Thank you for your interest in GoChime, an internet platform (“Website”) owned and operated by GoChime, Inc., a Delaware corporation (“GoChime,” “we” or “us”). GoChime’s SaaS hosted service (the “Service”) identifies people (each, a “Social Media User”) expressing needs for products and services across social media to identify public expressions of purchase intent (each, an “Expression”), which it then matches to brand promotions by its advertisers (“Brand Promotions”) and provides to brand loyalists like you (“Chimers”), who can pass the Brand Promotion along to Social Media Users for whom the Chimer decides the Expression is relevant to the Brand Promotion. Please read this GoChime Agreement (“Agreement”) in its entirety if you wish to become a Chimer.
Acknowledgement and Acceptance of GoChime Agreement
This Agreement is an electronic contract that sets out the legally binding terms of relationship between GoChime and you. By registering on the Website, you accept and agree to be bound by the terms of this Agreement. You agree and understand that certain features of the Website may be subject to additional terms and conditions or registration requirements. You agree to abide by these additional terms and you further agree that a violation of those terms shall constitute a breach of this Agreement. We reserve the right to change this Agreement, and any additional terms at any time, effective upon making the modified provisions available on the Website or by notifying you directly. You are responsible for regularly reviewing this Agreement. Continued use of the Website, or providing Brand Promotions to Social Media Users after any such changes are made to the Agreement, shall constitute your consent to such changes. GoChime does not and will not assume any obligation to notify Chimers or any changes to this Agreement, or the creation or modification of any additional terms.
1. Eligibility. Chimers must be 13 years of age or older to register. If you are over 13 years of age and under 18 years of age, you must have permission from your parent or legal guardian to register and agree to be bound by this Agreement. GoChime has the right, in its sole discretion, to request parental/legal guardian consent forms at any time from any minors who are under 18 years of age. Minors who are under 18 years of age (but over 13 years of age) may be prohibited from participating in certain activities or events and parental/legal guardian consent may be required for minors to participate in other activities or events. By registering to become a Chimer, you represent and warrant to GoChime that you are 13 years of age or older (if over 13 but under 18 that you have permission from your parent or legal guardian to use the Service and agree to abide by the terms of this Agreement), and that you have the right, authority and capacity to agree to and abide by the terms of this Agreement.
3. Connecting to Social Network Websites. As a part of your registration, you will be asked to use the Twitter connect function. You acknowledge and agree to abide by the relevant terms and conditions of the Twitter website, or any other social network website that we may utilize in the future. The terms and conditions for the Twitter website may be found at www.twitter.com/tos. This function is intended to enable us to connect with Twitter so that we can send you Brand Promotions and Expressions from Social Media Users and you can send tweets to Social Media Users about Brand Promotions. Twitter and other social network websites may also be able to use information about actions that you take on our Website. You acknowledge and agree that we are not responsible for the availability of Twitter or any other social network website that we may add to the connect function, and we do not endorse and are not responsible or liable for any content, advertising, goods, services or other materials on, available through or provided by such websites or resources.
4. Your Use of the Website. You may only register once as a Chimer. Chimers may send tweets to Social Media Users for any Brand Promotions that we forward to you. However, you will only be eligible to receive GoChime Rewards (defined below) for tweets that we determine, in our sole discretion, meet GoChime’s posted requirements http://gochime.com/faq (each, a “Qualifying Tweet”). You specifically acknowledge and agree that (i) you will not use robots, scripts or other automated methods to send the tweets; (ii) you are responsible for, have, and will, comply with all applicable laws and requirements, including those applicable to independent contractors; (iii) GoChime has implemented mechanisms allowing us to track your performance under this Agreement and to rate your performance as a Chimer; (iv) GoChime reserves the right to collect feedback regarding your performance and to post such feedback on the Website; (v) you will not take any actions to undermine the integrity of GoChime’s feedback system; (vi) you will not include in your tweets or otherwise transmit any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law. We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone tweeting or transmitting any such information or materials.
