Influencer Terms and Conditions

These Influencer terms of service (“Influencer Terms”) are between SORTING HAT TECHNOLOGIES PRIVATE LIMITED (also referred to as “UA,” “we,” “us” or “our”) and you or the entity you represent (“Influencer” or “you” or “your”). Your use of, and access to, the UA service and associated software and App as may be made available to you (“Platform”) shall be conditioned upon your compliance with and acceptance of these terms, in addition to the terms and conditions and policies as may be made available on the Platform (“Platform Terms”).

UA and Influencer shall individually be referred to as a “Party” and collectively as “Parties” for the purposes of these Influencer Terms.

UA is engaged in running, managing and operating the Platform and Influencer desires to provide services to UA by creating Content that can be uploaded on the Platform for the benefit of the Learners of the Platform.

Please read these Influencer Terms carefully and thoroughly, along with the Platform Terms as they will govern the relationship between the Parties. By registering, browsing, meeting KYC requirements and / or such other criteria as communicated by UA within the prescribed timelines (“Criteria”) and by executing a SOW (defined below), you agree to be bound by these Influencer Terms and all terms, and incorporated policies, Platform Terms (collectively the “Influencer Agreement”). 

1. DEFINITIONS

Capitalized terms used herein and not defined shall have the meaning given to them in the Platform Terms.

“Affiliate” shall mean with respect to a Party, an entity that directly or indirectly, through one or more intermediaries, is ‘controlled’ by such Party.

"Confidential Information" shall mean and include (i) these Influencer Terms; (ii) the Content (iii) UA IP; (iv) any communication / correspondence between UA and the Influencer including any data exchanged in such communication / correspondence and any other information which is typically ‘confidential’ in nature disclosed by UA to the Influencer in the course of enabling access or creating Influencer Profile on the Platform.
Confidential Information shall not include information that is:

• already known to or otherwise in the possession of a Party at the time of receipt from the other Party and that was not known or received as a result of a violation of any obligation of confidentiality;

• publicly available or otherwise in the public domain prior to disclosure by a Party;

• rightfully obtained by a Party from any third party having a right to disclose such information without restriction and without breach of any confidentiality obligation by such third party;or

• developed by a Party independent of any disclosure hereunder, as evidenced by written records. The onus of proving that information is not Confidential Information shall lie on the Party receiving the Confidential Information.

“Content” shall mean any and all content created, developed and / or licensed (either directly or indirectly through Representatives) and, thereafter, provided by Influencer under these UA Terms to be hosted on the Platform or distributed to the Learners.

"Control" means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.

“Disclosing Party” shall mean the Party disclosing any information.

“Intermediary” shall mean ‘intermediary’ as defined under the Information Technology Act, 2000 read with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, as amended from time to time, or other similar laws in jurisdictions other than India.

“Learner(s)” shall mean the user(s) who may visit, register, enrol or purchase any subscriptions available on the Platform.

“License Period” shall mean the license period of the Content as agreed through SOW.

“Receiving Party” shall mean the Party receiving any information.

“Representative” in relation to the Influencer shall be deemed to include its employees, third party contractors and its educators / teachers (irrespective of the nature of contract / arrangement between the Influencer and such person).

“SOW” shall mean the statement of work mutually agreed and executed by the Parties from time to time detailing the deliverables of the Influencer along with the commercial terms for such deliverables and commercially agreed mutual obligations of Parties with respect to the the relationship between the Parties.

“UA IP” shall mean all information and materials (in whatever form or media) provided to the Influencer by or on behalf of UA including but not limited to the Platform, UA Software and UA Content (as defined in the Platform Terms).

“UA Software” shall mean any software, underlying source and object code, instructions embedded in any form of digital documents, owned by, or licensed to UA and installed or delivered by UA on software or hardware equipment used by Influencer including but not limited to computers, diskettes, CDs and/or other media available to Influencer and all data, information, or material residing on UA’s computer servers or cloud.

B. INFLUENCER AGREEMENT AND STATEMENT OF WORK

These Influencer Terms shall govern the principal terms and conditions of the relationship between the Parties while the commercials of the activities stipulated for providing Content and rendering of services by the Influencer shall be agreed and executed through individual SOWs.

