GENERAL TERMS AND CONDITIONS FOR FLUVIP INFLUENCERS
- FLUVIP: At any time FLUVIP is referenced, will be referenced as the commercial society FLUVIP S.A., its branches, subsidiaries and /or companies or related people, as well as its employees, contractors and dependents in charge of providing the service of Influencer Marketing between the Advertiser and the Influencer.
- Influencer Marketing: this is a way of marketing by which strategies of promotion, marketing and publicity of products, services and ideas are structured through people and Profiles which have the elements to become potential recommenders for a specific audience.
- Influencer: this is a person or Profile that because of its level of followers, engagement and possibility of generating interactions in Social Networks, owns a great capacity of communicating to a specific audience, therefore, it is in charge of publicizing the Advertisements of the Products of the Advertiser.
- Advertiser: tthis is any natural or legal person interested in the Influencer Marketing services provided by FLUVIP.
- Products: it refers to the products, services or ideas which the Advertiser wants the Influencer to be publicized by.
- Services: it refers to providing the services of intermediation and Influencer Marketing by FLUV
- Advertisements: this is the promotion and publicity of the Products of the Advertiser performed by the Influencer.
- Audience: it refers to the potential and current followers of the Influencers, thus, the public that the Products will be recommended to, through the Advertisements.
- The Platform: this is the web portal wwfluvip.com that FLUVIP makes available to the Influencers and their Advertisers to register and access to its Services. The Platform offers to its visitors a description of the Services and gives the possibility to each Advertiser to select the options that better frame their necessities facilitating, this way, the selection of its Influencer.
- Social Networks: It refers to Facebook, Instagram, Snapchat, Youtube, Twitter or any other that FLUVIP decides on.
- Profile: these are the profiles used by groups in Social Networks which don’t belong to any particular person but are created with the purpose of promoting some causes, for instance, charitable causes or the protection of animals, etc., or to create content for specific groups like people interested in fashion, nature, cooking, among others.
- Party: the Influencer and FLUVIP will be each one the “Party” and altogether the “Parties”.
2. FLUVIP Services
- FLUVIP provides Influencer Marketing services, so that, it offers to be an intermediary between the Influencers and the Advertisers who want one or several of their products to be publicized on Social Networks.
- The Influencers must accomplish some characteristics and based on the number of followers and the public they address, they will be selected by the Advertisers to release the Advertisements of their products. Once the Advertiser selects the Influencer, FLUVIP will contact him/her and coordinate the development of the advertising campaign related to the Product.
- The Influencer and the Advertiser won’t have direct contact. Everything related to the Advertisement and other services will be intermediate, without representation, through FLUVIP, unless FLUVIP authorizes the opposite.
3. Access and registration conditions to the Platform.
- These general terms and conditions regulate the legal relation between the Influencer and FLUVIP (hereafter the “Terms”), that is to say, they are applicable to the intermediation relation through which FLUVIP selects and coordinates the Advertisement of the Products with the Influencer.
- Any person, especially who wants to register and act as an Influencer must accept these Terms, which are mandatory and legally binding. In case a person does not accept these Terms he/she must refrain from using or registering in the Platform. These Terms modify and cancel the terms and conditions published in the Platform before June 2016, they also cancel any accorded agreement that contravenes which is established here. FLUVIP reserves the right to make any modifications that it ponders pertinent.
- The Influencer must read, understand and accept all the conditions established in these Terms and in the Privacy Policies set out in the following link (…) or in any other document incorporated by reference to them.
- Within the parameters to be used by FLUVIP, alongside with the Advertiser, to the selection of the Influencer, there is, but not limited to, that this person is recognized on Social Networks and has the capacity to communicate to a specific audience about the obtaining and purchasing of the Products.
- To the present Terms and the legal relations that originate in virtue of them, between or with FLUVIP, the Advertisers, Influencers and/or any third party, it will be applicable, where pertinent, Law 527/1999 and the norms that modify and regulate it, mainly, as it is understood that it deals with e-commerce relations, that means, issues raised by commercial nature relations, being they contractual or not, structured from the use of one or more data messages or any other similar means.