6. Independent Contractor Relationship. Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employee-‐employer relationship between GoChime and you, or between our advertisers and you. You agree that you will take no position with respect to, or on, any tax return or application for benefits, or in any proceeding directly or indirectly involving GoChime that is inconsistent with your being an independent contractor (and not an employee) of GoChime. You are not the agent of GoChime or our advertisers and you are not authorized, and must not represent to any third party that you are authorized, to make any commitment or otherwise act on behalf of GoChime or our advertisers. Without limiting the generality of the foregoing:
a. Benefits and Contribution. You are not entitled to or eligible for any benefits that GoChime may make available to its employees, such as group insurance, profit-‐sharing or retirement benefits. Because Chimers are independent contractors, GoChime will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on your behalf. If, notwithstanding the foregoing, you are reclassified as an employee of GoChime, or any affiliate of GoChime, by the U.S. Internal Revenue Service, the U.S. Department of Labor, or any other federal, state or foreign agency as the result of any administrative or judicial proceeding, you agree that you will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by GoChime.
b. Taxes. You are solely responsible for filing all tax returns and submitting all payments as required by any federal, state, local or foreign tax authority arising from the payment of GoChime Rewards to you under this Agreement, and you agree to do so in a timely manner. GoChime is required to file a Form 1099, which shall report the compensation received by you pursuant to this Agreement, then you will be required to complete and submit a Form W-‐9 through the Website.
c. Compliance with Law. You will comply with all applicable federal, state, local and foreign laws governing self-‐employed individuals, including laws requiring the payment of taxes, such as income and employment taxes, and social security, disability and other contributions.
7. No Conflicts. You represent and warrant that you are not subject to any contract or duty that would be breached by entering into or performing your obligations under this Agreement or that is otherwise inconsistent with this Agreement.
8. Representations and Warranties.
a. You represent, warrant, and covenant that:
i. You will not, in the course of performing any services hereunder, infringe or
misappropriate any intellectual property right of any other person.
ii. You have all rights necessary to perform your obligations under this Agreement;
iii. You have full power, authority and right to enter into and perform this Agreement without the consent of any third party (including any of your current or former employers)
iv. Your tweets will fully conform to the requirements and other terms required by
GoChime and this Agreement.
b. You will indemnify and hold harmless GoChime and our affiliates, employees and agents from and against any and all liabilities, losses, damages, costs and other expenses (including attorneys’ and expert witnesses’ costs and fees) arising from or relating to any breach of any representation, warranty, or covenant in this Agreement by you; any intentional misconduct or negligence by you in performing hereunder; any claim against you that the Service or any Program infringes the intellectual property rights of any third party; any claim of libel, false advertisement, slander, defamation, copyright infringement, infringement of moral rights, trademark infringement, false designation of origin, disparagement, violation of privacy publicity, identity or other proprietary rights, violation of patent or shop rights, piracy or plagiarism that arises in connection with your performance under this Agreement, your use of the Service or your involvement in a Program.
9. Disclaimers. THE SERVICE AND THE DELIVERABLES ARE PROVIDED “AS-‐IS” AND “AS-‐AVAILABLE.” GOCHIME EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-‐ INFRINGEMENT.
10. Limitation of Liability. IN NO EVENT SHALL GOCHIME BE LIABLE TO YOU FOR ANY LOST PROFITS OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF GOCHIME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, GOCHIME’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION) WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) THE FEES WE PAID TO YOU IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE FIRST CLAIM TO GIVE RISE TO LIABILITY UNDER THE AGREEMENT, AND (B) $50.
11. Our Proprietary Rights. You acknowledge and agree that the Website, the Service, any content and materials used on or in connection with the Website or the Service, such as text, graphics, images, logos, trademarks, copyrighted material, button icons and other content (“GoChime Content”), the compilation (meaning the collection, arrangement and assembly) of GoChime Content, and any software used in connection with the Service (the “Software”) contain our proprietary and/or confidential information and other materials that are protected by applicable intellectual property and other laws. Except as expressly authorized by us, you agree not to modify, rent, lease, loan, sell, distribute, create derivative works based on, or otherwise use the Website, Service, GoChime Content, or Software, in whole or in part.
