DNA for Insta

Last updated: Aug 21, 2019

The Platform was created by DNA in order to enable advertisers (the “Advertisers”) to amplify their digital content (“Content”) by developing marketing campaigns (“Campaigns”) through the Platform to engage individuals from a network of online influencers (the “Influencers”) to publish such Content through their social media channels.

Definitions
“Access Period” means
1. with respect to each Advertiser, the period commencing on the Effective Date and terminating as provided herein or on the date when such User ceases to use the Platform by deleting its account and
2. with respect to each Influencer, the period commencing on the Effective Date and terminating as provided herein or when the Influencer ceases to use the App by removing the App from her or his mobile device.
“App” means the DNA for Insta mobile application used by Influencers and other businesses and available for download through app store platforms such as the Apple App Store.

“Applicable Laws” means all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority in any territory that has jurisdiction over the parties, whether those laws, [etc.?], are in effect as of the Effective Date or later come into effect during the term of this Agreement, including without limitation privacy laws and U.S. export and trade laws.

“Documentation” means the technical documentation generally made available by DNA to its Users with regards to the Platform, including any online user manuals.

“Effective Date” means, with respect to each User, the date on which such User registers for an account to use the Platform.

“Fees” means the fees for Advertiser’s use of the Platform as set forth in this Agreement.

“Platform” means the digital advertising platform made available by DNA to Users online or via the App, including all related software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information therein (other than Content), all as may be made available to Users under this Agreement and as may be updated and modified by DNA from time to time, and which may include Third Party Content.

“Third Party Content” means third party data, information, content, user interface designs, layouts, configurations or other elements provided by DNA or third parties that may be made available to Users through the Platform.

“User” means any Influencer or Advertiser registered to use the Platform, and/or any employee or agent acting on behalf of an Influencer or Advertiser who registers for an account to use the Platform.

“User Data” means all information and data input by Users into the Platform (excluding Content) and/or collected by DNA about Users from social media channels, and all copies and derivatives thereof.
Platform Functionality and Obligations.
1. DNA will:
  1. provide Users with rights to access and use the Platform in order to
    
    in the case of Advertisers, create and fund Campaigns for amplifying Content using eligible Influencers who meet the criteria established by an Advertiser and selected by the Advertiser to participate in the Campaign (each, a “Qualifying Influencer”), and
    
    in the case of Influencers, participate in Campaigns for which they are a Qualifying Influencer;
  2. compile User Data about its network of Influencers using tools and integrations with social media channels to identify specific Qualifying Influencers for each Campaign based on the eligibility filters established by Advertisers;
  3. provide Advertisers with a list of Qualifying Influencers for a Campaign in order to allow Advertisers to select Qualifying Influencers to participate in a Campaign;
  4. disburse funds from an account maintained by DNA for the Campaign (a “Campaign Account”) to reserve funds to pay Qualifying Influencers who satisfy all material publication requirements (“Post Requirements”) established in an Advertiser’s Campaign Briefing (as described below) for social media objects published by Qualifying Influencers incorporating Advertiser Content (a “Post”); and
  5. in the event an Advertiser disputes a payment to a Qualifying Influencer for failure to satisfy Post Requirements, validate Posts against Post Requirements in order to assist Users resolve such disputes regarding Campaign participation and payment.
2. Advertisers will:
  1. register for an account to use the Platform and create a briefing for each Campaign with information including but not limited to
    
    the background and purpose for the Campaign,
    
    the manner in which Qualifying Influencers will need to distribute Advertiser’s Content through social media channels,
    
    restrictions on promotion of similar products and/or services for a period of time (if any) (“Marketing Restrictions”), and
    