4. Management conditions for Influencers in the platform
- The influencer must register in the platform, this registration is free. To this end, FLUVIP will have access to all the Social Networks and followers of the Influencers in order to verify the number of followers and the capacity of communication of the Influencer.
- In the moment of the registration, based on an algorithm designed by FLUVIP, the system that runs the platform will determine the price which can be paid to the Influencer for each release. There are certain characteristics taken into account in order to set a price, especially but without a limitation, the relevance of the influencer on Social Networks and his/her capacity of communication with the audience.
- If the Influencer disagrees with the given price, it can be modified through the platform. In this case, the Influencer will be reached directly by FLUVIP in order to negotiate a range that FLUVIP considers suitable. If the Influencer does not accept, he/she will be able to set a suitable price under his/her responsibility.
- From time to time, the prices set in the platform for each of the Influencers will be checked by FLUVIP and eventually recomputed. This revision will be done taking into account the number of followers, the number of interactions, the currency and country in which the Influencers live, the target, among others.
- FLUVIP will contact the Influencer when the Advertiser is interested in him/her to be part of an Advertisement for its Products. FLUVIP will confirm alongside with the Influencer the price that is set in the platform.
- In some cases, when imperative factors are requested to develop the advertising campaign and under full discretion of FLUVIP, an additional price could be set for the Advertisements to be posted by the Influencers.
- Furthermore, in case that FLUVIP considers it necessary, an additional contract will be signed in which specific and exceptional topics will be regulated, those that are not established into these Terms.
- Withholding taxes will be applied to every payment.
- FLUVIP will pay to the Influencer the corresponding value of the Advertisements within ninety (90) days following the closure of the campaign.
- The way of payment will be agreed between FLUVIP and the Influencer.
5. Exclusion of liability by FLUVIP
- The fact of being registered as an Influencer does not mean that he/she will be hired for advertising and promotion campaigns. This will only happen if the Advertiser is interested in the Advertisements of the Influencer.
- FLUVIP and the Influencer are different and autonomous individuals and the only relationship they hold is the one established in these Terms. Accordingly, they are only obliged to respond for the debts and own obligations and by no means for the acquired or assumed ones by the other.
- FLUVIP does not offer, nor lend, nor sell the products that are offered through the Advertisements.
- The Influencer acknowledges and accepts being the exclusive responsible for the information that he/she releases on his/her Social Networks during the development of his/her activity and that the Advertiser is responsible for the provided information related to the product and its quality.
- FLUVIP will not be responsible for the complaints and claims made to the Influencer in relation with the releasing of the Advertisements of the products of the Advertiser.
- The Influencer declares that he/she will hold FLUVIP and the Advertiser harmless in regards to any claim, complaint, a third party lawsuit against them, their branches, subsidiaries and/or companies or people related to them, as well as their employees, contractors and dependents, due to any different activities developed by the Influencer instead of the hired Advertisements by FLUVIP or in the events in which non authorized information by FLUVIP is released. This condition extends to any claim that arises when (i) one or more pictures used by the Influencer are released without permission from the one who holds the copyrights; (ii) the use of a brand, distinctive signs or similar nature rights is inappropriate; (iii) the use of goods protected by copyrights is inappropriate or (iv) the direct or indirect breach of a duty by the Influencer. The Influencer will assume the defense of FLUVIP as well as the Advertiser and will cover any detriments caused by any of these facts, including fines, administrative sanctions, costs, expenses, compensations and legal fees that can be caused.
- The Advertisements and any linked act to them do not create any company contract, mandate, franchise, agency, labor relationship or consumption between FLUVIP and the Influencer. The Influencer acknowledges and accepts that FLUVIP has no control over the quality, safety or legality of the products, nor over the veracity or accuracy of the Advertisements.
6. Obligations of the Influencer
By accepting the Terms, the Influencer is obliged to:
- Release the contracted advertisements in concordance with the instructions given by FLUVIP
- In certain occasions, by request from the Advertiser or due to the decision of FLUVIP, to use the Products that he/she will Advertise, in order to have a personal experience, and so, transmit it to the Audience.
- To use all the expertise, knowledge and zeal in the accomplishment of his/her obligations.
- To approve the publishing of the Advertisements of the products, prior agreement with FLUVIP in regards to the quantity, content and quality of them.
