These terms apply to all use or access starting on May 12, 2016 at 12 a.m. EST
- DELMONDO & THE CREATOR STUDIO
Delmondo connects brands (each, a “Brand”) and individual creators (each, a “Creator”) through our platform known as “The Creator Studio,” facilitating the creation and distribution of original content, often through a Creator’s social network. The benefit to Brands is the ability to quickly conceive content criteria for a new project (each, a “Project”), identify and contract with desired creators, launch the campaign or other initiative and then track all aspects through detailed analytics. The benefit to creators is 24/7 access to be engaged on Projects offered by Brands for agreed fees and other terms and conditions that are transacted transparently and in plain language.
- YOUR AGREEMENT TO THESE TERMS OF SERVICE
Special Eligibility Requirements for Creators.
Any Creator over the age of eighteen (18) may register in the Platform, but in order to participate in the Platform, Creator’s account/s should meet the following minimum standards:
- Social Network Account must have a minimum number of followers/fans to be eligible (varies depending on connection);
- Social Network Account must not contain a content gap of more than 90 days;
- Social Network Account must be public (accessible to anyone);
- Social Network Account must contain a majority of original content;
- Account must be in a supported language (English, Spanish, other as required by the Project);
- Account may not contain content that is inappropriate, illegal or violates the Platform Guidelines
- SPECIFIC AGREEMENTS FOR PROJECTS
Unless otherwise agreed, Brands and Creators will negotiate all terms relating to a Project via Levelware, receiving an electronically signed PDF upon mutual consent to all terms (each, a “Project Contract”). Project Contracts include customary terms, including provisions specifying payment terms, scope of services and assurances that all content created is original, non-infringing, and, if applicable, subject to the terms of service of a social platform.
- YOUR LICENSE TO USE THE SERVICES
Except for User Content (as defined below), Delmondo has the exclusive right to control and operate the Services which are protected by relevant intellectual property laws worldwide. You agree that you will not use the Services in any way that is not specifically allowed or intended. This means, for example, that you can’t sell, reverse engineer, license, copy, change, display, publish or create derivative works based on the Services. These Terms give you the non-exclusive personal right – called a royalty-free license – to use the Services so long as you comply with the Terms.
- USER CONTENT
We allow Brands and Creators upload and/or input content while using the Services. This content is generally referred to as “User Content” in these Terms. When you share your own User Content, you remain the owner but you give the rights to us to use your User Content as explained in these Terms and as intended in relation to a Project. You agree that we have your consent – your “license” to us — to use your User Content to operate the Services. When you submit User Content through the Services, the License you grant to us is a worldwide, non-exclusive, perpetual, transferable, assignable, royalty-free and sublicensable right for us to use, copy, distribute, prepare derivative works of, modify, transfer and publish your User Content, in whole or in part, in and through any media. The rights you grant in this section, including the License, survive the termination of your agreement with and use of the Services.
- YOUR ACCOUNT
Picking and keeping a password is your responsibility, which includes being responsible for all activities that occur under your account or password. You agree that the information you provide to Delmondo on registration and at all other times will always be true, accurate, current, and complete. If we believe that your account is inactive, we may terminate and delete it, including all User Content.
- PROHIBITED CONDUCT
You agree that is is a violation of these Terms to:
- use any feature or content, except as allowed or intended;
- post false or inaccurate information about anyone;
- post illegal content or other content that a reasonable person could find offensive, pornographic, threatening, embarrassing, hateful, racially or ethnically offensive, or otherwise inappropriate;
- impersonate any person or entity or falsely claim an affiliation, access the accounts of others without permission, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via the Services, or perform any other similar fraudulent activity;
- delete indications of copyright, trademark or other proprietary rights on the Services or User Content;
- make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the Services. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
- use the Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
- defame, harass, abuse, threaten or defraud users of the Services, or collect, or attempt to collect, personal information about users or third parties without their consent;
- use the Services if You are under the age of 13 years old or allow anyone under the age of 18 years to use the Services via Your account;
- remove, circumvent, disable, damage or otherwise interfere with security-related features of the Services or User Content, features that prevent or restrict use or copying of any content accessible through the Services, or features that enforce limitations on the use of the Services or User Content;
- reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Services or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- except with Delmondo’s express written consent and/or via an approved API, use any means of gathering data generated by or accessible through the Services for any purpose;
- modify, adapt, translate or create derivative works based upon the Services or any part thereof, except and only to the extent foregoing restriction is expressly prohibited by applicable law; or
- intentionally interfere with or damage operation of the Services or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.
- Disclose or use personal information of any third party, including, without limitation, addresses, phone numbers, email addresses and credit card numbers, unless that third party has expressly consented to such use;
- Except with Delmondo’s express written consent, License, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit the Services, Delmondo programs or materials available, to any third party other than those authorized by you, as expressly permitted under the terms of the agreement.
