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Terms of Service - Brand

Last Updated on: 24/02/2022

NICOYA OWNS AND OPERATES THE PLATFORM AND THE SERVICES. BY USING THE NICOYA PLATFORM (INCLUDING THE WEBSITE AND APPLICATION) OR SERVICES (SUCH USE OR ACCEPTANCE, “EFFECTIVE DATE”), MARKETER ACKNOWLEDGES THAT MARKETER 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 MARKETER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, MARKETER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE NICOYA PLATFORM AND SERVICES. MARKETER REPRESENTS AND WARRANTS TO NICOYA THAT MARKETER HAS THE CAPACITY TO ENTER INTO THESE LEGALLY BINDING TERMS OF SERVICE. IF MARKETER IS USING THE NICOYA PLATFORM OR SERVICES ON BEHALF OF ANOTHER PERSON, MARKETER HEREBY REPRESENTS AND WARRANTS TO NICOYA THAT MARKETER HAS THE AUTHORITY TO BIND SUCH PERSON TO THESE TERMS OF SERVICE.

WHEREAS:

Nicoya is a platform where Content Creators and Marketers shall come together to connect by paying a specific fee.
“Content Creator’s” are any individuals, representatives of individuals including agencies that use the NICOYA Platform including NICOYA’s website located at www.nicoya.in, and the services mentioned below.
“Marketers” are any brand owners, advertisers, marketing agency, or its representatives agencies that use the NICOYA Platform including NICOYA’s website located at www.nicoya.in, and the services mentioned below.

GENERAL
1. NICOYA provides a proprietary platform (“Platform”) and campaign management services (“Services”) to help Content Creators connect and collaborate with Marketers to create content for sponsored marketing campaigns (“Campaign”);
2. These terms of service (“Terms of Service”) apply to you if you are a Marketer. If you are a Creator, these terms do not apply to you and you should review our terms of service for Creators at the following link: Terms of Service - Creators
3. Notice. Notices to Marketer 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.
4. Changes to Terms of Service. NICOYA 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. NICOYA 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. Marketer 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. NICOYA may also, at NICOYA’s option, choose to notify Marketer of such changes by e-mail or other means. If the modified Terms of Service are not acceptable to Marketer, Marketer’s only recourse is to stop using the Platform and Services. Marketer’s continued access to and use of the Platform or Services will constitute the Effective Date to such updated Terms of Service.
5. Language. It is the express wish of Marketer and NICOYA that these Terms of Service be drafted in English.
6. Subcontracting. NICOYA may engage third parties to provide the Platform and Services.
7. Relationship with NICOYA. No agency, fiduciary, partnership, joint venture, employee/employer, franchisor-franchisee is intended or created by Marketer’s use of NICOYA’s Platform or Services.
8. Entire Agreement. These Terms of Service will represent the entire agreement between Marketer and NICOYA and cannot be overridden by terms contained in any later received document, unless the additional terms are accepted in writing by both Marketer and NICOYA.
9. The Services may contain links to third party websites that are not owned or controlled by the Company. The Company has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites. In addition, the Company will not and cannot censor or edit the content of any third-party site. By using the Services, you expressly relieve the Company from any and all liability arising from your use of any third-party website. Accordingly, the Company encourages you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each other website that you visit.

SERVICES – PROVISION OF SELF-SERVE CAMPAIGNS
1. Marketer 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, Marketer 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 NICOYA’s subscription pricing page located at Pricing
2. To initiate a Self-Serve Campaign, Marketer is required to create and publish a campaign via the campaign creation 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 Marketer pays fees, including Creator fees (“Creator Fees”). During the Self-Serve Campaign creation process, Creators interested in participating in the said campaign shall approach the Marketer with intention to collaborate with a “Bid” outlining the Creator Fees and deliverables associated with the fees. Marketers must consent to the terms of the Campaign Brief and any related quotes before proceeding with the initiation of a Self-Serve Campaign.
3. A Subscription may be required as a condition for the provision of Self-Serve Campaigns.
4. All Self-Serve Campaigns are governed by a Campaign Brief, as applicable, and any other documents referenced therein
5. Different Subscription Tiers outline the Marketers access to using the features of the Platform. Subscription Tiers can be changed and or cancelled at any time by sending a written request at hello@nicoya.in. The change/ cancellation is only made official upon written confirmation from NICOYA.
6. Terms of the Campaign Content Creation Process

