TERMS AND CONDITIONS OF USE
Last updated: February 2023
Welcome to Hashtag Talent Management’s website (the “Site”). By accessing or using the Site, you agree to be bound by the following terms and conditions (the “Terms”). If you do not agree to these Terms, please do not use the Site.
USE OF THE SITE
The Site is owned and operated by Hashtag Talent Management (“we”, “us”, “our”). The Site is provided for your personal and non-commercial use. You may not use the Site for any illegal or unauthorised purpose. You agree to comply with all applicable laws and regulations when using the Site.
ACCEPTING THE TERMS
By accessing or using our Services, you confirm that you can form a binding contract with Hashtag Talent Management, that you accept these Terms and that you agree to comply with them. Your access to and use of our Services is also subject to our Privacy Policy [insert link], the terms of which can be found directly on the Website, and are incorporated herein by reference. By using the Services, you consent to the terms of the Privacy Policy.
If you access or use the Services from within a jurisdiction for which there are separate supplemental terms, you also hereby agree to the supplemental terms applicable to users in each jurisdiction as outlined below, and in the event of a conflict between the provisions of the “Supplemental Terms – Jurisdiction” that are relevant to your jurisdiction from which you access or use the Services, and the rest of these Terms, the relevant jurisdictions’ “Supplemental Terms – Jurisdiction” will supersede and control. If you do not agree to these Terms, you must not access or use our Services.
If you are accessing or using the Services on behalf of a business or entity, then
(a) “you” and “your” includes you and that business or entity,
(b) you represent and warrant that you are an authorised representative of the business or entity with the authority to bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf, and
(c) your business or entity is legally and financially responsible for your access or use of the Services as well as for the access or use of your account by others affiliated with your entity, including any employees, agents or contractors.
You can accept the Terms by accessing or using our Services. You understand and agree that we will treat your access or use of the Services as acceptance of the Terms from that point onwards.
You should print off or save a local copy of the Terms for your records.
DEFINITIONS
In the Terms,
(i) a “Marketer” means any person or entity who uses the Services provided by us for the purpose of collaborating with Talents (“Key Opinion Leaders”, “KOL”, “Creator”) in order to create unique and engaging content that promotes their products or services.
(ii) “Talent” means any person, entity, or group that creates and distributes the original content or sponsored social content, and/or performs an action, including but not limited to content posted through their associated social networks (i.e. Xiao Hong Shu, Instagram, Facebook, WeiBo, etc.), requested via the Marketplace, and receives compensation for such content or an action via the Hashtag Talent Management services,
(iii) “Affiliate” means any authorised entity or person that directly or indirectly controls the transactions of the Marketer or Talents. The term “control” with regard to this definition means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of voting securities, written voting rights agreement, written agreement, title or other influence,
(iv) “Services” means a request by a Marketer through Hashtag Talent Management for a Talents to create content, distribute sponsored social content, and/or perform an action through their social network or in person.
These Terms shall apply to all transactions conducted through the services.
CONTENT
All content on the Site, including but not limited to text, graphics, logos, images, videos, audio clips, and software, is the property of Hashtag Talent Management or its licensors and is protected by intellectual property laws. You may not modify, reproduce, distribute, publish, transmit, display, sell, or otherwise use any content on the Site without our prior written consent.
SERVICES
Hashtag Talent Management aims to utilise AI technology, data analysis, and professional services to facilitate premium influencer marketing by connecting Talents with the world’s leading brands.
It is hereby agreed that such services do not include assisting to review and identify Talent’s posts or actions that violate a Service’s Requirements. As Hashtag Talent Management does not have privity of contract with the Talents and cannot enforce the terms agreed to between Talents and Marketer, in case of any disputes arising out of the parties, both Talents and Marketer should resolve disputes themselves and shall not involve Hashtag Talent Management.
Final payment to the Talents will occur upon Talents fulfilling all disclosure guidelines and required elements of the Services. We will check for active posts and make payments to the Talents on behalf of the Marketer. If the automated system fails to locate required elements and disclosure, no payment will be made to the Talents, and funds for the Service will be returned to the Marketer unless manually verified by Hashtag Talent Management with permission from the Marketer or unless Talents makes the required edits.
Hashtag Talent Management shall not be held liable for any failure to make timely payment(s) to Talents. Instead, Marketer shall be responsible for delivery of funds as agreed upon with Talents.
