence of the Post;
(b) remove the Post from your Channel for a period of 30 days after the Post is published on that Channel, expiring at 11:59pm on the thirtieth calendar day after the Post is published;
(c) edit any approved Post after it has been published other than in accordance with these Terms of Use;
(d) create any contextual or surrounding posts or other material on a Channel that in any way detracts from, dilutes the effect of, or undermines a Post; or
(e) grant any further rights in a Post to a Brand without the written permission of TRIBE and appropriate fees being negotiated on a reasonable basis by TRIBE.
25. You acknowledge that the restrictions contained in paragraph 24 above are reasonable in scope and duration having regard to the interests of the Brand and TRIBE and that these Terms of Use go no further than is reasonably necessary to protect the interests of the Brand and TRIBE.
Influencer Marketing Campaigns – Moderation and Removal of Posts
26. You acknowledge and agree that TRIBE has the right at any time to moderate any Post after publication to a Channel and that you will immediately make any reasonable modification or amendment requested by TRIBE to the Post (provided that the Post must remain compliant with these Terms of Use and the House Rules, and it will be reasonable for you to refuse to make such a modification or amendment if that is not the case). You also acknowledge and agree that if you post an incorrect Post, TRIBE may request that you post the correct approved Post and that you will immediately comply with such a request.
27. You acknowledge and agree that TRIBE has the right, at any time, to request that you remove any approved Post from your Channels and that you will comply with such a request immediately upon receipt of notification, subject to payment in full to you of the Post Fee in accordance with these Terms of Use.
28. You acknowledge and agree that any necessary public relations announcements regarding the removal or modification of a Post, as the case may be, will be agreed by TRIBE, the Brand and you before publication.
Influencer Marketing Campaigns – Rights in Posts
29. Unless specified in a Campaign Brief, all right, title and interest (including all Intellectual Property Rights) in Posts will remain held by you. Nothing in these Terms of Use will be taken to constitute a transfer, assignment or grant of any ownership rights in the Posts to any other party, including TRIBE or the Brand.
30. You grant in respect of each and every Pitch or Post uploaded to the Application or submitted to a Brand for approval, or published to a Channel via the TRIBE Platform, a licence for TRIBE (and its agents) to edit and re-format the Post into such formats or versions for use by TRIBE in such media as TRIBE requires for the purposes of the conduct of the relevant Campaign or to use it as contemplated by paragraph 31.
31. In consideration of the payment to you of the Post Fee, you grant in respect of each and every Post uploaded to the Application, submitted to a Brand for approval, or published to a Channel via the TRIBE Platform as part of a Campaign:
(a) to TRIBE (and its agents):
[i] a royalty-free, perpetual, worldwide, irrevocable, unconditional, non-exclusive, transferable, sub-licensable licence to use the Post for the purpose of marketing and promoting TRIBE (and its products and services) in any manner, without further notification to or consent of you or any further compensation payable to you;
[ii] the right to use the Creator’s Identity and performances in the Post and to communicate the Post to the public in all languages, in all media including but not limited to all online paid media (including but not limited to digital banners), in all online owned media (including but not limited to the Website and internal communications of TRIBE), in all social media (including but not limited to the social media channels of TRIBE), and in any earned media or public relations activity published by a third party (including but not limited to print, digital and/or social media); and
(b) to the relevant Brand (and its agents):
[I] the right to organically share, comment upon and organically re-post the relevant Post in the Channel upon which the Post was published, with an active social tag to the Creator; and
[ii] the right to use the Creator’s Identity and performances in the Post and to communicate the Post to the public in accordance with paragraph (i) above and in any earned media or public relations activity published by a third party (including but not limited to print, digital and/or social media).
32. You acknowledge and agree that the relevant Brand will not be required to remove from its social media channels any Post or any comment, share or re-post of a Post after the period set out in paragraph 31(b)(i) has expired.
33. In respect of each Pitch or Post you upload to the Application, submit to a Brand for approval, or publish to a Channel via the TRIBE Platform, you consent to the relevant Brand and its successors, licensees, and assigns, and anyone authorised by them, changing, copying, adding to, taking from, adapting, translating or publishing without attribution to you, in any manner or context, or doing any other act or omitting to do any thing in respect of the Pitch or Post in the course of exercising their rights under paragraph 31(b), notwithstanding that such conduct may infringe your Moral Rights in the Pitch or Post, and, to the extent possible, you grant a waiver of all Moral Rights in each Pitch or Post.
Content Only Campaigns – Rights in Paid Content
34. When you upload Paid Content in response to a Content Only Brief, you will be presented with TRIBE’s Content Rights Terms document, which contains terms and conditions for the transfer of ownership of the Paid Content to TRIBE. You must agree to the Content Rights Terms document each time you submit Paid Content.
35. Under the Content Rights Terms document, you will assign all Intellectual Property Rights in Paid Content to TRIBE on the terms and conditions stated in the Content Rights Terms document, and grant waivers and consents in relation to use of the Paid Content that may otherwise infringe your Moral Rights, upon payment to you of the Paid Content Fee. For the avoidance of doubt, the assignment of Intellectual Property Rights will only be effective upon your Paid Content being accepted and TRIBE making payment of the Paid Content Fee. This will allow TRIBE to do anything with the Paid Content, including making changes and re-assigning or licensing it to the Brand for use in the Content Only Campaign.
36. You acknowledge and agree that you must not post any Paid Content to your Channels or publish it in any other way under any circumstances, including re-posting or commenting upon the Content after it has been posted or shared by TRIBE or a Brand, or purport to grant any rights to that Paid Content to the Brand or any other person.
No disparagement of Brands
37. You agree that, if you participate in a Campaign for a Brand, you will not:
(a) parody, disparage, make any adverse comment on or make fun of the Brand or its products or services in any way; or
(b) create any other material that undermines the Brand or its products or services,
on any of your Channels in a way that may adversely impact on the Campaign or on the Brand's ability to benefit from the Campaign.
Creator Compensation
38. Before receiving any payments for any Posts or Paid Content, you will be asked to provide financial details, including your nominated bank account or Hyperwallet account details, whether or not you are registered for GST (in Australia) or VAT (in the UK), your ABN or VAT number (if applicable), Employer Identification number (in the U.S.) and any further required details. You are responsible for the accuracy of your nominated bank account or Hyperwallet account details.
39. It is your responsibility to notify TRIBE in the event that you are registered for and liable to pay GST or VAT (as applicable), and to keep TRIBE up to date with your registered GST and/or VAT details (as applicable).
40. If a Brand requests changes to a Pitch, Post or Paid Content you have submitted prior to the Pitch or Post being approved or the Paid Content being accepted, and you agree to make those changes, you may request or receive a prompt for pre-approval. Pre-approval is intended to ensure the Brand makes a financial commitment to you to make the pre-agreed changes prior to final approval or acceptance, by paying an upfront deposit. In the event that this occurs and you make the pre-agreed changes, the Brand will be required to either approve the final submission, or forfeit the deposit. Where the Brand forfeits the deposit, this will be paid to you after the submitted Pitch, Post or Paid Content has been declined, or the Campaign has ended. Where a deposit is paid to you, neither the Brand nor TRIBE has any obligation to pay the full amount that would have been payable had the Content been approved or accepted. In the event that you do not make the agreed changes to your submitted Content, you will not be paid any amount for your Content despite the pre-approval. TRIBE will endeavour to resolve any disputes between you and a Brand in relation to the application of this paragraph 40.
