Terms of Service
Last updated 3 September 2019
Before you get started using the Hypetap platform, it’s important that you’re familiar with our terms and conditions. We created these to make sure we have a safe and respectful platform for creators, brands (our clients!) and social media audiences.
The most important thing for everyone to know is that all of our campaigns are different. It’s for that reason that the terms of each campaign are contracted in a bespoke way on our platform. This includes specifics for things like:
- Deliverables
- Campaign timings
- Mandatory content items
- Content ownership and usage rights
- Distribution of content
You should always ensure that you are clear on what is expected of you when you have been engaged for a campaign through the platform. If at any time you are unsure about the campaign or the terms that are relevant to us, you should let us know as soon as possible.
We always ask creators for original content. It’s for this reason that we ask that you don’t license campaign specific content to other parties without explicit consent.
Hopefully this gives you a good summary of how it all works. Of course, we’re a business and our lawyers want us to cover the nitty gritty! Have a look below for the finer details and everything our lawyers make us say:
1 Definitions and Interpretation
1.1 Definitions
In these terms and conditions:
ABN means an Australian Business Number issued by the Australian Business Register which is operated by the Australian Taxation Office;
Australian Consumer Law means Schedules 1 and 2 of the CCA and any other relevant provisions contained in that Act;
Background Intellectual Property means the intellectual property of a Party which was either created:
(a) before the Commencement Date; or
(b) independently of this Contract,
and all improvements to such intellectual property by that Party;
Best Industry Practice means exercising the degree of skill, care, diligence, efficiency, prudence and foresight which would be expected from a skilled and competent Influencer experienced in providing goods and services commensurate to the type, size, value and complexity of the Goods and Services;
Brief means any brief (and/or another form of written correspondence) regarding a Campaign submitted to a Representative of the Influencer by Hypetap in the form determined by Hypetap from time to time, or a brief regarding a Campaign that is otherwise placed or communicated by a Representative of the Influencer in writing, verbally, or otherwise to Hypetap, and is accepted by Hypetap, and includes these Conditions and any agreed written variations to the Conditions. A Brief provides a preliminary overview and summary of the Campaign requirements, goals, objectives, instructions and guidelines for the proposed Influencers to be used for the Campaign;
Business Day means a day other than a Saturday, Sunday or public holiday in Victoria, Australia;
Campaign means a marketing campaign to be managed and executed by Hypetap on behalf of the Client, in accordance with this Contract;
Campaign Intellectual Property means all intellectual property and Intellectual Property Rights (excluding Background Intellectual Property) developed, created, discovered or brought into existence (other than from/by Hypetap) by the Influencer for the Campaign, under the Contract or otherwise;
CCA means the Competition and Consumer Act 2010 (Cth);
Claim includes any claim, notice, demand, debt, account, action, lien, cost, loss, expense, liability, litigation (including legal costs), investigation, judgement or damages of any kind, whether known or unknown;
Client means any person, body corporate (or its Related Body Corporate) or entity which engages Hypetap for the purposes of managing and delivering a Campaign, and/or is named in the Brief;
Commencement Date means the date recorded in the Brief for commencement of the Services;
Completion Date means the date specified in the Brief by which the Influencer is required to have completed performance of the Services and/or supply of the Goods;
Conditions means these terms and conditions for the purchase of the Goods and Services by Hypetap as amended or varied in writing by the Hypetap from time to time, and are intended to regulate the key trading terms in connection with the purchase of Goods and Services by Hypetap, and apply to all Briefs unless otherwise agreed in writing by a Representative of Hypetap;
Confidential Information means the terms or effect of the Contract and any other information which Hypetap gives to the Influencer or Talent Manager under or in connection with the Contract that is non-public, confidential or proprietary in nature, including any information which Hypetap provides to the Influencer/Talent Manager and any Intellectual Property Rights of Hypetap;
Consequential Loss means loss of expected savings, loss of use, loss of opportunity or expectation loss, loss of profit, loss of revenue, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a Claim under indemnity, contract, tort (including negligence), statute or otherwise;
Contract means the contract between Hypetap, the Talent Manager and/or the Influencer, pursuant to clause 2 of the Conditions, for the supply of Goods or Services constituted by a Brief, the Conditions, consignment notes, other documents or any correspondence issued by Hypetap in respect of the Goods or Services, and any agreed variation to the Contract;
Delivery Platform means in relation to Goods, the delivery platform for the Goods as communicated in the Brief (such as, but not limited to, Facebook, Instagram and/or YouTube), or as otherwise specified by Hypetap, and in relation to the Services, the place for performance of the Services as communicated in the Brief, or as otherwise specified by Hypetap;
Employment Law means any law regarding the employment of employees including any act, regulation or industrial instrument (including awards and enterprise agreements) whether State or Federal, dealing with the entitlements, terms and conditions of employment and/or income taxation of employees, including but not limited to income tax legislation, superannuation legislation, industrial relations or workplace relations legislation (including but not limited to the Fair Work Act 2009 (Cth), long service leave legislation and workers’ compensation legislation);
Equipment means all equipment, tools, accessories, parts, any other tangible property and/or Client material provided to the Influencer and/or Talent Manager by Hypetap, on behalf of the Client, for the purposes of the Influencer performing its obligations in accordance with the Brief and pursuant to the Contract;
Facebook means Facebook Inc. and its subsidiaries, Representatives and related entities;
Facebook Products means products, features, apps, services, technologies, and software offered by Facebook;
Goods means any goods (including digital goods and e-goods), Post(s), content produced by the Influencer, and any ancillary goods, supplied or to be supplied by the Influencer to Hypetap, or as described in the Brief;
GST means GST as defined in the GST Act;
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Hypetap means Hypetap Pty Ltd ACN 169 380 054 or any Related Body Corporate as specified in the Contract;
Hypetap.com means an online platform available on www.Hypetap.com and operated by Hypetap or any Related Body Corporate;
Influencer(s) means a person, body corporate, entity or a digital account (such as a Facebook or Instagram Account), with a social media fan base (such as followers or subscribers) of equal to or greater than 1,000, which supplies the Goods and Services to Hypetap;
Insolvency Event means, for the Influencer and/or Talent Manager, being in liquidation or provisional liquidation, bankruptcy or under administration, having a controller (as defined in the Corporations Act 2001) or analogous person appointed to the Influencer and/or Talent Manager or any of the Influencer and/or Talent Manager’s property, being taken under section 459 F (1) of the Corporations Act 2001 to have failed to comply with a statutory demand, being unable to pay the Influencer and/or Talent Manager’s debts, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing the Influencer’s own affairs for any reason, taking any step that could result in the Influencer becoming an insolvent under administration (as defined in section 9 of the Corporations Act 2001), entering into a compromise or arrangement with, or assignment for the benefit of, any of the Influencer and/or Talent Manager’s members or creditors, or any analogous event;
Intellectual Property Rights means any intellectual or industrial property right, whether protected by statute, at common law or in equity, including any patent, registered design, (whether or not registrable), invention, trade secret, circuit layout design, or right in relation to circuit layouts, right to confidential information, technical information, trademark or name, copyright or other protected right;
