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December 3, 2024
Heylist inc. (“Heylist”) owns and operates the platform and the services. By using the Heylist platform (including the website) or services (such use or acceptance, “effective date”), (“Client”) acknowledges that client has read, accepts and agrees to be bound by and comply with the terms and conditions set out in these terms of service, as amended from time to time in accordance with section 21(d). If client does not accept and agree to be bound by these terms of service, client will immediately cease any further use of the Heylist platform and services. client represents and warrants to Heylist that client has the capacity to enter into these legally binding terms of service. If client is using the Heylist platform or services on behalf of another person, client hereby represents and warrants to Heylist that client has the authority to bind such person to these terms of service.
Heylist provides a proprietary platform (“Platform”) and campaign management services (“Services”) to help brands, advertisers and marketing agencies create and run a sponsored marketing campaign (a “Campaign”) by connecting and collaborating with social media celebrities, influencers and creators (“Creators”) to create content for marketing campaigns.
These terms of service (“Terms of Service”) apply to you if you are a Client that uses the Platform, including Heylist’s website located at www.heylist.com, and Services (“Client”). If you are a Creator, these terms do not apply to you and you should review our terms of service for Creators down bellow.
Client may use the Platform to create and manage a Campaign (“Self-Serve Campaigns”) by activating a recurring subscription plan (“Subscription”) for the Services and the enhanced Campaign management features of the Platform. To activate a Subscription, Client may choose one of several tiers of subscription plan (“Subscription Tiers”) and consent to the associated subscription fees (“Subscription Fees”), as may be amended any time and from time to time on Heylist’s subscription pricing page located at https://heylist.com/pricing-plans.
To initiate a Self-Serve Campaign, Client may submit a campaign brief to Heylist via the campaign launch tool on the Platform which outlines the requirements for the Campaign, such as budget, design and creative, target audience and duration (“Campaign Brief”). The Campaign Brief may also contain details of how a Campaign will be created and executed, including terms under which Client pays fees, including Creator fees (“Creator Fees”). During the Self-Serve Campaign creation process, Heylist may provide Client with a quote outlining the Creator Fees and other costs associated with a Self-Serve Campaign. Client must consent to the terms of the Campaign Brief and any related quotes before proceeding with the initiation of a Self-Serve Campaign.
In addition to consenting to the terms of a Campaign Brief and any related quotes, as applicable, Clients that are enterprise clients may be required to enter into one or more agreements with Heylist that set out the details of how a Campaign will be created and executed (“Program Agreement”) prior to the initiation of a Self-Serve Campaign.
A Subscription may be required as a condition for the provision of Self-Serve Campaigns.
All Self-Serve Campaigns are governed by a Campaign Brief or Program Agreement, as applicable, and any other documents referenced therein.
Clients that are enterprise clients may engage Heylist to provide bespoke management services to assist with the design and curation of a Campaign and to manage the Campaign on Client’s behalf (“Managed Campaigns”).
Managed Campaigns are not available for all Clients. If Client is interested in initiating a Managed Campaign, Client must contact Heylist directly via the contact email address available on Heylist’s website located at www.heylist.com.
Managed Campaigns may entitle Client to the following:
i. access to the Platform and Services as available to subscribers of Self-Serve Campaigns referenced in Section 2(a); and
ii. end-to-end Campaign curation and management services based on Client’s unique requirements and objectives.
The process for Managed Campaigns may vary and may be mutually agreed upon with each Client. For example, Heylist may work with Client to prepare one or more statements of work describing the details of a Campaign based on Client’s requirements, which may include details such as those referenced in Section 2(b), including budget, design and creative, target audience and duration.
To initiate a Managed Campaign, Client may enter into a Program Agreement which may incorporate the details referenced in Section 3(d) and include the terms under which Client pays fees such as Creator Fees and any applicable Subscription Fees.
A Subscription may be required as a condition for the provision of Managed Campaigns.
i. Heylist will work with Client to design and manage each Campaign and coordinate the development of the content produced by the Creator(s) for a Campaign (“Work Product”).
ii. Client will have an opportunity to review and approve all Work Product.
iii. Heylist will instruct the Creator(s) to only post Work Product approved by Client (“Campaign Content”) on social media.
i. Heylist will help to facilitate the launch of each Campaign, including, if applicable, assisting with the posting of Campaign Content on the specified social media platforms in accordance with Client’s requirements for the applicable Campaign.
ii. Collaboration and communication between Client and the Creator(s) related to a Campaign may occur through a designated Heylist employee (“Success Manager”) depending on the service level purchased by Client and in accordance with any Campaign Brief or Program Agreement, as applicable.
iii. Except as permitted under Sections 16(d), 17(b), and 21(d), changes to a Campaign Brief or Program Agreement will not be effective, and neither party will incur any obligations with respect thereto, until an amendment to the Campaign Brief or Program Agreement is consented to by both Client and Heylist authorizing the change. In the event of a conflict between these Terms of Service and the terms and conditions contained in the Campaign Brief or Program Agreement, the terms and conditions in such Campaign Brief or Program Agreement will govern.
i. All Services will be subject at all times to Client’s reasonable approval, direction and control and Heylist will abide by all reasonable instructions, directions and recommendations given from time to time by Client in connection with the Services.
ii. Heylist reserves the right to decline a Campaign where Heylist, acting in good faith, believes that the Campaign will adversely affect the name, goodwill or reputation of Heylist.
Subject to Client’s compliance with the terms and conditions of these Terms of Service (including signing up for an Account and complying with the Member code of conduct set out in Section 7), Heylist will make the Platform available to Client on the terms and conditions set out in these Terms of Service.
Heylist may, from time to time and at Heylist’s discretion without limiting any of Heylist’s other rights or remedies at law or in equity under these Terms of Service:
i. suspend Client’s access to or use of the Platform pursuant to Section 6 below; or
ii. make any modifications to the Platform.
Heylist will provide Client with technical support for the Platform:
i. via email at support@heylist.com, Monday to Friday from 9:00 AM to 5:00 PM EST; and
ii. via Heylist’s knowledge base and documentation available online at https://www.heylist.com/edu.
Heylist will use commercially reasonable efforts to achieve 99% Platform uptime and will use commercially reasonable efforts to provide notice at least 48 hours in advance for scheduled maintenances within normal business hours.
If Client is an individual, Client must be over the age of majority in Client’s jurisdiction of residence who can form legally binding contracts to register for an account on the Platform (“Account”) and to be accepted by Heylist as a member (“Member”) of the Platform. Client is solely responsible for ensuring that the use of the Platform and Services in accordance with these Terms of Service in Client’s jurisdiction of residence is permitted by law or regulation. If such use is not so permitted by applicable law, Heylist prohibits all use and access to the Platform and Services. If Client is a corporation, partnership, association or other business entity, Client agrees that Client has the authority to bind the corporation, partnership, association or other business entity to these Terms of Service.
Client agrees to provide current, complete and accurate information and to promptly update all account information to keep Client’s Account current, complete and accurate. Client may change or update Client’s Account information at any time.
Client has the option to create an agency account (“Agency Account”) and add other Members to Client’s Account (“Agency Account Members”) authorized by Client to act on Client’s behalf. The Agency Account may grant Agency Account Members certain administrative privileges. Client is responsible for ensuring that all use of the Platform and Services by Agency Account Members complies with these Terms of Service, and Client is liable for all actions of Agency Account Members in the Agency Account. Heylist does not control fees charged by an Agency Account to its Agency Account Members and is not responsible for payments by the Agency Account to Agency Account Members for services associated with Heylist’s Services. Any disputes regarding these payments are between the Agency Account and its Agency Account Members.
Client is responsible for maintaining the confidentiality of Client’s user ID and password and Heylist strongly recommends that Client does not disclose Client’s user ID or password to anyone. Client agrees to notify Heylist if Client becomes aware of a potential breach of security, such as unauthorized disclosure of Client’s user ID and password. Client may not transfer or sell Member’s Account to another party.
Heylist may terminate, suspend, or otherwise restrict or prohibit access to the Platform and Services, remove hosted Member Content including but not limited to Client’s Account, Campaigns, Work Product and Campaign Content, and take technical and legal steps to prohibit Client from using the Platform or Heylist’s Services for any reason and without prior notice.
Client’s Account can only be closed once all obligations (including payment obligations) in association with the Account or Campaigns have been satisfied by Client and Client has provided written notice to support@heylist.com and received written confirmation from Heylist. See Termination and Suspension for more details.
Client must use Client’s Account in a responsible manner and respect Members’ privacy. Client will not access or use the Platform or Services to:
i. sub-license, sell, rent, lend, lease or distribute the Platform or any intellectual property rights therein, or otherwise make the Platform available to any third parties;
ii. permit timesharing, service bureau use or commercial exploitation of the Services;
iii. violate any applicable law or intellectual property right;
iv. threaten the security or functionality of the Platform;
v. create, collect, transmit, store, use or process any data:
a. that Client does not have the lawful right to create, collect, transmit, store, use or process;
b. that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property rights or other rights of any third party (including any moral right, privacy right or right of publicity); or
c. that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
vi. attempt to reverse engineer, de-compile or disassemble the Platform;
vii. access or use the Platform for the purpose of building a similar or competitive product or service;
viii. upload, post or otherwise make available any material that contains viruses, malware or other malicious software;
ix. perform any vulnerability, penetration or similar testing of the Platform;
x. promote or engage in any unlawful or illegal activities or internet abuse, including unsolicited advertising and spam;
xi. promote, upload, post, or otherwise make available any material that is abusive, harassing, obscene, vulgar, hateful, sexually explicit, invasive of another’s privacy, defamatory or otherwise objectionable or illegal, or that discriminates based on race, gender, religion, nationality, disability, sexual orientation, age, family status or any other legally protected class;
xii. make any false representation, including creation of a false identity, impersonation of any person or entity or misrepresentation of Client’s affiliation with any person or entity; or
xiii. track, trace, harvest, or otherwise collect or store any information, including personal information, on any Account or any other Member of the Platform, without the express consent of such Member(s).