41. After a Post is approved and published, or Paid Content is accepted by a Brand, you will be entitled to be paid the Post Fee or Paid Content Fee respectively (plus GST, or VAT, if applicable to you) in accordance with the following terms.
42. TRIBE will pay the Post Fee or Paid Content Fee (plus GST or VAT, if applicable to you) into your nominated bank account or PayPal account (as supplied by you via the Application in the manner required) by Electronic Funds Transfer. TRIBE will issue you with a recipient generated tax invoice for this purpose.
43. Subject to paragraph 47:
(a) the applicable Post Fee will be paid either (as applicable to you, as described below) approximately two business days or 45 days after the approved Post has been published; or
(b) the applicable Paid Content Fee will be paid either (as applicable to you, as described below) approximately two business days or 45 days after the Paid Content has been licensed by the Brand.
You may choose between two business day and 45 day payment terms in the Application, and any fees associated with your choice of terms will be applied by way of adjustment to the Post Fees or Paid Content Fees payable to you.
44. If for any unforeseen reason TRIBE is delayed in paying you, TRIBE will endeavour to notify you of these delays, and rectify any payment delays as soon as reasonably possible.
45. TRIBE retains control over any change to your nominated Post Fee, the fixed Paid Content Fee or any additional amounts or compensation payable to you for any approved Post or Paid Content. Except as set out in paragraph 46, no payments other than the Post Fee or Paid Content Fee (plus GST or VAT, if applicable) are payable to you in respect of any approved Post or Paid Content.
46. If a Brand requests that you make any changes to the Pitch, Post or Paid Content that you have already submitted, you may negotiate directly via the TRIBE Platform with the Brand for the payment of an additional amount to compensate you for your additional time and cost in making those changes. TRIBE reserves the right to monitor, advise you or the Brand in relation to, and approve any change requests and the associated fees.
47. Your entitlement to be paid a Post Fee or Paid Content Fee is subject to your compliance, and continued compliance, with these Terms of Use and the House Rules. In the event of any disputes about your compliance and payment, TRIBE will work with you and the Brand to resolve the dispute and determine whether or not you are entitled to be paid, up to the amount of the applicable Post Fee or Paid Content Fee, in accordance with these Terms of Use.
48. You acknowledge and agree that you must not:
(a) accept a product, service or other non-monetary arrangement from a Brand as partial or full payment for any Post or Paid Content, except with the approval of TRIBE;
(b) accept, negotiate or attempt to negotiate with a Brand more than one Post per Post Fee or additional Paid Content for a Paid Content Fee, except with the approval of TRIBE; or
(c) otherwise circumvent, or negotiate or attempt to negotiate, terms or payment with Brands in relation to a Campaign.
Creator Relationship with TRIBE and the Brand
49. As a Creator, you will at all times perform your obligations and provide Pitches, Posts or Paid Content to TRIBE and the Brand as an independent contractor and not in the capacity of an employee, partner or agent or in any other capacity. You agree that neither TRIBE nor the Brand will be obliged to pay to you or recover from you any amount as a result of you being deemed to be an employee of either TRIBE or the Brand, including in respect of annual leave, superannuation, withholding tax, income tax, workers compensation contributions or any similar payments or deductions.
50. You agree that you must not at any time claim or assert that any portrayal, representation, impersonation or depiction of you in the Pitches, Posts or in Paid Content constitutes a violation of any of your rights, including any right of privacy, publicity, false light or a right to bring proceedings for defamation, whether such portrayal, representation, impersonation, depiction or exploitation is by the Brand, TRIBE or any their respective successors or licensees. You hereby release the Brand, TRIBE and their respective agents, employees, successors and licensees, from any and all claims by you or under your authority arising out of or in connection with any portrayal, representation, impersonation or depiction of you in connection with these Terms of Use.
51. You acknowledge that TRIBE has not made any guarantees in respect of the success of a Pitch, Post or Paid Content or that a Pitch, Post or Paid Content will be approved by a Brand or in respect of your business or commercial performance or otherwise.
52. You acknowledge that all right, title and interest in each Brand's products, services, trade marks, brands, logos and images are and will remain the property of that Brand at all times, and you must not copy or use them except to the extent necessary for you to participate in the Brand's Campaigns in accordance with these Terms of Use or with the Brand's prior written consent.
Terms for Brands
53. Paragraphs 54 to 105 apply only to Brands participating in the TRIBE Platform and, along with paragraphs 1 to 5 and 107 to 163, govern use by Brands of the TRIBE Platform.
Registration of Brand Accounts
54. Unless agreed otherwise in a Statement of Work, to register an account to use the Campaign Builder as a brand (“Brand Account”), you must access the Campaign Builder and log in as specified within the Campaign Builder and these Terms of Use (including paragraphs 108 and 109), including providing your full name, email address, telephone number and password, and selecting your preferred payment method (invoice or credit card) and providing payment details where requested. You will not be charged to create a Brand Account.
55. If you are using the TRIBE Platform on behalf of a Brand, you represent and warrant that you are authorized to accept these Terms of Use on such entity’s behalf and bind the Brand to comply with these Terms of Use.
56. TRIBE may, implement a minimum spend for Brand Accounts in a Statement of Work.
57. You must nominate a primary contact for your Brand Account. The first user to register a Brand Account will automatically be selected as the primary contact, but the primary contact's identity and details may be edited through the Website by any authorised person with access to the Brand Account. TRIBE will use the details provided for the primary contact for all enquiries relating to the Brand Account.
General conduct by Brands
58. You must use the TRIBE Platform in a fair and reasonable way and for its intended purposes, and treat Creators in a fair and reasonable manner.
Conduct of Campaigns
59. TRIBE reserves the right, in its sole discretion, to reject Campaigns that do not comply with these Terms of Use.
60. TRIBE retains control over any change to a Creator's nominated Post Fee, the Paid Content Fee that you fix, or any additional amounts or compensation payable to a Creator for any approved Post or Paid Content. You agree that you will not negotiate terms or payment to Creators, except as set out in paragraph 61. Each Post shall have a Post Fee and all Paid Content shall have a Paid Content Fee, and you must not circumvent the Post Fee or Paid Content Fee by negotiating or attempting to negotiate with any Creator multiple Posts or Paid Content for Post Fees or Paid Content Fees, unless otherwise approved by TRIBE.
61. You may, after consultation with and with the approval of TRIBE, negotiate directly via the TRIBE Platform with a Creator to pay an amount in addition to the set Post Fee or Paid Content Fee to compensate the Creator for their additional time and cost in making any changes that you request to the Post or Paid Content already submitted by the Creator.
62. You acknowledge and agree that you must not offer a product, service or other non-monetary arrangement to a Creator as partial or full payment by a Brand for a Creator’s Post or Paid Content, unless otherwise approved by TRIBE.
63. You must not attempt to instruct, coerce or manipulate any Creator to hide the commercial relationship between the Brand and the Creator.
64. You must not encourage or facilitate any misrepresentation or suggestion that the Brand or any entity has the approval or sponsorship of any other entity which the Brand or entity does not have.
65. You acknowledge that:
(a) neither any Creator nor TRIBE is required to purchase any of your products or services;
(b) even if a Creator requests you to send a sample product, you are under no obligation to do so, unless such an arrangement is agreed and approved by TRIBE upfront as part of the Campaign information;
(c) TRIBE will not be responsible or liable in any way for late delivery or non-arrival of any products sent from you to a Creator. Any address provided by a Creator through the TRIBE Platform is not verified by TRIBE; and
(d) if you send a sample product to a Creator, there is no guarantee that the Creator will submit a Pitch or Post about the product or that any post submitted will be positive. All product reviews must reflect the Creator’s genuinely held beliefs.