Laws includes any requirement of any statute, rule, regulation, proclamation, order in council, ordinance or by-law whether commonwealth, state, territorial or local in relation to environmental and occupational health and safety matters;
Loss means any loss (whether direct or indirect), damage, liability, costs (including legal costs at the higher of an indemnity or solicitor-client basis), Consequential Loss, charge, a fine or penalty imposed by a statutory or other authority, or expense, whether it is:
(a) actual, prospective or contingent; or
(b) currently ascertainable or not,
and whether incurred or payable by Hypetap relating to this Contract or otherwise at Law;
Opportunity means an opportunity for an Influencer to provide Goods and/or Services to a Client in accordance with clause 3;
PayPal means a payment platform operated PayPal Australia Pty Limited (ABN 93 111 195 389) which holds Australian Financial Services Licence number 304962 (and/or its Related Body Corporate or Affiliates), for the purposes of allowing a customer/user (such as the Influencer and/or Talent Manager) of PayPal to accept payments from purchasers (such as Hypetap) of the customer’s goods or services;
Personal Information means:
(a) information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion; or
(b) information or a document that relates to the affairs or personal particulars of another person (such as a company or a business), which is received or learnt from any source as a consequence of or in the performance of this Contract;
Personnel of party means its employees, agents, consultants and sub-contractors;
Price means the price payable by Hypetap to the Influencer and/or Talent Manager (for any Goods and/or Services) and set out in the Contract and includes any currency fluctuations, charges for tax and duties and of all costs and charges for packing (if applicable), insurance and delivery of the Goods and the cost of any items used or supplied in the performance of the Services;
Post(s) means written or visual social media or blog post (such as a photo, video or written article/content) or other content piece created by an Influencer for a Campaign;
Quality Standards means all standards, codes, specifications and requirements to be complied with pursuant to the Contract and Law;
Representative means that party’s director, or authorised officer, employee, agent, sub-contractor, or adviser and includes a Talent Manager;
Services means any services supplied by the Influencer (including any ancillary services) to Hypetap (on behalf of the Client), or to be supplied by the Influencer to the party described as the recipient in the Brief as required under the relevant Contract;
Specifications means any technical or other specification relating to the Goods and/or Services referred to in the Brief or the details of which have otherwise been supplied or communicated by Hypetap or its Representative to the Influencer/Talent Manager;
Stripe means a payment platform operated by Stripe Payments Australia Pty Ltd A.C.N. 160 180 343 (and/or its Related Body Corporate or Affiliates), for the purposes of allowing a customer/user (such as the Influencer and/or Talent Manager) of Stripe to accept payments from purchasers (such as Hypetap) of the customer’s goods or services;
Talent Manager means a duly authorised individual or entity which, at all times while engaged with Hypetap in any manner, holds the legal authorisation to enter into any agreement(s) or otherwise transact on behalf of the Influencer(s) it purports to represent, with Hypetap. By entering or transacting with Hypetap, the Talent Manager hereby warrants and acknowledges that it holds the necessary authorisation from the Influencer(s) which has not been revoked (and in the event that the authorisation is revoked the Talent Manager undertakes to notify Hypetap in writing immediately), and that the Talent Manager and relevant Influencer(s) have read and understood these Conditions in its entirety;
Warranty Period means the longer of the period:
(a) of 12 months;
(b) specified in the Brief;
(c) prescribed by Law in respect of the Goods or Services,
from the date that the Goods are delivered, or the provision of the Services is complete.
1.2 Interpretation
In these Conditions, unless the context indicates a contrary intention:
(headings) clause headings and the table of contents are inserted for convenience only and must not be used when interpreting the Contract;
(person) a reference to a person includes a natural person, corporation, statutory corporation, partnership, the Crown and any other organisation or legal entity;
(natural person) a reference to a natural person includes their personal representatives, successors and permitted assigns;
(corporation) a reference to a corporation includes its successors and permitted assigns;
(parties) if a party consists of more than one person, the Contract binds each of them separately and any two or more of them jointly, and an obligation, representation or warranty in favour of more than one person is for the benefit of them separately and jointly;
(including) “including” and “includes” are not words of limitation;
(corresponding meanings) a word that is derived from a defined word has a corresponding meaning;
(singular) the singular includes the plural and vice-versa;
(parts) a reference to one or more things includes each part and all parts of that thing or group of things;
(rules of construction) neither the Contract nor any part of it is to be construed against a party on the basis that the party or its lawyers were responsible for its drafting;
(legislation) a reference to any legislation or provision of legislation includes all amendments, consolidations or replacements and all regulations or instruments issued under it;
(amendments) a reference to the Contract is a reference to the Contract as amended, varied, novated, supplemented or replaced from time to time;
(clause numbers) a reference to a clause number, schedule or annexure is a reference to a clause, schedule or annexure to the Contract or any part of the Contract;
(business days) where an act is required to be done, or a time limit or period would expire, on a day that is not a Business Day, the act may be done, or the time limit or period will be taken to expire, on the following Business Day; and
(time) time is of the essence in respect of all of Hypetap’s obligations to the Influencer.
2 Contract
(a) The Influencer (or the Talent Manager on behalf of the Influencer) agrees to provide the Goods and/or Services in accordance with the Contract(s) in place from time to time;
(b) The Contract incorporates, but is not limited to:
(i) these Conditions;
(ii) any terms specified or incorporated by reference in a Brief by Hypetap;
(iii) any agreed variations; and
(iv) any other terms and conditions which are imposed by Law and which cannot be excluded.
(c) By entering or transacting with Hypetap, the Influencer(s), or the Talent Manager on the Influencer’s behalf, hereby warrants and acknowledges the Influencer has read, understood and agree to be bound by these Conditions in their entirety and any further terms agreed by the Parties in writing.
(d) To the extent that there is any inconsistency between them, the terms applicable to the Contract will be determined and interpreted by reference to the terms specified in clause 2(a) in that order of priority and precedence, to the exclusion of any other terms or conditions.
(e) Without limiting the effect of clause 2(d), any terms and conditions that are supplied by the Influencer and/or Talent Manager, howsoever provided, including being annexed to these Conditions, being provided with the Brief (as procurement terms, printed on any delivery dockets, consignment notes or other documents, or endorsed upon any correspondence issued by the Influencer), those terms and conditions will be of no legal effect, will not be binding upon Hypetap, and will not form part of the Contract.
(f) The parties agree that any variations to the Contract purported by the Influencer and/or Talent Manager, whether those variations are to apply to all subsequent Briefs or a particular Brief, can only be made if those variations are:
(i) in writing and accepted by the Representatives of both the Influencer or Talent Manager and Hypetap; and
(ii) expressly stated to be a variation to the Contract.
(g) Subject to clause 2(e), any proposal by the Influencer and/or Talent Manager which purports to include terms not expressly included in the Contract, irrespective of their date of communication to Hypetap, (even if later in time than the formation of the Contract) will be of no legal effect and is deemed to be a proposal by the Influencer to accept the Brief and agree to the supply of Goods and performance of the Services exclusively on the basis of the Contract.