Heylist allows Client to interact in and publish information on the Platform (“Member Content”). Member Content includes any and all Work Product or Campaign Content.
i. Client agrees and understands that any Member Content that Client provides or accepts may be viewed by the general public and will not be treated as private, proprietary or confidential.
ii. Client is solely responsible for the Member Content that Client makes available through the Platform and Client will ensure that (A) Client owns or has all necessary rights to use the Member Content; (B) the provision of the Member Content will not infringe or violate any patent, copyright, trade-mark, or other intellectual property right, or any right of privacy or publicity of any third party; and (C) the Member Content does not violate any applicable law or regulation.
iii. Client agrees and understands that Creators maintain editorial control over Campaign Content, and Client is not permitted to: (A) make editorial changes to the Campaign Content without Creator’s permission; (B) License Member Content on the Creator’s social media channels that isn’t Campaign Content that has been created by Creator; (C) add, remove, or make any alterations to either Creator’s content or social media account (including commenting on Creator’s content that is not part of the Campaign Content in cases where Client has comment moderation access).
iv. While Creators maintain editorial control over Campaign Content, Client agrees to adhere to the following professional standards, in addition to the requirements set out under the “Member Conduct” section above, when approving Campaign Content:
a. Campaign Content must not contain material that violates or infringes another’s rights, including but not limited to privacy, publicity or intellectual property rights, or that constitutes copyright infringement, or that is unlawful, in violation of or contrary to any applicable law or regulations;
b. Campaign Content must comply with applicable laws as well as with any applicable and mutually agreed-upon guidelines relating to a Campaign;
c. Campaign Content must not disparage any party or person affiliated with a Campaign;
d. Campaign Content must not contain material that is inappropriate, indecent, obscene hateful, tortious, defamatory, slanderous or libelous, threatening, indecent, violent, offensive, refers to dangerous, unlawful or illegal acts, promotes a political agenda or contains any criminal or civil liability; and
e. Campaign Content must not contain material that promotes bigotry, racism, hatred or harm against any group or individual or promotes discrimination based on race, gender, religion or religious beliefs, nationality, disability, sexual orientation or age.
v. Heylist reserves the right to delete Campaign Content and Member Content that Heylist, at Heylist’s sole discretion, deems to be in violation of the law (including trademark and copyright law), to be in violation of these Terms of Service, or to be abusive, defamatory, obscene or otherwise unacceptable.
vi. Heylist does not guarantee that it will pre-screen Campaign Content or Member Content. Heylist does not guarantee that the Platform will be free from Campaign Content or Member Content that is inaccurate, deceptive, offensive, threatening, defamatory, unlawful or otherwise objectionable. Even in the event that Heylist chooses to monitor any Campaign Content or Member Content, Heylist assumes no responsibility for, or any obligation to monitor or remove, such Campaign Content or Member Content. Heylist reserves the right to edit, remove, or refuse to post any Campaign Content or Member Content or terminate Client’s Account for any reason.
Client agrees to comply with any and all laws, rules, regulations and other legal requirements with respect to sponsored posts, including, if applicable, 16 CFR Part 255 – Guides Concerning the Use of Endorsements and Testimonials in Advertising and any other applicable laws and requirements published by the Federal Trade Commission, and influencer marketing and competition requirements under the Competition Act and any other applicable Canadian federal or provincial laws. Examples of required disclosures that may be acceptable include #ad, or #sponsored, which must be conspicuously displayed within a post.
The foregoing is provided for informational purposes only and does not constitute legal advice. It is Client’s sole and exclusive obligation to consult Client’s own professional legal advisors and ensure the compliance of all posts in the applicable jurisdiction(s). The foregoing disclosure obligation is a mandatory and material term of all Campaign Briefs and Program Agreements.
To the extent a Client submits Personal Information (as defined in Section 10) to Heylist for processing, such Personal Information will be processed on behalf of Client. Heylist may process such Personal Information for the sole purpose of performing its obligations under these Terms of Service and any additional agreement, and shall not use such Personal Information for any other purpose without the express written consent of Client. Except as necessary to provide the Platform and perform the Services, required by applicable laws or approved and/or directed by Client, Heylist will not disclose, sell or use such Personal Information outside of Heylist’s business relationship with Client.
i. The Platform and Services are owned and operated by Heylist Inc. Any and all content, data, graphics, photographs, images, audio, video, software, trademarks, service marks, trade names, logos, trade dress, patents, copyrighted or copyrightable materials and other information (collectively, the “Content”) contained in or made available through the Platform and Services are proprietary to Heylist, its affiliates and/or third party licensors. The Content is protected by international copyright and trademark laws and is the confidential information of Heylist.
ii. Client may download, print and reproduce the Content for Client’s purposes related to receipt of the Services during the term of these Terms of Service. Any other use of the Content in whole or in part, including but not limited to adapting, displaying, distributing, publishing, storing in a retrieval system, transmitting, converting, copying or issuing copies, lending or reproducing the Content in any other form or by any other means whatsoever, whether electronic or otherwise, and including making the same available to or via the internet or wireless technology or authorizing any of the foregoing without the prior written consent of Heylist, is strictly prohibited. To obtain written consent for such use, please contact Heylist at support@heylist.com. Client agrees that any use of the Content by Client authorized by Heylist and the goodwill associated with such use will inure to Heylist’s benefit. Client agrees and acknowledges that it will not acquire any interest in the Content or the goodwill associated with the Content by virtue of these Terms of Service or Client’s use of the Content.
Client hereby grants a non-exclusive, fully-paid up, royalty-free, perpetual, sublicensable worldwide license and irrevocable right for Heylist to create, and to collaborate and permit Creator to create, Campaign Content using any intellectual property described in a Campaign Brief or Program Agreement entered into by Client.
All right, title and interest, including without limitation, all intellectual property rights in, and to any Campaign Content, including all photographs, images, videos, audio, works of art, original writing, drawings, derivatives, compositions, creations and inventions developed by Creator will be owned exclusively by Creator, unless otherwise agreed to with Heylist pursuant to a Campaign Brief or Program Agreement.
Notwithstanding the foregoing and subject to having received from Client all payments required hereunder (including under any Campaign Brief or Program Agreement), Heylist will grant a non-exclusive, royalty-free, worldwide right to use the Campaign Content for a period of one year following the posting date to the applicable social medial channel(s), for the sole purpose of posting the content on social media channels that Client owns or controls and for which Client has not received any compensation or other incentive to post (i.e., an ad) (“Social Rights”). These Social Rights are limited to social media platforms, such as Instagram, Facebook, and TikTok. Client does not have any right to use Campaign Content for any other purpose. For greater certainty, Client does not have any right to use any Work Product that does not form part of Campaign Content. In addition to the Social Rights referred to above, Client can request non-exclusive, royalty-free, worldwide rights to use the Campaign Content on other digital marketing channels (“Digital Rights”), broadcasting channels (“Broadcasting Rights”) or non-digital marketing channels (“Offline Rights”), which are detailed in the respective Campaign Brief or Program Agreement and purchased from the Creator(s) through Heylist. Where a Campaign includes Creator content without the Creator(s) posting content to their social feeds (“Just Content”), Client will have the Just Content and Digital Rights for a period of six months following the approval date in the respective Campaign Brief, Program Agreement, or Platform. Client may request and purchase additional Digital Rights from the Creator(s) through Heylist as indicated in the respective Campaign Brief, Program Agreement, or Platform. Upon request, extended licenses to use Campaign Content for other purposes, or an assignment of all of the Creator’s rights, title and interest in Campaign Content, can be purchased from the Creator(s) through Heylist (collectively, the “Extended Rights”).
Client hereby grants Heylist a non-exclusive, royalty-free, perpetual, and irrevocable right to use, reproduce, and communicate the name and trademark of Client’s company or organization (“Marks”) as a Member of Heylist’s Platform or Services in any media whatsoever, including in Heylist’s marketing materials during and after the term of these Terms of Service. Heylist agrees that it will not acquire any interest in the Marks and the goodwill associated with Heylist’s use of the Marks will inure to Client’s benefit.
Heylist respects copyright law and the intellectual property rights of others, and Heylist expects Heylist’s Members to do the same. Heylist will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to Heylist. In appropriate circumstances, Heylist will terminate the accounts of Members who are repeated copyright infringers.
i. Heylist reserves the right to remove Member Content alleged to be infringing without prior notice, at Heylist’s sole discretion.
ii. If Client believes that any of Client’s Member Content was subsequently removed from the Platform, or to which access was disabled, or was improperly removed or disabled, please provide the following Counter-Notification to Heylist’s Copyright Agent (see 17 U.S.C. Section 512(g) for further detail):
a. Client’s physical or electronic signature;
b. a description of the materials that have been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
c. a statement, under penalty of perjury, that Client has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
d. Client’s name, address and telephone number, and a statement of Client’s consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, and that Client will accept service of process from the person who provided notification of the alleged infringement.
iii. See 17 U.S.C. Section 512(c)(3) for further detail about the Digital Millennium Copyright Act. Heylist’s designated copyright agent for notice of alleged copyright infringement is:
Copyright Agent
Heylist Inc.
6664 Rue St-Hubert, Montréal, QC H2S 2M3
E-mail: support@heylist.com.
Client understands that information about an identifiable individual or information that is subject to applicable privacy or data protection laws (“Personal Information”), including the Personal Information in Agency Accounts, will be treated in accordance with Heylist’s privacy policy located at https://heylist.com/privacypolicy.
Client and Heylist will maintain the confidentiality of all confidential information disclosed by each party to the other, including details in connection with or as a result of entering into these Terms of Service or any Campaign Brief or Program Agreement, as applicable, including, without limitation, information concerning the other party’s past, present or future customers, suppliers, technology or business, marketing and consumer research, market potential information, consumer data, clinical data, formulas, product applications, potential consumer use information, operating plans, financial data, business and/or marketing plans, forecasts, designs, prototypes, concepts, trade secrets, software, know-how, formulae, and product specifications, as well as all data compilations, analyses, conversations, discussions, descriptions and expressions of opinions (“Confidential Information”). Confidential Information will not, however, include any information which: (i) was publicly known and made generally available in the public domain prior to the time of disclosure to the other party, (ii) becomes publicly known and made generally available to the public through no action or inaction of the other party, (iii) is obtained by the other party from a third party without a breach of such third party’s obligations of confidentiality, or (iv) is independently developed by the other party without use of or reference to the Confidential Information, as shown by competent evidence in the other party’s possession.
Client and Heylist agree that during and at all times thereafter they will not, except to exercise their rights or perform their obligations under these Terms of Service: (i) disclose Confidential Information of the other party to any person, except to their own personnel or affiliates that have a “need to know” and that have entered into written agreements no less protective of such Confidential Information than these Terms of Service, and to such other recipients as the other party may approve in writing, (ii) use Confidential Information of the other party, or (iii) alter or remove from any Confidential Information of the other party any proprietary legend. Client and Heylist will take industry standard precautions to safeguard Confidential Information, which will in any event be at least as stringent as the precautions that each party takes to protect its own Confidential Information of a similar type.
Notwithstanding Section 9(b), Client or Heylist may disclose the other party’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the party required to disclose promptly notifies the other party in writing of such required disclosure and cooperates with the other party to seek an appropriate protective order, (ii) to Client or Heylist’s legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with Client or Heylist’s business, or (iii) to potential assignees, acquirers or successors of Client or Heylist if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Client or Heylist.