The SOWs may be executed periodically, and the terms and conditions of an SOW shall be binding on the Parties.

In the event of conflict or inconsistency of terms or conditions between an SOW, the Influencer Terms, and/or the Platform Terms, then the terms or conditions shall prevail in the following order of precedence: (i) SOW; (ii) Influencer Terms, and (iii) Platform Terms, unless expressly specified otherwise.

C. RIGHTS AND OBLIGATIONS OF THE PARTIES

The Influencer agrees to create, develop and license the Content to UA in accordance with the delivery schedule specified in the SOW. The manner of delivery of Content shall also be outlined in the SOW.

The Influencer agrees that in the event the Content provided by the Influencer deviates from the quality guidelines laid down by UA (which may be as specified in the SOW), the Influencer agrees to rework or modify the Content or create fresh Content for the Platform at no additional cost.

In the event, the Influencer is uploading Content onto the Platform, the Influencer is required to create an Influencer Profile on the Platform through which the Influencer shall upload Content on the Platform. The Company shall enable creation of such profile for the Influencer on the Platform.

The Influencer, if applicable and approved by UA, shall be responsible towards hiring its own Representatives who will create or assist in the creation of the Content. The Influencer agrees that it shall, at all times, be solely responsible for all statutory compliance, taxes, filings and payments under applicable laws with regard to its Representatives.

The Influencer agrees that the breach of the terms and conditions in these Influencer Terms, SOW and / or of the Platform (as applicable to Influencers) by a Representative of the Influencer will be dealt with in a manner as agreeable to UA and always ensuring the interests of UA (including economic and reputational) are not prejudiced in any manner.

UA shall provide technical assistance for the use of the Platform. Whilst UA shall use its best efforts to ensure that the Platform operates without any disruptions, it does not make any commitment, warranty, or guarantee that the Platform will operate in a timely, uninterrupted, or error-free manner. UA shall endeavour to ensure that any technical issues, bugs or other product issues shall be addressed in a timely and efficient manner. UA may also, at its discretion, modify the features, availability, operation and/or look and feel of the Platform from time to time.

Influencer further agrees that UA shall have the right to determine the time, place, method and manner of advertising, promotion and other exploitation of the Content. 

The Influencer shall not disclose its association with UA or the contents of the Influencer Agreement in any form or manner on any forum.

D. PAYMENT TERMS

All payments on the Platform shall be collected by UA.

It is agreed that all payments made by UA to the Influencer shall be in the manner as agreed in the SOW.

The Parties agree and confirm that the consideration structure and timelines agreed upon in the relevant SOW are sufficient for the performance of Parties’ respective obligations under these Influencer Terms.

All consideration shall be inclusive of Goods and Services Tax (“GST”) as may be applicable unless specified otherwise in the SOW.  Any payments made by UA to Influencer shall be subject to deduction of Tax Deducted at Source and other deductions as may be applicable as per applicable laws or as agreed in the SOW and that each Party shall be responsible for its own individual taxation obligations under applicable laws.

E. LICENSES

The Influencer agrees and confirms that UA shall have the exclusive right and license to use, and to sub-license to others to use, reproduce, modify, distribute, market, publish, make derivative works of, publicly perform and display, and otherwise exploit for a period as set out in the relevant SOW(s) (“License Period”), the following: (a) Influencer’s name, image, voice, likeness and biographical material for advertising, promotion, and other exploitation of Influencer and; (b) the Content and the other rights granted hereunder. As regards (b), the Influencer shall grant a sole and exclusive, irrevocable, unrestricted, sub-licensable, worldwide license to any Content delivered and such license shall be valid for the License Period.

F. CONDITIONS ON CONDUCT

Influencer understands and confirms that the Influencer shall not, and shall ensure that none of its employees or Representatives shall, at any time make any statement (written or oral on any medium), post or publish any Content, comments or act in any way which will amount to harassment or disparagement of UA, its employees or representatives, any other ‘user’ (as defined from time to time in terms and conditions on Platform), a Learner, an institute or any other Influencer. If UA becomes aware of any such instance, then UA in its sole discretion shall have the right inter alia to take down any such Content.

