Hydr8 US LLC dba Hydr8 ("Collective Voice,” "we," "us," "our") operates a creator network program ("Program") that makes available certain websites (including www.hydr8us.com), tools, applications, widgets, API’s, Links (defined below), and related content, software, and documentation ("Tools") to enable content creators ("Creator", "you", "your") to promote and monetize certain content. By participating in the Program, using the Tools, or signing up for a Hydr8 account ("Account"), you agree to be bound by this Agreement.
1. Accounts.
To participate in the Program or create an Account, you must be at least 18 years of age and be a resident of the United States. Limit one Account per individual. You must comply with the terms of this Agreement to participate in the Program or have an Account. Accounts are personal to you. You shall keep your Account username and password confidential. You are responsible for maintaining the security of, and for all activities that occur under, your Account. You shall notify Hydr8 immediately if, or if you suspect that, the security of your Account has been breached. If you do not comply with the terms of this Agreement, we may terminate this Agreement and disclaim any obligation to compensate you in any manner for any of your activities that might otherwise have resulted in you receiving compensation had you complied with this Agreement.
In its sole discretion, Hydr8 may permit and designate subaccount(s) to be created under a Creator’s primary Account to allow authorized representatives of Creator (e.g., agents, employees, personnel, and staff) to access certain Account information and Tools. Creator shall be responsible for all activity that occurs under their Account, including any activity in any related subaccount(s). All subaccount holders shall be subject to the terms of the is Agreement and all references “you” and “your” under this Agreement shall include Creators and subaccount holders. All references to “Accounts” under this Agreement shall include Creator Accounts and related subaccounts.
2. Participation.
By participating in the Program, Creators may be eligible to earn compensation on the content that they create ("Content") and that is made available on their websites, blogs, social media accounts, and related digital properties ("Properties"). We may evaluate the Properties at any time to determine compliance with this Agreement and other policies that we may make available from time to time, including but not limited to, our Community Guidelines.
Upon request, you shall provide supplementary documentation and information to support your compliance with this Agreement and our Policies. Participation in the Program is at the sole discretion of Hydr8, and Hydr8 may terminate your participation in the Program and your Account for any reason or no reason at all at any time.
3. Modification.
Hydr8 reserves the right to modify this Agreement at any time by posting a notice on www.hydr8us.com or by sending you an electronic notices (e.g., email or in-app notification). Unless otherwise set forth in the notice, any such modifications shall be effective immediately. Your continued use of your Account and/or the Tools shall constitute your acceptance of this Agreement, as modified as of the date the notice was posted, unless another effective date is set forth in the notice. Hydr8 may, at any time, discontinue, suspend, modify, substitute, upgrade, replace, or terminate the Program, in whole and in part, with or without notice to you.
4. Tools.
By creating an Account, you may have access to the Tools. Subject to your compliance with the Agreement and all Policies, Hydr8 hereby grants you a personal, non-exclusive, non-transferrable, revocable, limited license to use the Tools with your Content on your Properties for the Term (defined below) of this Agreement. You shall not use the Tools for any other purpose. You shall comply with all usage guidelines, technical requirements, and other policies relating to the Tools that Hydr8 may provide or post from time to time.
The Tools may include mechanisms to embed affiliate links ("Links") on your Content to direct visitors to merchants, retailers, marketers, and brand partners of Hydr8 ("Brands"). You may use Links with your Content on your Properties. You shall not use the Links on any properties or with any content that are not your own. You shall not frame, minimize, remove, inhibit, or redirect a user from, the full and complete display of any webpage accessed by a visitor after clicking on a Link. If Hydr8 requests that you remove a Link from your Properties, you must comply with such request within twenty-four (24) hours. Failure to comply with such request may result in suspension or termination of your Account and/or forfeiture of payments, as determined by Hydr8 in its sole discretion.
Certain Tools (e.g., Tapto.shop) may allow you to select a username or similar identifier for your account. We reserve the right to change, delete, reassign, or cancel your username for any reason, including, but not limited to, addressing allegations of intellectual property infringement and impersonation of another Creator.