66. You warrant that:
(a) you own the Intellectual Property Rights in any Content you upload to the TRIBE Platform and have the right to license the Content to TRIBE and Creators in the manner set out in these Terms of Use; and
(b) any Content you upload to the TRIBE Platform does not contain any representations or material that you know or suspect (or ought reasonably to have known or suspected) to be false, misleading or deceptive.
67. You acknowledge that, even if any Content provided by Creators has been curated, directed, reviewed or moderated by TRIBE (including as part of the TRIBE Additional Services) prior to being provided to you for approval, TRIBE cannot guarantee that the Content is legal, accurate, free of third party rights and otherwise suitable and appropriate for approval and publication as part of the applicable Campaign. You also acknowledge that, while TRIBE will carry out monitoring after Posts or Paid Content are published with a view to ensuring that they continue to comply with these Terms of Use, TRIBE will not do so after the end of the Campaign term or, in the case of a Post, after the expiry of the period set out in paragraph 31(b)(i), and you are responsible for ensuring ongoing compliance of the Content after that time. You assume all liability and risk for Posts or Paid Content approved by you and published as part of a Campaign beyond the end of the Campaign term, or published or used outside the scope of the Campaign. TRIBE will carry out moderation of Content submitted by Creators and will use reasonable efforts to ensure that the Content complies with these Terms of Use and can be used by the Brand without contravening any laws or infringing any third party rights, but does not guarantee that this will be the case.
68. If you have a question or concern about Content submitted by a Creator, including about the Content's compliance with these Terms of Use or applicable laws or about your rights to reproduce it, you must raise your questions or concerns with TRIBE so that TRIBE may seek to resolve your concerns (including dealing with the relevant Creator as required).
69. You acknowledge that Creators are independent third parties and their audiences are not directly controlled by TRIBE. As a consequence, any Posts will inherently risk negative or unflattering comments about you or your products or services.
70. You agree that, upon notice from TRIBE or you learn that any Content is subject to an actual or threatened claim of infringement, violation of another right, or other claim, or if TRIBE removes any Content for any reason and gives you notice of such removal, you will remove such Content from your computer systems and storage devices and will, to the extent possible, cease use of such Content. TRIBE shall, where possible, endeavour to source comparable Content (to be determined by TRIBE in its reasonable commercial judgement) free of charge, but subject to these Terms of Use and a comparable Rights Licence.
71. Unless agreed otherwise in a Statement of Work, you acknowledge that TRIBE has not made any warranties in respect of the success of any Campaign in respect of your business or commercial performance or otherwise of any Post, Paid Content, Campaign, Channel or other media, marketing communications channel, marketing or advertising campaign, promotion or advertisement.
Provision of and charges for tribe additionals Services
72. TRIBE will perform any TRIBE Additional Services that it agrees in writing with you from time to time, on the terms and subject to any conditions and limitations set out in a Statement of Work.
73. TRIBE will perform the TRIBE Additional Services with all due care and skill, but you acknowledge and agree that, except to the extent any responsibility is expressly assumed by TRIBE in writing, you remain responsible for the conduct of each Campaign and your compliance with these Terms of Use.
74. The fees and charges payable in respect of any TRIBE Additional Services will be as set out in the applicable Statement of Work.
Payment Terms for Brands
75. You agree to pay TRIBE all fees and charges made to your Brand Account for use of the TRIBE Platform inclusive of Post Fees and/or Paid Content Fees, in accordance with these Terms of Use.
76. If you subscribe to or order any TRIBE Additional Services, you must pay all subscription fees and other applicable charges as set out in the applicable subscription agreement, a Statement of Work, invoice terms or other terms imposed by TRIBE from time to time.
77. You must pay all charges in respect of a Campaign in the manner set out in the Campaign Builder or as otherwise advised by TRIBE in writing from time to time. If no manner for payment is stated and you are not approved to pay via Invoice, the payment must be made by credit card using a provider authorised by TRIBE. TRIBE reserves the right to charge a credit card surcharge.
78. If you do not use your entire Campaign Budget on a Campaign (whether due to early Campaign cancellation, change of Campaign scope, or under-spend), you will still be liable to pay the full amount of the Campaign Budget. Any amount of the Campaign Budget not applied to the Post Fees, Paid Content Fees and other Campaign fees and charges will be held by TRIBE as a credit to use in the TRIBE Platform for 90 days from the date of commencement of that Campaign, after which time it will be forfeited.
79. Upon receiving details of your Campaign (including your Campaign Budget), TRIBE may carry out a standard pre-authorisation check of your nominated card or account (as applicable) to verify the details provided and to ensure there are sufficient funds to fulfil the Campaign Budget. TRIBE may elect not to share the relevant Campaign with Creators via the Application until this pre-authorisation check has been completed to TRIBE’s satisfaction.
80. Brands and Media Agencies may request that TRIBE issue an invoice for fees and charges expected to be incurred by the Brand or Media Agency during the course of a Campaign (“Invoice”), prior to the commencement of the Campaign.
81. TRIBE reserves the right to refuse any Invoice request in its sole discretion.
82. Where a Brand or Media Agency is approved to pay by Invoice, the Brand or Media Agency must provide TRIBE with a purchase order or insertion order (or similar) approving the total fees and charges to be included on the Invoice and including a purchase order or insertion order number. TRIBE may, in its sole discretion, accept written confirmation (including via email) approving an invoice in lieu of a purchase order or insertion order being provided.
83. Where TRIBE approves a Brand or Media Agency to pay by Invoice, the Brand or Media Agency irrevocably authorizes TRIBE, its employees, servants and agents to make such enquiries as TRIBE deems necessary to investigate the Brand or Media Agency’s credit worthiness, including, without limitation, making inquiries from referees, banks or any other credit providers, and the Brand or Media Agency hereby authorizes such persons to disclose to TRIBE, its employees, servants and agents, all information requested by TRIBE for the purpose of assessing your credit worthiness. Any terms of credit offered by TRIBE, including where TRIBE approves payment by Invoice, may be varied by TRIBE in its sole discretion and advised to you in writing.
84. In the event that a Brand or Media Agency requests an Invoice and TRIBE approves the Brand or Media Agency to pay by Invoice, a minimum Invoice amount of $5000 (excluding GST in Australia), £3000 (excluding VAT in UK), or $5000 US (excluding Sales Tax) will apply, unless otherwise approved in writing by TRIBE. If a Brand or Media Agency is not domiciled in Australia, the UK, or U.S., then Invoices will not include GST, VAT or Sales Tax (but may include other applicable tax where relevant).
85. Unless otherwise agreed in a STATEMENT OF WORK for Tribe Additional Services, you must pay the amount of any Invoice you have requested in accordance with the payment terms specified in it or as agreed with TRIBE in writing. Where no such terms of payment are specified or agreed, TRIBE’s standard payment terms apply, being 14 days from the date of the Invoice. Charges paid to TRIBE pursuant to an Invoice will be allocated to the relevant Campaign as credit for use in that Campaign (“Credit”).