    all other terms and conditions applicable to a Campaign (collectively, the “Campaign Briefing”);
  2. set eligibility filters for each Campaign to establish criteria for Qualifying Influencers (e.g., number of followers, target demographic of followers, frequency of posts, topical focus of posts, etc.);
  3. upload Content to the Platform for use by Qualifying Influencers in Posts;
  4. for each Campaign, deposit funds in a Campaign Account with DNA to fund Campaign and pay Qualifying Influencers in accordance with the terms of the Campaign Briefing (the “Campaign Budget”); and
  5. during a Campaign, monitor Posts and other campaign activities of Qualifying Influencers and alert DNA through the Platform if the Advertiser in good faith believes that a Qualifying Influencer did not satisfy material requirements set forth in a Campaign Briefing. Doing so will freeze payment to the non-compliant Qualifying Influencer pending review. Please be aware that Influencers will automatically be paid for participating in a Campaign at the conclusion of the time period established in the applicable Campaign Briefing unless the Advertiser freezes payment(s) to non-compliant Influencers during the Campaign.
3. Influencers will:
  1. access the Platform via the App and authorize DNA to collect information from her, his or its social media channels (e.g. Instagram) so that DNA can determine if the Influencer qualifies for a particular Campaign (such authorization to be given by an Influencer when affirmatively accepting DNA’s Terms and Conditions in connection with downloading and/or using the App to access the Platform);
  2. when notified of an opportunity to participate in a Campaign as a Qualifying Influencer, promptly indicate through the Platform desire to participate or decline participation in the Campaign; and
  3. after being selected by an Advertiser to participate in a Campaign, use reasonable best efforts to comply with all requirements for the Campaign set forth in a Campaign Briefing. To be clear, an Advertiser may freeze a payment to an Influencer if the Advertiser determines in good faith that the Influencer did not comply with all material requirements described in a Campaign Briefing. All frozen payments will be subject to review and dispute resolution in accordance with DNA’s policies.
Access and Use.
1. Access to Platform. Subject to a User’s compliance with the terms and conditions of this Agreement, including payment of Fees (if applicable), DNA hereby grants to User a nonexclusive, limited, nontransferable and revocable right to access and use the Platform, in object code form, via DNA’s designated internet-hosted web site and/or mobile device applications, together with any associated Documentation, solely
  1. for the User’s business purposes and/or commercial activities,
  2. for use by the User and no other users,
  3. for the term of the Access Period, and
  4. in accordance with this Agreement and with Applicable Laws. DNA may modify, suspend or terminate all or a portion of the Platform at any time in its discretion without prior notice to Users.
2. Platform Restrictions. Users shall not, or allow or encourage others to, use the Platform in any manner other than as expressly allowed in this Agreement. To be clear about specific restrictions, please note that Users may not:
  1. reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or permit, allow or assist others to create the source code of the Platform or its structural framework; or modify or create derivative works of the Platform;
  2. sublicense, subcontract, translate, license or grant any rights to the Platform (including without limitation allowing any distribution of the Platform or other access to the Platform by any person or entity);
  3. impersonate others or provide inaccurate information through the Platform or otherwise communicate with other Users through the Platform in a manner that is
    
    false or deceptive;
    
    defamatory, obscene, pornographic, vulgar or offensive;
    
    promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
    
    violent or threatening or promotes violence or actions that are threatening to any person, animal, or entity in any way;
  4. in the case of Influencers, inflate viewership and engagement rates for their posts, knowingly utilize bot followers, or otherwise misrepresent social media credentials in any way;
  5. do anything unlawful, misleading, or fraudulent or for an illegal or unauthorized purpose;
  6. attempt to create accounts or access or collect information in unauthorized ways;
  7. sell, license, or purchase any account or data obtained from the Platform;
  8. post another User’s private or confidential information without permission or do anything that violates another User’s rights, including intellectual property rights (e.g., copyright infringement, trademark infringement, counterfeit, or pirated goods);
  9. post photos, videos or any other content for which User does not have all necessary rights to share;
  10. endanger minors in any way and/or use photos and videos in Content or Posts which are not appropriate for a diverse audience;
  11. use any robot, spider, site search or retrieval mechanism or other manual or automatic device or process to retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of the Platform;
  12. harvest or collect information about or from other Users of the Platform;
  13. probe, scan or test the vulnerability of the Platform, or breach the security or authentication measures on the Platform, or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Platform;
  14. attempt to gain unauthorized or improper access to the Platform or its related systems or networks; and furthermore, Users shall
    
    take all reasonable precautions to prevent unauthorized or improper use of the Platform,
    
    not interfere with or disrupt the integrity or performance of the Platform,
    
    not attempt to gain unauthorized access to the Platform or its related systems or networks, and
    