5. Restrictions.
You shall not, and shall not permit others to: (a) copy, distribute, assign, rent, sell, sublicense, or create derivative works from the Tools; (b) damage, unreasonably overload, interfere with the operation of the Tools or the Program; (c) introduce any code intended to disrupt the Program; (d) alter or delete any information, data, text, links, images, software, chat, communications and other content made available through the Tools; (e) access the Tools by expert system, electronic agent, "bot," spider, or other automatic means, or manual process; (f) monitor or copy the Hydr8 web pages or the content contained therein, including, without limitations the use of screenshots; (g) modify, reverse engineer, reverse assemble, decompile, or otherwise derive the source code of any Tools; (h) provide any unauthorized third party with access to the Tools; (i) embed any Links or use the Links in combination with any software programs, including, without limitation, browser extensions and browser plug-ins; (j) systematically retrieve data from the Tools to create or compile directly or indirectly, in whole or in part, a collection, compilation, database or directory without the express written permission of Hydr8; (k) engage in any "screen scraping," "database scraping," or any other practice or activity the purpose of which is to obtain lists of users, portions of a database, or other lists or information from the Tools or any Hydr8 website, in any manner or in any quantities not authorized by Hydr8; (l) take any action that imposes an unreasonable or disproportionately large load on Tools or the Hydr8 infrastructure; (m) remove, obscure, or alter Collective Voice’s or any third party's copyright notice, proprietary rights notices, or other notices affixed to or contained within the Tools; (n) edit, modify, obscure, minimize or change the information contained in the Tools, including, without limitation, any product information, image, widget or default templates provided by Hydr8; (o) use the Tools in connection with any coupon deal websites and/or coupon aggregator websites; and (p) "crawl," "spider," index, store or cache information obtained from any part of the Tools.
6. Marketing Opportunities.
Hydr8 may, in its sole discretion, provide Collective Creators with access to special promotional programs, including those initiated and conducted in collaboration with one or more Brands ("Marketing Opportunities"). Enrollment in any such Marketing Opportunities is voluntary. All benefits and responsibilities relating to Marketing Opportunities shall be governed by the terms and conditions that accompany such Marketing Opportunities. If you elect to participate in such Marketing Opportunities, you agree to be bound by all such terms and conditions. If you participate in Marketing Opportunities, you hereby agree and acknowledge that a breach of your obligations under such Marketing Opportunities will constitute a breach of this Agreement. Hydr8 reserves the right to change, suspend, or discontinue any aspect of any Marketing Opportunity at any time, including the availability of any Marketing Opportunity, and reserves the right to make Marketing Opportunities available only to select Creators, and to disqualify you from any Marketing Opportunity at any time, in Hydr8's sole discretion.
7. Fees.
Creators may be eligible to earn compensation ("Fees") from certain actions ("Actions") that result from a visitor clicking on the Links on the Properties and making a purchase (or performing other measurable activities) as determined by Hydr8, in its sole discretion. The specific Actions on which the Fee is based shall be set forth in your Account. Action rates are subject to change without notice at any time. Fees will be determined solely by Hydr8, in its sole discretion, and our determination is final and binding on you even if you disagree with Hydr8's determination of the amount you are owed. Hydr8 reserves the right to withhold, offset, or charge back your Account due to returns, refunds, reversals, fraud, or a default on payment by the Brand. Fees for Actions based on purchases are not earned and do not become payable until (a) a purchase can no longer be returned (based on the Brand's return policy), and (b) when Hydr8 has received payment from the Brand ("Closed"). Hydr8 shall not be liable for payment on any Actions that are not Closed. Fees may be withdrawn, denied, reversed, or cancelled due to your violation of the terms of this Agreement or your failure to comply with our Policies.
8. Payment Ineligibility.
Hydr8 shall not be liable for any payments on transactions that have not Closed or on Accounts that have not been approved for payment. Hydr8 also reserves the right to deny payment for: (a) Actions resulting from any bot, automated program or similar device, as determined by Hydr8, in its sole discretion; (b) Actions generated through deceptive, abusive, fraudulent, or other invalid means, as determined by Hydr8, in its sole discretion, including, without limitation, any Actions originating from your IP addresses or computers under your control; (c) Actions solicited by payment of money, false representation, or request for visitors to click on the Links; (d) clicks co-mingled with a significant number of invalid clicks described in (b) above; (e) your breach of this Agreement or failure to comply with any Policies; (f) your violation of applicable national, federal, state, and/or local laws, statutes, rules, regulations and orders, including but not limited to those related to privacy and data collection (collectively, "Applicable Laws"); and (g) if Hydr8 determines, in its sole discretion, that payment to you will violate Applicable Laws.