Client has the authority and right to enter into these Terms of Service and any Campaign Brief or Program Agreement and has obtained all rights and waivers necessary to grant the rights, titles and interests granted thereunder; and
Client will comply with all applicable laws, by-laws, rules, regulations and guidelines, including requirements and standards related to advertising and marketing, competition, consumer protection and privacy.
the laws of certain jurisdictions do not allow the exclusion or limitation of legal warranties and the exclusion or limitation of representations made concerning Heylist’s goods or services. if these laws apply to client, some or all of the below exclusions or limitations may not apply to client and client may have additional rights.
client’s use of the platform and the services is entirely at client’s own risk. Heylist does not control the content of postings by its members. the platform, including the content and services provided herein, is being provided on an “as is” and “where is” basis and without warranties or conditions of any kind, either express or implied.
Heylist has no control over and does not guarantee the truth or accuracy of any campaign descriptions contained in the platform, a campaign brief or program agreement, or the ability of creator to complete the campaign to the satisfaction of client.
to the maximum extent permitted by applicable law, Heylist and its affiliates and any of their officers, employees, agents, and licensors disclaim all warranties and conditions, whether express, implied, arising out of course of dealing or usage of trade, or statutory regarding the platform, the services, the campaigns, and related materials, including any warranty and conditions of fitness for a particular purpose, title, merchantability and non-interference or non-infringement of any intellectual property rights or equivalents under the laws of any jurisdiction. Heylist and its affiliates and any of their officers, employees, agents, and licensors do not warrant the accuracy, reliability, completeness, usefulness or quality of the platform, the services, or the postings of any members, including content posted on or linked from the platform or the services. Heylist and its affiliates and any of their officers, employees, agents, and licensors do not warrant that the platform is secure, free from bugs, viruses, interruption, errors, theft or destruction or that the platform and services will meet client’s requirements. client assumes all risks associated with using or relying on the platform and services, including any listings by members.
the laws of certain jurisdictions do not allow certain exclusions or limitations of liability or certain damages. if these laws apply to client, some or all of the below exclusions or limitations may not apply to client, and client might have additional rights.
to the maximum extent allowable under applicable law, the entire cumulative liability of Heylist and its affiliates, and any of their officers, employees, agents, and licensors, and client’s exclusive remedy, for all matters or claims arising from or relating to the platform and the services will be limited to the fees paid by client, if applicable, for the platform and services in the preceding six months.
to the maximum extent permitted by applicable law, Heylist and its affiliates and any of their officers, employees, agents, and licensors will not be liable for any direct, indirect, special, incidental punitive, consequential damages, damages on account of loss of profits, or other damages arising out of or relating to a completed or non-completed campaign or other transaction between members or any misrepresentation by a member, including with respect to a campaign or the subject of any transaction with a member. the foregoing limitation of liability will apply irrespective of whether the alleged liability is based in contract, tort (including negligence), product liability or otherwise, even if Heylist or its affiliates or any of their officers, employees, agents, and licensors have been advised of the possibility of such damages.
Heylist agrees to indemnify and hold harmless Client, its affiliates, officers, employees, and agents (each, a “Client Indemnitee”) from and against any and all losses, expenses, damages, claims, fines, penalties, costs and liabilities (including all legal and accounting fees), arising from or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an affiliate of a Client Indemnitee) that arise from or relate to any allegation that Heylist’s Platform or Services infringe any third-party intellectual property right in Canada. The foregoing obligation does not apply to any Action or losses arising out of or relating to any: (i) incorporation of Heylist’s Platform or Services into, or any combination, operation, or use of Heylist’s Platform or Services with, any products or services not provided or authorized by Heylist, unless such infringement would also have resulted solely from the use of Heylist’s Platform or Services without their incorporation in, or combination, operation or use, with such other products or services, (ii) modification of Heylist’s Platform or Services other than by Heylist or with Heylist’s express written approval, or (iii) unauthorized use of Heylist’s Platform or Services.
i. Client agrees to indemnify and hold harmless Heylist, its affiliates, officers, employees, and agents from and against any and all losses, expenses, damages, claims, fines, penalties, costs and liabilities (including all legal and accounting fees), arising from or relating to: (i) Client’s use of the Platform and Services, including any obligations to pay in association with a Subscription, Campaign Brief, or Program Agreement or other agreement, (ii) any representation or misrepresentation by Client in any content that Client (or anyone acting in Client’s Account or Agency Account which Client owns) submits, posts, transmits or makes available on the Platform or through the Services, including with respect to information in Client’s Member profile or Campaign, (iii) Client’s completion or failure to complete a Campaign with another Member, (iv) any liability arising from the tax treatment of payments or any portion of such payments, (v) Client’s dispute of or failure to pay any amounts owing in association with a Subscription, Campaign Brief, or Program Agreement or other agreement, (vi) Client’s liability arising from violation of any law, including intellectual property laws, and (vii) any violation by Client of these Terms of Service.
ii. Client agrees that, at Heylist’s option, Client will conduct the defense of any such claim or action; provided that, notwithstanding Heylist’s election that Client conduct the defense, (i) Heylist may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) Client will not enter into any settlement or other compromise without the prior written approval of Heylist (which approval will not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
No person or entity will be entitled to any form of equitable or implied indemnification at any time, except as provided by these Terms of Service.
The term of these Terms of Service will commence upon the Effective Date and will continue until Client’s Account is closed either by Client or by Heylist at Heylist’s sole discretion.
The Platform and Services related to initiating and running a Campaign may be offered on a subscription basis. The term of the Subscription (“Subscription Term”) may commence as follows:
i. Subscription Terms for Self-Serve Campaigns. The Subscription Term for a Self-Serve Campaign will commence on the date Client activates a Subscription through the Platform or enters into a Program Agreement requiring the Subscription as a condition for the provision of the Services, as applicable, and will remain in effect for an initial term of six months (“Monthly”) or 12 months (“Annual”), or as described under Client’s Account or applicable Program Agreement. For greater clarity, month-to-month (“Month-to-Month”) subscriptions are applicable exclusively to direct-to-consumer agency subscriptions.
ii. Subscription Terms for Managed Campaigns. The Subscription Term for a Managed Campaign will commence on the date Heylist and Client enter into the Program Agreement requiring the Subscription as a condition for the provision of the Services, as applicable, and will remain in effect for an initial Monthly or Annual term, unless otherwise stated in the applicable Program Agreement.
i. The Subscription Term will automatically renew on a month-to-month basis at the same Subscription Fee described under Client’s Account or Program Agreement requiring the Subscription as a condition for the provision of the Services, as applicable, unless Client provides advance written notice to Heylist as follows:
a. For Clients that are enterprise clients (and Clients with campaigns that do not have a Subscription), upon 30 days’ notice to Heylist;
b. For Clients that are non-enterprise clients, upon 14 days’ notice, taking effect either: (1) on the upcoming billing date, if notice of termination is provided in the first 14 days of a billing period; or (2) on the subsequent billing date, if notice of termination is provided later than the 14th day of the current billing period.
ii. At the end of the Subscription Term, Client may choose to have the Subscription:
a. automatically renew on a month-to-month basis at the same Subscription Fee described under Client’s Account or Program Agreement requiring the Subscription as a condition for the provision of the Services, as applicable; or
b. convert into an annual Subscription with then-available annual discount pricing offered by Heylist.
Client or Heylist may change Client’s current Subscription Tier, as may be offered through Heylist’s pricing page located at https://heylist.com/pricing-plans, as follows:
i. Changes to Subscription for Self-Serve Campaigns.
a. Upgrades to Subscription Tier for Self-Serve Campaigns. Client may change Client’s current Subscription Tier to a higher tier at any time upon written notice to Heylist.
b. Downgrades to Subscription Tier for Self-Serve Campaigns. Client may change Client’s current Subscription Tier to a lower tier upon 14 days’ written notice to Heylist, provided that: (1) Client has contacted the designated Success Manager, as applicable, prior to issuing such written notice; and (2) there are no active Campaigns under Client’s Account or under any applicable Campaign Brief or Program Agreement.
ii. Changes to Subscription for Managed Campaigns.
a. Upgrades to Subscription Tier for Managed Campaigns. Client may change Client’s current Subscription Tier to a higher tier at any time upon written notice to Heylist.
b. Downgrades to Subscription Tier for Managed Campaigns. Client may not change Client’s current Subscription Tier to a lower tier for the duration of the Subscription Term, unless otherwise stated in the applicable Program Agreement.
iii. Heylist reserves the right to change Client’s Subscription Tier or any of its offerings of Subscription Tiers at any time and from time to time, at Heylist’s sole discretion.
i. Account Closure.
a. To close Client’s Account, Client must provide written notice to Heylist by sending an email to support@heylist.com. Accounts will be closed following 30 days’ notice with express written confirmation from Heylist provided that (i) all Campaigns associated under Client’s Account have been satisfactorily completed, (ii) any disputes in which Client has been involved have been satisfactorily settled, (iii) any payments owing by Client have been paid, (iv) there are no outstanding funds associated with the Account, and (v) Client has completed all other obligations associated with Client’s use of the Services. Following Client’s Account closure, Client will still be bound by all provisions of these Terms of Service.
b. Any termination of Client’s Account will automatically lead to termination of all Agency Accounts owned by Client. Upon termination of an Agency Account, all associated Accounts will be deleted.
c. Once Client’s Account is terminated, Client will no longer have access to any information within Client’s Account.
ii. Termination of Subscription.
a. Termination of Subscription for Self-Serve Campaigns.
1. Either Client or Heylist may terminate a Subscription for Self-Serve Campaigns as follows (“Self-Serve Subscription Termination Date”):
(I) Upon 14 days’ notice, taking effect either: (1) on the upcoming billing date, if notice of termination is provided in the first 14 days of a billing period; or (2) on the subsequent billing date, if notice of termination is provided later than the 14th day of the current billing period. 2. Any termination of a Subscription will automatically lead to termination of any Campaigns active under Client’s Account or any applicable Campaign Brief, effective the Self-Serve Subscription Termination Date. In the event of any such termination, Client will pay Heylist all amounts due to Heylist up through the Self-Serve Subscription Termination Date, including without limitation any applicable Subscription Fees, Creator Fees, actual approved costs, expenses and any fees incurred by Heylist on Client’s behalf prior to the Self-Serve Subscription Termination Date.
b. Termination of Subscription for Managed Campaigns.