- To release in an efficient and timely way the Advertisements and to accomplish the duties that are generated in concordance with the nature of the campaign which he/she was contacted for, or to approve the publishing of them by FLUVIP.
- Not to eliminate from his/her Social Networks the Advertisements of the Products in a minimum term of 6 months counting as from the last publishing date of each product.
- To use the information delivered by FLUVIP only for the tasks that it commends him/her to do, being expressively forbidden its use in other cases.
- To inform FLUVIP about the content of the Advertisements prior publishing them.
- To adequately use and ensure, with the care of a good businessman, the conservation of all the Products of the Advertiser, in the occasions where they are made available to the Influencer for the development of the service entrusted to him/her
- To have the necessary tools and implements for the releasing of the Advertisements, this includes internet access and excellent quality equipment.
- Not to directly contact or try to contact the Advertisers, neither to provide his/her personal information, for instance, phone number, e-mail address, nor to directly negotiate the terms of the Advertisements or their payment.
- To keep the confidential and secret information of the Advertiser or FLUVIP that comes to his/her knowledge as a result of the providing of the services.
- To inform FLUVIP by written communication in case there is an event that affects the agreed contractual relation and that might affect FLUVIP or the Advertiser.
- With the exception of the expressly cases authorized by FLUVIP, to permit the use of his/her images and published information in Social Networks for promotional effects, including but not restricted to, the right to use the profile pictures from the Social Networks of the Influencer with the purpose of promoting the campaigns related to the Advertisements.
- To allow FLUVIP to supervise the divulgation practices of the Influencers, and in case it is determined that they are insufficient, increase them, according to what was agreed.
7. Declarations and acceptance of responsibility by the influencer.
The influencer admits and accepts:
- That once registered, FLUVIP has no obligation of hiring him/her and will only be contacted when an Advertiser chooses his/her Advertisements.
- That every release made by him/her on his/her Social Networks, related to what is required by the Advertiser is only and exclusively responsibility of the Influencer, by no means will be FLUVIP’s responsibility.
- That he/she is the only responsible, even in the slightest negligence, for the consequences, damages caused to a third party, the advertisers and FLUVIP, generated in virtue of the execution of the activities or services that he/she develops or any omission in the fulfillment of his/her legal and contractual obligations.
- That he/she is the only responsible for the payment of any sanctions imposed or derived from the development of his/her activities or because of the way of making Advertisements.
- That he/she is obliged to keep any person, including the Advertisers and FLUVIP, its branches, subsidiaries and/or companies or people related to it as well as employees, contractors and dependents from each and/or a third party, harmless due to claims, lawsuits or any legal action that arises because of any type of damage, including, limitless, fines, sanctions, death or personal injuries and damage to the property
- The influencer is obliged to refund the correspondent value, in the event that FLUVIP, its branches, subsidiaries and/or companies or people related to it, as well as employees, contractors and dependents and/or a third party or an Advertiser were forced to pay some amount of money thanks to the prior described responsibility.
- Any claim made by the consumers as a consequence of and/or in relation to the Advertisements of the Influencer will be handled directly by him/her or the Advertiser. The latter will be informed by FLUVIP within 5 days following the date in which this claim be known.
- In case FLUVIP is forced to handle this claim, it will do it and will charge the correspondent price to the Influencer or Advertiser, depending on the type of claim, for which it could use or be compensated through any money that FLUVIP possibly owes to the Influencer linked to these or other contractual relationships.
- That he/she will not be allowed, without prior authorization, expressly written by FLUVIP, to give up under no title, operation or legal business the rights and duties emanating from this document.
8. Exclusion of liability by FLUVIP in regards to the operation and content of the Platform.
- FLUVIP may not be held liable for any harm, damage or loss directly or indirectly caused to the Influencers due to the legal relation agreed by them or because of system, server or internet failures as well as for any viruses that might infect the equipment of the Influencer or the Advertisers as a consequence of the access, use or examination of the Platform, or as a result of any data, files, images, texts or audio transferences. The Influencers might not impute any liability, nor demand any payment in virtue of the damage resulting from technical difficulties or system and internet failures.
- FLUVIP does not guarantee the access and continuous or uninterrupted use of the Platform.