9. Payment.
Payments are made on a monthly basis, provided that the amounts earned in your Account meets the Minimum Balance. The "Minimum Balance" is US$25. All payments will be made via PayPal. Hydr8 reserves the right to modify the payment method at any time in its sole discretion. Payment shall be calculated solely based on records maintained by Hydr8 at its sole discretion. You are responsible for providing Hydr8 with accurate information needed to facilitate payment to you. You are responsible for keeping your payment information updated in your Account. Hydr8 hereby disclaims any liability for any payments related to erroneous contact or payment information provided by you. If you dispute any payment made, you must notify within thirty (30) days of any such payment by emailing a detailed description of your dispute to info@hydr8us.com. You agree that failure to do so shall result in your waiver of any claim relating to such disputed payment. Moreover, you agree that by granting you permission to dispute the amount of any payment made to you, mailto:info@hydr8us.com in no way waives its absolute right, as set forth above, to make a final, binding determination, in its sole discretion, of the amounts you are owed.
10. Taxes.
You are solely responsible for paying any and all applicable taxes or charges imposed by any government entity in connection with your earnings from the Program, including, without limitation, any income tax related to your earnings from the Program. Hydr8 is not obligated to, but may deduct applicable tax from any payments owed to you to the extent it is required by Applicable Laws, if at all.
11. Term; Termination.
This Agreement is effective upon the creation of your Account and shall continue until terminated in accordance with this Agreement ("Term"). You may terminate this Agreement with written notice to Hydr8. Hydr8 may terminate this Agreement, your Account, and your enrollment in the Program, in whole or in part, including your access to the Tools, at any time with or without notice, including without limitation, due to your inactivity or if Hydr8 believes, in its sole discretion, that you have violated the terms of this Agreement or for any other reason, at Hydr8's sole election. Upon termination, you will no longer be eligible to earn any additional Fees. If your account is deactivated for any reason, Hydr8 reserves the right to deduct a $5.00 USD administrative fee from any Account balance. Any Actions that have not Closed as of the effective date of termination are not payable. Section 5 (Restrictions), 8 (Payment Ineligibility), 9 (Payment), 11 (Term; Termination), 12 (Inactivity), 17 (Brand Disclaimer), 18 (Warranty), 19 (Warranty Disclaimer), 20 (Confidentiality), 21 (Ownership), 22 (Creator License), 23 (Indemnification), 24 (Limitation of Liability), and 25 (Miscellaneous) shall survive termination of this Agreement.
12. Inactivity.
Hydr8 reserves the right to terminate your Account for inactivity or at any time, in its sole discretion, for any reason or none at all. Inactivity is defined as any two (2) year period in which (a) no purchase Actions have Closed on your account or (b) your Account accrues less than $50.00 USD in earnings. Upon any termination of your Account, Hydr8 shall pay any outstanding account balances earned and payable within thirty (30) days of termination, less $5.00 USD administrative fee. If you fail to provide Hydr8 with complete and accurate payment information, Hydr8 reserves the right to debit your Account $5.00 USD per month ("Maintenance Fee") to recover the cost of account maintenance in its normal course of business until you submit the necessary payment information for Hydr8 to pay out your Account balance. Maintenance Fees are nonrefundable, but will not cause Account balances to become negative, and will not cause you to owe money to Hydr8.