1. Either Client or Heylist may terminate a Subscription for Managed Campaigns after a period of 90 days following the commencement of the Subscription Term effective 30 days after written notice from one party to the other (“Managed Subscription Termination Date”). 2. Any termination of a Subscription will automatically lead to termination of any Program Agreement requiring a Subscription as a condition for the provision of the Services, as well as any associated Campaigns, effective the Managed Subscription Termination Date. In the event of any such termination, Client will pay Heylist all amounts due to Heylist up through the Managed Subscription Termination Date, including without limitation any Subscription Fees, Creator Fees, actual approved costs, expenses, and any fees incurred by Heylist on Client’s behalf prior to the Managed Subscription Termination Date.
iii. Termination of Program Agreement.
a. Program Agreement Not Requiring a Subscription as a Condition for the Provision of the Services. Either Client or Heylist may issue a written notice to terminate a Program Agreement not requiring a Subscription as a condition for the provision of the Services at any time.
b. Program Agreement Requiring a Subscription as a Condition for the Provision of the Services. Either Client or Heylist may issue a written notice to terminate a Program Agreement requiring a Subscription as a condition for the provision of the Services 90 days following the date on which Client and Heylist enter into the Program Agreement, unless otherwise stated in the applicable Program Agreement.
c. The termination of a Program Agreement will be effective 30 days after written notice from one party to the other (“Program Agreement Termination Date”).
d. Any termination of a Program Agreement will automatically lead to termination of any Campaigns governed by the Program Agreement, effective the Program Agreement Termination Date. In the event of any such termination, Client will pay Heylist all amounts due to Heylist up through the Program Agreement Termination Date, including without limitation any applicable Subscription Fees, Creator Fees, actual approved costs, expenses and any fees incurred by Heylist on Client’s behalf prior to the Program Agreement Termination Date.
iv. Termination of Campaigns.
a. Termination of Self-Serve Campaigns. Either Client or Heylist may terminate a Self-Serve Campaign, upon 14 days’ notice, taking effect either (“Self-Serve Campaign Termination Date”): (1) on the upcoming billing date, if notice of termination is provided in the first 14 days of a billing period; or (2) on the subsequent billing date, if notice of termination is provided later than the 14th day of the current billing period. Client will pay Heylist all amounts due to Heylist in respect of the terminated Self-Serve Campaign up through the Self-Serve Termination Date, including without limitation the actual approved costs, expenses, Creator Fees, and fees incurred by Heylist on Client’s behalf prior to the effective date of termination. For greater clarity, Client will not receive a refund for Creator Fees regardless of whether Campaign Content is still owing to Client. In the event that Client or Heylist terminates a Self-Serve Campaign, Client will continue to pay Subscription Fees in respect of all Campaigns issued under Client’s Account or any applicable Campaign Briefs that have not been terminated.
b. Termination of Managed Campaigns. Either Client or Heylist may terminate a Managed Campaign commenced under a Program Agreement, effective 30 days after written notice from one party to the other (“Managed Campaign Termination Date”). In the event of any such termination, Client will pay Heylist all amounts due to Heylist up through the Managed Campaign Termination Date, including without limitation the actual approved costs, expenses, Creator Fees, Subscription Fees, and fees incurred by Heylist on Client’s behalf prior to the Managed Campaign Termination Date.
c. Notwithstanding anything to the contrary contained in this Agreement, Client will not receive any refund or reimbursement of Fees resulting from the termination of a Managed Campaign, Campaign Brief or these Terms of Service by either party, for any reason.
i. In consideration of the Services and access to the Platform to be provided by Heylist, as may be described under Client’s Account or any applicable Campaign Brief or Program Agreement, Client agrees to pay to Heylist the Subscription Fees, the Creator Fees and any other fees as may be provided under Client’s Account or any applicable Campaign Brief or Program Agreement, in accordance with the payment terms described in these Terms of Service, unless otherwise stated in an applicable Campaign Brief or Program Agreement.
ii. The Subscription Fees will be charged in accordance with the time period described under Client’s Account or any applicable Campaign Brief or Program Agreement. For example, for Subscriptions on a Monthly Subscription Term, the Subscription Fees for one month will be charged monthly to the credit card listed under Client’s Account (unless otherwise indicated in the applicable Campaign Brief or Program Agreement) from the date on which the Subscription will begin to be billed as indicated under Client’s Account or any applicable Campaign Brief or Program Agreement. For Subscriptions on an Annual Subscription Term, the Subscription Fees for the 12 months will be charged upfront in full to the credit card listed under Client’s Account (unless otherwise indicated in the applicable Campaign Brief or Program Agreement) from the date on which the Subscription will begin to be billed as indicated under Client’s Account or the applicable Campaign Brief or Program Agreement.
iii. Creator Fees will be charged directly to the credit card listed under Client’s Account (unless otherwise indicated in the applicable Campaign Brief or Program Agreement) after Client consents to a Campaign Brief or enters into a Program Agreement to initiate a Campaign, for a budget determined by Client.
iii. The first payment is due upon activating a Subscription, consenting to a Campaign Brief or entering into a Program Agreement, as applicable. For greater clarity, the designated Success Manager may schedule a call (“Kick-off Call”) within three business days of receipt of payment and no Kick-off Call will occur prior to the full amount of all outstanding fees and charges being received by Heylist. The first invoice is a non-refundable deposit.
v. By activating a Subscription, consenting to a Campaign Brief or entering into a Program Agreement, Client agrees to the Heylist Inc. Terms of Service located at www.heylist.com/termsofservice and the Heylist terms stated in these Terms of Service. Heylist’s Terms of Service are hereby incorporated into and forms part of this and all subsequent Campaign Briefs, Program Agreements or other agreements entered into between Client and Heylist.
Heylist reserves the right to change Subscription Fees or other applicable fees as may be described under Client’s Account or any applicable Campaign Brief or Program Agreement and institute new charges upon reasonable notice to Client.
c. Disputed Invoices or Charges.
If Client believes Heylist has charged or invoiced Client incorrectly, Client must contact Heylist no later than 30 days after having been charged by Heylist or receiving such invoice in which the error or problem first appeared in order to request an adjustment or credit. In the event of a dispute, Client will pay any undisputed amounts in accordance with the payment terms herein, and Client agrees to discuss the disputed amounts with Heylist in good faith in order to resolve the dispute as set out in these Terms of Service.
Client may not withhold or setoff any amounts due under these Terms of Service. Heylist reserves the right to suspend Client’s access to the Platform and any delivery of the Services until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of two percent (2%) compounded monthly (26.82% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
i. The Subscription Fees set out in these Terms of Service do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Client will be responsible for and pay all applicable taxes, duties, tarifs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with these Terms of Service, other than taxes based on the net income or profits of Heylist.
ii. Client is responsible for determining whether any applicable income tax, goods and services tax or other taxes apply to any payments made by Client in connection with a Campaign and to collect, report, and remit the correct tax to the appropriate tax authority. If Client is required to charge or have tax withheld in respect of any fees associated with a Campaign, Client is solely responsible for doing so.
Any permitted suspension of the Platform or Services by Heylist pursuant to the terms of these Terms of Service will not excuse Client from Client’s obligation to make payments under these Terms of Service.
All amounts on the Platform are listed in U.S. dollars. Heylist is not responsible for changes in currency exchange rates or any processing fees charged by Heylist’s or Client’s payment processors.
Client agrees that Client will not take any action to circumvent any payment for the Platform or the Service to Heylist or otherwise avoid Subscription Fees, Creator Fees and any other applicable fees.
Client agrees that, for a period of 12 months after the date Client consents to a Campaign Brief or enters into a Program Agreement with Heylist, as applicable, Client will only use the Platform or Services as Client’s sole and exclusive method to communicate and engage with, or solicit engagements from, Creator(s) that Client has worked with directly or indirectly in respect of such Campaign Brief, such work to include, without limitation, sponsorships, marketing, promotional, or endorsement work.
Client agrees that Client will conduct all communications regarding a Campaign in the Platform provided for the Campaign, or to upload/transcribe all related communications, including written agreements and changes to a Campaign, Campaign Content, emails, telephone calls, and discussions regarding content requirements, through the Platform. This process is required to maintain an electronic record of all required elements of a Campaign.
Client also agrees to keep and maintain accurate and complete records related to a Campaign for at least two years following the completion of the Campaign. Heylist reserves the right to request these records and other relevant documentation, which Client agrees to provide to Heylist within 10 days of Heylist sending the request.
Client is responsible for maintaining copies of any records that Client is legally required to maintain under applicable laws, including record retention obligations under applicable taxation legislation. Heylist does not provide an archiving service. Once Client’s Account is terminated, Heylist may delete all of Client’s Member Content. Heylist only agrees that it will not intentionally delete Client’s Member Content prior to termination of Client’s Account, provided that Client’s Member Content otherwise complies with these Terms of Service. Heylist expressly disclaims all other obligations with respect to the preservation or storage of Client’s Member Content.
The Heylist website located at www.heylist.com contains a directory of Creator profiles. Information in the Creator profiles is provided by the Creator and from third party sources, such as certain social media platforms. Heylist does not verify the information in Creator profiles and does not represent or warrant that the information in these profiles is accurate.
The Platform may offer Client links to other sites on the Internet that are owned and operated by third parties and therefore not affiliated with Heylist. Please understand that such linked websites are independent from Heylist, and Heylist has no control over the content of such websites. Consequently, Heylist cannot be held liable for and makes no warranty or representation whatsoever as to the accuracy, timeliness and/or completeness of the information contained on such websites. Such websites may be governed by terms and conditions different from those applicable to Heylist’s Platform, and Heylist encourages Client to review the terms and privacy policies of those third parties before using their websites.
The links which Heylist might place on the Platform do not imply that Heylist sponsors, endorses or is affiliated or associated with, or has been legally authorized to use any trade-mark, trade name, service mark, design, logo, symbol or other copyrighted materials displayed on or accessible through such sites.
All capitalized terms not defined herein will have the meanings set forth in the Campaign Brief or Program Agreement, as applicable.
These Terms of Service are governed by the laws of the Province of Ontario, Canada and the federal laws of Canada applicable therein without regard to the principles of conflict of laws.
Notices to Client may be made via email or regular mail, or in cases of changes to these Terms of Service or to the Services offered through the Platform, by posting notices or links to such notices, or by posting an updated version of these Terms of Service on the Platform itself.
Heylist reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Platform and Services (or any part thereof) with or without notice. Heylist reserves the right to change these Terms of Service at any time and from time to time. Any new features that may be added to the Platform or Services from time to time will be subject to these Terms of Service, unless stated otherwise. Client is responsible for regularly reviewing these Terms of Service, including, without limitation, by checking the date of “Last Update” at the top of this document. Heylist may also, at Heylist’s option, choose to notify Client of such changes by e-mail or other means. If the modified Terms of Service are not acceptable to Client, Client’s only recourse is to stop using the Platform and Services. Client’s continued access to and use of the Platform or Services will constitute the Effective Date to such updated Terms of Service.