The contents, advertisements, information and other materials of any GoChime advertiser (“Client”) or Client’s website, such as text, graphics, images, logs, trademarks, copyrighted material, button icons, software and other content (collectively “Client Content”) and the compilation (meaning the collection, arrangement and assembly) of all Client Content contain our Clients’ proprietary and/or confidential information and other materials that are protected by applicable intellectual property and other laws. You may not sell or modify the GoChime Content or Client Content or reproduce, display, publicly perform, distribute or otherwise use GoChime Content or Client Content in any way for any public or commercial purpose, unless previously approved in writing by GoChime or Client (as applicable). The use of GoChime Content or Client Content on any other website for any purpose is prohibited. For the sake of clarity, you are not permitted to use any GoChime Content or Client Content unless you are given express permission to do so by GoChime or Client. Except as expressly set forth in this Agreement, no license is granted to you and no rights are conveyed by virtue of accessing or using the Website. All rights not granted under this Agreement are reserved by GoChime. 12. Confidentiality. You acknowledge that during your engagement with GoChime, you may have access to and become acquainted with various trade secrets, data, inventions, innovations, processes, information, records and specifications (“Confidential Information”) owned or licensed by GoChime and/or used by GoChime in connection with its business. You acknowledge that during your engagement with GoChime, you may have access to and become acquainted with Confidential Information owned or licensed by GoChime advertisers. You agree that you will not disclose any such Confidential Information, directly or indirectly, or use such Confidential Information in any manner, either during the term of this Agreement or thereafter, except as required in the course of your engagement with GoChime. All GoChime Content and similar items relation to GoChime’s business shall remain GoChime’s exclusive property. You shall not retain any copies of the foregoing without GoChime’s prior written consent. Upon expiration or earlier termination of this Agreement, or at any time when requested by GoChime, you shall immediately deliver to GoChime any and all such files, records, documents, specifications, information, and other items in your possession or under your control.
13. Information and Feedback. We welcome your feedback about the Website. However, you agree that submission of any information, feedback, content, data or other materials (collectively, "Feedback") is at your own risk, and that GoChime has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to GoChime a royalty-‐free, non-‐exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-‐format, create derivative works of, and otherwise commercially or non-‐commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Website and the Service.
14. Right to be Removed From Programs. GoChime reserves the right to remove you from any Brand Promotion or other program, survey, contents, sweepstakes or the like, coordinated by GoChime (each, a “Program”) at any time for any reason. If you are removed from a Program, you will be notified by a GoChime representative.
15. Right to Offer Programs to Select Chimers. Programs will be offered to Chimers based on various demographic and psychographic parameters, as well as previous performance and/or certain scores determined by GoChime. If you qualify for a Program, you will have the ability to join the Program and following the instructions provided. You may also be contacted directly via email, direct message or SMS when a Program is launched.
16. Chimer Conduct. GoChime requires that all Chimers abide by the FTC’s Guides Concerning the Use of Endorsements and Testimonials in advertising (http:/www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf) (“FTC Endorsement Guides”) and Standards of Conduct set forth by the Word of Mouth Marketing Association (http://womma.org/ethics/code).
a. FTC Endorsement Guides. Per the FTC Endorsement Guides, if you are receiving free products, services, payment or other in-‐kind compensation in exchange for your participation in this Service or any Program, or in return for promoting an advertiser or its products/services, you must disclose your connection to GoChime and/or our advertiser. This disclosure should appear in close proximity to any statements you make about an advertiser’s products or services or the advertiser in general.
b. WOMMA Standards of Conduct. (as a Chimer, you are considered a representative for purposes of the section b.)
Standard 1 – Disclosure of identity: A WOMMA-‐member shall require their representatives to make meaningful disclosures of their relationships or identities with consumers in relation to the marketing initiatives that could influence a consumer’s purchasing decisions.