13. Program Restrictions.
You shall not (a) use scripts, disguised redirects or any unapproved tools or processes to derive financial benefit from Hydr8; (b) distribute unsolicited advertising or mail messages, publish or distribute spam, unethical or unwanted commercial content, or engage in unlawful or objectionable acts (such as phishing, spoofing, transmitting computer worms, viruses, and other harmful code); (c) engage in any cookie-stuffing or any affiliate fraud techniques (including without limitation forced clicks, placing Links in banner ads, malware, or adware); (d) engage in keyword stuffing or similar activities in connection with the name, branded terms or trademarks (or any variations or misspellings thereof) of Hydr8 or any Brand (including without limitation loading a webpage with such terms, in hidden text or source code, in a domain or sub-domain, or in emails/newsletters); (e) bid or purchase the name, branded terms or trademarks (or any variations or misspellings thereof) of Hydr8US, Hydr8, or any Brand in connection with any paid marketing campaigns, including without limitation, search engines, social media platforms or display networks, without prior express consent of the trademark owner; (f) engage in any affiliate fraud techniques to hide such bidding or purchasing activities (including without limitation reverse IP-geo-targeting, day-parting, disposable URLs, or front websites); (g) include the name, branded terms or trademarks (or any variations or misspellings thereof) of Hydr8US, Hydr8, or any Brand in any display URL or any paid marketing, without the express consent of the trademark owner; (h) frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Hydr8 or any Brands without prior express written consent; (i) use any meta tags or any other "hidden text" utilizing the name or trademarks of Hydr8 without our express written consent; (j) use any device, software or routine to bypass any code which may be included to prevent you from breaching the obligations in this Section; (k) post any material that is defamatory, obscene or otherwise unlawful or violates any third party’s right of privacy or publicity; (l) infringe on any third party’s patent, copyright, service mark, trademark or other intellectual property right of any kind or misappropriate the trade secrets of any third party; (m) violate Applicable Laws or otherwise engage in any illegal, manipulative or misleading activity; (n) use Links in any downloadable software application, including, without limitation, browser extensions and browser plug-ins, without Hydr8’s prior written approval; (o) link to, frame, or otherwise embed or display any Content that contains any pornographic, hate-related, violent, defamatory, fraudulent or illegal content; and (p) appropriate the identity of another person, impersonate any person, Creator, Brand, or entity by any means, including, but not limited to, squatting on any domains or handles of other Creators or Brands, misrepresent your affiliation with any person or entity, or post personal or confidential information of any other person without their written consent in advance of such posting.
14. FTC Compliance.
You are solely responsible for your Content and your Properties. You shall adhere to all applicable consumer protection and privacy-related laws and regulations, including, without limitation, Section 5 of the Federal Trade Commission Act, which prohibits ''unfair or deceptive acts or practices in or affecting commerce,” all endorsement requirements of the U.S. Federal Trade Commission ("FTC"), including, but not limited to the FTC's Guides Concerning the Use of Endorsements and Testimonials in Advertising (available at https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf), Endorsement and Testimonial Guidelines published by the United States Federal Trade Commission (available at http://www.ftc.gov/opa/2009/10/endortest.shtm), the Native Ad Guides (available at https://www.ftc.gov/tips-advice/business-center/guidance/native-advertising-guidebusinesses), the FTC's “Dot Com Disclosures” Guidelines (available at: http://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf) (collectively, "FTC Regulations"), and/or other legal equivalents applicable to your jurisdiction, as may change from time to time. Endorsements must reflect your honest opinions, findings, beliefs, or experiences. An endorsement may not convey any express or implied representation that would be deceptive if made directly by the Brand. You shall include full, fair, effective, and compliant disclosures of the material facts relating to your relationship with Collective Voice and Brand. Your disclosure statement(s) should be clear, conspicuous and concise, should allow the audience sufficient time to hear, read or view such disclosure(s) and should accompany any and all posts that reference Collective Voice or Brand with which Creator has a relationship. For clarity, all Collective Voice or Brand references require disclosures, not just posts created pursuant to a specific campaign, product review and/or Statement of Work, including so-called “tags,” “likes,” “pins,” etc. Disclosures should occur at the beginning of any post, caption, video or audio clip, should not be buried within text, hyperlink lists or Creator profiles, should not require any scrolling, and should be crafted in the same format as the post itself. For example, written endorsement posts require a written endorsement at the top of the post, “before the fold” (within the first few lines). If the endorsement occurs in a video, such as a “story” or “reel,” disclosures should occur at the outset of the video and/or be superimposed onto the video. If an auditory endorsement, there should be a verbal disclaimer at the outset of the audio. Long videos (more than one minute) and streaming endorsements require multiple disclosures at intervals throughout. Creators may not rely solely on automated disclosure tools and should ensure disclosures are posted on each Creator platform where an endorsement is posted. When using Links, you must include a clear and conspicuous disclosure providing that you may earn fees in connection with your use of such links. You must use appropriate hashtags on your social posts (e.g., #ad or #sponsored), generally avoiding abbreviations other than “ad.” If you are eligible to earn compensation or Fees on your Content, your disclosure statement must state that you are being compensated for your review or endorsement. If you receive a product for free from us or from a Brand, it must be clearly stated in a disclosure so that the reader can see both the disclosure and the review or endorsement at the same time. You shall immediately modify any Content and/or include the proper disclosures to comply with FTC Regulations or other legal or regulatory requirements upon notice. Notwithstanding the foregoing, regardless of any review or notice by Collective Voice, you remain solely liable for the presence and content of your endorsement disclosures. Failure to comply with this provision or a request to comply with FTC Regulations or other legal or regulatory requirements within twenty-four hours may result in termination of your Account. For more information on how to comply with the FTC requirements, please visit https://www.ftc.gov.