Neither party will have any liability for any failure or delay resulting from any event beyond the reasonable control of that party including, without limitation, fire, flood, storms, insurrection, war, terrorism, earthquake, power failure, civil unrest, explosion, embargo, or strike.
In the event of a conflict between a Campaign Brief or Program Agreement, as applicable, and the terms and conditions in these Terms of Service, the terms and conditions in the applicable Campaign Brief or Program Agreement will govern.
i. EXCEPT WHERE PROHIBITED BY LAW, WHICH MAY INCLUDE THE PROVINCE OF QUÉBEC, any controversy, claim or dispute arising out of, relating to, or in respect of these Terms of Service, including their negotiation, validity, existence, breach, termination, construction or application, or the rights, duties or obligations of any party, or the rights, duties or obligations of any party derived from or associated with these Terms of Service (a “Dispute”), will be handled according to the provisions set out below.
ii. Initial Dispute Resolution. Heylist is available by email to address any concerns Client may have regarding Client’s use of the Platform. Most concerns may be quickly resolved in this manner. If Campaign Content is not posted within the terms of the Campaign or is deemed to not be consistent with Campaign Content agreed to by Client, Client can contact Heylist via email at support@heylist.com to submit a dispute. Heylist reserves the right, in Heylist’s sole discretion, to return any fees paid for the Campaign, less any applicable service fees and taxes, to Client. Client and Heylist will use best efforts to settle any Dispute directly through consultation and good faith negotiations, which will be a precondition to either party initiating a lawsuit or arbitration.
iii. If Client and Heylist do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution is pursued pursuant to the “Initial Dispute Resolution” section above then the Dispute will be referred to and determined by a single arbitrator in a final and binding arbitration administered under the rules of ADR Institute of Canada, Inc.’s Arbitration Rules. If Client and Heylist have not agreed upon the arbitrator within 14 days, Client and Heylist will ask the ADR Institute of Canada, Inc. to appoint a single arbitrator. The seat of the arbitration will be the same as the provincial or territorial law governing these Terms of Service. The arbitration will be heard in the capital of the seat, unless Client and Heylist agree otherwise. The costs and expenses of the arbitrator will be shared equally between Client and Heylist. Client and Heylist have no right of appeal from any award of the Arbitrator, whether characterized as final, interim, interlocutory or partial. All Disputes referred to arbitration (including the scope of these Terms of Service to arbitrate, the law relating to the enforcement of these Terms of Service to arbitrate, any relevant limitation periods, the law governing the procedure of the arbitration, the law relating to available remedies, set-off claims and conflict of laws rules) will be governed by the law of the seat, and Client and Heylist hereby irrevocably consent to venue in the capital of the seat, and to the jurisdiction of competent courts in the capital of the seat for all litigation that may be brought, subject to the requirements for arbitration hereunder, with respect to the terms of, and the transactions and relationships contemplated by, these Terms of Service. Notwithstanding this provision, Client or Heylist may take such steps as are permitted or required to enforce an award made by an arbitrator. The existence of the arbitration and any element of the arbitration, including any award, will be confidential. The deemed undertaking rule will apply. No document or other evidence or information prepared for or produced by or on behalf of Client or Heylist will be disclosed to any non-party to the arbitration. Client agrees that Client will not contest venue, and Client waives any rights that Client may have to initiate, transfer, or change the venue of any litigation arising from or related to these Terms of Service.
iv. Class Action Waiver. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, WHICH MAY INCLUDE THE PROVINCE OF QUEBEC, Client and Heylist further agree that any lawsuit or arbitration will be conducted in their individual capacities only and not as a class action or other representative action, and Client and Heylist expressly waive the right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above will be deemed null and void in its entirety and Client and Heylist will be deemed to have not agreed to arbitrate disputes.
v. Exception — Small Claims Court Claims. Notwithstanding Client and Heylist’s decision to resolve all disputes through arbitration, Client or Heylist may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
Anyone looking to access these Terms of Service in French can contact us directly at support@heylist.com. Quiconque souhaite avoir accès aux modalités en français peut nous contacter directement à support@heylist.com.
Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice:
The name, and address of the provider of the Platform is:
Heylist Inc.
6664 Rue St-Hubert, Montréal, QC H2S 2M3
i. Complaints regarding the Platform or requests to receive further information regarding use of the Platform may be sent to the above address or to support@heylist.com.
ii. The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210. Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.
Heylist may engage third parties to provide the Platform and Services.
No agency, fiduciary, partnership, joint venture, employee/employer, franchisor-franchisee is intended or created by Client’s use of Heylist’s Platform or Services.
These Terms of Service and an executed Program Agreement, as applicable, will represent the entire agreement between Client and Heylist and cannot be overridden by terms contained in any later received document, unless the additional terms are accepted in writing by both Client and Heylist.
If Client has any questions or comments regarding these Terms of Service please contact Heylist at support@heylist.com.
Heylist inc. (“Heylist”) owns and operates the platform and the services. By using the Heylist platform (including the website) or services (such use or acceptance, “effective date”), creator acknowledges that creator has read, accepts and agrees to be bound by and comply with the terms and conditions set out in these terms of service, as amended from time to time in accordance with section 19(d). If creator does not accept and agree to be bound by these terms of service, creator will immediately cease any further use of the heylist platform and services. Creator represents and warrants to heylist that creator has the capacity to enter into these legally binding terms of service. If creator is using the Heylist platform or services on behalf of another person, creator hereby represents and warrants to Heylist that creator has the authority to bind such person to these terms of service.
Heylist provides a proprietary platform (“Platform”) and campaign management services (“Services”) to help social media celebrities, influencers and creators connect and collaborate with brands, advertisers and marketing agencies (“Clients”) to create content for sponsored marketing campaigns (a “Campaign”).
These terms of service (“Terms of Service”) apply to you if you are a Creator that uses the Platform, including Heylist’s website located at www.heylist.com, and Services (“Creator”).
Creator may use the Platform and Services to submit details regarding the fees that Creator may charge to create content (“Creator Fees”), the services Creator provides with respect to collaborations with Clients and details regarding Creator’s social media accounts, location and demographics, in addition to other details required by Heylist.
If a Client is interested in collaborating with Creator on a Campaign, Heylist may ask Creator to participate in the Campaign via the Platform and may deliver a campaign brief outlining Client’s requirements for the Campaign (“Campaign Brief”). In the Campaign Brief, Creator may be informed about the budget, design and creative, target audience and duration of the Campaign.
If Creator agrees to participate in the Campaign, Heylist may provide Client with notice of Creator’s acceptance via the Platform. The details of the Campaign Brief and Creator Fees will be reflected in a collaboration agreement (“Collaboration Agreement”) which must be entered into by Creator and Heylist. Each Campaign will be governed by a Collaboration Agreement, including any Campaign Briefs or other documents referenced therein.
i. Heylist will coordinate the development of the content produced by Creator for a Campaign (“Work Product”).
ii. Client will have an opportunity to review and approve all Work Product, with the first round of revisions included in the Creator Fees and any further rounds of revisions subject to additional fees.
iii. Creator will only post Work Product approved by Client (“Campaign Content”) on social media.
i. Heylist will help to facilitate the launch of each Campaign and the posting of Campaign Content on the specified social media platforms in accordance with Client’s requirements for the applicable Campaign.
ii. Collaboration and communication between Creator and Client related to a Campaign may occur through a designated Heylist account manager (“Success Manager”).
In the event of a conflict between these Terms of Service and the terms and conditions contained in the Collaboration Agreement, the terms and conditions in such Collaboration Agreement will govern.
i. All Campaign Content and posting of Campaign Content on social media will be subject at all times to Heylist’s approval, direction and control and Creator will abide by all reasonable instructions, directions and recommendations given from time to time by Heylist and the Success Manager.
ii. Heylist retains the right to reasonably hold-back and adjust Creator Fees where Creator does not provide the Campaign Content (A) as described in the Collaboration Agreement, or (B) to the reasonable satisfaction of Client.
Subject to Creator’s compliance with the terms and conditions of these Terms of Service (including signing up for an Account and complying with the Member code of conduct set out in Section 5), Heylist will make the Platform available to Creator on the terms and conditions set out in these Terms of Service.
Heylist may, from time to time and in Heylist’s discretion without limiting any of Heylist’s other rights or remedies at law or in equity under these Terms of Service:
i. suspend Creator’s access to or use of the Platform pursuant to Section 4 below; or
ii. make any modifications to the Platform.
Heylist will provide Creator with technical support for the Platform:
i. via email at support@heylist.com, Monday to Friday from 9:00 AM to 5:00 PM EST; and
ii. via Heylist’s knowledge base and documentation available online at https://help.heylist.com.
Heylist will use commercially reasonable efforts to achieve 99% Platform uptime and will use commercially reasonable efforts to provide notice at least 48 hours in advance for scheduled maintenances within normal business hours.
If Creator is an individual, Creator must be: (i) over the age of majority in Creator’s jurisdiction of residence who can form legally binding contracts, and (ii) of an age to legally perform the work in any Campaign including any work associated with a Campaign to register for an Account on the Platform (“Account”) and to be accepted by Heylist as a member (“Member”) of the Platform. Creator is solely responsible for ensuring that the use of the Platform and Services in accordance with these Terms of Service in Creator’s jurisdiction of residence is permitted by law or regulation. If such use is not so permitted by applicable law, Heylist prohibits all use and access to the Platform and Services. If Creator is a corporation, partnership, association or other business entity, Creator agrees that Creator has the authority to bind the corporation, partnership, association or other business entity to these Terms of Service.
Upon registering for an Account, Creator may decide to or be required to integrate Creator’s Account with a third party social media account (e.g., Instagram). In connection with such integration, Creator authorizes Heylist to obtain certain information about Creator from Creator’s social media account, including certain personal information, such as Creator’s name, profile information, profile picture, social media account metrics, number of followers and any information that Creator may make publicly available on or through the social media account (“Social Media Information”). Heylist may include some or all of this Social Media Information in Creator’s Account, and this information may be visible to other Members or visitors to the Platform. Creator agrees to provide current, complete and accurate information and to promptly update all account information to keep Creator’s account current, complete and accurate. Creator may change or update Creator’s account information at any time.
Creator is responsible for maintaining the confidentiality of Creator’s user ID and password and Heylist strongly recommends that Creator does not disclose Creator’s user ID or password to anyone. Creator agrees to notify Heylist if Creator becomes aware of a potential breach of security, such as unauthorized disclosure of Creator’s user ID and password. Creator may not transfer or sell Member’s Account to another party.