86. When you approve a Post or Paid Content, you undertake that:
(a) where you have paid an Invoice and there is sufficient Credit to cover the applicable charges (which include the applicable Brand Fee or Rights Fee and any additional amount payable under paragraph 61), you have sufficient authority to authorise TRIBE to apply that Credit to the applicable charge; or
(b) where paragraph (a) does not apply, you are an authorised user of the card or account (as applicable) nominated on your Brand Account, you are authorised to pay the applicable charges (which include the applicable Brand Fee or Rights Fee and any additional amount payable under paragraph 61), the card details provided are current, correct and complete, and your nominated card or account (as applicable) will cover the full amount of the charges. You must not pay, or attempt to pay, any charges through any fraudulent or unlawful means.
87. In relation to Influencer Marketing Campaigns, upon approving a Creator’s Post submission, you authorise TRIBE to debit the gross fee that is payable for the Post from your Credit balance or nominated card or account (as applicable).
88. In relation to Content Only Campaigns, upon approving a Creator’s Paid Content submission, you authorize TRIBE to debit the applicable Rights Fee that is payable for the Paid Content from your Credit balance or nominated card or account (as applicable). The applicable Rights Fee will depend on the nature of the Rights Licence you select at the time of selecting and approving the Paid Content and is subject to the terms of any such Rights Licence.
89. If you request changes to a Post or Paid Content submitted by a Creator before approving or accepting it, and the Creator agrees to make those changes, TRIBE may (through the TRIBE Platform) require you to ‘pre-approve’ that Content before the Content can be changed and re-submitted. Pre-approval requires that you pay an upfront deposit so as to provide financial commitment to the Creator before they make the agreed changes prior to final approval. In the event that you pre-approve Content and the Creator makes the agreed changes and re-submits the changed Content, you must either approve the final submission or forfeit the deposit. In the event that the Creator does not make the requested changes, you may seek a refund of the deposit and the Creator will not be paid for their pre-approved Content despite the pre-approval. TRIBE will endeavour to resolve any disputes between you and a Creator in relation to the application of this clause 89.
90. If you fail to pay any charges by the due date or TRIBE is unable to successfully process your payment of any charges, TRIBE reserves the right to charge a late payment fee calculated at a rate of ten percent (10%) per annum but no less than $10.00 per month. This amount represents a genuine and reasonable estimate of such costs and expenses associated with managing and processing late payments. TRIBE also reserves the right to withdraw credit facilities (where applicable) at any time or to remove your access to the TRIBE Platform. You may also be liable to pay interest on any amount outstanding at the ATO benchmark interest rate applicable under Division 7A of Part III of the Income Tax Assessment Act 1936 (Cth) (where paragraph 146 applies), or Statutory rate (where paragraph 153 applies), or Prime Interest rate (where paragraph 148 applies) from the date the payment becomes due and you may also be responsible for all reasonable expenses incurred by TRIBE as a result of such late payment (including but not limited to costs incurred by TRIBE to recover any unpaid amounts). Without limiting its rights, in the event you fail to pay any charges within the timeframe and in the manner required, TRIBE reserves the right to suspend or terminate your access to the TRIBE Platform or to suspend or terminate any current Campaigns.
91. If TRIBE is required to collect indirect taxes (such as sales tax, value-added tax, withholding tax, etc.) under the laws of your state or country of residence, you shall be liable to TRIBE for payment of any such indirect tax in addition to, and at the same time as payment of, other amounts to TRIBE under these Terms of Use. You may be required to self-assess such taxes under the applicable laws of your country or residence.
Payment BY TRIBE TO CREATORS
92. TRIBE will make payment of the Post Fee or Paid Content Fee to the Creator in accordance with the timing specified in paragraph 43.
Refunds by TRIBE to Brands
93. TRIBE will refund to you the amount of any Post Fee or Paid Content Fee where TRIBE considers the Creator has breached these Terms of Use or the House Rules in relation to the relevant Post or Paid Content, or where TRIBE has been repaid that amount by the Creator as a consequence of such a breach. TRIBE may reimburse you amounts in other circumstances but is not obliged to do so.
DEFAULT IN PAYMENT
94. If the Client defaults in the payment of any money payable under the Agreement for a period of more than 10 Business Days, Tribe may do one or both of the following:
(a) suspend performance of its obligations under the Agreement until such time as all payments due by the Client are paid in full; and
(b) charge interest on the amount overdue at the prevailing overdraft index rate as quoted by the Commonwealth Bank of Australia, or should that not be available, the rate at which the Commonwealth Bank of Australia designates as being an appropriate substitute for the overdraft index rate plus 2% calculated from and including the date on which the payment became due until but excluding the date on which the payment is made, where the interest is payable on written demand by Tribe.
DISPUTED INVOICES
95. If Client disputes an item on an invoice, then the Client will pay that invoice, less the disputed amount, by the due date and the balance shall be paid (as appropriate) once the dispute has been resolved.
96. The Client waives it rights to dispute any invoice unless it has notified Tribe that it disputes an invoice within 10 Business Days of receipt of that invoice.
NO SET OFF
97. The Client shall not set off any amounts owed to Tribe pursuant to this Statement of Work or this Statement of Work against monies owed by Tribe to the Client
Rights to use Posts and Paid Content
98. Unless otherwise agreed in a STATEMENT OF WORK for Tribe Additional Services, you acknowledge and agree that your right to use a Post is strictly limited to the rights granted to you by the Creator under paragraph 31(b) above. For the avoidance of doubt, you must not use a Post in any form of paid, sponsored or promoted advertising, including within the Channel upon which the Post was published (for example, via Facebook Power Editor).
99. You acknowledge and agree that your right to use Paid Content is strictly limited in accordance with the Rights Licence selected via the TRIBE Platform. For the avoidance of doubt, you must not use Paid Content other than in accordance with the Rights Licence terms that you select at the time of selecting and approving the Paid Content.
100. If you fail to pay the fees and charges applicable to a Campaign Fee, or fail to pay a Post Fee or Rights Fee. in accordance with these Terms of Use or as otherwise agreed by TRIBE in writing, your right to use the affected Content under paragraph 31(b) or the Rights Licence (as applicable) is automatically terminated and you must immediately cease use of the applicable Post or Paid Content.
101. Unless otherwise agreed in a STATEMENT OF WORK for Tribe Additional Services, nothing in these Terms of Use grants to you any ownership or other rights (including Intellectual Property Rights) in any Posts or any Creator’s Identity except as expressly set out in these Terms of Use.
102. While TRIBE uses reasonable endeavours to obtain from Creators, under these Terms of Use and Content Rights Terms, all necessary rights for you to use Posts and Paid Content that you approve for use in a Campaign, you acknowledge that TRIBE may be unable to enforce such rights against Creators from time to time, including by reason of the Creator's age. If you approve Pitches, Posts or Paid Content from Creators who are minors and against whom contracts may be unenforceable on that basis under applicable Laws, you acknowledge that you take on the risk of any unenforceability of licences, assignments, warranties and other obligations granted or given by, or imposed on, that Creator.
103. If you wish to use a Post or Paid Content other than in accordance with paragraph 31(b) or the Rights Licence you select (as applicable), you must contact TRIBE directly at the contact details set out in these Terms of Use. Additional fees may apply.
104. You must not remove any watermarks or copyright notices contained in any Content on the TRIBE Platform.
105. Where any Paid Content or Post includes Third Party Material, you must strictly comply with any use limitations notified to you in respect of the Third Party Material and will obtain all licences required for your intended use of the Post or Paid Content prior to use of such Post or Paid Content, including obtaining any licences required with respect to Third Party Material.