- THIRD-PARTY CONTENT AND SOFTWARE
Delmondo may make certain third-party content and/or software available to you for use as part of the Services. All such software or other content that you use is subject to the third-party provider’s terms and conditions.
- ADVERTISEMENTS; THIRD-PARTY PRODUCTS AND SERVICES; LINKS.
The Services may include advertisements of, links or references to third party applications, web sites, services or content that are provided solely as a convenience to users (“Third Party Services”). You agree that Delmondo may place advertising and promotion in the Services and around your User Content, and we may not always identify such commercial or advertising content. Delmondo does not endorse any such Third Party Services or the information, materials, products, or services contained on or accessible through Third Party Services. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Services are solely between you and such advertiser. Please be aware that any merchandising sites linked to the Services are Third Party Services, and are not owned or operated by Delmondo, or governed by these Terms. Access and use of third party services, including the information, materials, products, and services on or available through third party services is solely at your own risk.
- COPYRIGHT AND INTELLECTUAL PROPERTY VIOLATIONS
Delmondo takes the copyright infringement seriously, and it is our policy to respond to clear notices of alleged copyright infringement. Upon receipt of a Digital Millennium Copyright Act (“DMCA”) compliant notice, Delmondo will do its best to remove or disable access to the content that is the subject of the notice. Designated Copyright Agent to receive notifications and counter-notifications of claimed infringement can be reached at firstname.lastname@example.org. Only copyright/DMCA notices should go to the Delmondo’s Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Delmondo through support@Delmondo.com. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.
- SUSPENSION AND TERMINATION; TERMS OF SERVICE VIOLATIONS
You agree that Delmondo, in its sole discretion, for any or no reason, and without penalty, may suspend and/or terminate any account (or any part thereof) you may have with Delmondo or your use of the Services and remove and discard all or any part of your account, User profile, and any User Posting, at any time. Delmondo may also in its sole discretion and at any time discontinue providing the Services, access to the Services, or any part thereof, with or without notice. You agree that any suspension and/or termination of your access to the Services or any account you may have or portion thereof may be affected without prior notice, and You agree that Delmondo will not be liable to you or any third party for any such suspension and/or termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Delmondo may have at law or in equity. As discussed herein, Delmondo does not permit copyright infringing activities on the Services, and may suspend and/or terminate access to the Services, and remove all User Content or other content submitted by any Users who are found to be repeat infringers.
Your only remedy with respect to any dissatisfaction with (a) the Services or Delmondo, (b) any term of these Terms, (c) any policy or practice of Delmondo in operating the Services, or (d) any content or information transmitted through the Services, is to terminate these Terms and your account. You may terminate these Terms at any time by deleting your account with the Services and discontinuing use of any and all parts of the Services. Notwithstanding any such termination of this Terms of Service by you, any provision which, by its nature or express terms should survive, will survive such termination or expiration.
You agree to indemnify, save, and hold Delmondo, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners and their affiliated companies, contractors, employees and agents harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Services, any dispute arising by and between a Brand and a Creator, any violation by you of these Terms, or any breach of the express or implied representations, warranties, and covenants made by you herein. Delmondo reserves the right, at your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify Delmondo and its third-party suppliers, licensors, and partners, and you agree to cooperate with Delmondo’s defense of these claims. Delmondo will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
- DISCLAIMERS; NO WARRANTIES
We do not make any promises or guarantees concerning the Services or the actions (or inactions) of any Brand or Creator and advise you to seek independent legal counsel with any questions relating to the Services prior to registration and use.
To the fullest extent permissible pursuant to applicable law, Delmondo, and its affiliates, partners, licensees, licensors and suppliers disclaim all warranties, statutory, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights, all with regards to the Services, your use thereof as well as any Projects, Project Contracts and/or Project content. No advice or information, whether oral or written, obtained by you from Delmondo or through the services will create any warranty not expressly stated herein. You expressly acknowledge that as used herein the term Delmondo includes Delmondo’s officers, directors, employees, shareholders, agents, licensees, licensors and subcontractors and their officers, directors, employees, shareholders, and agents.
You expressly agree that use of the services is at your sole risk. The services and any data, information, third-party software, user content, third party sites, services, or applications made available in conjunction with or through the services are provided on an “as is” and “as available”, “with all faults” basis and without warranties or representations of any kind either express or implied.
Delmondo, its suppliers, licensees, licensors, affiliates, and partners do not warrant that the data, user content, functions, or any other information offered on or through the services or any third party sites will be uninterrupted, or free of errors, viruses or other harmful components and do not warrant that any of the foregoing will be corrected. Delmondo, its suppliers, licensees, licensors, affiliates, and partners do not warrant or make any representations regarding the use or the results of the use of the services or any third party sites in terms of correctness, accuracy, reliability, or otherwise.
