Effective as of Sept 21, 2015
Pollen8, LLC (“us” or “we”) provides you access to its online marketing community (“Pollen-8”) at http://www.pollen-8.com (“Site”), which allows Advertisers and Reviewers to interact and engage in marketing relationships (“Service”) subject to your acceptance of and compliance with these terms and conditions of service (“Terms of Service” or the “Agreement”).
As used in these Terms of Service:
• “Advertiser” means any person or entity that submits or lists product campaigns through the Site for review;
• “Reviewer” means any person who signs up through the Pollen-8 Site to post reviews of campaigns on their blogs or through their social network accounts; and
• “Campaign” means any offer posted or listed by Advertisers through the Site, which give Reviewers the chance to review products and/or services, including the potential receipt of compensation from the Advertiser, in exchange for creating posts on their blogs or through their social network accounts.
2. Service Description
Subject to the terms of this Agreement, the Service allows Advertisers to submit campaigns to the Pollen-8 Site for review by Reviewers on their blogs or through their social network accounts. Pollen-8 will publish a list of campaigns available for review on U.S. business days (excluding national holidays: New Year’s Day, Independence Day, Thanksgiving, Christmas Eve, and Christmas Day). Once Reviewers select the campaigns they are interested in reviewing, Pollen-8 will provide each Advertiser with a dashboard email listing of interested Reviewers. In the case of a standard Media Buy, Advertisers may then contact the Reviewers that respond to their listings by providing information on the rules and requirements for participating in each campaign (“Campaign Requirements”). In the case of a straight Performance campaign, we, at Pollen-8, reserve the right to post the campaign on the on the platform and select and contact the Reviewers ourselves on the Advertiser’s behalf. Performance campaigns will be tracked through the Pollen-8 Performance Platform and require pixel placement on the Advertiser’s site and affiliate links placed within the Reviewer’s review. Subject to the terms of this Agreement and the Advertiser’s Campaign Requirements, Reviewers may then post reviews of the products or services featured in the campaign on their blogs or through their social network accounts.
3. User Eligibility and General Guidelines
You must be eighteen (18) years or older (or at least the age of majority in your state of residence) with a valid personal email address to register as a Advertiser or Reviewer through the Site. Pollen-8 accounts are not transferable, assignable or resalable under any circumstances. All participants in the Pollen-8 Service should observe the following general guidelines:
• Pornography or sexually explicit content is prohibited.
• Attacks on any group based on race or ethnic origin, religion, disability, gender, age, veteran status, sexual orientation, or gender identity are prohibited.
• Harassment, threats, invasion of privacy, predatory behavior, stalking, or the revealing of another person’s personal information is prohibited.
• Posting false, misleading, or deceptive reviews, descriptions, titles, thumbnails, tags, or any other information is prohibited.
4. Advertiser Specific Terms and Conditions
This Section 4.0 applies only to Advertisers participating in the Pollen-8 Service.
a. Posting Campaigns For Review
Each campaign listed by an Advertiser must set forth the Campaign Requirements, including a description of the compensation, if any, to be paid by the Advertiser to the Reviewer. Advertisers are solely responsible for the content and subject matter of their campaigns.
Advertiser agrees to comply with Section 5 of the Federal Trade Commission Act, the Federal Trade Commission’s Testimonial and Endorsement Guidelines, and all other applicable laws regulations, and guidelines.
Each campaign submitted to Pollen-8 will be reviewed and approved by Pollen-8 before it makes the campaign available to Reviewers. Pollen-8 reserves the right to accept or reject any campaign for any reason. In addition, Advertiser agrees that all campaign will meet the following requirements:
• Children under the age of thirteen (13) may not be the target audience of campaigns.
• No product that would need to be approved for use by persons age 18 or older may be the subject of any campaigns.
• No campaigns may include over-the-counter or prescription drugs.
• Advertisers pitching campaigns involving food products must be willing, on request, to disclose information on ingredient content.
• Advertiser agrees that (i) all information provided or approved by Advertiser in connection with an campaign is, and will be updated to remain, current and accurate, (ii) any website to which any links are included in a listed campaign will look substantially the same to all end users, and (iii) Advertiser’s website does not contain any Pollen-8 owned or licensed content, except pursuant to a separate signed agreement with Pollen-8.