Additional Terms
106. The remainder of these Terms of Use (being paragraphs 107 to 163) apply both to Creators and Brands participating in the TRIBE Platform.
ACCOUNTS GENERALLY
107. TRIBE reserves the right to refuse registration of an Account for any reason in its sole discretion. Any decision of TRIBE is final and no correspondence will be entered into.
108. In registering an Account, you warrant, represent and covenant that you have the right and authority to create an Account and agree to these Terms of Use and the House Rules, including, where relevant, the authority of any Brand or individual to create an Account in its or their name, and to agree to these Terms of Use and to use the TRIBE Platform on its or their behalf.
109. All information provided when registering an Account must be current, correct and complete. Incomplete, ineligible or incomprehensible Account registrations will not be valid and TRIBE may (at its absolute discretion) terminate them without notice.
110. You must be logged in to your Account in the manner required each time you wish to use the TRIBE Platform.
111. You are responsible for maintaining the strict confidentiality of your Account details and for any activity carried out using your Account, and you must not share or transfer your Account details to a third party. You agree to immediately notify TRIBE of any unauthorised use of your Account or any other breach of security. It is your sole responsibility to control access to and use of your Account and to notify TRIBE when you desire to cancel your Account. TRIBE will not be responsible or liable for any loss or damage arising from your failure to comply with this paragraph 111.
112. TRIBE retains the right and absolute discretion to suspend, terminate or limit your access to your Account and/or the TRIBE Platform if it believes that you are abusing or tampering with the TRIBE Platform (or any element thereof) in any way, that you have provided misleading information or made any misrepresentations to TRIBE in connection with the TRIBE Platform, that you have breached or are breaching these Terms of Use or the House Rules, or that you have engaged in any unlawful, unethical, unsportsmanlike or other misconduct calculated to jeopardise the proper administration of the TRIBE Platform (or any element thereof). TRIBE’s legal rights to recover damages or other compensation from you in such circumstances are reserved.
113. You must not use any automated software or any other mechanical or electronic means to create Accounts, or use an Account that has been created using such means.
RELATIONSHIP WITH SOCIAL MEDIA PLATFORMS
114. When you link to any social media account through your Account on the TRIBE Platform, you warrant, represent and covenant that:
(a) the social media account is the account of the Creator or Brand in whose name the Account has been registered;
(b) if the Account is in the name of a Brand, you are the authorised representative of the Brand with the right to access and use that social media account for the Brand; and
(c) if the Account is in the name of a Creator and you are not the Creator, you are the authorised representative of the Creator and have the right to access and use that social media account for the Creator.
115. In creating an Account, you are providing your information to TRIBE and not to any social media platform. Whether you are a Creator or a Brand, you are solely responsible and liable for any Content or information you transmit to other users of the TRIBE Platform.
116. The TRIBE Platform may also utilise social network or share functionality and may contain social media links, applications or features (including but not limited to Facebook, ‘X’ (formerly Twitter) and Instagram). Your use of any social media platforms is subject to the particular social media platform's prevailing terms and conditions of use. By using any social media applications or features on the TRIBE Platform, you consent and agree to be bound to the particular terms and conditions of use of the social media platform. You also acknowledge and consent to the TRIBE Platform accessing information you may have shared with the particular social media platform and contacting you via the social media platform or via the information you have shared (for example, sending an email directly to you to the email address provided to the social media platform), in accordance with the permissions you have granted via the social media platform. You are encouraged to review the terms and conditions of use of each social media platform before engaging or interacting with the social media links, applications or features on the TRIBE Platform. The TRIBE Platform is in no way sponsored, endorsed or administered by, or associated with, any social media platform.
RELATIONSHIP WITH TRIBE - INDEPENDENT CONTRACTOR
117. Tribe is engaged by the Client as an independent contractor and nothing in this agreement creates or constitutes a relationship of employer and employee, principal and agent, trustee and beneficiary or of partnership or joint venture between the parties.
SUBMISSION OF CONTENT THROUGH TRIBE PLATFORM
118. Without limiting the other requirements set out in these Terms of Use, you must ensure that any Content you submit to the TRIBE Platform does not contain anything that:
(a) is illegal or contrary to any laws, applicable industry code or the requirements or directions or relevant regulators;
(b) is copied or adapted either wholly or substantially from any other work or material;
(c) is indecent, obscene, threatening, discriminatory, harassing, in breach of any confidence, defamatory, offensive or objectionable or contains, depicts or alludes to or promotes aggressive, unruly, antisocial, lewd or illegal behaviour or sexually suggestive imagery;
(d) parodies, disparages or makes fun of TRIBE or its products of services in any way;
(e) solicits passwords or personal information for commercial or unlawful purposes or provides any telephone numbers, street addresses, last names, URLs or email addresses (except to the extent required as part of a Campaign);
(f) promotes an illegal or unauthorised copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated materials;
(g) involves the transmission of junk mail, chain letters, unsolicited mass mailing or spam;
(h) infringes the privacy rights, contract rights or other rights (including Intellectual Property Rights) of any person, corporation or entity;
(i) constitutes, encourages or provides instructions for any criminal offence or otherwise violates any Laws including, without limitation, the regulations of any stock or securities exchange such as the New York Stock Exchange; or
(j) contains any viruses, corrupted data or other harmful or malicious code of files.
119. TRIBE retains the right to remove from the TRIBE Platform any Content that it considers breaches these Terms of Use or the House Rules.
USING THE TRIBE PLATFORM
120. Subject to your compliance with these Terms of Use, you are granted a limited, non-exclusive, revocable and non-transferrable licence to access and use the TRIBE Platform in the manner permitted in these Terms of Use.
121. You must use the TRIBE Platform in accordance with any applicable instructions set out within the TRIBE Platform.
122. You must not:
(a) decompile, reverse engineer, disassemble, convert or authorize any third party to decompile, reverse engineer, disassemble or otherwise convert any element of the TRIBE Platform to a human perceivable form;
(b) distribute or republish any element of the TRIBE Platform in any way;
(c) resell, rent, lease, licence or lend any element of the TRIBE Platform;
(d) defeat, disable or circumvent any security feature of the TRIBE Platform;
(e) transfer any element of the TRIBE Platform to any third party;
(f) use any data mining, robots or similar data gather or extraction methods;
(g) register, subscribe or unsubscribe, or attempt to subscribe or unsubscribe, any party to any product or service if you are not expressly authorised by such party to do so; or
(h) sell, licence, lease or in any way seek to commercialise any component of the TRIBE Platform without specific written authorisation from TRIBE.
123. You must not engage in crawling, scraping, caching or otherwise accessing any content on the TRIBE Platform via automated means, except with TRIBE’s written consent.
124. TRIBE reserves the right to monitor the TRIBE Platform generally and all Account activity. If your Account shows signs of fraud, abuse or suspicious activity, TRIBE may close or freeze the Account immediately.
125. The TRIBE Platform may contain links to other sites not maintained by TRIBE (“Linked Sites”). TRIBE is not responsible for the content of any Linked Sites, whether or not TRIBE is affiliated with the Linked Sites. TRIBE makes no claim or representation regarding, and accepts no responsibility, directly or indirectly, for the quality, nature or reliability of Linked Sites. Such Linked Sites are not under the control of TRIBE and TRIBE provides links to the Linked Sites only as a convenience to users of the TRIBE Platform. The inclusion of a link to any Linked Site does not imply any affiliation with or endorsement by TRIBE. You should review and applicable terms and policies (including privacy policies) of any Linked Site you visit.