Influencer agrees, understands and confirms that it or its Representatives shall not make any statement or comments nor shall any of the Content contain any material that hurts religious sentiments, are political in nature, is against or discriminatory or defamatory towards any individual, caste, religion or sex or engage in any activity that is of similar nature or has similar effect. If UA becomes aware of any such instance, then UA in its sole discretion shall have the right inter alia to take down any such Content.

The Influencer undertakes that it/they or their Representatives will not at any time, do any act which might prejudice the goodwill and / or reputation of UA (and its Affiliates).

The Influencer agrees not to interact with any media, press or with any social media platforms, discussion sites or websites in relation to the Influencer Agreement or in respect of UA or the Platform without the prior written consent of UA.

G. CONDITIONS ON CONTENT

The Influencer represents, warrants and covenants that the Content on the Platform will not contain third party copyrighted material or material that is subject to other third-party proprietary rights, unless the Influencer has permission from the rightful owner of such Content to use and disseminate such Content or is otherwise legally entitled to post the Content and to grant UA all of the license and sub-license rights granted herein.

Furthermore, Influencer confirms that the Content shall not: (a) be false, inaccurate or misleading; (b) infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (c) violate any law, statute, ordinance or regulation; (d) be defamatory, unlawfully threatening or unlawfully harassing; (e) be obscene or contain pornography; or (f) contain any viruses, trojan horses, worms, cancelbots or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (d) is free from any prevailing, threatened or anticipated dispute, action, suit or controversy that may restrict the usage, or exploitation of the Content by UA at any time during the subsistence of this Agreement and or thereafter.

In the event that the Content is removed from the Platform at the discretion of UA prior to the expiry of the License Period, the Influencer understands and unconditionally agrees to:

• the retention of the Content in UA’s archives to the extent required by UA’s data backup systems or as required by applicable laws; and/or

• the Content being made available to Learners in electronic formats for the License Period without any restrictions and commercial exploitation by UA of the same.

The Influencer shall be solely responsible for the Content provided on the Platform. UA is only an Intermediary and shall not at any point of time be required to check the quality or veracity of the Content that is provided by the Influencer.

J. NON-SOLICITATION

The Influencer covenants with UA that during the Term and 3 (three) months thereafter, the Influencer shall not either directly or indirectly solicit, induce, recruit, interview, attempt to hire or encourage any individuals to leave UA’s (or any of its Affiliates’) employment or employ, terminate any agreement, association or relation for any reason, or interfere in any other manner with the relationship of such individual with UA, at the time existing between the UA (or any of its Affiliates/subsidiaries) and its current or prospective educators/employees.

K. CONFIDENTIALITY

All Confidential Information provided by Disclosing Party to the Receiving Party under the terms of the Influencer Terms and / or the SOW shall be subjected to the highest standard of confidentiality and will only be used for performance of the obligations under the terms of the Influencer Agreement and that that the Disclosing Party shall remain the exclusive owner of its Confidential Information and of the IP contained therein. Receiving Party acknowledges and agrees that all Confidential Information constitutes valuable, special and unique assets of the business of the Disclosing Party. Accordingly, the Receiving Party agrees that, in the event of any breach of the confidentiality obligations under the Influencer Agreement, in addition to any other remedies at law or in equity, the Disclosing Party shall be entitled to equitable relief, including injunctive relief and specific performance. The Receiving Party shall:

• use the Confidential Information of the Disclosing Party only for purposes of complying with its obligations under the Influencer Agreement and, without limiting the generality of the foregoing, shall not, directly or indirectly, deal with, use, exploit or disclose such Confidential Information or any part thereof to any person or entity or for any purpose whatsoever (or in any manner which would benefit any competitor of the Disclosing Party) except as expressly permitted hereunder or unless and until expressly authorized in writing to do so by the Disclosing Party;

• use reasonable efforts to treat, and to cause all its Affiliates to treat, as strictly confidential all Confidential Information. In no event shall such efforts be less than the degree of care and discretion as the Receiving Party exercises in protecting its own valuable confidential information;

• not copy or reproduce in any manner whatsoever the Confidential Information of the Disclosing Party or any part thereof without the prior written consent of the Disclosing Party, except where required for its own internal use in accordance with the Influencer Agreement; and

• promptly upon the request of the Disclosing Party, return and confirm in writing the return of all originals, copies, reproductions, and summaries of Confidential Information or, at the option of the Disclosing Party, destroy and confirm in writing the destruction of the Confidential Information.