(h) Each Contract commences on and from the Influencer and/or Talent Manager’s oral or written acceptance of a Brief provided in accordance with clause 3. For the avoidance of doubt, the Influencer and/or Talent Manager’s acceptance of a Brief constitutes acceptance of these Conditions by the Influencer and/or Talent Manager.
3 Notification of opportunities to provide Goods and/or Services
(a) Through the functionality provided through Hypetap.com:
(i) Hypetap will notify the Influencer and/or Talent Manager of current or open opportunities to provide Goods or Services to Clients that Hypetap considers that the Influencer may be suitable for (“Opportunities”) together with the details of the Price and requirements for the Goods and/or Services;
(ii) Influencers and/or Talent Managers may:
(A) accept an Opportunity;
(B) reject an Opportunity; or
(C) accept an Opportunity subject to certain conditions.
(b) If the Influencer accepts an Opportunity, then Hypetap may, at its sole discretion, provide the Influencer with a Brief.
(c) If the Influencer rejects an Opportunity, Hypetap may, at its sole discretion, modify the Opportunity and re-notify the Influencer of the Opportunity in accordance with clause 3(a)(i).
(d) Influencers and Talent Managers acknowledge and agree that:
(i) no Opportunity is exclusive to the Influencer and/or Talent Manager;
(ii) Hypetap may, at its sole discretion, notify multiple Influencers and/or Talent Managers of the same Opportunity; and
(iii) Hypetap is not obligated to engage the Influencer and/or Talent Manager for any Opportunity regardless of whether the Influencer and/or Talent Manager has accepted such Opportunity.
(e) Once the Influencer and/or Talent Manager has been issued a Brief pursuant to clause 3(b), the Influencer and/or Talent Manager must respond within the time stipulated in the Brief from Hypetap to confirm the Influencer and/or Talent Manager’s acceptance of the Brief, provided that Hypetap has not cancelled or revoked the Brief prior to the Influencer and/or Talent Manager’s acceptance under this clause. If the Influencer and/or Talent Manager does not respond within the time stipulated in the Brief or commences supply of the Goods or Services, no Contract will be deemed to have been formed.
(f) The Influencer and/or Talent Manager may not alter or modify the requirements of the Brief or the Contract without Hypetap’s prior written approval.
(g) The Influencer and/or Talent Manager agrees to these Conditions and that they will apply to all Briefs issued and Contracts formed until such time as these Conditions are amended and reissued by Hypetap and the Influencer and/or Talent Manager is notified of the amendments.
(h) Each Contract is to be considered as a separate Contract, and termination by the Influencer and/or Talent Manager of any one Contract or part thereof does not constitute a termination of any other Contract (or remaining part thereof) or of these Conditions.
4 Provision of Goods and Services
(a) The Influencer must:
(i) supply the Goods to Hypetap; and
(ii) provide the Services to Hypetap,
in accordance with the Contract and all Laws.
(b) Notwithstanding any other provisions of the Contract, the parties acknowledge and agree that the issuing of these Conditions does not constitute an obligation on Hypetap to engage the Influencer and/or Talent Manager to provide any Goods or Services (as applicable) or issue any Briefs under these Conditions or under any terms.
(c) Nothing in these Conditions or under any Contract is intended or can be construed as imposing an obligation;
(i) of exclusivity on Hypetap and the Influencer and/or Talent Manager understands that Hypetap is not prevented and may engage a third party to provide any combination of goods and services of the same nature as the Goods and Services in addition to, in conjunction with or in place of Influencer at any time and from time to time; or
(ii) on Hypetap to purchase any Goods and/or Services, or to purchase a minimum volume or quantity, or any particular volume or quantity, of Goods and Services from Influencer, and Hypetap may, in its absolute discretion, purchase such number of Goods and/or the supply of Services, if any, as it sees fit in its sole discretion.
5 Price of Goods and/or Services supplied
(a) In consideration from the Influencer’s supply of the Goods and Services, Hypetap will pay the Influencer or Talent Manager (as applicable) the Price.
(b) Unless otherwise stated in the Contract, the Price includes any costs of re-supply of Services and/or provision of Goods in the event that the Services and/or the Goods are not in accordance with the Contract, local and foreign duties and taxes (including GST or other related goods and services taxes if applicable), freight, insurance, delivery, shipping costs and any other costs associated with or necessary for the supply and delivery of the Goods or the performance of the Services.
(c) If the Price is based on a list price published by the Influencer (“List Price”), whether or not Hypetap is entitled to a discount on the List Price, the Influencer and/or Talent Manager must give Hypetap not less than 2 months’ prior written notice of any increase to the List Price. In any event, and for the avoidance of doubt, unless the Contract provides otherwise, the Price specified in the Contract is fixed, and no increase in the List Price will affect the Price stated in the Contract.
6 Invoicing and Payment
(a) The Influencer/Talent Manager must:
(i) Upon signing up to Hypetap.com and being accepted by Hypetap as a user of Hypetap.com, provide its ABN to Hypetap, and in any event provide it no later than 2 Business Days from the date that the Influencer and/or Talent Manager is accepted by Hypetap to become a user of Hypetap.com. If the Influencer and/or Talent Manager fails to provide Hypetap with its ABN in accordance this clause, the Influencer and/or Talent Manager acknowledges and agrees:
A. that there may be a delay in processing payment to the Influencer or Talent Manager; and
B. to indemnify and hold Hypetap harmless from and against any and all Claims, Loss and Consequential Loss arising directly or indirectly from or in connection the delay in payment of an invoice;
(ii) issue an invoice to Hypetap after the delivery of the Goods or completion of the performance of the Services in accordance with the Contract. The Influencer and/or Talent Manager acknowledges that for the purposes of compliance with this clause 6, Hypetap may auto-generate a tax invoice via Hypetap.com in accordance with the Contract, and the Influencer and/or Talent Manager consents to Hypetap generating such tax invoice on behalf of the Influencer and/or Talent Manager;
(b) Each invoice issued by or on behalf of the Influencer and/or Talent Manager must include:
(i) the Price for the Goods and Services;
(ii) Hypetap’s Brief reference number;
(iii) a reference to the item number for any items used or supplied in the performance of the Services;
(iv) a detailed description of the delivered Goods or performed Services; and
(v) the amount of any applicable GST and any other related/similar goods and services tax.
(c) Any invoice issued by the Influencer or Talent Manager to Hypetap must be a valid tax invoice in the form required under the GST Act on or before the 5th day of each month.
(d) If Hypetap disputes or disagrees with the amount invoiced by the Influencer or Talent Manager or reasonably consider that the Goods and/or Services invoiced for have not been provided in accordance with this Contract or the Brief, it will provide written notice as soon as practicable, and in any event, no later than the 9th day of each month advising the Influencer and/or Talent Manager of:
(i) the reasons and basis of Hypetap’s disagreement with the invoiced amount or the Goods and/or Services provided;
(ii) the amount that Hypetap considers to be the correct; and
(iii) advising that payment of the invoice will be delayed until the correct amount is agreed or until the Goods and/or Services have been provided in accordance with this Contract and the Brief.