126. Any costs associated with downloading, installing, accessing and using the TRIBE Platform remain your responsibility and are dependent on the service provider used.
127. You are responsible for ensuring that your computer system or mobile device (as applicable) is, and other information technology hardware, software and services are, compatible with the TRIBE Platform and meets all relevant technical specifications necessary to access and use the TRIBE Platform.
128. If you are the driver of a vehicle (or other form of transport), you must not use the TRIBE Platform while the vehicle (or other form of transport) is moving or is stationary but not lawfully parked. You may only use the TRIBE Platform when the vehicle is lawfully parked. You must comply with all applicable road rules and regulations before and while using the TRIBE Platform. In the interests of safety at all other times, TRIBE recommends that you only use the TRIBE Platform when it is lawful and safe to do so.
TRIBE’S INTELLECTUAL PROPERTY
129. All TRIBE Materials on the TRIBE Platform and the Tribe Additional Services are protected by all applicable laws, including copyright and trade mark laws, and may not be used except as permitted in these Terms of Use. Nothing in these Terms of Use will be taken to constitute a transfer, assignment or grant of any ownership rights in any Intellectual Property Rights in the TRIBE Materials to a Brand or Creator.
130. All right, title and interest in all Intellectual Property Rights in all of TRIBE’s brands, logos, images, buttons, codes, layout, text, content, graphics, and products and services as displayed on the TRIBE Platform as well as the look and feel of the TRIBE Platform (the “Brand Features”) are the property of TRIBE and will remain or be vested in TRIBE at all times and may not be copied, imitated or used in whole or in part without TRIBE’s prior written consent. Your use of the TRIBE Platform will not under any circumstances be taken to constitute a transfer, assignment or grant of any ownership rights in any of the Brand Features or the TRIBE Platform. TRIBE grants to you a limited, non-exclusive licence to use the Brand Features solely for the purpose, and to the extent necessary, to enable you to use the TRIBE Platform in accordance with these Terms of Use. You may not use metatags or any other “hidden text” utilising the Brand Features without TRIBE’s prior written consent.
COPYRIGHT INFRINGEMENT POLICY & COMPLAINTS
131. In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws, TRIBE has adopted a policy of terminating, where appropriate and at TRIBE’s discretion, access to the TRIBE Platform for account holders who infringe the intellectual property rights of TRIBE or any third party.
132. If you believe that any material on the TRIBE Platform infringes upon any copyright that you own or control, you may file a notification of such infringement with TRIBE at the following details:
Copyright Agents
Collen Intellectual Property Law
80 South Highland Avenue, Ossining, New York, 10562
+1 914 941 5668
info@collenip.com
McLeanDolphin
PO Box 16156, Collins Street West, Vic, 8007
+614 47 335 993
www.mcleandolphin.com.au/contact
CONFIDENTIALITY
133. Each of you and TRIBE understands that the other has disclosed or may disclose business, technical or financial information relating to its business, including in the case of TRIBE (Confidential Information), and agrees:
(a) to take reasonable precautions to protect the other party's Confidential Information;
(b) not to use the other party's Confidential Information except for the purposes of these Terms of Use; and
(c) not to disclose the other party's Confidential Information to any third person except to the extent required by law or with the consent of the other party.
134. The obligations under clause 133 will not apply to any information that you or TRIBE (as applicable) can document:
(a) is or has become generally available to the public;
(b) was in its possession, or known by it, prior to receipt from the other party;
(c) was rightfully disclosed to it without restriction by a third person; or
(d) was independently developed by it without use of any Confidential Information of the other party.
SURVIVAL
135. The provisions of this clause shall survive the expiration or termination of the Agreement
TAXES
136. Words or expressions used in these Terms of Use that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning as given in the Act. If GST applies to any supply made under these Terms of Use, then the party making that supply may, in addition to any other amount payable, recover from the other party an additional amount on account of GST, such amount to be calculated on the basis of the current GST rate. Unless otherwise specified, any amount payable under these Terms of Use is exclusive of GST.
137. All amounts payable under these Terms of Use are exclusive of amounts in respect of value added tax chargeable from time to time. Where any taxable supply for VAT purposes is made under these Terms of Use, the recipient of that supply shall, on receipt of a valid VAT invoice, pay to the supplier of that supply such additional amounts in respect of VAT as are chargeable on the supply at the same time as payment is due for the supply under these Terms of Use.
FORCE MAJEURE
138. Neither party will be liable for a failure or delay in performing its obligations under the Agreement to the extent that such failure or delay:
(a) is directly attributable to a Force Majeure Event; and
(b) could not have been prevented by reasonable precautions or circumvented or minimised by the non-performing party (e.g., by means of alternative sources or workarounds).
139. If a delay which is directly attributable to a Force Majeure Event exceeds 30 days, the party not affected by the Force Majeure Event may terminate the Agreement by written notice to the affected party.
INDEMNIFICATION
140. Unless otherwise agreed in a STATEMENT OF WORK for Tribe Additional Services you agree to indemnify, and must defend and hold harmless, TRIBE and its related bodies corporate, personnel, servants and agents, from and against any claims, liabilities, damages, losses and expenses (including reasonable legal fees) arising out of or in any way connected with any of the following (including as a result of your direct activities on the TRIBE Platform):
(a) your Content or access to the TRIBE Platform;
(b) your use or inability to use the TRIBE Platform;
(c) your breach or alleged breach of these Terms of Use (including any warranties given under them) or the House Rules;
(d) (where you are a Creator) your claim against a Brand for any reason;
(e) (where you are a Brand) your claim against a Creator for any reason;
(f) any claim by any third party (including any other Brand or Creator) arising directly or indirectly from your breach of any of the provisions of these Terms of Use or House Rules;
(g) any claim or allegation that your Content infringes a third party’s rights, including Intellectual Property Rights;
(h) your violation of any applicable Laws; and
(i) any misrepresentation made by you.
LIMITATION OF LIABILITY
141. Paragraphs 142 to 145 will apply unless otherwise agreed in a STATEMENT OF WORK for Tribe Additional Services.
142. In using the TRIBE Platform, you may be exposed to Content that is harmful, obscene, misleading or inaccurate. Under no circumstances will TRIBE be liable in any way for any Content, including but not limited to any errors or omissions in such Content or any loss or damage of any kind incurred as a result of any use of Content posted, transmitted or otherwise made available via the TRIBE Platform.
143. Any liability of the TRIBE Group to a Brand in connection with these Terms of Use, the House Rules or the Brand’s use of the TRIBE Platform or the TRIBE Additional Services, regardless of the form or cause of action be it in contract, warranty, tort, negligence or any other basis, shall be limited to the amount actually paid by the Brand to TRIBE for the services related to the Brand’s most recent Campaign, except to the extent set out in paragraphs 146 to 148 or otherwise required by Law.
144. The TRIBE Group shall not be liable to Creators for damages of any kind arising out of the Creator’s use of the TRIBE Platform, except to the extent set out in paragraphs 146 to 148 or otherwise required by Law.