THE PLATFORM
1. Access to the Platform. Subject to Marketer’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), NICOYA will make the Platform available to Marketer on the terms and conditions set out in these Terms of Service.
2. Suspension of Access; Modifications. NICOYA may, from time to time and at NICOYA’s discretion without limiting any of NICOYA’s other rights or remedies at law or in equity under these Terms of Service:
  1. suspend Marketer’s access to or use of the Platform pursuant to Section 6 below; or
  2. make any modifications to the Platform.
3. Technical Support. NICOYA will provide Marketer with technical support for the Platform:
  1. via email at hello@nicoya.in, Monday to Friday from 9:00 AM to 6:00 PM IST;
4. Service Levels. NICOYA 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 maintenance within normal business hours.
5. Linking. The Platform may offer Marketer links to other sites on the Internet that are owned and operated by third parties and therefore not affiliated with NICOYA. Please understand that such linked websites are independent from NICOYA, and NICOYA has no control over the content of such websites. Consequently, NICOYA 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 NICOYA’s Platform, and NICOYA encourages Marketer to review the terms and privacy policies of those third parties before using their websites.
6. The links which NICOYA might place on the Platform do not imply that NICOYA 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.

ACCOUNTS
1. Eligibility. If Marketer is an individual, Marketer must be over the age of majority in Marketer’s jurisdiction of residence who can form legally binding contracts to register for an account on the Platform (“Account”) and to be accepted by NICOYA as a member (“Member”) of the Platform. Marketer is solely responsible for ensuring that the use of the Platform and Services in accordance with these Terms of Service in Marketer’s jurisdiction of residence is permitted by law or regulation. If such use is not so permitted by applicable law, NICOYA prohibits all use and access to the Platform and Services. If Marketer is a corporation, partnership, association or other business entity, Marketer agrees that Marketer has the authority to bind the corporation, partnership, association or other business entity to these Terms of Service.
2. Account Information. Marketer agrees to provide current, complete and accurate information and to promptly update all account information to keep Marketer’s Account current, complete and accurate. Marketer may change or update Marketer’s Account information at any time.
3. Agency Accounts. Marketer has the option to create an agency account (“Agency Account”) and add other Members to Marketer’s Account (“Agency Account Members”) authorized by Marketer to act on Marketer’s behalf. The Agency Account may grant Agency Account Members certain administrative privileges. Marketer is responsible for ensuring that all use of the Platform and Services by Agency Account Members complies with these Terms of Service, and Marketer is liable for all actions of Agency Account Members in the Agency Account. NICOYA 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 NICOYA’s Services. Any disputes regarding these payments are between the Agency Account and its Agency Account Members.
4. Account Conﬁdentiality. Marketer is responsible for maintaining the confidentiality of Marketer’s user ID and password and NICOYA strongly recommends that Marketer does not disclose Marketer’s user ID or password to anyone. Marketer agrees to notify NICOYA if Marketer becomes aware of a potential breach of security, such as unauthorized disclosure of Marketer’s user ID and password. Marketer may not transfer or sell Member’s Account to another party.
5. Account Termination by NICOYA. NICOYA may terminate, suspend, or otherwise restrict or prohibit access to the Platform and Services, remove hosted Member Content including but not limited to Marketer’s Account, Campaigns, Work Product and Campaign Content, and take technical and legal steps to prohibit Marketer from using the Platform or NICOYA’s Services for any reason and without prior notice.
6. Account Closure by Member. Marketer’s Account can only be closed once all obligations (including payment obligations) in association with the Account or Campaigns have been satisfied by Marketer and Marketer has provided written notice to hello@nicoya.in and received written confirmation from NICOYA. See Termination and Suspension for more details.