15. Data Regulations.
You shall take all necessary and proper measures to protect personal privacy on your Properties, including, without limitation, making all appropriate privacy and data collection and/or data usage disclosures in accordance with Applicable Laws. You agree you will comply with the obligations under applicable data protection, privacy and/or similar laws that apply to data processed in connection with this Agreement. If you market to, target and/or or otherwise process any personal, sensitive or restricted data (as may be defined in relevant privacy laws including but not limited to the European Union "General Data Protection Regulation“ ("GDPR")) and/or the California Privacy Rights Act (“CPRA”), “California Consumer Privacy Act” (“CCPA”) and/or any other laws or regulations arising from a state or other jurisdiction) from users in jurisdictions with those types of regulations, then you agree to comply with such laws, rules and regulations (collectively,"Data Privacy Laws").
You hereby acknowledge, and agree to abide by, Data Privacy Laws which require specific rights and notices. You agree and promise you shall inform users in a prominent, easy to read, understandable manner that you use tracking devices and cookies for advertising purposes, and you agree to obtain informed and affirmative user consent to place, or work with third parties to place, tracking devices, such as cookies (including those enabled by Hydr8) on such users’ computers and devices. You will share such consent with Hydr8 in a manner that is mutually agreed upon and provide users the ability to withdraw such consent, in each case via the technology made available to you by Hydr8 or such other consent tool approved by Hydr8. You will cooperate with Hydr8 as reasonably requested to enable the compliance with this Section and all Applicable Laws.
Hydr8 collects specific information when your visitors interact with our Tools or click on our Links, which may occur through the use of log processes, cookies, and/or other permitted tracking technologies. Personal information collected may include, but not be limited to Identifiers, and include unique visitor IDs, IP addresses, devices or session IDs, and information regarding a visitor’s system configuration (operating system and version), network, and connected hardware (e.g., computer or mobile device and carrier); and Commercial Information about your visitors, such as records of products or services purchased, obtained, or considered by such visitors, including products, Brands, Creators, and deals viewed, or clicked, product types, Brand sites visited from our Tools or Links, Brand types, transaction history related to clicks on Links, purchase confirmation data. Hydr8 does not collect any types of information considered “sensitive” personal information under applicable U.S. state privacy laws. Information collected by Hydr8 is used for business and commercial purposes, including: To Provide Attribution to Creators, as Hydr8 tracks shopping to properly credit Creators for specific Actions made through the Tools or Links to properly account for Fees earned through the Program (with any activity shared, properly aggregated and anonymized); To Improve the Program, as Hydr8 uses information collected about use of the Tools and Links to identify site usage trends and perform statistical analyses to improve the Services, websites, and applications for improvement; To Detect Fraud, as Hydr8 collects information to assess risks related to online security and to investigate and limit fraud, spam, and other malicious online activities that may violate this Agreement or our Policies.
16. Community Standards.
By participating in the Program and creating an Account, you are becoming a member of a community that depends on the goodwill and responsible behavior of each individual. By virtue of your voluntary community membership, you agree to abide by Hydr8’s Community Guidelines, including but not limited to your promise you shall not transmit or communicate any images, content, or text constituting or promoting violence or hate speech, ethnic slurs or discriminatory conduct as related to race, sex, gender, sexual orientation, nationality, religion, disability or otherwise, obscenities, sexually explicit material, inflammatory, or derogatory comments, or anything else that may be construed as harassing, offensive or illegal, including any content that infringes upon, or encourages infringements upon, the intellectual property rights of others, or that which is false, inaccurate, fraudulent or misleading and targets at or adversely impacts in any way the Program, the Tools, Hydr8, our employees, contractors or agents, our Brands, or other Creators or the Hydr8 and/or Hydr8 affiliates. This includes communications by means of social media or other Internet posts which violate our Community Standards or promote or encourage gaming or fraudulent behavior. If you violate this provision, as determined by Hydr8 in its sole discretion, we may terminate this Agreement and your enrollment in the Program.