Heylist may terminate, suspend, or otherwise restrict or prohibit access to the Platform and Heylist’s Services, remove hosted Member Content including but not limited to Creator’s Account, Campaigns, Work Product and Campaign Content, and take technical and legal steps to prohibit Creator from using the Platform or Heylist’s Services for any reason and without prior notice.
Creator’s Account can only be closed once all obligations (including payment obligations, if applicable) in association with the Account or Campaigns have been satisfied by Creator and Creator has provided written notice to support@heylist.com and received written confirmation from Heylist. See Termination and Suspension for more details.
Creator must use Creator’s Account in a responsible manner and respect Members’ privacy. Creator will not access or use the Platform or the Services to:
i. sub-license, sell, rent, lend, lease or distribute the Platform or any intellectual property rights therein, or otherwise make the Platform available to any third parties;
ii. permit timesharing, service bureau use or commercial exploitation of the Services;
iii. violate any applicable law or intellectual property right;
iv. threaten the security or functionality of the Platform;
v. create, collect, transmit, store, use or process any data: (A) that Creator does not have the lawful right to create, collect, transmit, store, use or process; (B) that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property rights or other rights of any third party (including any moral right, privacy right or right of publicity); or (C) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
vi. attempt to reverse engineer, de-compile or disassemble the Platform;
vii. access or use the Platform for the purpose of building a similar or competitive product or service;
viii. upload, post or otherwise make available any material that contains viruses, malware or other malicious software;
ix. perform any vulnerability, penetration or similar testing of the Platform;
x. promote or engage in any unlawful or illegal activities or internet abuse, including unsolicited advertising and spam;
xi. promote, upload, post, or otherwise make available any material that is abusive, harassing, obscene, vulgar, hateful, sexually explicit, invasive of another’s privacy, defamatory or otherwise objectionable or illegal, or that discriminates based on race, gender, religion, nationality, disability, sexual orientation, age, family status or any other legally protected class;
xii. engage in any activity that may reasonably injure or adversely reflect on the name, goodwill or reputation of Heylist or Client;
xiii. make any false representation, including creation of a false identity, impersonation of any person or entity or misrepresentation of Creator’s affiliation with any person or entity; or
xiv. track, trace, harvest, or otherwise collect or store any information, including personal information, on any Account or any other Member of the Platform, without the express consent of such Member(s).
Heylist allows Creator to interact in and publish information on the Platform (“Member Content”). Member Content includes any and all Work Product or Campaign Content.
i. Creator agrees and understands that any Member Content Creator posts, provides or accepts may be viewed by the general public and will not be treated as private, proprietary or confidential.
ii. Creator is solely responsible for the Member Content that Creator makes available through the Platform and Creator will ensure that: (A) Creator owns or has all necessary rights to use the Member Content; (B) the provision of the Member Content will not infringe or violate any patent, copyright, trade-mark, or other intellectual property right, or any right of privacy or publicity of any third party; and (C) the Member Content does not violate any applicable law or regulation.
iii. While participating in a Campaign, Creator will not promote or endorse any ware, service or brand that directly competes with the ware, service or brand being promoted in the Campaign.
iv. While Creators maintain editorial control over Campaign Content, Creator agrees to adhere to the following professional standards, in addition to the requirements set out under the “Member Conduct” section above, when posting Campaign Content: (A)Campaign Content must not contain material that violates or infringes another’s rights, including but not limited to privacy, publicity or intellectual property rights, or that constitutes copyright infringement, or that is unlawful, in violation of or contrary to any applicable law or regulations; (B) Campaign Content must comply with applicable laws as well as with any applicable and mutually agreed-upon guidelines relating to a Campaign; (C) Campaign Content must not directly or indirectly disparage, defame, or present in a negative light, any party or person affiliated with a Campaign; (D) Campaign Content must not contain material that is inappropriate, indecent, obscene hateful, tortious, defamatory, slanderous or libelous, threatening, indecent, violent, offensive, refers to dangerous, unlawful or illegal acts, promotes a political agenda or contains any criminal or civil liability; (E) Campaign Content must not contain material that promotes bigotry, racism, hatred or harm against any group or individual or promotes discrimination based on race, gender, religion or religious beliefs, nationality, disability, sexual orientation or age; (F)Creator must provide appropriate notice and obtain all necessary consents from any individuals depicted in the photographs submitted as Work Product and Campaign Content for the purposes of reproducing such photographs in connection with the Work Product and Campaign Content, as outlined in these Terms of Service; and (G) Creator will not assign any other person to create Campaign Content or perform Creator’s obligations hereunder.
v. Heylist reserves the right to delete Campaign Content and Member Content that Heylist, at Heylist’s sole discretion, deems to be in violation of the law (including trademark and copyright law), to be in violation of these Terms of Service, or to be abusive, defamatory, obscene or otherwise unacceptable.
vi. Heylist does not guarantee that it will pre-screen Campaign Content or Member Content. Heylist does not guarantee that the Platform will be free from Campaign Content or Member Content that is inaccurate, deceptive, offensive, threatening, defamatory, unlawful or otherwise objectionable. Even in the event that Heylist chooses to monitor any Campaign Content or Member Content, Heylist assumes no responsibility for, or any obligation to monitor or remove such Campaign Content or Member Content. Heylist reserves the right to edit, remove, or refuse to post any Campaign Content or Member Content or terminate Creator’s Account for any reason.
vii. If Creator is required to post Campaign Content to social media channels as part of a Campaign, Creator will not delete any Campaign Content that Creator has posted on a social media channel for at least 30 days from the date that the Campaign Content was posted, subject to the terms and conditions of a Collaboration Agreement, or unless otherwise instructed pursuant to these Terms of Service.
In certain jurisdictions, the law requires Creator to identify when posts are paid for, or other compensation is given, by a Client (which compensation may include payments in cash, free or discounted products, trips, meals, or other incentives), and also when Creator has any other material connection to a Client (for example, a partnership or other interest in Client’s company).
Creator agrees to comply with any and all laws, rules, regulations and other legal requirements with respect to sponsored posts, including, if applicable, 16 CFR Part 255 – Guides Concerning the Use of Endorsements and Testimonials in Advertising and any other applicable laws and requirements published by the Federal Trade Commission, and influencer marketing and competition requirements under the Competition Act and any other applicable Canadian federal or provincial laws. Examples of required disclosures that may be acceptable include #ad, or #sponsored, which must be conspicuously displayed within a post.
The foregoing is provided for informational purposes only, and does not constitute legal advice. It is Creator’s sole and exclusive obligation to consult Creator’s own professional legal advisors, and ensure the compliance of all posts in the applicable jurisdiction(s). The foregoing Creator disclosure obligation is a mandatory and material term of all Collaboration Agreements.
i. The Platform and Services are owned and operated by Heylist Inc. Any and all content, data, graphics, photographs, images, audio, video, software, trademarks, service marks, trade names, logos, trade dress, patents, copyrighted or copyrightable materials and other information (collectively, the “Content”) contained in or made available through the Platform and Services are proprietary to Heylist, its affiliates and/or third party licensors. The Content is protected by international copyright and trademark laws and is the confidential information of Heylist.
ii. Creator may download, print and reproduce the Content for Creator’s own informational purposes related to receipt of the Services during the term of the Terms of Service. Any other use of the Content in whole or in part, including but not limited to adapting, displaying, distributing, publishing, storing in a retrieval system, transmitting, converting, copying or issuing copies, lending or reproducing the Content in any other form or by any other means whatsoever, whether electronic or otherwise, and including making the same available to or via the internet or wireless technology or authorizing any of the foregoing without the prior written consent of Heylist, is strictly prohibited. To obtain written consent for such use, please contact Heylist at support@heylist.com. Creator agrees any use of the Content by Creator authorized by Heylist and the goodwill associated with such use will inure to Heylist’s benefit. Creator agrees and acknowledges that it will not acquire any interest in the Content or the goodwill associated with the Content by virtue of these Terms of Service or Creator’s use of the Content.
All right, title and interest, including without limitation, all intellectual property rights in, and to any Campaign Content, including all photographs, images, videos, audio, works of art, original writing, drawings, derivatives, compositions, creations and inventions developed by Creator will be owned exclusively by Creator, unless otherwise agreed to with Heylist pursuant to a Collaboration Agreement.
i. Notwithstanding the foregoing and subject to having performed its obligations required hereunder (including under any Collaboration Agreement), Creator will grant to Heylist, for sub-licensing to Client, a non-exclusive, royalty-free, fully-paid up, worldwide right to use the Campaign Content for a period of one year following the posting date to the applicable social media channel(s), for the sole purpose of posting the content on social media channels that Client owns or controls and for which Client has not received any compensation or other incentive to post (i.e., an ad) (“Social Rights”). These Social Rights are limited to social media platforms, such as Instagram, Facebook, and Snapchat. Heylist cannot sub-license Social Rights to Client to use Campaign Content for any other purpose. For greater certainty, Client does not have any right to use any Work Product that does not form part of Campaign Content.
ii. In addition to the Social Rights referred to above, Client can request non-exclusive, royalty-free, worldwide rights to use the Campaign Content on other digital marketing channels (“Digital Rights”), broadcasting channels (“Broadcasting Rights”) or non-digital marketing channels (“Offline Rights”), which may be detailed in the respective Collaboration Agreement and purchased from Creator through Heylist. Where a Campaign includes Creator content without Creator posting content to Creator’s social feeds (“Just Content”), Heylist will sub-license to Client the Just Content and Digital Rights for a period of six months following the content approval date in the respective Collaboration Agreement or Platform. Client may request and purchase additional Digital Rights from Creator through Heylist as indicated in the respective Collaboration Agreement.
iii. Upon request, extended licenses to use Campaign Content for other purposes, or an assignment of all of Creator’s rights, title and interest in Campaign Content, can be purchased by Client from Creator through Heylist (collectively, the “Extended Rights”).
iv. Without limiting the generality of anything in these Terms of Service, Creator hereby grants to Heylist and its affiliates, a non-exclusive, royalty-free, worldwide, unrestricted, irrevocable and unlimited right and permission, but not the obligation, to utilize, distribute, publish, exhibit, digitize, broadcast, display, reproduce, prepare derivative works of, and otherwise exploit Campaign Content as it appears when posted, in any and all manner and media throughout the world and in perpetuity for uses deemed by Heylist or its affiliates in their sole discretion to be reasonable and prudent uses for the purpose of furthering its valid business objectives. Creator also hereby waives all moral rights in the Campaign Content. For greater certainty, this includes including the Campaign Content in a portfolio of work to market Heylist’s Platform and Services. Creator understands that any such content may be edited in the sole discretion of Heylist.
v. Creator further grants Heylist an exclusive, royalty-free, fully-paid up, worldwide right to amplify or license any Campaign Content on any platform or service during and, subject to Creator’s consent, after the term of the respective Collaboration Agreement.