    not create Internet “links” to the Platform or “frame” or “mirror” any content therein; or
  15. use the Platform to build a competitive product or service.
  DNA reserves the right, in its sole discretion, to revoke, terminate or suspend any Users’ privileges associated with accessing the Platform for any reason whatsoever, including without limitation improper use of the Platform or failure to comply with this Agreement, and to take any other action DNA deems appropriate. If a User publishes a Post or Content that violates the terms of this Agreement (including the restrictions in this Section 3.2), DNA reserves the right to instruct the User to remove the Post or Content or be subject to immediate suspension or termination from the Platform. Users agree that DNA shall not be liable to any User or any third party for any termination of a User’s access to the Platform. Please be aware that Influencers are solely responsible for their own social media accounts and DNA has no control whatsoever over the content posted by Influencers and/or the activities of Influencers on or through their social media accounts. DNA shall not be responsible or liable for Posts by Influencers nor how Influencers use Content made available to them through the Platform, and if an Advertiser has concerns about how an Influencer is using Content, the Advertiser (and not DNA) will be responsible for communicating directly with the Influencer about any violations of the Advertiser’s policies or other inappropriate conduct. To the extent an Advertiser wants an Influencer to remove a Post, the Advertiser must make this request to the Influencer directly as DNA has no access to, or control over, an Influencer’s social media accounts.
3. Marketing Restrictions. INFLUENCERS ACKNOWLEDGE AND UNDERSTAND THAT SOME CAMPAIGNS MAY IMPOSE MARKETING RESTRICTIONS WHICH LIMIT THE ABILITY OF QUALIFYING INFLUENCERS FROM PROMOTING SIMILAR PRODUCTS AND/OR SERVICES FOR A DEFINED PERIOD OF TIME. BY PARTICIPATING IN ANY CAMPAIGN WITH MARKETING RESTRICTIONS, INFLUENCERS AGREE TO COMPLY WITH SUCH MARKETING RESTRICTIONS IN CONNECTION WITH PROMOTIONAL ACTIVITIES THROUGH THE PLATFORM AS WELL AS OUTSIDE OF THE PLATFORM FOR THE PERIOD OF TIME SPECIFIED IN THE APPLICABLE CAMPAIGN BRIEFING. AN INFLUENCER’S FAILURE TO COMPLY WITH A MARKETING RESTRICTION COULD RESULT IN THE FORFEITURE OF PAYMENTS RECEIVED FOR A CAMPAIGN, SUSPENSION FROM THE PLATFORM, AND/OR TERMINATION OF SOME OR ALL ACCOUNTS FOR DNA’S PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION THE APP AND PLATFORM.
4. Acceptable Use Guidelines and FTC Rules.
  1. Posts by Influencers through social media channels must comply with the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising and related Federal Trade Commission guidance, including as amended from time to time (“FTC Guides”). Accordingly, for Posts that directly or indirectly incorporate Content to promote an Advertiser’s products or services where it might not be clear and obvious that Influencer has a paid relationship with the Advertiser, the Influencer will:
    
    Clearly and conspicuously disclose that Influencer has or will receive compensation from Advertiser;
    
    Clearly and conspicuously use disclosures for all posts so they include a hashtag such as “#sponsored” or “#ad” or other disclosures approved by Advertiser above the “more” button in the caption and the paid partner tag in advanced settings which displays “paid partnership with [Advertiser],” and all Stories should include the disclosures in text superimposed over the image;
    
    Not make any false, misleading or deceptive statement about Advertiser or Advertiser’s products or services, and not make any product performance or attribute claims about Advertiser’s products or services. Influencer may express opinions, but will not make any factual claims about the products or services;
    
    Ensure that any Posts and statements provided in connection with Posts accurately reflect Influencer’s honest, current opinions and beliefs based on Influencer’s personal experience, including with Advertiser’s products or services. Influencer will notify Advertiser if any Posts or statements cease to reflect Influencer’s honest views, opinions, findings, beliefs, or experiences with Advertiser or Advertiser’s products or services, and will then reasonably cooperate with Advertiser to revise the Posts such that the statements are accurate or remove such Posts to the extent within the control of Influence;
    
    Not purport to speak on behalf of Advertiser, its representatives or agents; and
    
    Conduct activities related to Campaign in a manner appropriate for a family audience, avoid controversial or potentially damaging statements about Advertiser; make sure any social media Posts created as part of the Campaign follow the relevant website or application’s posting requirements and terms of use; not make, use, or distribute any offensive comments or sexually explicit material; not disparage, libel, slander, or defame any person, entity, product, or service including a competitive product or service; and not promote any illegal activities. Influencers may only promote tobacco, alcohol, guns, or gambling and wagering with express approval from the applicable Advertiser.
  2. Additionally, Users acknowledge that DNA engages a third party vendor to host the Platform, and may change such vendor from time to time. User shall at all times use the Platform in accordance with such vendor’s acceptable use policy as made available to Users online by the vendor (“AUP”), and the AUP is incorporated into this Agreement in its entirety as if fully set forth herein. As of the Effective Date, DNA’s hosting provider is Liquid Web, and Users shall comply with Liquid Web’s AUP found here. DNA will use commercially reasonable efforts to identify any changes to its hosting provider by posting this information within the Platform.
5. Security. Users shall ensure the security of their account credentials, password, and connectivity with the Platform. Users acknowledge that responsibility for all Content and other text, information, messages and other material submitted to the Platform lies solely with the applicable User. DNA may change the authorization method for access to the Platform if it determines in its sole discretion that there are circumstances justifying such changes.
License Rights.
1. License Rights Related to Content, Posts and User Data.
  1. Advertisers grant:
    