If a marketer makes changes to the service or approves content privately without our knowledge:
(i) those terms may not be enforceable as they are not contained within the terms and conditions of the Services that are digitally agreed to by Talents,
(ii) any failure of the Content during the verification process due to such changes will be Marketer’s responsibility, including any payments owed to Talents for delivering such content, and
(iii) Hashtag Talent Management shall not be responsible for ensuring that any items or advertising disclosures appear in the content. For the avoidance of doubt, Hashtag Talent Management shall take no responsibility for non-compliance with contract terms, enforcement of terms entered into outside of our management, or any claims, fines, or violations resulting from Marketer’s actions or directions to Hashtag Talent Management. Marketer shall comply with all applicable rules and regulations and other truth-in-advertising laws regarding content Marketer provides or has produced and/or published utilising the Services.
Talents Terms
If Talent accepts the opportunity yet fails to fully perform and meet the obligations thereof, Hashtag Talent Management may lower Talent’s rating in the system, post negative reviews, and potentially remove Talent and Talent’s account from any and all of our platforms, and Marketer may (i) deny payment to Talent for such failure to perform, and/or, (ii) take back any products, documents, or other items Talent received. Talent shall promptly return any such items requested by Marketer. Any Talent content prior to such failure or otherwise paid for is owned by the Marketer who utilised the Services.
If necessary, a Marketer may request that a Talent’s post in response to the Service be removed from the Talent’s social media channel or personal website. Hashtag Talent Management may assist Marketer in requesting a Talent to remove a post and additional fees may apply; however, We cannot guarantee removal of the post by the Talent. Marketers may also request that the Service be closed and/or cancelled at any time.
Marketer may owe payment to Talent, whether partial or full, based on how much Content was submitted or completed prior to Marketer’s request to remove Talent or cancel a Service.
Should Talent be asked to reasonably modify or to remove content posted in connection with a Service, Talent must do so within twenty-four (24) hours of receiving such instruction. Failure to do so may result in a loss of compensation (including a clawback of monies already paid to Talents) and other remedies, up to and including removal from our Platforms/ Database and termination for cause of any related contracts.
Talent acknowledges and agrees that the obligation to compensate Talent for Service-related advertisements resides with the Marketer, not Hashtag Talent Management. Hashtag Talent Management merely facilitates such compensation on behalf of the Marketers. Marketer is solely liable for providing the funds to Hashtag Talent Management for payment to Talent. While Hashtag Talent Management may be remitting payment to Talent directly; under no circumstance does Hashtag Talent Management accept liability for payment to Talent. Hashtag Talent Management may also deny payments to the Talent subject to any legal or lawful purpose. Talent agrees that it will not pursue any actions, legal or otherwise, against Hashtag Talent Management for non-payment. Talent waives any and all claims or rights of action against Hashtag Talent Management relating to the failure of a Marketer to compensate Talent in connection with an Service-related advertisement. In addition, Talent acknowledges that Talent is:
(i) not an employee of Hashtag Talent Management,
(ii) responsible for the payment of all federal, state and local taxes on compensation received from a Marketer,
(iii) responsible for any reporting requirements imposed by the federal, state or local government, and
(iv) responsible for compliance with all other applicable laws and regulations.
LINKS TO OTHER SITES
The Site may contain links to third-party websites or resources. We are not responsible for the availability, accuracy, or content of such websites or resources. We do not endorse or assume any responsibility for any third-party websites or resources, or for any products or services offered by such third parties.
REPRESENTATION AND WARRANTIES
Talents and Marketers participating in the Marketplace each represent, warrant and covenant that
(i) you have sufficient authority to enter into the Agreement;
(ii) your use of Hashtag Talent Management’s services is solely for lawful commercial and business purposes;
(iii) the links contained in any content are directed to the intended and agreed upon destination and are not redirected;
(iv) you will not engage or cause others to engage in any form of spamming or improper or malicious, as determined by Hashtag Talent Management, clicking, impression or marketing activities through the Services, and you will comply with all applicable laws including complying with all applicable laws,
(v) you have the necessary rights to provide all information provided to the Marketplace (including all content, data, claims, statements, products and services, titles, URLs and descriptions) for use as described in these Terms (the “Information”).