- The system can eventually not to be available due to technical difficulties, Internet failures, or any other circumstance; in such cases efforts will be made to reestablish it as quick as possible without being FLUVIP attributable of any liability.
- FLUVIP may not be held liable for any mistake or omission included in the Advertisements by the Influencer. The contents of the screens related to the Services of FLUVIP, programs, data bases, networks and files that allow the Influencer to access the webpage , are property of FLUVIP and are protected by international laws and treaties on copyrights, trademarks, patents, and industrial models and designs. The misused and partial or complete reproduction of its contents is prohibited.
- The Influencer will compensate and keep FLUVIP, its head office, subsidiary companies, controlled or/and controlling companies, directives, administrators, representatives and employees harmless from any claim or demand of other Influencers, Advertisers, or third parties because of his/her activities in the Platform or the failure to comply the actual Terms and further policies which are understood incorporated to them, or for the violation of any laws or rights of third parties, including the fees of the attorneys in an reasonable amount.
Both Parties agree that the mutually provided information and by the Advertiser during this provision of services, including limitless, documentation, intellectual property, financial and commercial information, and information related to the products and clients of the Advertiser that is not public, is reserved information, secret, confidential and private. All this information should be preserved in secret by the receiving part, should be used only for the goals set in the present Terms and will not be published to any person different from an employee or person that has the need of knowing the information in order to fulfill the obligations derived from the present Terms, who should keep the confidentiality as well. The information will not be subject to provisions of this clause if the records of the receiving party point out that the information is: (i) public domain in the moment of its release, or after, with no blame on the receiving party; (ii) known by the receiving party in the moment of its release; (iii) shown to the receiving party with no confidentiality obligation from a third party that holds the right of releasing said information; (iv) developed independently by the receiving party. The receiving party will be able to reveal the information to the extent that be required by a governmental or legal entity, as long as said divulgation be limited in its majority permitted by the applicable law.
When the campaign related to the Advertisements is finished, both Parties will return or, on request by the other, will destroy all the secret or confidential information that is under their tenure. The obligations assumed by the Parties in the development of this clause (Confidentiality) will survive the termination of the services provided.
All the obligations contained in this paragraph will be extended to contractors and subcontractors of the Parties.
10. Intellectual property and personal data
- The trademark FLUVIP is and will be exclusive property of FLUVIP; and, the trademark of the Advertiser is and will be exclusive property of the Advertiser, but it acquires the compromise of permitting the use and quiet enjoyment of its trademark by FLUVIP and the Influencer when required by the campaign and only for the purposes of the Advertisements, Services and campaign related to the Product which the Advertiser desires to publish.
- With the exception of what is provided in these Terms in relation to the trademarks, none of the Parties is authorized to use any distinguishing mark or creation object of protection of industrial or intellectual property rights and copyright belonging to or related to the other Party.
- The software, processes, methods, know how, and models of information analysis are exclusive property of FLUVIP or any society belonging to its business group. FLUVIP is on full powers to use them in providing the Services.
- The Parties and the Advertiser understand that the abovementioned information and goods are exclusive property of the other party or the Advertiser and that intellectual property rights and trade secrets apply on them and must be respected.
- The contents of the Platform, as well as the softwares, data bases, networks and files that allow the Influencer and the Advertiser to access the Platform are property of FLUVIP and are protected by International laws and treaties on copyrights, trademarks, patents, and industrial models and designs. The misused and partial or complete reproduction of its contents is prohibited except for express and written authorization by FLUVIP.
- FLUVIP hereby states and guarantees that the personal data of the Influencer and the Advertiser, as well as the information subject to reserve that is known or will be known, will be protected in accordance with that established in Law 1581/2012, decree 1377/2013 and other regulations in the area of personal data protection, self-image and privacy, among other rights.
- Additionally, based on Law 1581/2012, Decree 1377/2013, and other regulations in the area of personal data protection, self-image and privacy, among other rights, the Influencer states and guarantees that the management of his/her Social Networks: (i) accomplishes the personal data protection rights; (ii) he/she has informed and will inform FLUVIP about the property of the photographs and images taken in virtue of the providing of the service, and; (iii) he/she has obtained the consent and authorization from the owners of the information and other related people to use their personal data and images for the purposes of the relation ruled by these Terms.