• Advertiser acknowledges that Reviewers are independent third-parties and not controlled by Pollen-8. Any review will inherently risk negative or unflattering comments about your content, product(s), service(s) or company. Advertiser acknowledges and agrees that Reviewer postings reflect only the opinions of those writing them and do not necessarily reflect the opinion of Pollen-8. Pollen-8 has no control over any content that may be available or published on any website (or otherwise).
b. Payments by Advertiser to Pollen-8
Unless otherwise arranged between Advertiser and Pollen-8, Advertiser will pay Pollen-8 for each campaign submitted to run in the Pollen-8 email listings. Advertiser may choose from different rate plans outlined in the Pollen-8 rate card. Pollen-8 reserves the right to change the fees associated with participation in the Service at any time upon notice to Advertiser. Performance campaigns will be paid to Pollen-8 per the terms of any Insertion Order.
a. Payments by Advertiser to Reviewers
Advertiser may specify whether it will compensate a Reviewer in the Campaign Requirements. Advertiser, in its sole discretion, shall determine whether a Reviewer has satisfied the Campaign Requirements and the terms and conditions applicable to Reviewer as stated herein, and (if applicable) whether Reviewer is entitled to compensation from Advertiser. Pollen-8 has no obligation whatsoever to compensate a Reviewer for participation in any campaign unless the campaign is specifically defined as a Pollen-8 Performance Marketing campaign. Payments to Pollen-8 Reviewers for Performance Marketing campaigns will be paid to the Reviewers per the terms of the Insertion Order and only after receipt of payment for those campaign conversions from the Advertiser.
5. Reviewer Specific Terms
This Section 5.0 applies only to Reviewers participating in the Pollen-8 Service.
a. Eligibility and Posting Requirements
Reviewer agrees to comply with Section 5 of the Federal Trade Commission Act, the Federal Trade Commission’s Testimonial and Endorsement Guidelines, and all other laws, regulations, and guidelines applicable to its activities related to the Pollen-8 Service.
Without limiting the foregoing responsibilities, all Reviewers must comply with the following requirements:
• Reviewers must accept and comply with all Campaign Requirements set forth by an Advertiser.
• Reviewers may post reviews on their blogs or through their social network accounts. Reviewers may not disseminate their reviews through email, telemarketing, fax, or any other means of communication not expressly permitted herein.
• Reviewers must clearly disclose on their blogs the relationship between themselves and the Advertisers involved with the campaigns, including (if applicable) whether a Reviewer has received compensation in any form for review of an Advertiser’s products and/or services.
• Reviews must be submitted in English unless otherwise permitted by the Advertiser.
• Reviewers are not required to give positive reviews, but should give specific examples if they are not reviewing a product positively.
• Reviewers may not request to review a product if they work for or represent a competitor product.
• A website may not obscure any portion of a campaign-related post. All portions of a posting must be visible, readable and reasonably coherent.
• Reviews may not include or support: profanity, violence, language that is bigoted, hateful, or racially offensive, illicit drugs or drug paraphernalia use, pornography, adult or mature content, statements or materials that in any way refer to or harm minors, or any other content that promotes intolerance, illegal activity, or infringes on the legal rights of others.
• No third party links, ads, or other detractors may be included within a review. Links and ads provided by the Pollen-8 Performance Marketing platform may be included in performance campaigns.
• Software may not be used to create posts or otherwise place posts in a repetitive or not original fashion. No software or other technology may be used that interferes or disrupts the operation of the Site.
• Reviews may not contain statements or materials that are libelous or defamatory, that violate the any privacy or publicity rights, or that harass, abuse, stalk, threaten, intimidate, or in any way infringe the rights of others.
• Reviews may not contain false, misleading, or deceptive statements, including but not limited to any statements or materials that misrepresent your affiliation with any entity or person, including news websites. Websites on which reviews are posted may not contain fake reviews or be designed to resemble news websites or reports.
• Reviews may not contain any false, misleading, deceptive, or unsupported claims or representations about the product or service being reviewed.
Pollen-8 will not accept certain Reviewers as determined by Pollen-8 in its sole discretion. Pollen-8 does not have access to Advertiser products or services and Pollen-8 does not verify or review any Advertiser product or service claims. Pollen-8 will not be liable in any way for any negative interaction a Reviewer may have with a product including, but not limited to injury or death.
b. Reviewer Compensation.