(e) If the Influencer agrees with the content of the notice issued by Hypetap under clause 6(d), then it must:
(i) fully provide or complete all outstanding Goods and/or Services in accordance with this Contract and the Brief (if applicable); and
(ii) issue Hypetap with a revised invoice, which Hypetap will pay on the next payment cycle (being the 15th day of each month).
Otherwise, the parties must use their best endeavours to resolve any dispute by negotiation.
(f) Hypetap will pay to the Influencer or Talent Manager the amount of any applicable GST due under this Contract, for which the Influencer and/or Talent Manager becomes liable for in respect of any supply the Influencer makes to Hypetap under the Contract, provided that payment claims rendered by the Influencer and/or Talent Manager comply with all relevant Laws relating to GST and are sufficient to allow Hypetap to claim any input tax credits which may be available to it.
(g) Hypetap will pay the amount due under the invoice on the 15th day of the month following the receipt of the Goods and/or Services, subject to Hypetap being satisfied that the terms of the Contract have been complied with, and a tax invoice has been issued by the Influencer and/or Talent Manager pursuant to clauses 6(a), (b) and (c) of the Conditions.
(h) Hypetap may deduct or set off from an amount payable to the Influencer and/or Talent Manager under the Contract any amount that is, or in the sole opinion and discretion of Hypetap is likely to become, payable to Hypetap under the Contract or otherwise, including in respect of:
(i) any Loss, other costs and expenses incurred by Hypetap due to late, delayed or defective supply by the Influencer, or any damages (whether directly or indirectly) incurred by Hypetap from the Influencer and/or Talent Manager’s breach of the Contract, including payment of any costs (including labour costs) to any other Influencer(s), contractors or sub-contractors of Hypetap, and, the Influencer and Talent Manager indemnifies Hypetap, its affiliated companies, and their Representatives, Personnel, successors, and assigns for any balance amount which Hypetap is unable to recover by operation of clause 6(h) of the Conditions, and holds each of them harmless from and against any and all Claims, Loss, Consequential Loss, whether ordinary, special or consequential arising directly or indirectly from or in connection the Contract;
(ii) any costs and expenses associated with procurement of any third parties to complete any outstanding obligations with respect to the supply of Goods or Services to Hypetap as a result of any suspension or termination by Hypetap of the performance of any obligations by the Influencer and/or Talent Manager under any Contract; and
(iii) any other costs or expenses incurred by Hypetap as a result of lateness, delay or defect in the supply of the Goods and/or Services by the Influencer, including in the event of the suspension or termination of any Brief (or any part thereof) or as a result of any breach of a Contract by the Influencer and/or Talent Manager. Payments by Hypetap are on account only and do not evidence Hypetap’s acceptance of the Goods or the Services.
(i) The Price will not be adjusted for any rise unless the Contract expressly states that the Price is subject to any rise.
(j) The Influencer and/or Talent Manager must provide Hypetap (via Hypetap.com) with the written details of a bank account to enable Hypetap to make payments under the Contract to that account by electronic funds transfer, and the Influencer must provide Hypetap with a minimum of 3 months’ written notice of any change in the bank account details of the Influencer or Talent Manager for the purposes of clause 6 of the Conditions.
(k) The Influencer and/or Talent Manager acknowledges and agrees that all payments to the Influencer and/or Talent Manager are made via Stripe, PayPal or such other third party payment provider as notified by Hypetap to the Influencer and/or Talent Manager from time to time and the Influencer and/or Talent Manager agrees to keep a valid, current and operating payment provider account for the purposes of complying with this clause 6.
(l) The Influencer and/or Talent Manager is solely responsible for its own costs and expenses incurred in connection with a Campaign or Brief (including all payments due to its Personnel and has paid all payroll tax and premiums pursuant to any applicable Employment Law), unless expressly stated otherwise in a Brief.
7 Delivery, Risk and Title
(a) The Influencer must deliver the Goods in accordance with any delivery instructions specified in the Brief to the Delivery Platform by the Completion Date.
(b) The Influencer or Talent Manager must notify Hypetap in writing, immediately after the Influencer becomes aware that the Goods (or any part of the Goods) will not be delivered to Hypetap by the Completion Date. If the Goods (or part of the Goods) are not delivered to Hypetap by the Completion Date or an alternative date agreed by Hypetap in writing, Hypetap may, without prejudice to any other remedy available to Hypetap, immediately terminate the Contract by notice to the Influencer and/or Talent Manager.
(c) If Hypetap terminates this Contract under clause 7(b) and has previously paid a deposit for the Goods, the Influencer and/or Talent Manager must immediately refund the deposit in full to Hypetap.
8 Performances of Services
(a) The Influencer must perform the Services in accordance with the Contract by the Completion Date.
(b) The Influencer must:
(i) perform the Services diligently, expeditiously and conscientiously in a proper and tradesman-like manner;
(ii) comply with all reasonable directions of Hypetap in the performance of the Services; and
(iii) must ensure that all personnel engaged by the Influencer and/or Talent Manager in carrying out services for Hypetap comply with Hypetap’s policies and procedures, in particular those relating to safety, Hypetap’s code of conduct, use of equipment and any other policies and procedures that may apply at the time.
(c) The Influencer must ensure that the Goods or Products do not contain:
(i) any illegal, offensive, violent, discriminatory or intimidating content; or
(ii) any third party intellectual property that the Influencer does not own or have the rights to use in the Goods or Services.
(d) Hypetap may direct the Influencer and/or Talent Manager to remove a person from the performance of the Services if Hypetap considers the person to be guilty of misconduct, incompetent or negligent.
(e) The Influencer and/or Talent Manager warrants that the Influencer has the materials, personnel and resources to properly perform the Services and that all persons performing the Services are suitably trained, experienced and qualified to do so.
(f) The Influencer and/or Talent Manager must ensure the terms of employment for all persons performing the Services comply with the relevant Law or workplace agreement governing their employment and must, at Hypetap’s request, provide evidence of compliance with this clause.
(g) The Influencer and/or Talent Manager must notify Hypetap immediately if the Influencer and/or Talent Manager becomes aware that the Services (or part of the Services) will not have been performed by the Completion Date. If the Services (or part of the Services) are not performed by the Completion Date, Hypetap may by notice and without prejudice to any other remedy, immediately terminate the Contract.
(h) The Influencer must not sub-contract the Services or parts of the Services without the prior written consent of Hypetap.
(i) The Influencer and/or Talent Manager remains fully responsible for the work and performance of its Personnel in respect of the supply of the Services to Hypetap.
9 Final inspection and acceptance
(a) Hypetap may, within 90 days of delivery of the Goods or performance of the Services, reject any Goods and/or Services which do not comply strictly with the Contract. Once the Goods and/or Services are rejected, Hypetap, in its sole discretion, may require:
(i) in the case of either Goods or Services, the Influencer to refund any payment within 7 days; or
(ii) in the case of Goods, replacement of the Goods to Hypetap’s satisfaction; or
(iii) in the case of Services, the re-supply of the Services.
(b) The risk in any Goods rejected by Hypetap pursuant to clause 9 immediately re-vests in the Influencer. The Influencer and/or Talent Manager must, at its cost, remove from the rejected Goods any of Hypetap’s intellectual property or any other distinguishing features such as name or symbols.