145. Without limiting the foregoing, in no event shall TRIBE or any of its directors, associated entities (including other members of the TRIBE Group), successors in title, licensees or assigns or employees or agents be liable for any direct, indirect, special, incidental, consequential (including but not limited to loss of profits, loss of business revenue or loss of goodwill), punitive or exemplary damages, arising out of, or in connection with, the TRIBE Platform, any of the TRIBE Additional Services, these Terms of Use, the House Rules, or any Post, Content or Campaign. The foregoing limitations apply whether the alleged liability is based on tort, contract, negligence or any other basis, even if TRIBE or any other party has been advised of the possibility of such damages. This limitation of liability includes, without limitation, any damages caused by or resulting from you relying on any information obtained from TRIBE, or that results from mistakes, omissions, interruptions, deletion of files or emails, errors, defects, viruses, delays in operation, or any failure of performance, whether or not resulting from acts of God, communication failures, theft or destruction or unauthorized access to TRIBE’s records.
DISCLAIMERS
146. Paragraph 147 does not apply to any Consumer Guarantee under the Australian Consumer Law and does not apply to any liability of TRIBE’s for failure to comply with a Consumer Guarantee under the Australian Consumer Law. Nothing in these Terms of Use operates to exclude any liability for death or personal injury caused by negligence, nor for fraud, nor for any Consumer Guarantee under Australian Consumer Law.
147. Whilst TRIBE endeavours to take all reasonable steps to ensure that the TRIBE Platform operates as expected, the TRIBE Platform and its entire contents are provided on an “as is” and “as available” basis without any warranties of any kind, either expressed or implied, to the fullest extent permissible pursuant to applicable law, including, without limitation, any implied warranties of merchantability, satisfactory quality, non-infringement or fitness for a particular purpose. TRIBE does not make any guarantees and does not provide any undertaking that the TRIBE Platform will be available at all times or that it will be error free, reliable or secure or free from viruses or other harmful components or that any defects will be corrected. You agree that you use the TRIBE Platform at your own risk and you assume total responsibility for your use of the TRIBE Platform, including compliance with all applicable road rules and regulations. Subject to the Consumer Guarantees, your sole remedy against TRIBE for dissatisfaction with the TRIBE Platform or any content is to stop using the TRIBE Platform or such Content. This limitation of relief is a part of the bargain between the parties.
148. If the supply of any goods or services by TRIBE to a Brand or Creator constitutes a supply of goods and/or services to a Consumer then subject to the following limitations and unless the goods and/or services are Consumer Goods or Consumer Services, TRIBE’s liability for any breach of these Terms of Use, including any liability for any losses or consequential losses which the Brand or Creator may suffer or incur because of a failure to comply with a Consumer Guarantee will be limited as TRIBE may elect in its sole discretion, in the case of services supplied or offered by TRIBE, to either (a) the supplying of the services again; or (b) the payment of the cost of having the services supplied again or, in the case of goods supplied or offered by TRIBE, (c) the replacement of the goods or the supply of equivalent goods, (d) the repair of such goods, (e) the payment of the cost of replacing the goods or acquiring equivalent goods, or (f) the payment of the cost of having the goods repaired. This paragraph 141 does not apply if it is not Fair or Reasonable for TRIBE to rely on it.
149. In these Terms of Use:
(a) “Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth);
(b) “Consumer” has the same meaning as given in section 3 of the Australian Consumer Law;
(c) “Consumer Goods” means 'goods of a kind ordinarily acquired for personal, household or domestic use or consumption', as that expression is used in section 3 of the Australian Consumer Law;
(d) “Consumer Guarantee” means a consumer guarantee applicable to these Terms of Use under the Australian Consumer Law, including any Express Warranty;
(e) “Consumer Services” means 'services of a kind ordinarily acquired for personal, household or domestic use or consumption', as that expression is used in section 3 of the Australian Consumer Law;
(f) “Express Warranty” has the same meaning as given in section 2(1) of the Australian Consumer Law;
(g) “Fair or Reasonable” means 'fair or reasonable' for the purposes of section 64A of the Australian Consumer Law.
GENERAL TERMS
150. To the extent there is any inconsistency between any provisions of the STATEMENT OF WORK and the provisions of these Terms of Use, the terms of the STATEMENT OF WORK shall prevail on all technical and operational matters whilst the Terms of Use shall prevail on all other matters.
151. If the TRIBE Platform is not capable of running as planned for any reason beyond the reasonable control of TRIBE, including because of war, terrorism, state of emergency or disaster (including natural disaster), infection by computer virus, bugs, tampering, unauthorised intervention, technical failures or any which corrupt or affect the administration, security, fairness, integrity or proper conduct of the TRIBE Platform, or if any social media platform alters its terms of service, access or permission in such a way that affects the TRIBE Platform, TRIBE reserves the right, in its absolute discretion, to cancel, terminate, modify or suspend the TRIBE Platform.
152. If you are domiciled in the Southern Hemisphere (except for any territories or possessions of the United States), these terms of use shall be governed by and are to be construed in accordance with the laws of the State of New South Wales, Australia, and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia, and any courts competent to hear appeals from those courts.
153. If you are domiciled in the Northern Hemisphere (except for the United States, its territories and possessions), these Terms of Use are governed by and are to be construed in accordance with the laws of England and Wales and the parties submit to the non-exclusive jurisdiction of the courts of the English courts.
154. If you are domiciled in the United States, its territories and possessions, these Terms of Use are governed by and are to be construed according to the laws of the State of New York, without giving effect to its choice of law principles and the parties agree that all actions and proceedings arising out of or relating directly or indirectly to these Terms of Use shall be brought solely and exclusively in the state or federal courts located in the City of New York, New York, and that such courts are convenient forums. Each party hereby submits to the personal jurisdiction of such courts for purposes of any such actions or proceedings.
155. Use of the TRIBE Platform does not grant any Creator, Brand or Media Agency the right to bind TRIBE to any other agreement or obligations other than those found this Agreement or a Statement of Work.
156. You may not assign any rights or obligations under these Terms of Use, in whole or in part, to any third party without the prior written consent of TRIBE. TRIBE may assign its rights or obligations hereunder at its sole discretion.
157. Any waiver of any provision of these Terms of Use will only be effective if in writing and signed by TRIBE. If any term or part of any term is in any way unenforceable, invalid or illegal, it is to be read down and amended so as to be enforceable, valid and legal. If this is not possible, the term (or where possible, the offending part) is to be severed from these Terms of Use without affecting the enforceability, validity or legality of the remaining terms (or parts of those terms) which will continue in full force and effect.
158. TRIBE may, in its discretion, give any approval or consent under these conditionally or unconditionally, or withhold that approval or consent.
159. Nothing in these Terms of Use is intended nor does create a partnership, agency, employment or fiduciary relationship between TRIBE and you or any other user of the TRIBE Platform.
MUTUAL OBLIGATIONS
160. The Parties agree to:
(a) comply with all reasonable directions given by a Party in relation to the Services.
(b) comply with its obligations under the Privacy Act 1988 (Cth), and any equivalent laws governing the collection, storage and use of Personal Information in the Territory; and
(b) comply with all applicable laws (including occupational health and safety requirements) in the performance of the Services.
CONTACT AND HELP DETAILS
161. You may contact TRIBE via:
Mail (Australia): TRIBE, Level 4, 145 Clarendon St, Southbank Vic 3006
Mail (UK): TRIBE c/o We Work, 138 Holborn, London EC1N 2SW
Mail (US): TRIBE, 99 Wall St #271, New York, NY 10005
Email: hello@tribegroup.co
iNTERPRETATION
162. The following terms have the following meanings in these Terms of Use:
“Account” means a Brand Account or a Creator Account.
