Upfluence Pay Addendum to Upfluence Software Terms and Conditions
1 Upfluence Pay Service
1.1. General. Through Upfluence Pay, Upfluence will make available to Customer, functionality with respect to the facilitation of Customer payments for services (“Payouts”) to Customer’s independent contractors who are participating in Upfluence Pay (each an “Creator”) for measurable and agreed upon independent personal services. Upfluence Pay shall include the service of facilitating payments from Customer to Creators and may include the generation of receipts for Payouts, display and electronic submission of such receipts and reports to Customers for approval of Payouts, administrative tax documentation processing and withholding with respect to Payouts. Customer must affirmatively select Upfluence Pay to enable any Payout through the Upfluence Pay service, and Customer may use other means to pay Creators outside the scope of this Addendum.
1.2. Stripe Relationship. Upfluence Pay is provided to Customer through Upfluence’s relationship with Stripe, Inc., Stripe Payments Company, or other affiliates (collectively, “Stripe”).
Customer acknowledges and agrees that, by using Upfluence Pay, Customer will establish and maintain a commercial relationship with Upfluence pursuant to this Addendum and the Agreement, but Customer will not be establishing a direct relationship with Stripe. Stripe shall perform payment processing activities for Customer on behalf of Upfluence, and Upfluence shall not be responsible to Customer for any processing issues, including delays, caused by Stripe.
1.3. Money Transmission Services. Upfluence is a provider of marketing solutions and is not a bank, money transmitter, payment processor or Money Services Business (“MSB”), and Upfluence does not offer banking, money transmission services, or MSB services, as defined by the United States Treasury and state banking authorities. Instead, Upfluence contracts with Stripe, a third-party payment processor and licensed money transmitter, to integrate with its system to effect Payouts. For the avoidance of doubt, Stripe, and not Upfluence, will hold, receive, disburse, and settle funds between Customer and Creator under Upfluence Pay. Customer is not a third-party beneficiary of Upfluence’s agreements with Stripe.
1.4 License Grant. Upfluence hereby grants Customer a non-exclusive, non-transferable, revocable right to use Upfluence Pay, specifically to receive the services described in Section 1.1, including to view and access payment history, to complete Payouts, and to undertake related activities. All rights in Upfluence Pay not expressly granted to Customer are reserved by Upfluence, and any Upfluence service providers.
1.5 Ownership of Intellectual Property. As between Customer and Upfluence, Upfluence shall own all right, title and interest in and to Upfluence Pay, including all including all of Company’s IP used therein, and any suggestions, ideas, enhancement requests, feedback, integration components and application programming interfaces, recommendations or other information provided by Customer or any other party relating to Upfluence Pay.
1.5.1. Payout Transactions Using Upfluence Pay. Payout transactions through Upfluence Pay are solely between Customer and its Creators, and Upfluence is not a party to these transactions or a custodian, escrow agent or fiduciary. The amount, payment terms and other terms and conditions of Payout transactions are governed by agreements between Customer and its Creators. Customer acknowledges that it is solely responsible for the data Customer or Creators input or cause to be entered into the System. Upfluence does not verify any data used in connection with Upfluence Pay, including with respect to Customer’s compliance with the terms of Customer’s agreements with its Creators.
1.6 Customer Usage and Responsibility. Customer is responsible for all activity occurring under Customer’s name, including Payout transactions, and shall abide by all applicable U.S. local, state, and federal laws and regulations and international treaties in connection with Customer’s use of Upfluence Pay, including, without limitation, those related to financial transactions, money laundering, trade and other sanctions, export controls, data privacy, communications, export or import of data and the transmission of technical, personal or other data. Customer shall: (i) notify Upfluence immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Upfluence any conduct by Creators that is known or suspected by Customer of being fraudulent or unlawful; and (iii) not impersonate another Upfluence user or provide false identity information to gain access to or use Upfluence Pay. Customer, and not Upfluence, is solely responsible for the authorization and initiation of all Payout transactions through a dashboard or similar online interactive display or functionality available within Upfluence Pay for use by Customer (“Dashboard”).