- In concordance with the abovementioned, the Influencer expressly authorizes FLUVIP, its head office, subsidiary companies (or any other company which were hired for the same purposes) to use the photographs and information delivered or contained in his/her Social Networks for the aims agreed in the relationship ruled by these Terms.
11. Use of the image of the Influencer
The use of the image refers to the appropriation, adaptation, publication, exhibition, reproduction, inclusion in any mean of communication, marketing, fixation, image communication and transmission and/or voice, and the modification of any of the foregoing.
The use of the image, will aim the appropriation, adaptation, publication, exhibition, reproduction, inclusion in any mean of communication, marketing, fixation, communication and transmission, and modification of the image:
- In and for the execution, adaptation, publication, exhibition, emission, fixation, transmission and reproduction of the Advertisements and commercials linked to the campaign.
- That is or could be linked to any other segment, video, audiovisual product or not, related directly or indirectly to the Advertisements or to acts related to the development of the campaign of the Products.
- That is or could be linked to any other television program or to any other audiovisual platform, graphic, radial, existent or that will be developed in the future (including but not limited to television, magazines, radio, films, printed media, telephony, video and internet) that is or will be linked to the Advertisements or linked acts to the campaign.
- The use of the image will start from the date of registration and acceptance of the terms.
- The authorization of the Influencer refers to the inclusion and editing of the image, and the implementation of any act aimed to the release of its content with no restrictions nor temporary and/or geographical limits, as well as the relationship with the media for its reproduction and/or broadcasting, provided that it is limited to the purpose specified in these Terms.
- It is clearly established that the material that contains the image and Advertisements, including all its elements, as well as the results of the labor of the Influencer, are since this point, property of the Advertiser, who will own all the exploitation rights pointed out in the rules in force, with no limitations, but always aiming to the established purpose in these Terms. In some cases, under the sole discretion of FLUVIP, it will be established in writing the limit to this assignment.
- The Influencer authorizes all uses that the Use of the image may have, or parts thereof, using known techniques at present and the ones which may be developed in the future, and for any application. All this with the only exception and limitation of those uses or applications that could infringe on the right to dignity, honor, personal and family privacy and personal image.
- The Influencer expressly states that in the event different people appear in the Advertisements, this service will be provided definitely for free.
- FLUVIP and the Advertiser are expressly prohibited from the Use of the image in such a way that affects the private life of the Influencer and the broadcasting of the image in any pornographic, xenophobic, violent, illegal support or with a different purpose to the one established in this document.
- The authorization established here and the granted rights and powers do not extend to third parties, unless express consent.
12. Unfair Competition
Every act of unfair competition is prohibited. The Influencer must respect in all his/her actions the principle of commercial good will. It is considered that the unfair competition is constituted by every act or fact that the Influencer performs in the market with concurrency purposes, when it is contrary to the healthy commercial customs, the principle of commercial good faith, the honest uses in industrial or commercial matters, or when it is intended to affect or influence the freedom of decision of the buyer or consumer, or the concurrency functioning of the market. Likewise it is prohibited to the Influencer to violate the applicable advertising rules.
Durante el desarrollo de la campaña y por 3 meses más, el Influencer se obliga a no adelantar ninguna conversación o negociación con terceros para publicar Anuncios, información, prestar servicios vinculados con el ofrecimiento, promoción o publicidad de terceras personas o empresas que sean competencia directa o indirecta del Anunciante o de Productos objeto de Anuncios que le encargue FLUVIP.
During the development of the campaign and for 3 more months, the Influencer is obliged not to hold any conversation or negotiation with third parties in order to publish Advertisements, information, provide services related to the offering, promotion or third parties advertising or companies that are direct or indirect competition of the Advertiser or Products subject of the Advertisements that FLUVIP requests.
14. Removal of the category as an Inlfuencer
- The Influencer can lose his/her category due to one of the following events:
- If it fails to the duties of intellectual property, personal data, and use of the image described in the paragraph above.
- If it fails to comply with these terms.
- By mutual agreement between the Influencer and FLUVIP.