Talents and Marketers participating in the Marketplace each represent, warrant and covenant that all such Information does not and will not:
(a) violate any law, statute, ordinance, treaty or regulation or Hashtag Talent Management policy or guideline;
(b) infringe any copyright, patent, trademark, trade secret, trade dress, or other intellectual property right of any third party;
(c) 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) advertise any unlawful product or service or unlawful sale of any product or service.
Additionally, Talents and Marketers agree that all Information will
(i) not be false, misrepresentative, deceptive or misleading;
(ii) not be defamatory, libellous, slanderous, obscene or threatening;
(iii) not target children under the age of thirteen (13),
(iv) 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.
Marketer further represents that
(i) it has a reasonable basis for all claims made within its advertising and possesses appropriate documentation to substantiate such claims;
(ii) it will comply with the applicable Master Service Agreement (if applicable);
(iii) the landing page for any links (i.e., the Marketer’s website page where a consumer is directed when the consumer clicks on the link, fills in a registration form or takes a similar action) contains a prominent link to Marketer’s privacy policy, which policy provides, at a minimum, adequate notice, disclosure and choices to consumers regarding Marketer’s use, collection and disclosure of their personal information; and
(iv) prior to loading any computer program onto an individual’s computer, including without limitation programs commonly referred to as spyware but excluding cookies (provided that cookies are disclosed in Marketer’s privacy policy), Marketer shall provide notice to and shall obtain the express consent of such individual.
CONFIDENTIALITY
“Confidential Information” means any information disclosed by a disclosing party (e.g. Hashtag Talent Management, Marketer/Partner, Talents) to a receiving party (e.g. Marketer/Partner, Hashtag Talent Management, or Talents) either directly or indirectly, in writing, orally, or by inspection of tangible objects, other than information that you can establish:
(i) was publicly known and made generally available in the public domain prior to the time of disclosure to the receiving party;
(ii) becomes publicly known and made generally available after disclosure to the receiving party other than through the receiving party’s action or inaction; or
(iii) is in the receiving party’s possession, without confidentiality restrictions, prior to the time of disclosure by the disclosing party as shown by receiving the party’s files and records.
Receiving party shall not at any time
(i) disclose, sell, licence, transfer or otherwise make available to any person or entity any Confidential Information (except to those individuals who have a legitimate need to know such information and are bound in writing by confidentiality and non-use restrictions not less protective than those contained herein), or
(ii) use, reproduce or copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to the receiving party and in accordance with the Terms.
Receiving party agrees to take all measures to protect the secrecy, and avoid disclosure and unauthorised use, of the Confidential Information. Receiving party may disclose Confidential Information if required by law to disclose the Confidential Information, provided that receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. All Confidential Information shall remain the disclosing party’s personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to the disclosing party immediately upon its request, and also, upon termination of the Terms.
Nothing contained in the Terms will prevent Hashtag Talent Management, its parent and/or affiliates from complying with privacy laws and regulations, and if there is any conflict between the Terms and the terms of the applicable Privacy Notice, the Privacy Notice shall control. Marketer and/or Talents may not issue any press release or other public statement regarding the Terms, Hashtag Talent Management or its parent and/or its affiliates without Hashtag Talent Management’s prior written consent.
LIMITATION OF LIABILITY
IN NO EVENT SHALL WE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM YOUR USE OF THE SITE.
INDEMNIFICATION
You agree to indemnify and hold us harmless from and against any and all claims, liabilities, damages, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising from your use of the Site, your violation of these Terms, or your violation of any rights of another.
TERMINATION
We may terminate or suspend your access to the Site, with or without cause, at any time and without notice.
MODIFICATIONS TO THE TERMS
We may modify these Terms at any time by posting the modified terms on the Site. Your continued use of the Site after such posting will constitute your acceptance of the modified terms.
SUPPLEMENTAL TERMS – JURISDICTION
(i) HONG KONG SPECIAL ADMINISTRATIVE REGION (HKSAR)
If you are using our Services in HKSAR, the following additional terms apply. In the event of any conflict between the following additional terms and the provisions of the main body of these Terms, the following terms shall prevail.
Regulations and Advertising Guidelines. In Hong Kong, both key opinion leaders (Talents) and marketers are required to comply with the following regulations when advertising on social media:
Trade Descriptions Ordinance (TDO): Under the TDO, Talents and marketers are prohibited from making false, misleading, or deceptive claims about their products or services. All claims must be truthful and not misrepresent the characteristics, suitability, quantity, or quality of the products or services.