L. REPRESENTATION AND WARRANTIES

Each Party hereby represents and warrants to the other that:

• It has the requisite capacity, power, and authority to enter into and perform their obligations under the Influencer Agreement;

• The execution, delivery and performance of their obligations under the Influencer Agreement will not result in a breach of any order, judgment or decree of any court or Applicable Law or regulation of any government or governmental agency to which such Party is bound, and which is material in the context of the transactions contemplated by the Influencer Agreement;

UA has entered into the Influencer Agreement in reliance on the representations and warranties made hereunder by the Influencer; and

There shall be no presumption of knowledge imputed to UA and UA shall be entitled to completely rely on the representations and warranties made by the Influencer.

The Influencer hereby further represents and warrants to UA with respect to the Content that it:

• does not invade any individual's right of privacy or publicity;

• shall be original, error-free, accurate and based on qualitative research and analysis;

• shall not be misleading, defaming, and deceptive or contain any matter which the Influencer does not have authority, power, and right to use or exploit thereunder;

• does not contain material that is unlawful, obscene, defamatory, pornographic, indecent, lewd, harassing, threatening, harmful, abusive, inflammatory or otherwise objectionable;

• is disseminated without utilizing faulty hardware or software containing malicious code, or any such components or any other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, data, or personal information of both the users and UA;

• has not heretofore been uploaded in any other external media in audio, video or text format; that the Influencer is the owner of all the rights pertaining to Influencer Content, licensed to UA, and that said rights are not subject to any agreement, lien, or other claim or rights which may interfere with the ownership and/or utilization of the rights herein granted;

• does not violate the intellectual property of any third party; and

• is free from any prevailing, threatened or anticipated dispute, action, suit or controversy that may restrict the usage, or exploitation of Content by UA or its Learners or ‘users’ at any time during the subsistence of the Influencer Agreement or the License Period.

M. INDEMNITY

The Influencer shall indemnify, defend and hold harmless UA, its officers, employees, agents, licensees, Learners, subscribers and educators and users against any and all damages, claims, losses, demands, actions, causes of action, suits, litigation, costs and expenses (including, without limitation, reasonable attorneys' and consultants' fees), asserted against, suffered or incurred and arising out of, resulting from or relating to:

• any breach of any representation, warranty, obligation, covenant, undertaking or agreement of / by the Influencer;

• any liabilities due to negligence or wilful misconduct by the Influencer;

• violation of any applicable laws by the Influencer;

• the Content.

N. TERM, TERMINATION AND EFFECT OF TERMINATION

Every time there is an SOW being executed between the Parties, these Influencer Terms will become applicable and shall remain in force until the expiry of the term of the SOW (“Term”).

Termination:

UA shall have the right to terminate the Influencer Agreement immediately at any point during the Term for any reason whatsoever.

The Influencer shall have the right to terminate in the event UA fails to make the payments to the Influencer in the manner and within the timelines set out in the SOW.

Consequences of Termination

Termination of these Influencer Terms will result in the automatic termination of all the SOWs as well. Provided that, such termination shall not discharge the Influencer from its obligation to complete all its Content deliverables, in order to ensure that the Learners are not prejudiced in any manner whatsoever.

Depending on the severity of the issue and at its discretion, UA may choose not to terminate the Influencer Agreement for the breaches attributable to the Influencer and may instead impose damages as given below or waive off the requirement of damages with warning(s).

The Influencer shall pay the damages, as applicable, set out below, within 15 (fifteen) days of termination of the Influencer Agreement.

The Influencer shall return all assets, material, data or equipment provided by UA to the Influencer / its Representative in relation to the Influencer Agreement and/or for the purpose of fulfilling the obligations under the Influencer Agreement, including but not limited to pen tabs, mobile phones, documents, marketing material and any other electronic or non-electronic equipment or data (“UA Assets”).