17. Brand Disclaimer .
You acknowledge and agree that Brands, and all of their affiliates and licensors, and their respective employees, officers, directors, and representatives, have no obligation to provide any support or pay any Fees to you. You agree that Brands will not be liable to you for any claims, damages, losses, liabilities, costs, and expenses (including attorneys’ fees) of any kind. You hereby agree that Brands are intended third-party beneficiaries of this Agreement.
18. Warranty.
You represent and warrant that: (a) you are at least 18 years of age and reside in the United States; (b) all information provided by you to Hydr8 is correct, accurate, and current; (c) Content shall be Creator’s original work, Creator is the exclusive owner of the Content, and the Content does not infringe, misappropriate or violate a third party's intellectual property rights or rights of publicity or privacy; (d) you shall comply with all Applicable Laws, including without limitation, all FTC Regulations and Data Privacy Laws; (e) Creator has the right to grant all of the licenses set forth under this Agreement, without Collective Voice or Brands incurring any third party obligations or liability arising out of its exercise of the rights granted by Creator under this Agreement; (f) Creator holds any rights and consents necessary for Collective Voice to process the visitor information collected by Hydr8 from the Properties in accordance with this Agreement; and (g) you will take appropriate technical and operational measures against accidental loss and damage to, and the unlawful processing of visitor information collected on your Properties.
19. WARRANTY DISCLAIMER.
HYDR8 MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. HYDR8 EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, TITLE, QUALITY, ACCURACY, AND FITNESS FOR ANY PARTICULAR PURPOSE. HYDR8 DOES NOT REPRESENT OR WARRANT THAT ACCESS TO OR USE OF THE TOOLS WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE OR THAT ENROLLMENT IN THE PROGRAM WILL RESULT IN ANY MINIMUM FEES OR PAYMENTS UNLESS OTHERWISE AGREED IN WRITING. HYDR8 PROVIDES THE TOOLS AND PROGRAM "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND. HYDR8 ASSUMES NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, THE TOOLS OR ANY USER COMMUNICATIONS. IF YOU ARE DISSATISFIED WITH THE TOOLS OR THE PROGRAM, YOUR SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE THIS AGREEMENT AND DISCONTINUE USE OF THE TOOLS.
20. Confidentiality.
"Confidential Information" means any oral, written, graphic or machine-readable information including, but not limited to, that which relates to rates, Fees, Actions, or other statistics relating to performance in the Tools, patents, patent applications, research, product plans, products, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code), hardware configuration, computer programs, algorithms, business plans, agreements with third parties, services, customers, marketing or finances of Hydr8 or any Brand, which Confidential Information is designated in writing to be confidential or proprietary, or if given orally, is confirmed in writing as having been disclosed as confidential or proprietary within a reasonable time (not to exceed thirty (30) days) after the oral disclosure, or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary. Notwithstanding the foregoing, Confidential Information will not include information that: (a) is or becomes publicly known without breach of this Agreement; (b) is lawfully received from a third party without restriction on disclosure and without breach of a nondisclosure obligation; (c) rightfully known prior to receiving such information from Hydr8; or (d) developed independently of any information originating from Hydr8. You agree that, during the Term of this Agreement and for three (3) years thereafter, you will not disclose to any third party or use any Confidential Information disclosed by Hydr8 except as expressly permitted in this Agreement. You will take all reasonable measures to maintain the confidentiality of the Confidential Information in your possession or control. Notwithstanding the foregoing, you may disclose Confidential Information to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, provided that you use reasonable efforts to notify Hydr8 in advance of such disclosure so as to permit Hydr8 to request confidential treatment or a protective order prior to such disclosure. You may share Confidential Information on a "need-to-know" and confidential basis to your financial advisors, lawyers or other agents who are obligated to maintain the confidentiality of such information with confidentiality obligations at least as protective as those contained under this Agreement. Without prejudice to the rights and remedies otherwise available, you agree that money damages would not be a sufficient remedy for any breach of this Section by you or your respective representatives and, accordingly, Hydr8 shall be entitled to obtain equitable relief, including injunctive and specific performance, if you or any of your representatives breaches or threatens to breach any of the provisions of this Section. Upon termination of this Agreement or Hydr8’s written request, you shall return and/or destroy all Confidential Information under your possession or control, including all copies thereof, and certify such destruction to Hydr8.