Creator hereby grants Heylist a non-exclusive, royalty-free, perpetual, and irrevocable right to use, reproduce, and communicate Creator’s name and trademark, and, if applicable, the name and trademark of Creator’s company or organization, as a Member of Heylist’s Platform or Services in any media whatsoever, including in Heylist’s marketing materials during and after the term of these Terms of Service.
Heylist respects copyright law and the intellectual property rights of others, and Heylist expects Heylist’s Members to do the same. Heylist will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to Heylist. In appropriate circumstances, Heylist will terminate the accounts of Members who are repeated copyright infringers.
i. Heylist reserves the right to remove Member Content alleged to be infringing without prior notice, at Heylist’s sole discretion.
ii. If Creator believes that any of Creator’s Member Content was subsequently removed from the Platform, or to which access was disabled, or was improperly removed or disabled, please provide the following Counter-Notification to Heylist’s Copyright Agent (see 17 U.S.C. Section 512(g) for further detail): (A) Creator’s physical or electronic signature; (B) a description of the materials that have been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (C)a statement, under penalty of perjury, that Creator has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and (D)Creator’s name, address and telephone number, and a statement of Creator’s consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, and that Creator will accept service of process from the person who provided notification of the alleged infringement.
iii. See 17 U.S.C. Section 512(c)(3) for further detail about the Digital Millennium Copyright Act. Heylist’s designated copyright agent for notice of alleged copyright infringement is:
Copyright Agent
Heylist Inc.
6664 Rue St-Hubert, Montréal, QC H2S 2M3
E-mail: support@heylist.com.
Creator understands that information about an identifiable individual or information that is subject to applicable privacy or data protection laws (“Personal Information”), including the Personal Information in Agency Accounts, will be treated in accordance with Heylist’s privacy policy located at https://heylist.com/privacypolicy.
Creator will maintain the confidentiality of all Confidential Information disclosed to Creator. “Confidential Information” shall include, but not be limited to, the terms and conditions of any Collaboration Agreement, business and marketing plans, technology and technical information, product plans and designs, customers, pricing, anything identified as confidential or communicated to the Creator as confidential, business or operational processes disclosed to the Creator, or any of the foregoing that the Creator becomes aware of as a result of participating in a campaign. Creator will take all necessary precautions against unauthorized disclosure of the Confidential Information. Creator will not directly or indirectly disclose, allow access to, transmit or transfer any Confidential Information to any third party without the prior written consent of Heylist. Upon request of Heylist, and in any event upon the termination or expiration of a Campaign, Creator will immediately return to Heylist all materials, including Work Product and Campaign Content containing any Confidential Information which are in Creator’s possession or under Creator’s control.
Creator represents and warrants that:
Creator has the authority and right to enter into the Terms of Service and any Collaboration Agreement and has obtained all rights and waivers necessary to grant the rights, titles and interests granted thereunder; and
Creator will comply with all applicable laws, by-laws, rules, regulations and guidelines, including requirements and standards related to advertising and marketing, competition, consumer protection and privacy.
THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES AND THE EXCLUSION OR LIMITATION OF REPRESENTATIONS MADE CONCERNING HEYLIST’S GOODS OR SERVICES. IF THESE LAWS APPLY TO CREATOR, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO CREATOR AND CREATOR MAY HAVE ADDITIONAL RIGHTS.
CREATOR’S USE OF THE PLATFORM AND THE SERVICES IS ENTIRELY AT CREATOR’S OWN RISK. HEYLIST DOES NOT CONTROL THE CONTENT OF POSTINGS BY ITS MEMBERS. THE PLATFORM, INCLUDING THE CONTENT AND SERVICES PROVIDED HEREIN, IS BEING PROVIDED ON AN “AS IS” AND “WHERE IS” BASIS AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
HEYLIST HAS NO CONTROL OVER AND DOES NOT GUARANTEE THE TRUTH OR ACCURACY OF CAMPAIGN DESCRIPTIONS CONTAINED IN A COLLABORATION AGREEMENT OR THAT CLIENT WILL APPROVE WORK PRODUCT FOR A CAMPAIGN, USE CREATOR’S CAMPAIGN CONTENT IN A CAMPAIGN, OR COMPLETE A CAMPAIGN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEYLIST AND ITS AFFILIATES AND ANY OF THEIR OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY REGARDING THE PLATFORM, THE SERVICES, THE CAMPAIGNS, AND RELATED MATERIALS, INCLUDING ANY WARRANTY AND CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY AND NON-INTERFERENCE OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION. HEYLIST AND ITS AFFILIATES AND ANY OF THEIR OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS DO NOT WARRANT THE ACCURACY, RELIABILITY, COMPLETENESS, USEFULNESS OR QUALITY OF THE PLATFORM, THE SERVICES, OR THE POSTINGS OF ANY MEMBERS, INCLUDING CONTENT POSTED ON OR LINKED FROM THE PLATFORM OR THE SERVICES. HEYLIST AND ITS AFFILIATES AND ANY OF THEIR OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS DO NOT WARRANT THAT THE PLATFORM IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION OR THAT THE PLATFORM AND SERVICES WILL MEET CREATOR’S REQUIREMENTS. CREATOR ASSUMES ALL RISKS ASSOCIATED WITH USING OR RELYING ON THE PLATFORM AND SERVICES, INCLUDING ANY LISTINGS BY MEMBERS.
THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW CERTAIN EXCLUSIONS OR LIMITATIONS OF LIABILITY OR CERTAIN DAMAGES. IF THESE LAWS APPLY TO CREATOR, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO CREATOR, AND CREATOR MIGHT HAVE ADDITIONAL RIGHTS.
TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, THE ENTIRE CUMULATIVE LIABILITY OF HEYLIST AND ITS AFFILIATES, AND ANY OF THEIR OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS, AND CREATOR’S EXCLUSIVE REMEDY, FOR ALL MATTERS OR CLAIMS ARISING FROM OR RELATING TO THE PLATFORM AND THE SERVICES WILL BE LIMITED TO THE FEES PAID TO CREATOR, IF APPLICABLE, FOR THE PLATFORM AND SERVICES IN THE PRECEDING SIX MONTHS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEYLIST AND ITS AFFILIATES AND ANY OF THEIR OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL PUNITIVE, CONSEQUENTIAL DAMAGES, DAMAGES ON ACCOUNT OF LOSS OF PROFITS, OR OTHER DAMAGES ARISING OUT OF OR RELATING TO A COMPLETED OR NON-COMPLETED CAMPAIGN OR OTHER TRANSACTION BETWEEN MEMBERS OR ANY MISREPRESENTATION BY A MEMBER, INCLUDING WITH RESPECT TO A CAMPAIGN OR THE SUBJECT OF ANY TRANSACTION WITH A MEMBER. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY IRRESPECTIVE OF WHETHER THE ALLEGED LIABILITY IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF HEYLIST OR ITS AFFILIATES OR ANY OF THEIR OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Creator agrees to indemnify and hold harmless Heylist, its affiliates, officers, employees, agents, and licensors from and against any and all losses, expenses, damages, claims, fines, penalties, costs and liabilities (including all legal and accounting fees), arising from or relating to (a) Creator’s use of the Platform and Services, including any obligations to pay in association with a Collaboration Agreement or other agreement, (b) any representation or misrepresentation by Creator in any content that Creator (or anyone acting in Creator’s Account or Agency Account which Creator owns) submits, posts, transmits or makes available on the Platform or through the Services, including with respect to information in Creator’s Member profile or Campaign, (c) Creator’s completion or failure to complete a Campaign with another Member, (d) any liability arising from the tax treatment of payments or any portion of such payments, (e) Creator’s dispute of any amounts owing in association with a Collaboration Agreement or other agreement, (f) Creator’s liability arising from violation of any law, including intellectual property laws, (g) any violation by Creator of these Terms of Service, and (h) Creator’s negligence or willful misconduct.
Creator agrees that, at Heylist’s option, Creator will conduct the defense of any such claim or action; provided that, notwithstanding Heylist’s election that Creator conduct the defense, (i) Heylist may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) Creator will not enter into any settlement or other compromise without the prior written approval of Heylist (which approval will not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
No person or entity will be entitled to any form of equitable or implied indemnification at any time, except as provided by these Terms of Service.
The term of these Terms of Service will commence upon the Effective Date and will continue until Creator’s Account is closed either by Creator or by Heylist at Heylist’s sole discretion.
i. Account Closure. To close Creator’s Account, Creator must provide written notice to Heylist by sending an email to support@heylist.com. Accounts will be closed following 30 days’ notice with express written confirmation from Heylist provided that (i) all Campaigns associated with Creator’s Account have been satisfactorily completed; (ii) any disputes in which Creator has been involved have been satisfactorily settled; (iii) any payments owing by Creator have been paid; (iv) there are no outstanding funds associated with the Account; and (v) Creator has completed any other obligation associated with Creator’s use of the Services. Following Creator’s Account closure, Creator will still be bound by all provisions of these Terms of Service.
ii. Once Creator’s Account is terminated, Creator will no longer have access to any information within Creator’s Account.
iii. Termination of Collaboration Agreement. Heylist may terminate the Collaboration Agreement issued hereunder effective immediately upon written notice to Creator (“Termination Date”). In the event of any such termination hereunder, Heylist will pay to Creator all amounts due to Creator for Campaign Content completed up through the Termination Date, including without limitation the actual approved costs, expenses, and fees incurred by Creator on Heylist’s behalf prior to the Termination Date which cannot through Creator’s commercially reasonable efforts (at no expense to Creator) be reduced or cancelled. Creator will pay to Heylist any Creator Fees paid by Heylist to Creator in advance for Work Product or Campaign Content not completed by Creator to Heylist’s satisfaction by the Termination Date.
i. In consideration of the Work Product and Campaign Content described in a Collaboration Agreement, Heylist will pay to Creator the Creator Fees as provided in the Collaboration Agreement in accordance with the payment schedule set out in the Collaboration Agreement. Subject to payment of fees by Clients, Heylist will pay to Creator a mutually agreed proportional amount of the approved Campaign Content that was actually published, posted online, or in any other way made available to the public in accordance with the Collaboration Agreement.
ii. Creator Fees are payable on the 15th or last day of the month (“Payment Days”). Creator Fees are due and payable on the Payment Day that falls 30 days after the date upon which Creator performs the work associated with Creator Fees. For example, if Creator performs the work associated with Creator Fees on August 21, 2020, Creator will be paid on September 30, 2020. Payments to Creator will be made by the method identified by Creator in Creator’s Account. Creator is required to keep payment information accurate and up to date. Creator may request to expedite the payment of Creator Fees due and payable for an expedited fee of the payment amount by contacting providers@heylist.com.