Consumer Protection Regulations (CPR): The CPR requires that Talents and marketers clearly disclose any sponsored or paid-for content. This simply indicates that if Talent or marketer receives payment or other benefits to promote a product or service on social media, they must clearly indicate that the post is an advertisement.
Code of Ethics for the Use of Social Media: The Hong Kong Association of Interactive Marketing (HKAIM) has established a Code of Ethics for the Use of Social Media, which provides guidelines for marketers and Talents when creating and publishing content on social media platforms. The Code includes principles such as honesty, transparency, and responsibility.
Personal Data (Privacy) Ordinance: The Personal Data (Privacy) Ordinance regulates the collection, use, storage, and disclosure of personal data in Hong Kong. Talents and marketers must obtain consent from individuals before collecting or using their personal data, and must ensure that the data is used only for the purposes for which it was collected.
Advertising Standards: Talents and marketers should comply with the Advertising Standards published by the Communications Authority, which provide guidance on various aspects of advertising, including the use of social media.
Applicable Law and Jurisdiction. The laws of Hong Kong will govern these Terms and any claims and disputes (whether contractual or otherwise) arising out of or relating to these Terms or their subject matter. You and we both agree that any dispute arising out of this region relating to these Terms or the Site shall be referred to the exclusive jurisdiction of the Courts of Hong Kong.
(ii) MALAYSIA
If you are using our Services in Malaysia, the following additional terms apply. In the event of any conflict between the following additional terms and the provisions of the main body of these Terms, the following terms shall prevail.
Regulations and Advertising Guidelines. In Malaysia, Talents and marketers are required to comply with the following regulations when advertising on social media:
Malaysian Code of Advertising Practice (MCAP): The MCAP, which is regulated by the Advertising Standards Authority of Malaysia (ASAM), sets out guidelines for advertising in Malaysia. Talents and marketers must ensure that their social media posts comply with the MCAP’s requirements, including principles such as honesty, truthfulness, and social responsibility.
Consumer Protection Regulations: Talents and marketers must comply with the Consumer Protection Regulations, which require all advertising to be truthful and not misleading or deceptive.
Personal Data Protection Act (PDPA): The PDPA regulates the collection, use, and disclosure of personal data in Malaysia. Talents and marketers must obtain consent from individuals before collecting or using their personal data, and must ensure that the data is used only for the purposes for which it was collected.
Direct Sales and Anti-Pyramid Scheme Act: Talents and marketers who use social media for direct sales or network marketing must comply with the Direct Sales and Anti-Pyramid Scheme Act, which prohibits pyramid schemes and sets out requirements for direct sales activities.
Social Media Guidelines: The Malaysian Communications and Multimedia Commission (MCMC) has issued social media guidelines that set out best practices for social media use. Talents and marketers should follow these guidelines to ensure that their social media posts do not violate any laws or regulations.
Applicable Law and Jurisdiction. The laws of Malaysia will govern these Terms and any claims and disputes (whether contractual or otherwise) arising out of or relating to these Terms or their subject matter.You and we both agree that any dispute arising out of this region relating to these Terms or the Site shall be referred to the exclusive jurisdiction of the Courts of Malaysia.
(iii) OTHER COUNTRIES BESIDE HONG KONG AND MALAYSIA
Hashtag Talent Management operates in compliance with applicable laws and regulations, including but not limited to data privacy laws, anti-corruption laws, and laws governing the promotion and advertising of products and services. Hashtag Talent Management does not guarantee compliance with any particular law or regulation of any jurisdiction outside of Hong Kong and Malaysia, and it is the responsibility of Clients/ Marketers to comply with all applicable laws and regulations in their respective jurisdictions. Hashtag Talent Management reserves the right to refuse to provide services to any Client/ Marketer if such services would violate any applicable laws or regulations. Clients/Marketers acknowledge and agree that they are solely responsible for compliance with all laws and regulations applicable to their use of the Services.
In the event of any disputes arising from or related to this Agreement that occur outside of Hong Kong and Malaysia, the Parties agree to resolve such disputes in accordance with the dispute resolution forum chosen by Hashtag Talent Management, regardless of any conflicting laws or regulations of the jurisdiction in which the dispute may arise. The Parties acknowledge and agree that the chosen dispute resolution forum is fair and reasonable, and that they will abide by any decisions or awards rendered through this forum