(c) Hypetap’s acceptance of the Goods and/or Services does not waive or extinguish any of Hypetap’s rights if the Goods or Services do not comply with any of the terms of the Contract.
10 General Obligations
(a) The Influencer and/or Talent Manager must not interfere with or disrupt the work of Hypetap or any of its Personnel except to the minimum extent necessary for the proper performance of the Contract.
(b) The Influencer and/or Talent Manager must keep their account details (including username and password) for Hypetap.com secure and confidential and must take reasonable steps to prevent unauthorised use and access of their Hypetap.com account. The Influencer and/or Talent Manager will be responsible for all actions taken through their Hypetap.com account. The Influencer and/or Talent Manager must notify Hypetap as soon as practicable after becoming aware of any unauthorised use or access of the Influencer and/or Talent Manager’s Hypetap.com account.
(c) The Influencer and/or Talent Manager:
(i) must not damage any Equipment provided to it pursuant to a Brief, and unless specified otherwise, must return all Equipment to Hypetap in the method specified by Hypetap within 5 Business Days of the Completion Date;
(ii) acknowledges and agrees that Hypetap is not liable to the Influencer and/or Talent Manager, its servants, agents or contractors, in contract, in tort (including negligence), under any statute (to the fullest extent permitted by law) or otherwise for, or in respect of, any direct or indirect Loss or Consequential Loss suffered by the Influencer and/or Talent Manager or any other person arising directly or indirectly out of the use of the Equipment, even if such Loss was in the contemplation of the parties at the time of entry into the Contract;
(iii) shall keep Hypetap indemnified and hold Hypetap harmless against all Claims, Loss and Consequential Loss of whatsoever nature which may be made against the Influencer and/or Talent Manager or which the Influencer and/or Talent Manager may incur as a result of or in connection with use of the Equipment, provision of the Goods and/or the Services, and use of or access to the Influencer’s information through Facebook Products unless such Claim or Loss liability shall be directly and solely attributable to any wilful breach of Contract or gross negligence of Hypetap; and
(iv) must indemnify and hold Hypetap harmless from and against all Claims, Loss and Consequential Loss arising from any damage or liability to Hypetap, its Personnel and third parties, infringement of third party Intellectual Property Rights, or third party losses by reason of or arising out of any information supplied to the Influencer and/or Talent Manager by Hypetap, its Personnel or suppliers, or supplied to the Hypetap by the Influencer and/or Talent Manager.
(d) On the earlier of:
(i) delivery of the Goods;
(ii) the Completion Date; or
(iii) earlier termination of the Contract,
the Influencer and/or Talent Manager must promptly return to Hypetap all materials, documentation and things provided to the Influencer by Hypetap for the performance of the Contract.
11 Suspension, Variation and Cancellation of Contract
(a) Hypetap may, acting reasonably, direct the Influencer and/or Talent Manager to suspend the whole or any part of the performance of the Services or the supply of the Goods for a period nominated by Hypetap. The Influencer and/or Talent Manager is not entitled to make a Claim against Hypetap for any additional Losses the Influencer and/or Talent Manager may incur or sustain in connection with the suspension.
(b) If the suspension continues for more than 30 days (or some other timeframe agreed by the Parties), then Hypetap must negotiate in good faith with the Influencer and/or Talent Manager for pro-rated payment of the Price for any Goods or Services provided or commenced before the period of the suspension.
(c) Hypetap may direct the Influencer and/or Talent Manager to vary the Services including:
(i) increasing or omitting part of the Services; or
(ii) carrying out additional work.
(d) If a variation in accordance with clause 11(c) constitutes a fundamental change to the nature of the Goods and/or Services, then the Parties will use reasonable endeavours to agree in writing any changes to the Price fees, timeframes and other terms of the Brief as a result of the variation.
(e) Hypetap may, at any time prior to the delivery of the Goods or the provision of the Services, cancel a Contract in whole or in part by notice in writing to the Influencer and/or Talent Manager.
(f) Upon receipt of a notice of cancellation under clause 11(e), or a direction for variation under clause 11(c), the Influencer must:
(i) immediately stop production of the Goods and performance of the Services to the extent specified in the notice by Hypetap and, where relevant, give direction to any subcontractors to stop performance;
(ii) use its best endeavours to minimise the amount of any costs, expenses, losses or damages incurred as a result of the cancellation or variation;
(iii) settle any outstanding accounts with the Influencer’s sub-contractors; and
(iv) deliver to Hypetap all finished Goods, and, if reasonably requested by Hypetap, any partially completed Goods.
(g) Upon cancellation under this clause 11, the Parties will negotiate in good faith for pro-rated payment of the Price for any Goods or Services provided or commenced before notice of the cancellation under clause 11(e).
(h) If the Influencer and/or Talent Manager receives a direction from a party that purports to act on Hypetap’s behalf, the Influencer and/or Talent Manager must as soon as practicable confirm that direction with Hypetap before proceeding on the basis of the direction. Hypetap will only be bound by a direction, variation or suspension provided to the Influencer and/or Talent Manager by an authorised Representative of Hypetap.
(i) The Influencer and/or Talent Manager indemnifies and will keep indemnified Hypetap with respect to all Claims arising out of or in connection with the Influencer and/or Talent Manager’s failure to comply with the provisions of clause 11(h) or any other term of this Contract.
(j) If Hypetap terminates a Contract, the Influencer and/or Talent Manager must:
(i) immediately, but in any event no later than within 2 Business Days, return to Hypetap all Confidential Information provided to the Influencer and/or Talent Manager by Hypetap; and
(ii) complete any elements of the Contract that Hypetap provides directions to the Influencer and/or Talent Manager to complete in the notice terminating the Contract.
12 Warranties
(a) The Influencer and/or Talent Manager warrant that:
(i) the Goods and Services supplied substantially correspond to any sample or description provided by the Influencer and/or Talent Manager including any statements made by the Influencer in relation to the sample and/or description of the Goods or Services, and are provided in accordance with:
A. the relevant Brief and any description and Specifications contained therein;
B. any Quality Standards;
C. all relevant Laws;
D. Best Industry Practice;
E. any direction by Hypetap or its Personnel; and
F. the requirement that they are fit for the intended purpose.
(ii) the Influencer is the sole legal and beneficial owner of the Goods free from all security interests, any other security, mortgages, charges, encumbrances, liens or other third-party rights or Claims;
(iii) the Goods are safe and free from risk to health and safety and are compliant with all relevant Laws;
(iv) the Goods and the Services when completed will be free from any defects for the duration of the Warranty Period from the Completion Date and that the Goods and Services will be fit for any purpose for which they are purchased, including any purpose made known by Hypetap, expressly or by implication, to the Influencer and/or Talent Manager, or as should be understood by the Influencer as a supplier of the Goods or Services, who is experienced in such technical and specific matters relating to the Goods or Services and the purpose they are intended for. The Influencer and/or Talent Manager further acknowledges that Hypetap relies on the Influencer’s skill or judgement in respect of the Goods and Services (whether the Influencer is the producer of those Goods or not), and warrants that there is an implied condition that the Goods and Services shall be reasonably fit for such purpose and be of merchantable quality;
(v) the Services shall be performed by Personnel that are suitably qualified, experienced and hold all requisite licences and authorisations necessary to conduct the Services;
(vi) the Services shall be performed in compliance with all policies and procedures of Hypetap (as are applicable to the provision of the Services and notified to the Influencer and/or Talent Manager from time to time);
(vii) the Services shall be provided with due care and skill, with the same or higher level of care and skill as would reasonably be expected of a person qualified and experienced in the supply of the same or similar Services, taking all necessary care to avoid Loss or damage; and
(viii) it has obtained and will maintain all necessary licences, permits and consents that may be required in connection with the supply of the Goods or Services.