    to DNA, a non-exclusive and worldwide license to use and make available the Content through the Platform in connection with operating the Platform and performance of its obligations hereunder, and
    
    to Qualifying Influencers for each Campaign, a nonexclusive, non-sublicensable, non-transferable, limited license to use the Content in accordance with the terms and conditions of this Agreement and a Campaign Briefing solely in connection with a Campaign. Advertisers are responsible for maintaining appropriate backup(s) of Content and understand and agree that DNA is not responsible for loss of any Content.
  2. Influencers grant to Advertisers, a non-exclusive and worldwide license to copy, download, exhibit, publish, distribute, display, publicly perform, transmit, broadcast, reproduce, record, photograph, digitize, modify, alter, edit, adapt, create derivative works, exploit, and otherwise use the Influencer’s Posts incorporating Content for the Advertiser’s business purposes in its discretion for the duration of the ‘term’ as set forth in each applicable Campaign and for a period of forty-five (45) days after the conclusion of the Campaign unless a longer period is set forth in a Campaign Briefing (the “Post-Campaign Period”). Influencers should be aware that during this Post-Campaign Period, Advertisers will be able to use Posts and other content created by Influencers in connection with a Campaign, even if the Influencer has stopped using the App. With respect to individuals featured in the applicable Post(s), Influencers represent and warrant that they have secured the required consents from such individuals to permit the Advertiser to use the Post(s) as described above. Advertisers shall be deemed a third party beneficiary of the rights set forth in this Section 4.1(b) and shall be entitled to enforce their license rights with respect to Posts pursuant to this Agreement.
  3. Influencers grant to DNA
    
    the right to use the functionality of the App to access and use data (including personal data) from their social media channels (e.g., Instagram) during the Access Period applicable to the Influencer and for forty-five (45) days after the conclusion of the Access Period unless a Post-Campaign Period applicable to the Influencer remains in effect for a longer period of time; and
    
    a nonexclusive license to use, copy, modify, distribute and display User Data during and after the Access Period in an anonymized and/or aggregated manner to improve the performance of the Platform and App and for DNA’s other business purposes. Please note that DNA may make User Data available to Advertisers on an identifiable basis so that Advertisers may determine if the Influencer is eligible for a Campaign and may select the Influencer for participation in the Campaign.
  4. Each User represents and warrants to DNA that
    
    the User has sufficient rights in its Content and/or User Data, as the case may be, to grant the licenses to DNA and other Users as provided hereunder; and
    
    the User’s use of its or another party’s Content and/or User Data complies with all Applicable Laws
2. Use of Name and Likeness. Advertiser shall have the right during a Campaign and for a period of forty-five (45) days after the conclusion of a Campaign (unless a longer period is set forth in a Campaign Briefing) to use a Qualifying Influencer’s name, performance, voice, signature, approved biographical information and/or likeness in and in connection with Posts by that Qualifying Influencer and for the purposes of advertising, promotion and publicity of Advertiser. Advertiser’s right to use Posts includes, but shall not be limited to, the following: online/internet, mobile/apps, social media (paid and editorial channels), point-of-sale materials, advertising, marketing, and consumer promotions sponsored by Advertiser (e.g., sweepstakes and/or contests). For avoidance of doubt, a Qualifying Influencer does not grant, or purport to grant, to Advertiser any rights or uses of any names, logos, trademarks, service marks, or similar indicia of origin owned and/or controlled by any third party.
Third Party Content.