MEMBER CONDUCT AND MEMBER CONTENT
1. Member Conduct. Marketer must use Marketer’s Account in a responsible manner and respect Members’ privacy. Marketer will not access or use the Platform or Services to:
  1. 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;
  2. permit timesharing, service bureau use or commercial exploitation of the Services;
  3. violate any applicable law or intellectual property right;
  4. threaten the security or functionality of the Platform;
  5. create, collect, transmit, store, use or process any data:
  6. attempt to reverse engineer, decompile or disassemble the Platform;
  7. access or use the Platform for the purpose of building a similar or competitive product or service;
  8. upload, post or otherwise make available any material that contains viruses, malware or other malicious software;
  9. perform any vulnerability, penetration or similar testing of the Platform;
  10. promote or engage in any unlawful or illegal activities or internet abuse, including unsolicited advertising and spam;
  11. 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;
  12. make any false representation, including creation of a false identity, impersonation of any person or entity or misrepresentation of Marketer’s affiliation with any person or entity; or
  13. 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).
2. Member Content. NICOYA allows Marketers to interact in and publish information on the Platform (“Member Content”). Member Content includes any and all Work Product or Campaign Content.
  1. Marketer agrees and understands that any Member Content that Marketer provides or accepts may be viewed by the general public and will not be treated as private, proprietary or confidential.
  2. ii. Marketer is solely responsible for the Member Content that Marketer makes available through the Platform and Marketer will ensure that (A) Marketer 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 or publicity of any third party; and (C) the Member Content does not violate any applicable law or regulation.
  3. While Creators maintain editorial control over Campaign Content, Marketer 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:
    1. 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;
    2. Campaign Content must comply with applicable laws as well as with any applicable and mutually agreed-upon guidelines relating to a Campaign;
    3. Campaign Content must not disparage any party or person affiliated with a Campaign;
    4. Campaign Content must not contain material that is inappropriate, indecent, obscene hateful, tortious, defamatory, slanderous or libellous, threatening, indecent, violent, offensive, refers to dangerous, unlawful or illegal acts, promotes a political agenda or contains any criminal or civil liability; and
    5. 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.
  4. NICOYA reserves the right to delete Campaign Content and Member Content that NICOYA, at NICOYA’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.
  5. NICOYA does not guarantee that it will pre-screen Campaign Content or Member Content. NICOYA 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 NICOYA chooses to monitor any Campaign Content or Member Content, NICOYA assumes no responsibility for, or any obligation to monitor or remove, such Campaign Content or Member Content. NICOYA reserves the right to edit, remove, or refuse to post any Campaign Content or Member Content or terminate Marketer’s Account for any reason.

GOVERNING LAW
Terms of Service are governed by the laws of the Indian Constitution and the laws of India applicable therein without regard to the principles of conflict of laws.
1. Marketer agrees to comply with any and all laws, rules, regulations and other legal requirements with respect to sponsored posts, including, if applicable, ASCI Code and Guidelines for Influencer Marketing on Digital Media and any other applicable laws and requirements published by Advertising Standards Council of India (ASCI). Examples of required disclosures that may be acceptable include #ad, #NICOYA, #paidpromotion, #advertisement or #sponsored, which must be conspicuously displayed within a post.
2. The foregoing is provided for informational purposes only and does not constitute legal advice. It is Marketer’s sole and exclusive obligation to consult Marketer’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.
3. To the extent a Marketer submits Personal Information (as defined in Section 10) to NICOYA for processing, such Personal Information will be processed on behalf of Marketer. NICOYA 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 Marketer. Except as necessary to provide the Platform and perform the Services, required by applicable laws or approved and/or directed by Marketer, NICOYA will not disclose, sell or use such Personal Information outside of NICOYA’s business relationship with Marketer.

GRANT OF RIGHTS AND OWNERSHIP
1. License to Materials Used to Create Campaign Content. Marketer hereby grants a non-exclusive, fully-paid up, royalty-free, perpetual, sublicensable worldwide license and irrevocable right for NICOYA to create, and to collaborate and permit Creator to create, Campaign Content using any intellectual property described in a Campaign Brief entered into by Marketer.
2. Ownership of Campaign 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 NICOYA pursuant to a Campaign Brief.
3. Limited Rights Granted to Marketer. Not-withstanding the foregoing and subject to having received from Marketer all payments required hereunder (including under any Campaign Brief), NICOYA 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 Marketer owns or controls (“Social Rights”). These Social Rights are limited to social media platforms, such as Instagram, Facebook, YouTube and Twitter. Marketer does not have any right to use Campaign Content for any other purpose. For greater certainty, Marketer 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, Marketer can request non-exclusive, royalty-free, worldwide rights to use the Campaign Content on other digital marketing channels (“Digital Rights”) or non-digital marketing channels (“Offline Rights”), which are detailed in the respective Campaign Brief and purchased from the Creator(s) through NICOYA. Where a Campaign includes Creator content without the Creator(s) posting content to their social feeds (“Just Content”), Marketer will have the Just Content and Digital Rights for a period of six months following the approval date in the respective Campaign Brief, or Platform. Marketer may request and purchase additional Digital Rights from the Creator(s) through NICOYA as indicated in the respective Campaign Brief, 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 NICOYA (collectively, the “Extended Rights”).
4. Rights Granted to NICOYA. Marketer hereby grants NICOYA a non-exclusive, royalty-free, perpetual, and irrevocable right to use, reproduce, and communicate the name and trademark of Marketer’s company or organization (“Marks”) as a Member of NICOYA’s Platform or Services in any media whatsoever, including in NICOYA’s marketing materials during and after the term of these Terms of Service. NICOYA agrees that it will not acquire any interest in the Marks and the goodwill associated with NICOYA’s use of the Marks will insure to Marketer’s benefit.
5. Copyright Policy (Indian Members). NICOYA respects copyright law and the intellectual property rights of others, and NICOYA expects NICOYA’s Members to do the same. NICOYA will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to NICOYA. In appropriate circumstances, NICOYA will terminate the accounts of Members who are repeated copyright infringers.