(b) If the Influencer needs to replace the Goods or re-perform the Services during the Warranty Period because they do not comply with the Contract, the Warranty Period commences again from the time when the Goods are replaced, or the Services are re-performed.
(c) Nothing in the Contract is meant to exclude any condition, warranty, guarantee, right or remedy implied by any Law for the benefit of Hypetap (whether of goods or of services) including the CCA, and the Influencer must comply with all Laws relating to the Goods.
(d) The Influencer and/or Talent Manager must ensure that the Influencer assigns to Hypetap or the Client (where Hypetap re-supplies the Goods), or holds on trust for Hypetap or the Client, the benefit of any warranties by the Influencer and/or the manufacturers of the Goods or of the materials or other components which are used in the performance of the Services, where the ownership of those materials or components ultimately vests in Hypetap, or with the Client. This includes any warranties which Hypetap may specifically request from the Influencer in respect of the Goods and/or Services. The Influencer and/or Talent Manager agrees to indemnify Hypetap, its affiliated companies, and their Representatives, Hypetap’s Personnel, Client, successors, and assigns and holds them harmless from and against any and all Claims, Loss or Consequential Loss arising directly or indirectly from or in connection with the Influencer being unable to, or not assigning the benefit of any warranty, or if the warranty for any reason is not extended to Hypetap and/or the Client.
(e) The Influencer and/or Talent Manager must ensure that Hypetap obtains the benefit of any of the Influencer’s warranties in respect of the Goods or other components which are used in the performance of the Services, that pass to a Client from Hypetap without assigning any liability to Hypetap.
(f) The Influencer and/or Talent Manager acknowledges that, in entering into the Contract, the Influencer and/or Talent Manager has not relied on any term, condition, warranty, undertaking, inducement or representation made by or on behalf of Hypetap which is not expressly stated in the Contract.
(g) The Influencer and/or Talent Manager’s warranties under the Contract apply in addition to any warranties implied by Law and are not a waiver by Hypetap of any such implied warranties, and these warranties (whether express or implied) survive delivery, inspection, acceptance and payment for the Goods and Services by Hypetap.
13 Indemnities and Release
(a) Without limiting the effect of and in addition to any of the other clauses of these Conditions, the Influencer and/or Talent Manager indemnifies Hypetap, its affiliated companies, and their Representatives, Hypetap’s Personnel, successors, and assigns and holds them harmless from and against any and all Claims, Loss or Consequential Loss arising directly or indirectly from or in connection with:
(i) the acts, negligence, omissions or wilful misconduct of the Influencer and/or Talent Manager;
(ii) any payment being rendered incorrectly by Hypetap under the Contract due to the Influencer and/or Talent Manager’s negligence or omission to advise Hypetap of the correct bank account details, including any change of bank account details in accordance with clause 6 of these Conditions;
(iii) the Goods or Services supplied;
(iv) a breach of any of the Influencer and/or Talent Manager’s warranties or any other term of the Contract, including any Quality Standards and Best Industry Practice specified by Hypetap, or as may be implied by the operation of any Laws;
(v) the act, omissions and/or negligence of the Influencer and/or Talent Manager’s Personnel or Representatives;
(vi) injury or death to any of the Influencer/Talent Manager’s Personnel;
(vii) a Claim of any lien, security interest or other encumbrance made by a third party;
(ix) a Claim regarding the infringement or alleged infringement of Intellectual Property Rights of any person or any breach of confidentiality;
(x) damage or destruction of any property belonging to the Influencer and/or Talent Manager or in the Influencer and/or Talent Manager’s possession or under the Influencer and/or Talent Manager’s control;
(xi) Hypetap being unable to meet its obligations to a third party which obligation it assumed in reliance upon the Influencer and/or Talent Manager being able to perform its obligations under the Contract and the Influencer and/or Talent Manager failing for any reason to perform its obligations under the Contract;
(xii) injury to or death of any person (including Hypetap’s Personnel) or damage to or destruction of any property (including the Goods or any property of Hypetap or any of Hypetap’s Personnel) caused by the negligent or unlawful act or omission or wilful misconduct of the Influencer and/or Talent Manager or the Influencer and/or Talent Manager’s Personnel or a breach of the Contract by the Influencer and/or Talent Manager;
(xiii) a failure by the Influencer and/or Talent Manager or the Influencer and/or Talent Manager’s Personnel to comply with any Law; and
(xiv) without limiting the effect of clauses 13(a) (i) to (xiii) above, a breach by the Influencer and/or Talent Manager or the Influencer and/or Talent Manager’s Personnel of any of the Influencer and/or Talent Manager’s obligations under the Contract or the negligence of the Influencer and/or Talent Manager or the Influencer and/or Talent Manager’s Personnel in connection with the performance of the Contract.
(b) The Influencer and/or Talent Manager must not claim any liens, attachments or similar Claims in connection with the Goods or the Services and must defend and indemnify Hypetap against any liens, attachments or other similar Claims arising out of or in connection with a Brief or the Contract, except as otherwise provided in these Conditions.
(c) The indemnities and warranties by the Influencer and/or Talent Manager under these Conditions (whether express or implied) survive delivery, inspection, acceptance and payment for the Goods and Services by Hypetap.
(d) The Influencer and/or Talent Manager’s indemnities in each Contract are continuing obligations, independent of the other obligations of the parties under the relevant Contract and each other Contract (if any) and continue after the Contract ends. It is not necessary for Hypetap to incur expense or make payment before enforcing a right of indemnity under the Contract.
14 Insurance
(a) The Influencer and/or Talent Manager must maintain, and must ensure that where applicable each of the Influencer and/or Talent Manager’s Personnel maintains:
(i) workers compensation insurance as required by applicable Laws for all of the Influencer and/or Talent Manager’s Personnel performing any work under the Contract;
(ii) public and product liability insurance providing a minimum indemnity limit of $20 million for each and every Claim;
(iii) if the Contract includes the supply of any professional services, professional indemnity insurance, on a ‘claims incurred’ basis, providing a minimum indemnity limit of $5 million for each and every Claim, or such other amount as specified in the Contract;
(iv) insurance for any third party property damage;
(v) any such insurance that would be held by a reasonably prudent supplier in the position of the Influencer and/or Talent Manager; and
(vi) any other insurance specified in the Contract.
(b) The Influencer and/or Talent Manager must take out and maintain insurance covering the Equipment under an all risks policy for their replacement value against loss or damage, including loss or damage in transit to Hypetap and during unloading until risk passes to Hypetap in accordance with the Contract.