If any Third Party Content is made available through the Platform, Users may use such Third Party Content solely in connection with their use of the Platform as permitted herein. DNA has no warranty, support, indemnity, or other obligations with respect to Third Party Content. Use of certain Third Party Content may be subject to additional third party terms and conditions separately required by the providers of such Third Party Content. DNA and its suppliers and licensors disclaim responsibility for the use, content, accuracy, timeliness, completeness or availability of Third Party Content and make no warranty concerning such information.
Fees and Payments.
1. Campaign Accounts & Payments to Influencers. DNA will disburse funds to the Qualifying Influencer from the applicable Advertiser’s Campaign Account at the conclusion of a Campaign unless Advertiser freezes payment(s) to an Influencer based on a good-faith determination that the Influencer has not materially complied with Campaign requirements set forth in a Campaign Briefing. Frozen payments are subject to review and dispute resolution in accordance with DNA’s policies.
2. Applicable Fees for Use of Platform.
  1. For Influencers. Influencers pay a subscription fee for DNA’s App and then have access to the Platform free of charge. Influencers will not be charged any additional fees to use the Platform. Influencers will be paid for their participation in a Campaign directly through the Platform by DNA’s third party payments processor.
  2. For Advertisers. Advertisers will be required to deposit required funds in a Campaign Account prior to launching a Campaign to Qualifying Influencers. DNA will collect from Advertiser a service fee in the amount of ten percent (10%) of the Campaign Budget that is actually used during a Campaign (the “Campaign Fee”). DNA will charge the Campaign Fee to Advertiser’s selected method of payment prior to launching the Campaign to Qualifying Influencers through the Platform. In the event any amount of the Campaign Budget is not used, or in the event of expiration or termination of this Agreement prior to the conclusion of a Campaign, Advertiser will receive a refund for:
    
    the unused portion of the Campaign Budget, and
    
    a pro-rated amount of the Campaign Fee collected by DNA for the unused portion of the Campaign Budget. All billing and payment will be in United States dollars. All fees and payments hereunder are exclusive of all taxes, including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties (except taxes on the income of DNA), and it is Users responsibility to pay such taxes, whether federal, state, local, or municipal. If Users fail to make payments when due, DNA may, upon notice to a User, suspend that User’s access and use of the Platform until such payments are made. DNA may impose a reconnection fee if the User is suspended pursuant to this Section and thereafter requests access to the Platform. Users agree and acknowledge that DNA has no obligation to retain Content and User Data and that such User Data may be irretrievably deleted if a User’s account is delinquent for thirty (30) days or longer.
3. Payment Disputes. Users should e-mail DNA at [email protected] in the event User has any questions or concerns with respect to Campaign Accounts, Campaign Fees and/or payments to Users for validated participation in a Campaign. DNA will resolve any such disputes in accordance with its policies and procedures.
Security.