All pending payments, as payable, on the basis of the SOW, shall be paid to the Influencer in the manner set out in such SOW. However, payments shall only be made for all legitimate work that is not the subject matter of any violation or dispute and payments shall not be made for the work that is the subject matter of any breach by the Influencer.

Effect of Termination

Termination of the Influencer Agreement shall be without prejudice to all the rights and remedies under Applicable Law available to the Parties, including the right to seek, as an alternative to termination, specific performance of obligations under the Influencer Agreement. 

The expiry or termination of the Influencer Agreement shall not relieve any Party of any accrued rights prior to the date of expiry or termination.

In the event that a warning has been issued by UA where it chooses not to terminate, any subsequent breach by the Influencer shall be treated as a fresh one entitling UA to exercise any or all of its rights under the Influencer Agreement.

P. LIMITATION OF LIABILITY AND NO WARRANTIES

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL UA, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, LOSSES OR EXPENSES OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES IN THE SERVICES RENDERED THROUGH THE PLATFORM (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PLATFORM, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE PLATFORM BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY USER CONTENT OR ANY OTHER CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT UA IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

WE UNDERSTAND THAT, IN SOME JURISDICTIONS, WARRANTIES, DISCLAIMERS AND CONDITIONS MAY APPLY THAT CANNOT BE LEGALLY EXCLUDED, IF THAT IS TRUE IN YOUR JURISDICTION, THEN TO THE EXTENT PERMITTED BY LAW, UA LIMITS ITS LIABILITY FOR ANY CLAIMS UNDER THOSE WARRANTIES OR CONDITIONS TO SUPPLYING YOU THE SERVICES THROUGH THE PLATFORM AGAIN.

YOU SPECIFICALLY ACKNOWLEDGE THAT UA SHALL NOT BE LIABLE FOR CONTENT OR DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

YOU UNDERSTAND AND AGREE THAT THE PLATFORM IS PROVIDED "AS IS" AND UA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. UA MAKES NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE PLATFORM OR THAT THE SERVICES RNEDERED NY THE PLATFORM WILL MEET ANY USER'S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE PLATFORM IS AT YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PLATFORM IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE PLATFORM. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE PLATFORM REMAINS WITH YOU. UA CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE PLATFORM. USE IS AT YOUR OWN RISK.

Q. GOVERNING LAW AND DISPUTE RESOLUTION

Any dispute or claim arising from or relating to these Influencer Terms or the SOW is subject to the governing law, disclaimer of warranties and limitation of liability, any binding arbitration, and all other terms as mentioned in the Platform Terms.

R. ADDITIONAL TERMS

Entire Agreement: These Influencer Terms (along with SOWs) constitute the entire agreement between the Parties and supersedes all prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof.

Amendment & Waiver: UA reserves the right to make changes to these Influencer Terms at any time by posting the revised terms. To the maximum extent permitted by law, your continued use of the Platform or continuing with the relationship with UA following any changes will constitute your acceptance of such changes.

Notice: All notices and other communications given or made pursuant to the Influencer Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the Party to be notified, or (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day, or (c) 5 days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) 1 day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the address and emails mentioned in the SOW or as exchanged between the Parties.

Severability: If any term or condition of these Influencer Terms are deemed invalid, void, or for any reason unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining term or condition.

Waiver: Our failure to insist upon or enforce your strict compliance with these Service Terms will not constitute a waiver of any of our rights.

Intellectual Property: All the Intellectual Property rights and ownership in UA IP shall at all times be solely and sly with UA and in the Content shall be with the Influencer (except to the limited extent of the license granted to UA).

Assignment: UA may assign its rights and obligations in the Influencer Agreement to any third-party (including an Affiliate) at its sole discretion. The Influencer Agreement and all rights and obligations hereunder shall not be assigned by the Influencer at any point in time without the prior consent of the UA.

Communications: UA may send you promotions or otherwise communicate with you electronically, which may include e-mail, push notification, and you hereby consent to receive those communications. These communications will be in accordance with the UA Privacy Policy.

No Agency: The relationship between Parties shall be on principal-to-principal basis, and nothing in the Influencer Agreement makes either Party the agent or legal representative of the other Party for any purpose.

Influencer Terms – Version 1, 8^th September 2023