- By FLUVIP at any time and without requiring any justification, by written communication to the Influencer within not less than 30 calendar days prior to the date in which he/she intends to withdraw.
- Upon expiration of the term agreed.
- For any other of them enshrined in the legal rules.
- None of the events described above will lead to compensation in respect of any of the parties, except in the case of what is established in paragraph (b) in favor of FLUVIP.
15. Policies of behavior of FLUVIP, the Influencers, Advertisers or third parties related to the services
- The Influencer who decides to use in the advertising material things like pictures and videos among others, images of children and adolescents, should comply with the applicable laws to the protection of them, for instance the Convention on the Rights of the Child (Law 12/1991), Optional Protocol to the Convention on the Rights of the Child (adopted by the UN General Assembly through resolution A/RES/54/263 May 25/2000, and entered into force on January 18/2002), Law 679/2001, Law1336/2009, and other applicable rules that protect the integrity of children and adolescents.
- FLUVIP declares that is against child abuse and child sexual exploitation and does not and will not have any business relationship with any people or companies that use and sexually abuse children and adolescents or that are related to people or companies that carry on this illegal activity.
- FLUVIP will incorporate this policy to prevent child abuse and child sexual exploitation in its corporate policies, and will inform to its staff the derived consequences that the practice of this illegal activity can involve, in case that it is known that any employee, provider, Influencer or Advertiser of FLUVIP is linked to any of these illegal activities.
- FLUVIP will give clear instructions to the Influencers and Advertisers in relation with the content of the Advertisements, aiming to protect the under age from being exposed to non-appropriated contents.
- It is prohibited any act, conduct, fact or omission that directly or indirectly discriminates due to gender, race, national or family origin, language, religion, political or philosophical opinion.
This document of terms and conditions and all the questions that emerge hereafter will be ruled and interpreted in concordance with the laws and decisions of the State of Florida without giving effect to their principles relative to conflicts of law. Each of the parties in this document:
- Is irrevocably committed to the only and exclusive competence of the tribunals located in the Miami-Dade County over any trial or other proceeding that might emerge or be based on this agreement.
- Is submitted to the competence and jurisdiction of the abovementioned tribunals, and,
- Irrevocably consents, to the personal jurisdiction.
- The ideas, opinions, suggestions and comments that
- Might be sent spontaneously and without prior request by the Influencer to FLUVIP, can be used by FLUVIP. It is understood that such information is not confidential nor protected by any regulation related to copyright and industrial property. The sender of the information will not claim any compensation or participation because of its commercial use or not.
- These Terms and all the relations of any kind that derive from them will be governed by the law of the Republic of Colombia.
- These Terms along with the documents that might be established in the future have as a purpose to inform the Influencers about the terms and conditions of the use of the Platform, and the rights and obligations that they acquired in virtue of it.
- Through the permission of access and registration of the Influencers in the Platform, FLUVIP does not concede any license or authorization of any kind on their rights and property related with it of its contents.
- FLUVIP is not obliged to have the Platform active. Also, it reserves the right of admission to any person, and to cease the service without notice for any possible reason.
- FLUVIP will not be held liable for the information that the Influencer provides to FLUVIP or the Advertisers, consequently, it will not be held liable in case false information is provided or registered.
- Prohibitions: To use the Platform, its technical elements and applications for illegal purposes. To violate, destroy, modify or use the information of third parties without the proper authorization from the owners. To use the name of FLUVIP or the technological platform provided by it in order to distribute commercial messages or e-mails without requirement. To upload to the Platform files that might damage its information, such as but not limited to, viruses, worms, trojans, trap doors, ticking time bombs or any other routine of computer programming that might potentially damage, interfere, intercept, or expropriate any data system or personal data. Any behavior that generates or may generate, among others but not limited to, damages, errors, interruptions or discontinuation on the Platform. The attempt to access restricted areas and/or the impersonation of an Influencer, Advertiser or any third party.
- The Influencer, at all time, but especially in his/her relation with other Influencers, FLUVIP or the Advertisers, is obliged to act in good faith and not to perform any act of unfair competition.
The present document is constructed and establishes the normativity for the registration and operation with the Influencers from June 2016 taking into account what is established in the third Clause literal b.