DNA shall maintain commercially reasonable technical, physical, and administrative safeguards to protect the security and confidentiality of Content and User Data, which safeguards may consist of those of its internet hosting provider. Users acknowledge that DNA shall have no responsibility or liability with respect to any unauthorized access or use of Content and/or User Data caused by a User’s own disclosures thereof.
Term and Termination.
1. Term. The term of this Agreement will commence on the Effective Date and continue through the Access Period unless and otherwise terminated in accordance with this Section 8..
2. Termination. Advertisers and Influencers may stop using the Platform at any time. If either party materially breaches any term or condition of this Agreement, and if such breach has not been cured by the breaching party within thirty (30) days after its receipt of notice of such breach, the non-breaching party may immediately terminate this Agreement. Each party may terminate this Agreement immediately upon notice if the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, or if the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, and such petition or proceeding is not dismissed within sixty (60) days of filing.
3. Effect of Termination. Upon termination of this Agreement, a User’s right to access or use the Platform shall immediately cease and except as otherwise provided herein, DNA will have no obligation to maintain, deliver or provide access to any Content and/or User Data. Advertiser’s payment obligations, and Sections 8.3., 9.1., 10.2., 11., 12.2., 13., 14. and 15. will survive expiration or termination of this Agreement. Upon any termination of this Agreement, User shall pay any balance due to DNA pursuant to Section 6. Expiration or termination of this Agreement shall immediately terminate all subscription and access rights granted to User herein.
Proprietary Rights.
1. Ownership of Content. As between the parties and subject to the license rights set forth in Section 4 above, an Advertiser (and/or its licensors) shall retain sole and exclusive title and ownership of all Content uploaded by the Advertiser to the Platform for each Campaign.
2. Reservation of Rights. All rights not expressly granted to Users herein are expressly reserved by DNA. As between the parties, the Platform is and will remain the exclusive property of DNA, and DNA will retain ownership of all copyrights, patents, trademarks, trade secrets, know-how, databases, and other intellectual property rights relating to or residing in such items, and any updates, improvements, modifications and enhancements (including error corrections and enhancements) thereto, and all derivative works thereof, and Users will have no right, title, or interest in or to the same. Nothing in this Agreement will be deemed to grant, by implication, estoppel, or otherwise, a license under any of DNA’s or its licensors’ existing or future rights in or to the Platform. DNA trade names, trademarks, service marks, titles, and logos, and any goodwill appurtenant thereto, shall be owned exclusively by DNA and shall inure solely to the benefit of DNA. Any and all feedback or suggestions that a User provides with respect to the Platform, and any product or service incorporating such feedback, constitutes DNA’s sole and exclusive property, and User hereby irrevocably assigns to DNA all intellectual property rights and all other rights and title related to such feedback and suggestions.
3. Violations of Law. DNA may immediately suspend provision of or access to the Platform at any time, without notice to User and without liability, if DNA suspects or becomes aware that the Platform or any use thereof may infringe or violate any third party rights, or may violate Applicable Laws. DNA may suspend Users’ access to and use of the Platform in order to comply with Applicable Laws, or upon having reason to believe that any improper activity or potential damage to DNA products or services or other Users is associated with Users’ use of or access to the Platform.
Platform Specifications and Requirements.
1. Platform Requirements. As between the parties, Users are responsible for obtaining and maintaining all computer hardware, software, communications and office equipment needed to access and use the Platform, and for paying all associated third-party access charges.
2. Use of Data. DNA may monitor any and all use of the Platform, Content, Posts and User Data by Users. DNA may gather User system and usage data for the purpose of optimizing the Platform. This information includes, but is not limited to, data regarding memory usage, connection speed and efficiency. DNA may also use such data and the User Data for its business purposes, including, but not limited to, the identification of trends and the formulation of statistics and analytics, and may disclose the same, provided that in connection with such use or disclosure,
  1. such data and information are aggregated and do not identify Users, and
  2. such data and information shall not be identifiable as originating from a specific User.
3. Changes to the Platform. DNA may make changes, upgrades and improvements to the Platform in its discretion. DNA may modify or delete any features of the Platform. DNA may, at any time, modify the Platform, or substitute old features with new features that have similar or improved functionality, as may be necessary to meet Applicable Laws or industry-standard requirements or requirements of third party service providers.
Confidentiality.
1. Confidential Information. Each party acknowledges and understands that, except as set forth in Section 11.2., any and all technical, trade secret, and business information, including, without limitation, financial information, business or marketing strategies or plans, product development or customer information, and information otherwise obtained by the other party, its affiliates, employees, representatives or other agents pursuant to this Agreement (the “Confidential Information”) is confidential and proprietary, constitutes trade secrets of the owner, and is of great value and importance to the success of the owner’s business. Non-public elements of the Platform constitute DNA’s Confidential Information. User acknowledges that User Data will be published within the Platform and therefore does not constitute Confidential Information.
2. Exceptions. The parties shall have no obligation hereunder with respect to any information that is
  1. already known to the receiving party at the time of the disclosure;
  2. publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; or