You understand and agree that you use, access, download, or otherwise obtain information, materials, or data through the Services or any third party sites at your own discretion and risk and that you will be solely responsible for any damage to your property (including your computer system) or loss of data that results from the download or use of such material or data.
- LIMITATION OF LIABILITY AND DAMAGES
Under no circumstances, including, but not limited to, negligence, will Delmondo or its affiliates, contractors, employees, agents, or third-party partners, licensees, licensors, or suppliers be liable for any special, indirect, incidental, consequential, punitive, reliance, or exemplary damages (including without limitation damages arising from any unsuccessful court action or legal dispute, lost business, lost revenues, or loss of anticipated profits or any other pecuniary or non-pecuniary loss or damage of any nature whatsoever) arising out of or relating to these Terms, your use of or your inability to use the Services or any third party sites, or any other interactions with Delmondo, even if Delmondo, its third-party partners, licensees, licensors, or suppliers or an Delmondo authorized representative has been advised of the possibility of such damages. Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you. In such cases, Delmondo’s liability, and the liability of its third-party partners, licensees, licensors, or suppliers, if any, will be limited to the fullest extent permitted by applicable law.
In no event will Delmondo or its affiliates, contractors, employees, agents, or third-party partners, licensees, licensors, or suppliers total liability to you for all damages, losses, and causes of action arising out of or relating to these terms or your use of the services or your interaction with other services users (whether in contract, tort including negligence, warranty, or otherwise), exceed one hundred dollars.
These limitations of liability also apply with respect to damages incurred by you by reason of any products or services sold or provided on any third party sites, applications, services or otherwise by third parties other than Delmondo and received through or advertised on the services or received through any third party applications or sites.
You acknowledge and agree that Delmondo has offered its products and services, set its prices, and entered into these terms in reliance upon the warranty disclaimers and the limitations of liability set forth herein, that the warranty disclaimers and the limitations of liability set forth herein reflect a reasonable and fair allocation of risk between you and Delmondo and its third-party partners, licensees, licensors, or suppliers, and that the warranty disclaimers and the limitations of liability set forth herein form an essential basis of the bargain between you and Delmondo. Delmondo would not be able to provide the services to you on an economically reasonable basis without these limitations.
Some states or other jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply to you. You may also have other rights that vary from state to state and jurisdiction to jurisdiction.
Non-Circumvent. As a condition of use of the Services, Creators and Brands may not contract directly with each other, outside of the Services, without first having obtained Delmondo’s written consent. This section does not apply to Brands using the Services pursuant to a fully executed license agreement with Delmondo.
Notice. Delmondo may provide you with notices, including those regarding changes to these Terms, by email, regular mail or postings on the Services. Notice will be deemed given twenty-four hours after email is sent, unless Delmondo is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Services. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the Services is deemed given 30 days following the initial posting.
Waiver. The failure of Delmondo to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Delmondo.
Severability. If any provision of these Terms are held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Delmondo without restriction. Any assignment attempted to be made in violation of this Terms of Service shall be void.
Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 4 through 19.
Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
Claims. YOU AND DELMONDO AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Disclosures. The Services provided hereunder are offered by Delmondo, LLC, 1460 Broadway New York, NY 10036. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.
- DISPUTE RESOLUTION AND ARBITRATION
Governing Law. These Terms will be governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law.
Arbitration. For any claim related to these Terms of Service or the Services, excluding claims for injunctive or other equitable relief, where the total amount sought is less than ten thousand U.S. Dollars ($10,000.00 USD), either Delmondo or you may elect at any point in or during a dispute or proceeding to resolve the claim through binding non-appearance-based arbitration. A party electing arbitration shall initiate it through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Jurisdiction. You agree that any action at law or in equity arising out of or relating to these Terms or Delmondo will be filed only in the state or federal courts in and for New York County, New York, and you hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action, except as provided in this Section 18 regarding arbitration. Notwithstanding this, either party shall still be allowed to apply for injunctive or other equitable relief to protect or enforce that party’s intellectual property rights in any court of competent jurisdiction where the other party resides or has its principal place of business.
Improperly Filed Claims. All claims you bring against Delmondo must be resolved in accordance with this Section 18. All claims filed or brought contrary to this Section 18 shall be considered improperly filed. Should either party file a claim contrary to this Section 18, the other party may recover attorneys’ fees and costs up to one thousand U.S. Dollars ($1,000.00 USD), provided that such party seeking such fees has notified the other in writing of the improperly filed claim, and the other has failed to promptly withdraw the claim.