1.7. Restrictions. Customer agrees that it will not, in addition to complying with any restrictions imposed by Stripe, which shall include but not be limited to Stripe’s list of Prohibited and Restricted Businesses and any other restrictions imposed by Stripe from time to time: (i) use Upfluence Pay for any fraudulent, unlawful, deceptive, or abusive purposes; (ii) use Upfluence Pay in any manner intended to harm any Creator, another customer, Upfluence, Stripe, or any third party; (iii) circumvent any intended limitations for any feature of Upfluence Pay; (iv) using the Upfluence Pay in a manner inconsistent with any documentation, guidance, or other technical, policy, or other requirements communicated by Upfluence, including through Upfluence’s website or app; (v) use Upfluence Pay to conduct transactions for personal, family, or household purposes; (vi) make available or use Upfluence Pay for the benefit of any country, organization, entity, or person embargoed or blocked by any government, including those on the sanctions lists maintained by the U.S. Office of Foreign Asset Control; or (vii) engage in transactions related to or in furtherance of the sale or purchase of illegal goods, including but not limited to stolen goods, and illegal or controlled substances, or illegal services, including but not limited to counterfeit services, illegal gambling, Ponzi or pyramid schemes, and money laundering.
In addition, Customer shall not (w) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party Upfluence Pay in any way; (x) modify or make derivative works based upon Upfluence Pay; (iii) create internet “links” to Upfluence Pay or “frame” or “mirror” any content thereon; or (iv) reverse engineer or access Upfluence Pay in order to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of Upfluence Pay, or (3) copy any features, functions or graphics of Upfluence Pay. Customer may not interfere with or disrupt the integrity or performance of Upfluence Pay, or the data contained therein, or attempt to gain unauthorized access to Upfluence Pay or its related systems or networks. Customer may not access Upfluence Pay for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or for competitive purposes.
2. Customer Onboarding for Upfluence Pay
Customer’s use of Upfluence Pay is subject to the following provisions and requirements.
2.1. Payment Account. To use Upfluence Pay, Customer may be obligated to provide to Upfluence or to Stripe certain information regarding Customer’s bank accounts (each, a “Payment Account”) as the source of Customer’s funds for making Payouts. In connection with such Payment Account information, Customer agrees to the following:
- Customer has the authority to disclose the Payment Account information to Stripe and Upfluence, as applicable, and to bind Customer;
- Transactions initiated to the Payment Account shall comply with applicable law; and
- Any authorization to access the Payment Account will remain in effect until not later than ninety (90) days after Upfluence receives written notice from Customer of Customer’s desire to cancel, or longer if required by law or amounts remain due and payable to Upfluence or Stripe.
2.2. Transactions with the Payment Account. Customer agrees that Upfluence may charge the Payment Account: (ii) for the purpose of charging applicable fees for Upfluence Pay, as set forth in the Order Form, and (ii) for other reasons as set forth by Upfluence. Upfluence’s right to charge the Payment Account shall be independent of any such rights of Stripe.
2.3. Information Verification. Customer may not be permitted to access Upfluence Pay if Upfluence cannot verify Customer’s identity, financial condition, creditworthiness, or other necessary information. By entering into the Addendum, Customer authorizes Upfluence, directly or through third parties, including Stripe, to make inquiries necessary to validate Customer’s identity, financial condition, or creditworthiness. Customer hereby represents and warrants on behalf of itself and any person or organization for which Customer acts that Customer has the right, power, and authority to conduct and authorize transactions Customer makes pertaining to the Payment Account and that all information Customer provides to Upfluence and Stripe is complete, accurate, and up to date.
2.4. Creator Setup. To use Upfluence Pay with respect to any Creator, solely to the extent the Creator is not already set up on Upfluence Pay, Customer shall send a payment request link to the Creator to initiate the setup of the Creator on Upfluence Pay. Customer may only utilize Upfluence Pay if the Creator has successfully onboarded with Upfluence and Stripe, as determined by Upfluence in its sole discretion.