  3. subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the disclosing party and which third party rightfully acquired such information. A disclosure of Confidential Information shall not be a violation of this provision if it is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process (“Document Request”); provided, the disclosing party shall provide prompt written notice (unless such notice is prohibited under Applicable Laws) of any such Document Request to the other party so that such party will have the opportunity to obtain a protective order before any such disclosure of Confidential Information. Such written notice by the disclosing party shall be provided no less than fourteen (14) days prior to the requested production and shall include a copy of the Document Request. In the event that a party seeks a protective order, then the disclosing party shall not produce any of the Confidential Information until the court has ruled on the request for a protective order.
3. Obligations. Both parties shall maintain as confidential and shall not disclose (except for those employees, attorneys, accountants and other advisors, agents or authorized users of the recipient and its affiliates on a need-to-know basis and who have in turn been advised of the confidentiality obligation hereunder), copy, or use for purposes other than in connection with use of the Platform as authorized hereunder, the other party’s Confidential Information. Each party agrees to protect the other party’s Confidential Information with the same degree of care a prudent person would exercise to protect its own confidential information and to prevent the unauthorized, negligent, or inadvertent use, disclosure, or publication thereof. Each party shall be liable under this Agreement to the other for any use or disclosure in violation of this Agreement by its employees, attorneys, accountants, or other advisors, agents or authorized users.
4. Subpoenas. If DNA receives a subpoena or any other order from a court or other judicial tribunal pertaining to the disclosure or release of User Data or a User’s Confidential Information, without limiting its obligations under Section 11.2., DNA may comply in good faith with such order or subpoena, and it shall be the responsibility of the User to challenge any such order or subpoena; provided, however, that DNA does not waive its rights to present its position with respect to any such order or subpoena.
Limited Warranties and Disclaimers.
1. User Warranties. Each User represents, warrants and covenants that
  1. User will comply with all Applicable Laws with respect to its access to and use of the Platform; and
  2. User has received all third party consents and certifications necessary for the transmission of Content and User Data to the Platform, as applicable. DNA is not responsible for ensuring that the Platform, or any portion thereof, is in compliance with User’s criteria for legal compliance.
2. Disclaimers. Please be aware of the following disclaimers by DNA in connection with provision of the Platform to Users:
  1. No Legal Advice. Users acknowledges that DNA does not provide legal advice. The Platform is intended to be used as a tool to assist Advertisers roll out Campaigns for Content amplification using DNA’s network of Influencers on the terms and conditions established by the Advertiser in its Campaign Briefing. The Platform is not intended to, and does not, constitute or take the place of legal advice. Users are responsible for all of their obligations agreed to through the Platform, including without limitation performance and payment obligations. DNA DOES NOT RENDER LEGAL OR TAX ADVICE, AND AS SUCH, USERS SHOULD CONSULT WITH THEIR ATTORNEY AND/OR TAX PROFESSIONAL CONCERNING THEIR USE OF THE PLATFORM.
  2. Content and Post Disclaimer. Content is provided by Advertisers for use by Qualifying Influencers in connection with a Campaign, and Qualifying Influencers must acknowledge and agree that the Content is provided to them AS IS. Users understand that DNA does not guarantee the accuracy, safety, integrity or quality of Content and Posts and Users hereby agree that they must evaluate and bear all risks associated with the use of any Content or Posts, including any reliance on the Content or Posts or on the integrity and accuracy of such Content or Posts.
  3. General Disclaimer. DNA AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PLATFORM, CONTENT, USER DATA AND ANY OTHER INFORMATION, MATERIALS AND SERVICES PROVIDED BY DNA THROUGH THE PLATFORM, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. DNA DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, CONTENT, USER DATA OR ANY ASSOCIATED INFORMATION, MATERIALS AND SERVICES WILL BE AVAILABLE, ERROR FREE, COMPLETELY SECURE, VIRUS FREE, OR WITHOUT INTERRUPTION, OR THAT THEIR FUNCTIONS WILL MEET ANY PARTICULAR REQUIREMENTS. FURTHERMORE, DNA SHALL NOT BE RESPONSIBLE FOR THE RETENTION OR STORAGE OF ANY CONTENT, POSTS AND/OR USER DATA IN THE APP OR PLATFORM. THE PLATFORM, CONTENT AND/OR USER DATA MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND DNA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. DNA may retain Content, Posts and User Data in accordance with its internal retention policies; however, due to certain unforeseen circumstances such as server outages or telecommunications failures, DNA cannot guarantee the storage of Content, Posts and/or other content and materials created during Campaigns. User acknowledges that DNA is not responsible for the integrity of data and information, including without limitation, Content, Posts and User Data, including completeness, accuracy, validity, authorization for use and integrity over time, and DNA shall not be responsible for any loss, damage or liability arising out of Content or User Data. User accepts sole responsibility for, and acknowledges that it exercises its own independent judgment in, its use of Content and User Data, and its reliance thereon, and results obtained therefrom.
Indemnification.
1. By DNA. DNA, at its own expense, shall:
  1. defend, or at its option settle, any claim, suit or proceeding brought by a third party against a User and its licensors, suppliers, officers, directors, employees and agents (if applicable) alleging that the Platform itself infringes an existing United States copyright or trademark; and
  2. pay any final and non-appealable judgment entered or settlement against User thereon; provided, however, that DNA shall not be responsible for any compromise or settlement made without its prior written consent. If the Platform is or may become the subject of such a claim, DNA may, at its option:
    