Either Creator or Heylist may request changes to Creator Fees described in the Collaboration Agreement by providing a written request detailing the proposed changes to Creator Fees to the other party. Changes to Creator Fees will only be effective upon the written acceptance of both parties to the proposed changes to Creator Fees.
If Creator believes Heylist has paid Creator incorrectly, Creator must contact Heylist no later than 30 days after having been paid by Heylist or receiving such invoice in which the error or problem first appeared in order to request an adjustment or credit. In the event of a dispute, Creator agrees to discuss the disputed amounts with Heylist in good faith in order to resolve the dispute as set out in these Terms of Service.
i. For Canadian GST/HST registrants, the creator fees paid will be inclusive of 13% HST as Heylist Inc. is registered in the province of Ontario. Creators should include in their quoted prices the 13% sales tax that is payable to the Canada Revenue Agency.
ii. The Creator is responsible for reporting any payments received associated with a Campaign to the appropriate tax authorities. The Creator is solely responsible for any additional income taxes (gross receipts, use, value-added, state sales tax) that may apply to payments received by the Creator from a campaign.
Any permitted suspension of the Services by Heylist pursuant to the terms of these Terms of Service will not excuse Creator from Creator’s obligations under these Terms of Service.
All amounts on the Platform are listed in U.S. dollars. Heylist is not responsible for changes in currency exchange rates or any processing fees charged by Heylist’s or Creator’s payment processors, including PayPal or Creator’s bank.
i. Creator agrees that, for a period of 12 months after the date Creator enters into a Collaboration Agreement with Heylist, Creator will only use the Platform or Services as Creator’s sole and exclusive method to communicate and engage with, or request or accept engagements from, Client(s) that Creator has worked with directly or indirectly in respect of such Collaboration Agreement, such work to include, without limitation, sponsorships, marketing, promotional, or endorsement work.
ii. Creator agrees that Campaign Content will only be amplified or licensed exclusively through Heylist during and after the term of these Terms of Service. For greater clarity, Creator will permit the amplification or creator licensing of any Campaign Content only through Heylist, and not through any other platform or service, during and after the term of these Terms of Service.
Creator agrees that Creator will conduct all communications regarding a Campaign in the Platform provided for the Campaign, or to upload/transcribe all related communications, including written agreements and changes to a Campaign, Campaign Content, emails, telephone calls, and discussions regarding content requirements, through the Platform. This process is required to maintain an electronic record of all required elements of a Campaign.
Creator also agrees to keep and maintain accurate and complete records related to a Campaign for at least two years following the completion of the Campaign. Heylist reserves the right to request these records and other relevant documentation, which Creator agrees to provide to Heylist within 10 days of Heylist sending the request.
Creator is responsible for maintaining copies of any records that Creator is legally required to maintain under applicable laws, including record retention obligations under applicable taxation legislation. Heylist does not provide an archiving service. Once Creator’s Account is terminated, Heylist may delete all of Creator’s Member Content. Heylist only agrees that it will not intentionally delete Creator’s Member Content prior to termination of Creator’s Account, provided that Creator’s Member Content otherwise complies with these Terms of Service. Heylist expressly disclaims all other obligations with respect to the preservation or storage of Creator’s Member Content.
The Heylist website located at www.heylist.com contains a directory of Creator profiles. Information in Creator profiles is provided by Creator and from third party sources, such as certain social media platforms. Heylist does not verify the information in Creator profiles and does not represent or warrant that the information in these profiles is accurate.
a.
The Platform may offer Creator links to other sites on the Internet that are owned and operated by third parties and therefore not affiliated with Heylist. Please understand that such linked websites are independent from Heylist, and Heylist has no control over the content of such websites. Consequently, Heylist cannot be held liable for and makes no warranty or representation whatsoever as to the accuracy, timeliness and/or completeness of the information contained on such websites. Such websites may be governed by terms and conditions different from those applicable to Heylist’s Platform, and Heylist encourages Creator to review the terms and privacy policies of those third parties before using their websites.
b.
The links which Heylist might place on the Platform do not imply that Heylist sponsors, endorses or is affiliated or associated with, or has been legally authorized to use any trade-mark, trade name, service mark, design, logo, symbol or other copyrighted materials displayed on or accessible through such sites.
All capitalized terms not defined herein will have the meanings set forth in the Collaboration Agreement.
These Terms of Service are governed by the laws of the Province of Québec, Canada and the federal laws of Canada applicable therein without regard to the principles of conflict of laws.
Notices to Creator may be made via email or regular mail, or in cases of changes to these Terms of Service or to the Services offered through the Platform, by posting notices or links to such notices, or by posting an updated version of the Terms of Service on the Platform itself.
Heylist reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Platform and Services (or any part thereof) with or without notice. Heylist reserves the right to change these Terms of Service at any time and from time to time. Any new features that may be added to the Platform or Services from time to time will be subject to these Terms of Service, unless stated otherwise. Creator is responsible for regularly reviewing these Terms of Service, including, without limitation, by checking the date of “Last Update” at the top of this document. Heylist may also, at Heylist’s option, choose to notify Creator of such changes by e-mail or other means. If the modified Terms of Service are not acceptable to Creator, Creator’s only recourse is to stop using the Platform and Services. Creator’s continued access to and use of the Platform or Services will constitute the Effective Date to such updated Terms of Service.
Neither party will have any liability for any failure or delay resulting from any event beyond the reasonable control of that party including, without limitation, fire, flood, storms, insurrection, war, terrorism, earthquake, power failure, civil unrest, explosion, embargo, pandemic, or strike.
In the event of a conflict between the Collaboration Agreement and the terms and conditions in the Terms of Service, the terms and conditions in the Collaboration Agreement will govern.
i. The validity, interpretation, construction, and performance of these Terms of Service will be governed by the laws of the province or territory in which Creator resides, without giving effect to its principles of conflict of laws. EXCEPT WHERE PROHIBITED BY LAW, WHICH MAY INCLUDE THE PROVINCE OF QUÉBEC, any controversy, claim or dispute arising out of, relating to, or in respect of these Terms of Service, including their negotiation, validity, existence, breach, termination, construction or application, or the rights, duties or obligations of any party, or the rights, duties or obligations of any party derived from or associated with these Terms of Service (a “Dispute”), will be handled according to the provisions set out below.
ii. Initial Dispute Resolution. Heylist is available by email to address any concerns Creator may have regarding Creator’s use of the Platform. Most concerns may be quickly resolved in this manner. If Campaign Content is not approved within the terms of the Campaign or is deemed to not be consistent with Campaign Content agreed to by Creator, Creator can contact Heylist via email at support@heylist.com to submit a dispute. Heylist reserves the right, in Heylist’s sole discretion, to withhold any Creator Fees paid for the Campaign, less any applicable service fees and taxes, to Creator. Creator and Heylist will use best efforts to settle any Dispute directly through consultation and good faith negotiations, which will be a precondition to either party initiating a lawsuit or arbitration.
iii. If Creator and Heylist do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution is pursued pursuant to the “Initial Dispute Resolution” section above then the Dispute will be referred to and determined by a single arbitrator in a final and binding arbitration administered under the rules of ADR Institute of Canada, Inc.’s Arbitration Rules. If Creator and Heylist have not agreed upon the arbitrator within 14 days, Creator and Heylist will ask the ADR Institute of Canada, Inc. to appoint a single arbitrator. The seat of the arbitration will be the same as the provincial or territorial law governing these Terms of Service. The arbitration will be heard in the capital of the seat, unless Creator and Heylist agree otherwise. The costs and expenses of the arbitrator will be shared equally between Creator and Heylist. Creator and Heylist have no right of appeal from any award of the Arbitrator, whether characterized as final, interim, interlocutory or partial. All Disputes referred to arbitration (including the scope of these Terms of Service to arbitrate, the law relating to the enforcement of these Terms of Service to arbitrate, any relevant limitation periods, the law governing the procedure of the arbitration, the law relating to available remedies, set-off claims and conflict of laws rules) will be governed by the law of the seat, and Creator and Heylist hereby irrevocably consent to venue in the capital of the seat, and to the jurisdiction of competent courts in the capital of the seat for all litigation that may be brought, subject to the requirements for arbitration hereunder, with respect to the terms of, and the transactions and relationships contemplated by, these Terms of Service. Notwithstanding this provision, Creator or Heylist may take such steps as are permitted or required to enforce an award made by an arbitrator. The existence of the arbitration and any element of the arbitration, including any award, will be confidential. The deemed undertaking rule will apply. No document or other evidence or information prepared for or produced by or on behalf of Creator or Heylist will be disclosed to any non-party to the arbitration. Creator agrees that Creator will not contest venue, and Creator waives any rights that Creator may have to initiate, transfer, or change the venue of any litigation arising from or related to these Terms of Service.
iv. Class Action Waiver. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, WHICH MAY INCLUDE THE PROVINCE OF QUEBEC, Creator and Heylist further agree that any lawsuit or arbitration will be conducted in their individual capacities only and not as a class action or other representative action, and Creator and Heylist expressly waive the right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above will be deemed null and void in its entirety and Creator and Heylist will be deemed to have not agreed to arbitrate disputes.
v. Exception — Small Claims Court Claims. Notwithstanding Creator and Heylist’s decision to resolve all disputes through arbitration, Creator or Heylist may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
It is the express wish of Creator and Heylist that these Terms of Service be drafted in English. Les Creator et Heylist aux présentes ont expressément demandé que ces modalites d’utilisation du Site Web soient rédigés en anglais.
Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice:
The name, and address of the provider of the Platform is:
Heylist Inc.
6664 Rue St-Hubert, Montréal, QC H2S 2M3
i. Complaints regarding the Platform or requests to receive further information regarding use of the Platform may be sent to the above address or to support@heylist.com.
ii. The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210. Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.
Heylist may engage third parties to provide the Platform and Services.
No agency, fiduciary, partnership, joint venture, employee/employer, franchisor-franchisee is intended or created by Creator’s use of Heylist’s Platform or Services.
These Terms of Service and an executed Collaboration Agreement will represent the entire agreement between Creator and Heylist and cannot be overridden by terms contained in any later received document, unless the additional terms are accepted in writing by both Creator and Heylist.
If Creator has any questions or comments regarding these Terms of Service please contact Heylist at support@heylist.com.