Standard 2 – Disclosure of consideration or compensation received: A WOMMA-‐member shall require their representatives to disclose meaningfully and prominently all forms of consideration or compensation they received from the WOMMA-‐member, a marketer or sponsor of the product or service. In other words, WOMMA-‐members shall not engage in marketing practices where the marketer/sponsor or its representatives provides goods, services, or compensation to the consumer (or communicator) as consideration for recommendations, reviews or endorsements, unless full, meaningful, and prominent disclosure is provided.
Standard 3 –Disclosure of relationship: A WOMMA-‐member shall require their representatives involved in a word of mouth initiative to disclose the material aspects of their commercial relationship with a marketer, including the specific type of any remuneration or consideration received.
Standard 4 – Compliance with FTC Guides: A WOMMA-‐member shall comply with the Guides Concerning Use of Endorsements and Testimonials in Advertising promulgated by the Federal Trade Commission. See 16 C.F.R. 255.0-‐255.5.
Standard 5 – Genuine honesty in communication: A WOMMA-‐member shall not tell their representatives what to ultimately state in their communications about a particular product or service, so as to enable the consumer to reflect his or her honest opinions, findings, beliefs, or experiences.
Standard 6 – Respect for venue: A WOMMA-‐member shall respect the rights of any online or offline communications venue (such as a website, blog, discussion forum, traditional media and live setting) to create and enforce its own rules as it sees fit.
Standard 7 – Marketing with children and adolescents: A WOMMA-‐member shall not include children under the age of 13 in any of its word-‐of-‐mouth marketing programs or campaigns; and shall comply with all applicable laws dealing with minors and marketing, including the Children’s Online Privacy Protection Act. See 16 C.F.R. 312.
Standard 8 – Compliance with media-‐specific rules: A WOMMA-‐member shall comply with existing media-‐specific rules regarding marketing to children.
a. Termination Without Cause. Either party may terminate this Agreement without cause, effective immediately upon notice to the other party, at any time when there are no unpaid balances due hereunder.
b. Surviving Provisions. 5 (“Rewards Program”), 6 (“Independent Contractor Relationship”), 8 (“Representations and Warranties”), 9 (“Disclaimers”), 10 (“Limitation of Liability”), 11 (“Our Proprietary Rights”), 12 (“Information and Feedback”), 13(b) (“Surviving Provisions”) and 14 (“Miscellaneous”) shall survive any termination of this Agreement.
a. Governing Law; Venue. This Agreement is governed by the laws of the State of New York without reference to any conflict of laws principles that would require the application of the laws of any other jurisdiction. You irrevocably consent to the personal jurisdiction of the state and federal courts located in New York City, New York, for any suit or action arising from or related to this Agreement, and waive any right you may have to object to the venue of such courts. You further agree that these courts will have exclusive jurisdiction over any such suit or action initiated by you against GoChime.
b. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law
c. No Assignment. This Agreement and your rights and obligations under this Agreement may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, by you without GoChime’s express prior written consent. Any attempted assignment, delegation or transfer in violation of the foregoing will be
null and void. GoChime may assign this Agreement or any of its rights under this Agreement to any third party with or without your written consent.
d. Notices. GoChime may give any notice required by this Agreement by means of a general notice on the Website, electronic mail to your email address on record with GoChime, or by written communication sent by first class mail or pre-‐paid post to your address on record with GoChime. Such notice shall be deemed to have been given upon the expiration of forty-‐eight (48) hours after mailing or posting (if sent by first class mail or pre-‐paid post) or upon sending (if sent by email). You may give notice to GoChime, addressed to the attention of GoChime attn: Notices. Such notice shall be deemed given when received by GoChime by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the following address: 75 Varick Street, 4th Floor New York, New York 10014.
e. Waiver. All waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
f. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications and understandings between the parties. Except as permitted herein, no modification or amendment to this Agreement will be effective unless in writing and signed by the party to be charged.
g. Modifications to Website. GoChime reserves the right at any time to modify or discontinue, temporarily or permanently, the Website or the Service (or any part thereof) with or without notice. You agree that GoChime shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Website or the Service.