21. Ownership.
"Intellectual Property Rights" mean any copyright, trademark, patent, trade secret, and other intellectual property rights. Creator shall maintain all right, title, and interest in and to the Content, including all Intellectual Property Rights therein. Collective Voice and/or its licensors shall maintain all right, title, and interest in and to the Tools, the Program, and all Collective Voice Branding, including all Intellectual Property Rights therein. "Hydr8 Branding" means all trademarks, service marks, logos, and other Hydr8 brand elements. The Tools may include widgets or scripts designed to push certain content or services to Properties without the need for a manual update. Such tools may collect information from visitors of Properties, and such data shall be owned by Hydr8. Any information or data collected by Hydr8 via the Tools shall be the owned by Hydr8.
22. Creator License.
Creator hereby grants to Hydr8 a non-exclusive, perpetual, worldwide, royalty-free license to use, host, store, transmit, reproduce, distribute, sublicense, modify, copy, create derivative works, communicate, publish, publicly perform and publicly display the Content for any purposes, which include, but are not limited to, use in Hydr8 presentations, marketing materials, proposals, financial reports, search results pages, and referral pages, and syndication on sites or applications owned or operated by Hydr8, Brands, and/or their respective partners. Hydr8 may also syndicate your Content on digital properties of Hydr8 Affiliates, including, without limitation, www.rakuten.com. A "Hydr8 Affiliate" is any entity, whether incorporated or not, that directly or indirectly controls, is controlled by, or is under common control with Hydr8 or is corporate parent, where "control" (or variants of it) means the ability (whether directly or indirectly) to direct the affairs of another by means of ownership, contract, or otherwise. Creator further grants Hydr8 a non-exclusive, perpetual, worldwide, royalty-free license to use Creator’s name(s), images, and likeness(es) and that of any third party incorporated in the Creator Content, if any ("Persona"), trademarks, service marks, logos, and other brand elements for the purpose of promoting the Program and as incorporated in the Content in connection with the licenses granted hereunder. For clarity, such royalty-free license shall include all moral rights related to the Content, if any such rights are recognized, as well as any rights to musical compositions and/or recordings, solely as incorporated in the Content, if at all. For the avoidance of doubt, Creator shall not be responsible for procuring third party licenses for content incorporated into Content solely as made available via the Properties, so long as such rights licenses are covered by such platforms otherwise (for example, as in the case of recorded music available for direct incorporation into social media on Instagram via its direct platform integration tools, for example).
23. Indemnification.
You agree to indemnify, defend, and hold Hydr8, its subsidiaries, and affiliates, and each of their respective directors, officers, employees, Brands, and partners (collectively "Indemnified Parties") harmless from and against any and all claims, liability, settlements, loss, and expense (including, without limitation, attorneys’ fees and costs), brought against any Indemnified Party, arising out of or relating to (a) your use of the Tools, (b) the Properties or Content, (c) your breach of any provision of this Agreement, (d) your violation of Applicable Laws, including, without limitation, any FTC Regulations or Data Privacy Laws; and (e) any claim that the Properties or Content infringes on an Intellectual Property Right, privacy right, or publicity right of any third party. You agree to cooperate with Hydr8 in the defense of any claim, and Hydr8 reserves the right, at our own expense, to assume the exclusive defense, control, and settlement of any indemnifiable matter under this Agreement.
24. LIMITATION ON LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL HYDR8 BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, DATA LOSS, OR OTHER INTANGIBLE LOSSES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). HYDR8’S TOTAL LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNT YOU PAID TO USE THE TOOLS UNDER THIS AGREEMENT.
25. Miscellaneous
a. Non-Disparagement.