    modify or replace the affected parts so the Platform becomes non-infringing or
    
    terminate this Agreement and refund Users for any prepaid and unused fees. DNA shall have no obligation with respect to any infringement claim based upon
    
    Content or User Data or
    
    a User’s combination, operation or use of the Platform with non-DNA applications, information or services if the infringement claim would have been avoided had such combination, operation or use not occurred. Where infringement claims arise with respect to third party products, DNA’s sole obligation is to pass through to User any indemnity that may be available to User under the terms and conditions of the agreement between DNA and such third party vendor. THIS SECTION STATES THE ENTIRE LIABILITY OF DNA, AND A USER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY INFRINGEMENT INVOLVING THE PLATFORM.
2. By Users. Each User will, if instructed by DNA, defend, and in any event indemnify, and hold harmless DNA and its affiliates and its and their licensors, suppliers, officers directors, employees and agents, from and against any and all claims, actions, proceedings, governmental orders, losses, liabilities, damages, fines, penalties, costs and expenses (including without limitation reasonable attorneys’ fees, settlements and judgments) arising out of or incurred as a result of:
  1. any breach of this Agreement by User;
  2. User’s use of the Platform, or any component thereof;
  3. Content (if applicable) and User Data; and/or
  4. any claim, proceeding or action to compel the disclosure of Content, User Data and/or the User’s Confidential Information, including, without limitation, a request for information, subpoena, deposition or testimony; provided, however, that User shall not be obligated to indemnify DNA entities to the extent the claim is caused by DNA’s gross negligence or willful misconduct, or if the claim is covered by DNA’s indemnification obligation in Section 13.1.
3. Process. The indemnified party shall give the indemnifying party prompt notice upon becoming aware of the claim for which it seeks indemnification, and shall give the indemnifying party the right to solely control and direct the investigation, preparation, defense and settlement of the claim. The indemnified party shall fully cooperate with the indemnifying party, at the indemnifying party’s expense, in such defense and settlement. The indemnified party shall have the right, at its cost, to employ counsel of its choice to participate in the defense of such claim, and shall not settle or consent to the entry of judgment in such claim without the indemnifying party’s prior written consent.
Limitations of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DNA AND ITS LICENSORS AND SUPPLIERS WILL NOT BE LIABLE TO USERS OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF DATA, LOSS OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOSS OF PROFIT OR REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM AND ANY SERVICES RENDERED HEREUNDER (HOWEVER ARISING, INCLUDING NEGLIGENCE), EVEN IF DNA IS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES. DNA’S TOTAL CUMULATIVE LIABILITY TO A USER IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE GREATER OF (X) AMOUNTS ACTUALLY PAID BY THE USER TO DNA UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING ANY SUCH LIABILITY, OR (Y) $1.00, WHICHEVER IS GREATER.
General.
1. Assignment. The Agreement and all rights and obligations hereunder are not assignable or transferable by any User without the prior written consent of DNA, and any attempt to do so shall be void.
2. Force Majeure. DNA will not be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including without limitation acts of nature, acts of war, terrorism, labor or material shortages, infrastructure problems, effects of epidemics or pandemics (including governmental guidance with respect thereto) and government actions and requirements.
3. Governing Law and Venue. This Agreement is deemed to be made under and shall be interpreted in accordance with the laws of the State of Delaware, excluding its conflict of laws provisions. Any suit or proceeding relating to this Agreement shall be brought only in the state and federal courts located in West Palm Beach, Florida, and both parties hereby submit to the jurisdiction of such courts.
4. Independent Contractors. As between
  1. Advertisers and Influencers and
  2. DNA and all Users, each party is an independent contractor and nothing in this Agreement will be deemed to create any agency, employee-employer relationship, partnership, or joint venture as between or among the parties. Except as otherwise specifically provided in this Agreement, no party will have or represent that such party has the right, power or authority to bind, contract or commit any other party or to create any obligation on behalf of any other party.
5. Notices. All notices and consents required or permitted under this Agreement must be in writing; must be personally delivered or sent by registered or certified mail (postage prepaid) or by overnight courier, in each case to the address DNA has in its records for each User in connection with an Advertiser’s registration for the Platform and an Influencer’s use of the App. Notices to DNA should be sent to 224 Datura Street Suite 1407 West Palm Beach, Florida 33461, and a copy of any notice should be sent to DNA electronically at [email protected] Each party may change its address for receipt of notices by giving notice of the new address to the other party.
6. Media. DNA will not use a User’s name, image or likeness in sales and marketing materials or public statements without the User’s prior written consent.
7. Severability. If any provision of this Agreement is held by a court of law to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby and the illegal, invalid, or unenforceable provision will be deemed modified such that it is legal, valid, and enforceable and accomplishes the intention of the parties to the fullest extent possible.
8. Waivers. The failure of either party to enforce any provision of this Agreement, unless waived in writing by such party, will not constitute a waiver of that party’s right to enforce that provision or any other provision of this Agreement.
9. No Third Party Beneficiaries. Other than as expressly set forth herein, this Agreement is made and entered into for the sole protection and benefit of the parties hereto, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with this Agreement.
10. Remedies Cumulative. The enumeration herein of specific remedies shall not be exclusive of any other remedies unless otherwise expressly stated herein. Any delay or failure by any party to this Agreement to exercise any right, power, remedy or privilege herein contained, or now or hereafter existing under any applicable statute or law, shall not be construed to be a waiver of such right, power, remedy or privilege, nor to limit the exercise of such right, power, remedy, or privilege, nor shall it preclude the further exercise thereof or the exercise of any other right, power, remedy or privilege.
11. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter herein and therein, and supersedes all prior discussions, understandings and agreements with respect to its subject matter. Any terms on a purchase order, payment document, or other document submitted by a User shall be void and have no force or effect.

Terms

TERMS OF SERVICE