2.5 Security Interest. To secure Customer’s performance of its obligations under this Addendum, Customer grant to Upfluence a first lien and security interest in and to the funds held in the Payment Account as well as funds held in any other bank accounts to which such funds are deposited or transferred to Upfluence by Customer. Upon Upfluence’s request, Customer will execute and deliver any documents and pay any associated fees Upfluence considers necessary to create, perfect, and maintain a security interest in such funds (such as the filing of a form UCC-1).
2.6. Collection, and Set-Off Rights. Customer agrees to pay all amounts owed to Upfluence under this Addendum on demand. Customer’s failure to pay amounts owed to Upfluence under this Addendum is a breach, and Customer will be liable for any costs Upfluence incurs during collection in addition to the amount Customer owes. Collection costs may include attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, any applicable interest, and any other related cost. Where possible, Upfluence will first attempt to collect or set-off amounts owed to Upfluence, and to or from Creators, from balances in the Payment Account or from Customer’s funds used by Upfluence to effect Payouts. However, Upfluence may collect any amounts Customer owes Upfluence under this Addendum by deducting or setting-off amounts that Customer owes from the Customer’s funds, which may be held in the Payment Account.
3 Payout Processing
3.1. Scheduling Payouts. Payments made through Upfluence Pay require sufficient time for processing and for the Customer’s Creator to receive payment. Customer acknowledges and agrees that Stripe may take two to three business days to process the payment after Customer submits the payment request. Customer shall be solely responsible for all penalties, interest charges, and other late payment fees associated with the payment’s delivery date, as may be provided in agreements between Customer and its Creators.
3.2. Effecting Payouts. Customer will initiate the Payout to each of its Creators through Upfluence Pay. Upfluence is not responsible for any action taken by Stripe or any banks and other financial intermediaries, which may result in some or all of the funds not being credited to one or more Creators or made available to such Creators.
3.3 Prohibited Payments. Upfluence or Stripe may refuse to initiate any Payout to any Creator in its sole discretion. Upfluence will use commercially reasonable efforts to provide prompt notice to Customer if a Payout is refused. This notification is not required if an attempt is made to make a payment that is prohibited by law or the terms of this Addendum.
4 Customer Data
4.1 Upfluence does not own any data, information, or material that Customer submits to or inputs to Upfluence in the course of using Upfluence Pay (“Customer Data”); provided, however, that Upfluence may anonymize and aggregate Customer Data and use the resulting information for any purpose.
4.2 Customer, not Upfluence, shall have sole responsibility for the accuracy and intellectual property ownership or right to use of all Customer Data, and, to the extent permitted by applicable law, Upfluence shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of any Customer Data by Upfluence, the Customer or otherwise. While this Addendum is in effect, Customer grants Upfluence the right to use data pertaining to payments made by Customer under Upfluence Pay for any legal compliance purpose.
4.3 Upon termination, Upfluence may retain Customer Data for any legal purpose.
5 Limited Warranty
Upfluence will use commercially reasonable efforts to make available Upfluence Pay and all payments in accordance with Payouts approved by Customer. If Upfluence causes an incorrect amount of funds to be removed from Customer’s Payment Account or causes funds from Customer’s Stripe Account to be directed to an Creator that does not comply with the Payout directions of Customer (each an “Error”), Upfluence shall use commercially reasonable efforts to return the improperly transferred funds to the applicable account and direct any previously misdirected payments to the proper Creator, provided that the Payout was scheduled by Customer correctly and in accordance with this Addendum.
Notwithstanding the foregoing, Upfluence shall not incur any liability for any Error resulting from any of the following circumstances: (i) there are insufficient funds in the Stripe Account; (ii) any network used by Stripe or other payment processor is not operating properly; (iii) actions and omissions of Stripe or its’ third parties; and (iv) the Stripe Account information or Customer’s Payout instructions or settings are inaccurate, incomplete or out of date; or (v) Upfluence refuses to initiate a Payout in accordance with Section 3.3.