“Application” means the TRIBE Influencer App available for download via https://www.apple.com/itunes/.
“ASA” means the UK’s Advertising Standards Authority.
“Brand” means any person or entity that uses the TRIBE Platform for the purpose of creating Campaigns (including through its duly authorised agents or representatives).
“Brand Account” means an account set-up by a Brand within the Campaign Builder that enables them to use the Campaign Builder
“Brand Fee” means the stated fee payable by a Brand to TRIBE in respect of an approved Post plus any applicable GST, VAT or Federal Withholding or Sales Tax.
“Campaign” means an Influencer Marketing Campaign or a Content Only Campaign.
“Campaign Brief” means either a Content Only Brief or an Influencer Marketing Brief.
“Campaign Budget” means the sum of money a Brand nominates as the sum it is willing to spend during a Campaign.
“Campaign Builder” means the desktop platform for Brands to create Campaigns to be featured on the Application and available at http://brand.tribegroup.co/.
“CAP Code” means the Committee of Advertising Practice Code, which is regulated by the ASA in the UK.
“Channels” means the social media channels of a Creator, such as ‘X’ (formerly Twitter), Facebook or Instagram.
“CMA” means the Competitions and Markets Authority in the UK.
“Community” means a Creator’s social media following on their Channels.
“Content” means a Post, Paid Content, Pitch, or any other content or materials uploaded to the TRIBE Platform by a Brand or a Creator (but excludes any Third Party Material included in a Post or Paid Content that is expressly disclosed to TRIBE and the Brand).
“Content Only Brief” means a brief created by a Brand using the Campaign Builder and issued on the Application, seeking content from a Creator to be used as part of a Content Only Campaign.
“Content Only Campaign” means a campaign created by a Brand using the Campaign Builder made available to Creators via the Application for the purpose of sourcing Paid Content to be used by the Brand directly in accordance with a Rights Licence, without the Creator posting the Paid Content to their Channels.
“Creator” means a social media influencer, or a content creator who registers to use the Application to be paid to create and distribute Posts and/or to create Paid Content
“Creator Account” means an account to use the Application as defined in paragraph 7.
“Creator’s Channels” are ‘X’ (formerly Twitter), Instagram, TikTok, Pinterest and/or Facebook.
“Creator’s Identity” means the name, image, likeness, character and online persona of the Creator.
“Final Approval” means the last step of approval a brand gives to the Creator via the TRIBE platform, confirming the brand agrees to a Creator’s submission, and price. Final Approval is required prior to publishing a Post or licensing Paid Content.
“House Rules” means the code of practice and conduct that must be adhered to by Creators and Brands, as published by TRIBE from time to time.
“Influencer Marketing Brief” means a brief created by a Brand using the Campaign Builder and issued on the Application, seeking Creators to publish Posts about the Brand as part of an Influencer Marketing Campaign.
“Influencer Marketing Campaign” means a campaign created by a Brand using the Campaign Builder made available to Creators via the Application for the purpose of finding appropriate Creators to publish Posts about the Brand.
“Intellectual Property Rights” means all present or future intellectual property rights of whatever nature anywhere in the world including, but not limited to, rights in respect of or in connection with copyright, inventions (including patents), trade marks, service marks, trade names, domain names, designs, any rights in silicon chip topography, Confidential Information and Know-How and similar industrial, commercial and intellectual property rights, whether or not registered or registrable, and includes the right to apply for the registration of such rights, and whether existing in Australia or otherwise.
“Laws” means all applicable laws, codes of practice and guidance, including in relation to influencer marketing, including (in the UK) the Consumer Protection from Unfair Trading Regulations 2008 and the CAP Code, as well as any applicable guidance issued by the ASA, CAP, CMA, and/or Federal Trade Commission’s Guides Concerning Endorsements and Testimonials in Advertising from time to time.
“Media Agency” means an authorised third party organisation acting on behalf of a Brand or Brands, including public relations, media, creative, design and digital agencies.
“Moral Rights” means moral rights within the meaning of Part IX of the Copyright Act 1968 (Cth), including moral rights conferred on authors and performers, and any analogous rights arising under statute or otherwise, anywhere in the world, and whether now in existence or arising in the future.
“Paid Content” means content created by a Creator in response to a Content Only Brief , or content that the Creator makes available to be licenced from the Tribe Platform.
“Paid Content Fee” means the fixed fee as stated on the TRIBE Platform to be paid to a Creator for Paid Content submitted to a Content Only Campaign and selected by the Brand, plus any applicable GST, VAT, or Federal Withholding or Sales Tax.
“Pitch” means the initial concept for Paid Content or a Post, created by a Creator and submitted by a Creator, to a Brand via the Application.
“Post” means a social media post created by a Creator in response to an Influencer Marketing Brief to be shared with the Creator’s Community via the Creator’s Channels.
“Post Fee” means the fee a Creator nominates on the Application as the amount it will charge a Brand to share a Post with the Creator’s Community via the Creator’s Channel nominated by [insert], plus any applicable GST, VAT, or Federal Withholding or Sales Tax.
“Rights Fee” means the fixed fee as stated on the TRIBE Platform payable by a Brand to TRIBE for a Rights Licence in respect of approved Paid Content plus any applicable GST, VAT, or Federal Withholding or Sales Tax.
“Rights Licence” means a licence from TRIBE to a Brand for particular Paid Content on the terms and conditions stated on the TRIBE Platform and selected by the Brand, including in any specific content licence agreement.
“Statement of Work” means a separate agreement between TRIBE and a Brand that outlines TRIBE Additional Services including an agreed set of deliverables.
Terms of Use means these terms of use and includes the House Rules.
“Third Party Material“ means any material included in a Post or Paid Content where any rights (including Intellectual Property Rights) in that Material are owned by or licensed from a third party, including material in relation to which there may be stated, inherent or industry practice-based use limitations as a result of the rights of third parties including, without limitation, rights in music, rights of personality, talent rights and similar.
“TRIBE” means one of the following entities (a) if you are domiciled in the Southern Hemisphere, TRIBE Digital Pty Ltd (Australia); (b) if you are domiciled in the Northern Hemisphere (except for the United States, its territories and possessions), TRIBE Group Digital Limited (UK); or (c) if you are domiciled in the United States, its territories or possessions, TRIBE LLC.
"TRIBE Group” means TRIBE and its related bodies corporate and affiliates.
"TRIBE Materials” means the TRIBE Platform and any associated materials owned, developed or licensed by TRIBE and made available via the TRIBE Platform.
“TRIBE Platform” means the platform containing the Application, the Campaign Builder and other elements available through the Website (including data, statistics, analytics, Creator vetting, reporting and benchmarking, information, tools, databases, documentation, system and network interfaces, internal network, cloud and disk storage, software applications, operating systems, engines, and internal communications), and any associated TRIBE Group properties or websites.
“TRIBE Additional Services” means services and content that are in addition to those provided on the TRIBE Platform that TRIBE agrees to provide to a Brand through a Statement of Work including development of Campaigns and associated briefs, identification and vetting of Creators to participate in Campaigns, review and moderation of Posts or Paid Content submitted by Creators, evaluation of Campaigns and Campaign impact, other benchmarking and reporting, and other support services).
“VAT” means value added tax chargeable under the Value Added Tax Act 1994 (UK).
“Website” means the TRIBE Group's website at www.tribegroup.co/.