You will not commit any act that would be considered unethical, bring (or if publicly known would bring) you in public disrepute, cause a portion of the community to reflect unfavorably on you, or might insult or offend or cause damage to Hydr8, any Brand, and a Brand’s products or services. You will not engage in any conduct or make any statements that are disparaging to Hydr8, its Brands, or their respective employees, affiliates, or agents. You also agree that you will not take any action that could be deemed to interfere with Hydr8’s relationship with any Brand or other Creator. Without limiting any other rights or remedies available to Hydr8, violation of this provision may result in termination of this Agreement and of payments, as determined by Hydr8, in its sole discretion. At any time, Brand has a right to request not to be associated with a Creator. Upon written request, you shall promptly remove all Content associated with a specific Brand or modify the Content in such a manner that does not include any references to Brand.
b. Non-Solicitation.
You covenant and agree that during the term of this Agreement and for one (1) year following any termination hereof for any reason, you will not directly or indirectly engage in or carry on any business that is in competition with Hydr8. For purposes of this Agreement, a business that is in competition with Hydr8 includes any business that offers technology that are similar to the Tools. During the Term, and for three (3) years thereafter, you will not use any Hydr8 Confidential Information to compete with Hydr8 or to solicit Creators, Brands, vendors, developers, or agents, employees or affiliates of Hydr8 away from a business relationship with Hydr8.
c. Governing Law; Arbitration.
The validity, construction, and interpretation of this Agreement, and the rights and duties of the parties hereto, will be governed by and construed in accordance with the state laws of California and federal laws of the United States, excluding its conflicts of laws principles.
Notwithstanding the forgoing, the agreement to arbitrate in the following paragraph is governed by United States federal law. You agree that any dispute, claim or controversy arising out of or in connection with the Hydr8 or this Agreement or relating in any way to the Program or the Tools shall be determined by binding arbitration in San Francisco, California under the American Arbitration Association"AAA". To the extent claims cannot be resolved in Arbitration, you hereby submit to exclusive jurisdiction in the state and federal courts of the City and County of San Francisco, California. You further agree that the U.S. Federal Arbitration Act and federal arbitration law shall govern the interpretation and enforcement of this agreement to arbitrate. Arbitration uses a neutral arbitrator instead of a judge or jury and is more informal than a lawsuit in state or federal court. Discovery in arbitration is more limited than is generally available in the courts and the arbitrator’s decision is also subject to very limited appellate review by the courts. You also agree to waive the right to a trial by jury or to participate in a class action. These waivers are mutual as between you and Hydr8, and Hydr8 waives its right to a trial by jury or to participate in a class action against you. This means that neither you nor Hydr8 can seek to assert class or representative claims against each other either in court or in arbitration and no relief can be awarded on a class or representative basis. The arbitrator also may not consolidate or join another person’s claim with your claim or issue an order that would achieve the same result. You and Hydr8 further agree that if the provisions of this paragraph are found to be unenforceable, then the entire provision compelling arbitration shall be null and void. You also agree that all issues are for the arbitrator to decide. This includes all issues related to the scope, application, interpretation and enforceability of this Agreement and this arbitration provision. The arbitrator shall also decide whether any claim is subject to arbitration. The arbitration will be governed by the Commercial Arbitration Rules (the "AAA Rules") of the AAA, as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.com. The arbitrator is bound by the terms of this Agreement. If your claim in arbitration is for less than $10,000, Hydr8 will reimburse you for filing and arbitrator fees at the conclusion of the proceeding unless your claim is found to be frivolous by the arbitrator. In lieu of arbitration, you may also elect to have your claims decided in small-claims court, so long as the small-claims court does not permit class, representative, or consolidated actions, or the award of relief in favor of any person or entity that is not a named party to the small-claims action.
d. Severability; No Waiver.
If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, the remaining provisions of this Agreement will continue in full force and effect. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
e. Assignment.
You shall not assign or transfer this Agreement, in whole or in part, without Hydr8’s express prior written consent. Any attempt to assign this Agreement, without such consent, will be void. Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and assigns.
f. Notices.
All notices required or permitted under this Agreement to Hydr8 will be in writing, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) business day after having been sent by email to info@hydr8us. All physical notices will be sent to Attn: Hydr8 US LLC, 5252 Balboa Arms Drive 123, San Diego, CA 92117.
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