If Customer believes it is entitled to a credit, Customer must notify Upfluence customer support in writing as soon as Customer learns of the Error (and in no event later than thirty (30) days after the earlier of when the credit is due or made). Customer shall cooperate fully with Upfluence’s remediation efforts by contacting the Creator, contacting Customer’s bank, contacting the Creator’s bank, making information or funds available, executing all documents and taking all other actions reasonably requested to correct or mitigate the Error.
THE FOREGOING SETS FORTH THE SOLE AND EXCLUSIVE REMEDY AND UPFLUENCE’S FULL AND EXCLUSIVE OBLIGATION WITH RESPECT TO ANY BREACH OF THIS LIMITED WARRANTY.
6 WARRANTY DISCLAIMERS
EXCEPT AS PROVIDED IN THIS ADDENDUM, UPFLUENCE MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTIES. UPFLUENCE DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF UPFLUENCE PAY WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANYOTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) UPFLUENCE PAY WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, OR (D) THAT UPFLUENCE PAY WILL RUN ERROR-FREE OR DEFECTS FREE OR THAT ANY SUCH ERRORS OR DEFECTS WILL BE CORRECTED. THE SERVICE AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY UPFLUENCE. UPFLUENCE PAY MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. UPFLUENCE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
7 LIMITATION OF LIABILITY
IN NO EVENT SHALL UPFLUENCE, OR ITS RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, EMPLOYEES, LICENSORS OR SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES INCURRED IN CONNECTION WITH: (I) THIS ADDENDUM; (II) CUSTOMER’S USE OF, INABILITY TO USE, OR UNAVAILABILITY OF UPFLUENCE PAY; (III) FAILURE BY A THIRD PARTY PROVIDER TO PERFORM UNDER UPFLUENCE PAY OR ITS DELAY IN PEFORMING SUCH SERVICES; OR (IV) ANY PRODUCTS OR SERVICES PURCHASED, RECEIVED, OR PAID FOR USING PAYOUT SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, REGARDLESS OF WHETHER UPFLUENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL UPFLUENCE’S LIABILITY AND THE LIABILITY OF ITS RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, EMPLOYEES, LICENSORS AND SUPPLIERS EXCEED $100.00 IN CONNECTION WITH CUSTOMER’S USE OF UPFLUENCE PAY. THIS LIMITATION OF LIABILITY SECTION SHALL APPLY TO FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
8 EXCULPATION AND INDEMNIFICATION
To the fullest extent permitted by applicable law, Customer agrees that Upfluence and its officers, directors, shareholders, agents, employees, licensors and suppliers will not be liable to Customer in connection with this Addendum other than due to fraud or willful misconduct. Customer agrees to defend, indemnify and hold harmless Upfluence, and its officers, directors, shareholders, agents, employees, licensors and suppliers from any third party claims, actions, proceedings, and suits and related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses) arising from: (i) Customer’s breach of the Addendum or any other applicable terms or policies of Upfluence; (ii) Creator’s claims with respect to Payouts; (iii) Customer’s use of Upfluence Pay; (iv) Customer’s negligence, gross negligence, fraud or willful misconduct; and (v) Customer’s actual or alleged violation of any third party rights, or any applicable laws, regulations or rules.
9 REPRESENTATIONS AND WARRANTIES
Customer represents and warrants that it has the legal power and authority to enter into this Addendum and that Customer has not falsely identified itself nor provided any false information to gain access to Upfluence Pay and that Customer’s billing, banking and Creator information, as provided to Upfluence is correct.
10 TERM; AMENDMENT; SURVIVAL
This Addendum shall be effective on the date agreed to by Customer and shall remain in effect during the Term, as specified in the Order Form. Notwithstanding anything to the contrary contained herein, in the event the Agreement is terminated for any reason, or Upfluence’s agreements with Stripe terminate, this Addendum shall also terminate at the same time without further notice. Upfluence shall have the right to modify this Addendum at any time by making this Addendum available [___________]. Sections 2.6, and 4 through 10 hereof, together with any terms that by their nature are intended to survive, shall survive any expiration or termination of this Addendum.