Reviewer acknowledges and agrees that Pollen-8 has no obligation to compensate Reviewer for participation in campaigns, and that any obligation to compensate Reviewer for campaigns resides with the Advertiser. Reviewer waives any and all claims or rights of action against Pollen-8 relating to the failure of an Advertiser to compensate Reviewer in connection with a campaigns-related post, sponsorship or advertisement. All performance based compensation due to Reviewer will be paid per the agreement accepted in the Pollen-8 Performance Marketing platform and only after receipt of payment for performance conversions on that campaign from the Advertiser. Pollen-8 is not responsible to pay Reviewer for affiliate compensation not received by Pollen-8 from Advertiser. All performance agreements are made between Advertiser and Reviewer.
6. User Name Handling Policy
You may be required to register or setup an account to access the Site. You are responsible for maintaining the confidentiality of any account number, account name, user id and/or password, if applicable, for the services you utilize through the Site. By using this Site, you agree to keep your user name and password confidential and not to use another User’s account. You agree to notify Pollen-8 if you become aware of any loss or theft of your password or any unauthorized use of your user name and password. Pollen-8 is not liable for any loss or damage arising from your failure to comply with these obligations. Pollen-8 reserves the right to delete or change a user name or password at any time and for any reason.
As consideration for having access to or receiving Confidential Information, each Party agrees that it shall use the same efforts and degree of care to protect the confidentiality of the Confidential Information as it uses to protect its own proprietary information or industry standards, whichever is higher. Each Party undertakes to maintain the secrecy of and to hold any Confidential Information it receives in confidence and agrees that it shall not disclose such Confidential Information to any third party except that the Receiving Party may disclose the Confidential Information or portions thereof to its directors, officers, employees, agents, consultants, advisors or representatives (collectively, the “Representatives”) who need to know the Confidential Information in connection with evaluating the purpose and who are bound by a confidentiality agreement to not disclose same. In no event shall either Party use the other’s Confidential Information to compete with the other, directly or indirectly, without the express written approval of the other Party.
During the term of this Agreement and for a period of twelve (12) months thereafter, regardless of the reason for termination, Advertiser shall not, knowingly, directly or indirectly, solicit, engage, contract, license, or work with any Reviewer of Pollen-8 for the purpose of competing, superseding, circumventing or otherwise interfering with any contractual relationship between Pollen-8 and Advertiser without the prior written approval by an authorized party at Pollen-8. Advertiser agrees and understands that Pollen-8 has incurred significant expense forming Pollen-8’s affiliate network and in providing services for the benefit of Advertiser and in the event of a breach by Advertiser of this provision, Advertiser SHALL pay Pollen-8 as liquidated damages an amount equal to Pollen-8’s profits for all those campaigns that Pollen-8 ran for Advertiser for the previous EIGHTEEN (18) months prior to the breach specified in this provision or shorter in the event that the campaigns ran for a shorter period of time. The liquidated damage remedies provided herein in this provision shall not preclude Pollen-8 from seeking injunctive relief. All amounts payable hereunder by the Advertiser to Pollen-8 shall be immediately due and payable in full without demand or other notice of any kind, all of which are expressly waived by the Advertiser.
9. Representations and Warranties
You represent, warrant and covenant that (i) you have sufficient authority to enter into the Agreement; (ii) your use of Pollen-8’s Services is solely for lawful purposes; (iii) you have the necessary rights to provide all information provided under the Agreement (including all content, data, campaigns, titles, URLs and descriptions, as applicable) for use as described in this Agreement, and that all such information and all claims, statements, products and services contained or referenced herein and in the Site or website containing a review: (a) do not violate any law, statute, ordinance, treaty or regulation or Pollen-8 policy or guideline; (b) do not infringe any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (c) do not breach any duty toward or rights of any person or entity including rights of publicity or privacy, and have not otherwise resulted in or are not likely to result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (d) are not false, deceptive or misleading; (e) are not defamatory, libelous, slanderous or threatening; and, (f) will be free of viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that may potentially damage, interfere with, intercept, or expropriate any system data or personal information.