(c) The Influencer and/or Talent Manager must ensure that any policies of insurance maintained by the Influencer/Talent Manager for the purposes of the Contract names Hypetap as an additional insured or notes the interest of Hypetap.
(d) The Influencer and/or Talent Manager must provide such evidence as Hypetap reasonably requires that the Influencer and/or Talent Manager and the Influencer and/or Talent Manager’s Personnel are insured in accordance with the Contract before the Influencer commences delivery of the Goods or performance of the Services and otherwise when requested by Hypetap from time to time.
15 Hypetap Property
(a) Any designs, materials, drawings, tools, Specifications, artwork, data, supplies, tooling, dies, moulds, fixtures, patterns or equipment provided, furnished or paid for by Hypetap to the Influencer and/or Talent Manager in connection with the supply of the Goods or the performance of the Services (collectively “Hypetap Property”) remains the exclusive property of Hypetap at all times, and while the Influencer and/or Talent Manager has custody and/or control of Hypetap Property, shall be held at the Influencer and/or Talent Manager’s sole risk.
(b) The Influencer and/or Talent Manager must:
(i) not, without the prior written consent of Hypetap, use any Hypetap Property for any purpose other than the performance of its obligations under the Contract;
(ii) maintain any Hypetap Property in accordance with good practice and the directions of Hypetap;
(iii) store Hypetap Property in a safe and secure manner;
(iv) allow Hypetap, and its Representatives, to access and inspect Hypetap Property at all times upon reasonable notice;
(v) not dispose of or encumber any Hypetap Property; and
(vi) return any Hypetap Property to Hypetap immediately upon demand by Hypetap.
16 Defective Goods or Services
(a) Hypetap may notify the Influencer and/or Talent Manager of any defect in the Goods or Services within a reasonable time of it becoming aware of the defects.
(b) The Influencer and/or Talent Manager must, within 5 days (or such later date as communicated by Hypetap in writing) of receiving notice from Hypetap under clause 16(a), at Hypetap’s option and sole discretion, either:
(i) repair or rectify the defect or non-compliance in the Goods or the performance of the Services at no cost to Hypetap;
(ii) replace the Goods or re-perform the Services at no cost to Hypetap; or
(iii) refund any amount paid by Hypetap to the Influencer and/or Talent Manager on account of the Price for the defective or non-compliant Goods or Services.
(c) If the Influencer and/or Talent Manager fails to comply with clause 16(b), then Hypetap may immediately terminate the Contract and the Influencer and/or Talent Manager will have no Claim against Hypetap.
(d) The exercise of any rights under this clause 16 by Hypetap will not preclude or prejudice the exercise of any other rights, powers or remedies that may be available to Hypetap.
(e) Hypetap will hold any defective or non-compliant Goods for the Influencer and/or Talent Manager at the Influencer and/or Talent Manager’s risk. If the Influencer and/or Talent Manager fails to collect those Goods within a reasonable time of being requested to do so by Hypetap, on in any event no later than 5 Business Days of being requested to do so, Hypetap may dispose of them in whatever manner it thinks appropriate and will have no liability to the Influencer and/or Talent Manager in respect of that disposal and may recover the cost of disposal from the Influencer and/or Talent Manager.
(f) Without limiting any other rights or remedies of Hypetap under the Contract or otherwise, the Influencer and/or Talent Manager must reimburse Hypetap for any costs and expenses incurred by Hypetap in returning defective Goods to the Influencer and/or Talent Manager.
(g) Without limiting any other rights or remedies of Hypetap under the Contract or otherwise, if the Influencer and/or Talent Manager fails to remedy or rectify any defect in the Goods or Services in accordance with clause 16 of these Conditions and to the satisfaction of Hypetap, or if Hypetap otherwise terminates the Contract in accordance with clause 16, then Hypetap may remedy (or arrange for a third party to remedy) that defect in the Goods and/or Services at the cost of the Influencer and/or Talent Manager which will be a debt due and owing by the Influencer and/or Talent Manager to Hypetap.
17 Breach of Contract
(a) If the Influencer and/or Talent Manager breaches a Contract, Hypetap may suspend payment to the Influencer and/or Talent Manager until the breach is rectified to the reasonable satisfaction of Hypetap.
(b) Without limiting any other provision of the Contract, Hypetap may terminate the Contract immediately by notice to the Influencer and/or Talent Manager if the Influencer and/or Talent Manager breaches the Contract and the breach is incapable of remedy or if the breach is capable of remedy and the Influencer and/or Talent Manager fails to remedy the breach within 5 Business Days of receiving a notice from Hypetap requiring the Influencer to do so.
18 Insolvency
(a) Hypetap may terminate a Contract immediately by notice to the Influencer and/or Talent Manager if:
(i) the Influencer and/or Talent Manager is a company and the Influencer and/or Talent Manager has become an externally administered body corporate or a person becomes a controller of the Influencer’s property (as those terms are defined in section 9 of the Corporations Act 2001);
(ii) the Influencer and/or Talent Manager is a person and a judgment is entered against the Influencer and/or Talent Manager in any court in any jurisdiction, the Influencer and/or Talent Manager becomes the subject of any bankruptcy petition or the Influencer and/or Talent Manager commits an act of bankruptcy or is made bankrupt; or
(iii) the Influencer and/or Talent Manager is unable to pay its debts when they are due.
19 Confidentiality
(a) Influencer and/or Talent Manager must ensure that all Confidential Information provided by Hypetap is kept confidential, and the Influencer and/or Talent Manager must not, without the prior written consent of Hypetap, disclose to any person any Confidential Information except any Confidential Information that is:
(i) in, or comes into, the public domain other than as a result of a breach of this clause 19;
(ii) required to be disclosed by Law or by order of a Court; or
(iii) to be disclosed to legal or other advisors of a party for the purpose of advice in relation to the Contract.
(b) The Influencer and/or Talent Manager may use Confidential Information provided to it by Hypetap only for the purposes of giving effect to the Contract.
(c) Prior to disclosing any Confidential Information as permitted under this clause 19, the Influencer and/or Talent Manager will notify Hypetap of the proposed disclosure and will provide a copy or particulars of the Confidential Information to be disclosed.
(d) Any Confidential Information provided to the Influencer and/or Talent Manager remains at all times the property of Hypetap.
20 Intellectual property
(a) The Background Intellectual Property of each Party remains the property of that Party.
(b) Each Party grants to the other Party a non-exclusive, royalty-free, non-transferable licence during the term of this Contract to use the Background Intellectual Property owned by it to the extent necessary and for the sole purpose of the performance of the Services.
(c) The Influencer will own all Campaign Intellectual Property, unless agreed otherwise in writing between the Parties. The Influencer must not unreasonably withhold its consent and must negotiate in good faith, to grant Hypetap (and if necessary, the Client) the rights to the Campaign Intellectual Property.
(d) The supply of any Services under the Contract does not constitute a transfer of any Campaign Intellectual Property, or part thereof.
21 Joint and Several Liability
If the Influencer and/or Talent Manager comprises two or more persons, each of the persons is jointly and severally liable for the obligations and liabilities of the Influencer and/or Talent Manager under the Contract.