WHILE POLLEN-8 ENDEAVORS TO PROVIDE THE MOST ACCURATE, UP-TO-DATE, AND RELIABLE INFORMATION, SERVICES, PROGRAMS, PRODUCTS, SOFTWARE, AND MATERIALS AVAILABLE, THE INFORMATION, SERVICES, PROGRAMS, PRODUCTS, SOFTWARE, AND MATERIALS AVAILABLE ON OR THROUGH THE SITE ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. MOREOVER, POLLEN-8 MAY MAKE MODIFICATIONS AND/OR CHANGES IN THE SITE OR IN THE INFORMATION, SERVICES, PROGRAMS, PRODUCTS, SOFTWARE, AND MATERIALS AVAILABLE ON THE SITE AT ANY TIME AND FOR ANY REASON. YOU ASSUME THE SOLE RISK OF MAKING USE AND/OR RELYING ON THE INFORMATION, SERVICES, PROGRAMS, PRODUCTS, AND MATERIALS AVAILABLE ON THE SITE. POLLEN-8 MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, COMPLETENESS, TIMELINESS, RELIABILITY, LEGALITY, OR ACCURACY OF THE INFORMATION, SERVICES, PROGRAMS, PRODUCTS, AND MATERIALS AVAILABLE ON THE SITE FOR ANY PURPOSE, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTY UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ENACTED BY ANY STATE. POLLEN-8 ALSO MAKES NO REPRESENTATION OR WARRANTY THAT THE SITE WILL OPERATE ERROR FREE OR IN AN UNINTERRUPTED FASHION.
11. Limitation of Liability
You expressly absolve and release Pollen-8 and its parent, subsidiaries, and affiliates and all of their respective employees, agents, directors, officers, shareholders, attorneys, successors, and assigns from any claim of harm resulting from a cause beyond Pollen-8’s control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes, or other labor problems, wars, or governmental restrictions. MOREOVER, IN NO EVENT SHALL POLLEN-8 BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SITE OR WITH THE DELAY OR INABILITY TO USE THE SITE, OR FOR ANY INFORMATION, SERVICES, PROGRAMS, PRODUCTS, AND MATERIALS AVAILABLE THROUGH THE SITE, OR OTHERWISE ARISING OUT OF UTILIZATION OF THE SITE, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF POLLEN-8 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY. NOTWITHSTANDING THE FOREGOING, TOTAL LIABILITY OF POLLEN-8 FOR ANY REASON WHATSOEVER RELATED TO USE OF THE SITE SHALL NOT EXCEED $100.00.
You agree to defend, indemnify, and hold harmless Pollen-8 and its affiliates and all of their respective employees, agents, directors, officers, shareholders, attorneys, successors, and assigns from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses) relating to or arising from any breach by you of this Agreement.
13. Governing Law
The laws of the Colorado, without regard to its conflict of law principles, will govern this Agreement. You agree to submit to the exclusive jurisdiction of the state and federal courts located in Colorado. Any claim against Pollen-8 arising from the Agreement shall be adjudicated on an individual basis, and shall not be consolidated in any proceeding with any claim or controversy of any other party.
14. Final Agreement; Waiver & Severability
This Agreement makes up the entire agreement between Pollen-8 and you relating to the Service and replaces any prior understandings or agreements (whether oral or written) regarding the Service. Failure to insist on strict performance of any of the terms and conditions of this Agreement will not operate as a waiver of any subsequent default or failure of performance. No waiver by Pollen-8 of any right under this Agreement will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and the liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most clearly matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
15. Successors and Assigns
Pollen-8 may perform any of our obligations or exercise any of our rights under this Agreement through one or more of our corporate affiliates (including any entity that directly or indirectly controls, is controlled by, or is under common control with us). If Pollen-8 or its assets are acquired by another entity, that entity will assume our rights and obligations as described in this Agreement. You may not assign your rights or obligations under this Agreement, by operation of law or otherwise, without our prior written consent.
16. Term; Termination; Changes
These Terms of Service apply as long as you participate in the Pollen-8 service as a Advertiser or Reviewer. You may terminate your participation at any time by clicking on the link to cancel membership located at the bottom navigation menu on the Website. Pollen-8 may update or revise these Terms of Service at any time with or without notice to you; therefore, you should review these Terms of Service any time that you use the Service, particularly after long periods of inactivity. Pollen-8 reserves the right to terminate any Advertiser or Reviewer’s participation in the Service at any time and for any reason.