22 Notices
(a) Notices given to a party under the Contract must be in writing, signed by a Representative of the sender, and delivered to a Representative of the receiving party by hand delivery, pre-paid post or email.
(b) A notice given to a party under the Contract must be addressed to the contact details shown in the Brief or to the contact details last notified by the party to the other party in writing as the notifying party’s contact details for the purpose of the Contract.
(c) Notices are deemed to have been given or made:
(i) in the case of delivery in person, upon hand-delivery;
(ii) in the case of delivery by pre-paid post, on the third Business Day following postage;
(iii) in the case of delivery by email:
A. provided the email is sent by 4pm on a Business Day and no answer-back message is received within 24 hours indicating the email did not reach its destination or the recipient is not available, then on that Business Day; or
B. otherwise on the next Business Day.
23 No Agency or Partnership
Nothing in the Contract constitutes or shall be deemed to constitute a partnership, employment arrangement or agency between Hypetap and the Influencer and/or Talent Manager for any purpose whatsoever and Hypetap and the Influencer and/or Talent Manager agree and acknowledge that neither the Influencer and/or Talent Manager nor Hypetap has the authority or power to bind the other or to contract in the name of and create a liability against the other in any way or for any purpose.
24 Privacy
(a) Hypetap collects Personal Information for the purposes of performing its obligations under this Contract.
(b) By executing this Contract, the Influencer and/or Talent Manager consents to Hypetap using the Personal Information to perform its obligations under this Contract. Hypetap will use that Personal Information in accordance with its Privacy Policy available at www.hypetap.com/privacy-policy.
(c) The Influencer and/or Talent Manager may contact Hypetap to gain access to and request correction or amendment to the Influencer and/or Talent Manager’s Personal Information.
(d) Hypetap may disclose the Influencer and/or Talent Manager’s Personal Information to:
(i) the Client for the purposes of providing the Client a Campaign in which the Influencer is involved, or is proposed to be involved;
(ii) third parties that are associated or connected with giving effect to the transaction contemplated under the Contract and the performance of the Influencer and/or Talent Manager’s obligations under this Contract; and
(iii) Hypetap’s Related Entities (as defined in section 9 of the Corporations Act 2001).
25 Facebook integration
(a) The Influencer and/or Talent Manager acknowledges and agrees that:
(i) Hypetap integrates with and receives data and information about the Influencer from Facebook, including analytics and statistics about the Influencer’s social media accounts and reach;
(ii) the Influencer and/or Talent Manager may be required to agree to Facebook’s Terms and Conditions (“Facebook Terms”) before Hypetap or the Influencer will be able to use and access the data and information provided by Facebook;
(iii) Hypetap will only use and access such information from Facebook to the extent necessary to allow Hypetap to promote and sell the Influencer’s Goods and Services to Clients;
(iv) Hypetap may share data and information about the Influencer that Hypetap receives from Facebook with Clients in connection with a Campaign, proposed or potential Campaign or a Brief;
(v) Hypetap will not sell, license or purchase any data that it obtains from Facebook; and
(vi) Hypetap will not directly or indirectly transfer any data that it receives from Facebook, including any anonymous, aggregate or derived data to any ad network, data broker or other advertising or monetization related services.
(b) The Influencer acknowledges and agrees to be bound by the Facebook Terms. In the event of any inconsistency between the Facebook Terms and these Conditions, the Facebook Terms prevail.
(c) The Influencer and/or Talent Manager indemnifies Hypetap and holds Hypetap harmless against all Claims and Loss arising from:
(i) Hypetap’s use of the Facebook Products and any data or information received from Facebook about the Influencer; and
(ii) the Influencer and/or Talent Manager’s failure to access or use Hypetap.com, or parts of Hypetap.com as a result of their failure to accept the Facebook Terms, or if the Influencer and/or Talent Manager’s access to Hypetap.com, or parts of Hypetap.com is suspended or terminated by Facebook’s actions.
26 Good faith
In performance of their respective obligations under the Contract, Hypetap and the Influencer and/or Talent Manager agree to act in the utmost good faith towards each other and each of the parties agree and undertake to enter into and execute all documents and deeds and do all acts and things as may be reasonably required by the other party to enter into, execute and do to give full effect to the terms and intent of the Contract.
27 Governing law
The Contract is governed by the Laws of the State of Victoria and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of Victoria and courts authorised to hear appeals from those courts.
28 General
(a) Nothing in the Contract has the effect of or is taken to have the effect of excluding, restricting or modifying the provisions of any relevant or applicable statute. Any provision of the Contract which is unenforceable or partly unenforceable is, where possible, to be read down so as to be enforceable, and if it cannot be read down, severed to the extent necessary to make the Contract enforceable, unless this would materially change the intended effect of the Contract;
(b) The Influencer and Talent Manager acknowledge that they have received a copy of these Conditions prior to them signing and/or accepting or expressing interest in a Brief;
(c) The Influencer and Talent Manager warrant that they have read and fully understood the nature and effect of these Conditions.
(d) A failure, delay, relaxation or indulgence of Hypetap in exercising any power, right or remedy conferred upon Hypetap under the Contract does not operate as a waiver of that power, right or remedy.
(e) A single or partial exercise of any power, right or remedy by Hypetap does not preclude any other or future exercise of any other power, right or remedy by Hypetap under the Contract.
(f) A waiver by Hypetap of a breach of the Contract by the Influencer and/or Talent Manager, or any of Hypetap’s power, right or remedy arising under the Contract is not effective unless in writing signed by Hypetap or its Representative granting the waiver, and only relates to the specific purpose for which it is given.
(g) The Influencer and/or Talent Manager’s warranties, indemnities and confidentiality obligations in the Contract survive rescission, termination or completion of the Contract and do not merge on completion of any transaction under the Contract.
(h) The Influencer and/or Talent Manager is responsible for payment of any stamp duty on or relating to the Contract.
(i) The Influencer and/or Talent Manager may not assign or encumber a right or interest under the Contract without the prior written consent of Hypetap.
(j) The Influencer and/or Talent Manager must notify Hypetap within 7 days of any change that results in more than 50% change in the beneficial ownership or control of the Influencer. On receiving notice of a change of control, Hypetap may, in its sole discretion, immediately terminate the Contract and the Influencer and/or Talent Manager will have no Claim against Hypetap.
(k) The Influencer and/or Talent Manager must provide Hypetap with a minimum of 3 months’ written notice prior to the time it wishes to cease providing the Services or supplying the Goods where there is no fixed period of the Contract, or no end dates have been specified on the Brief.
(l) This version of the Conditions replaces all previous versions of standard terms and conditions for purchase that Hypetap has issued. Hypetap may at any time revise these Conditions by updating this document and posting on Hypetap’s website, or otherwise communicating the revision of the Conditions to the Influencer/Talent Manager. The Influencer/Talent Manager is bound by any such revisions of the Conditions and the Influencer/Talent Manager acknowledges that it is the Influencer/Talent Manager’s responsibility to periodically visit Hypetap’s website to review the then current Conditions to which it is bound.