PRIVACY
Marketer 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 NICOYA’s privacy policy located at Privacy Policy

CONFIDENTIALITY
1. Marketer and NICOYA 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, 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.
2. Marketer and NICOYA 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. Marketer and NICOYA 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.
3. Not-withstanding Section 9(b), Marketer or NICOYA 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 Marketer or NICOYA’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 Marketer or NICOYA’s business, or (iii) to potential assignees, acquirers or successors of Marketer or NICOYA 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 Marketer or NICOYA.

WARRANTIES

Marketer represents and warrants that:
1. Marketer has the authority and right to enter into these Terms of Service and any Campaign Brief and has obtained all rights and waivers necessary to grant the rights, titles and interests granted thereunder; and
2. Marketer 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.

INDEMNITIES
1. NICOYA Indemnity. NICOYA agrees to indemnify and hold harmless Marketer, its affiliates, officers, employees, and agents (each, a “Marketer 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 Marketer Indemnitee) that arise from or relate to any allegation that NICOYA’s Platform or Services infringe any third-party intellectual property right in India. The foregoing obligation does not apply to any Action or losses arising out of or relating to any: (i) incorporation of NICOYA’s Platform or Services into, or any combination, operation, or use of NICOYA’s Platform or Services with, any products or services not provided or authorized by NICOYA, unless such infringement would also have resulted solely from the use of NICOYA’s Platform or Services without their incorporation in, or combination, operation or use, with such other products or services, (ii) modification of NICOYA’s Platform or Services other than by NICOYA or with NICOYA’s express written approval, or (iii) unauthorized use of NICOYA’s Platform or Services.
2. Marketer Indemnity.
  1. Marketer agrees to indemnify and hold harmless NICOYA, 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) Marketer’s use of the Platform and Services, including any obligations to pay in association with a Subscription, Campaign Brief, or other agreement, (ii) any representation or misrepresentation by Marketer in any content that Marketer (or anyone acting in Marketer’s Account or Agency Account which Marketer owns) submits, posts, transmits or makes available on the Platform or through the Services, including with respect to information in Marketer’s Member profile or Campaign, (iii) Marketer’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) Marketer’s dispute of or failure to pay any amounts owing in association with a Subscription, Campaign Brief, or other agreement, (vi) Marketer’s liability arising from violation of any law, including intellectual property laws, and (vii) any violation by Marketer of these Terms of Service.
  2. Marketer agrees that, at NICOYA’s option, Marketer will conduct the defence of any such claim or action; provided that, notwithstanding NICOYA’s election that Marketer conduct the defence, (i) NICOYA may nevertheless participate in such defence or settlement negotiations and pay its own costs associated therewith, and (ii) Marketer will not enter into any settlement or other compromise without the prior written approval of NICOYA (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.
3. Equitable or Implied Indemnification. 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.

TERM AND TERMINATION
1. Account Term. The term of these Terms of Service will commence upon the Effective Date and will continue until Marketer’s Account is closed either by Marketer or by NICOYA at NICOYA’s sole discretion.
2. Subscription Term. 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:
  1. Subscription Terms: The Subscription Term will commence on the date Marketer activates a Subscription through the Platform and will remain in effect on a month-to-month basis (“Monthly”), 12 months (“Annual”), or as described under Marketer’s Account.
3. Subscription Renewal and Conversion.
  1. At any time prior to the end of the Subscription Term, Marketer may choose to convert the Subscription to an annual 12-month term, with annual discount pricing offered by NICOYA at its sole discretion, effective the following month.
  2. At the end of the Subscription Term, Marketer may choose to have the Subscription:
    1. automatically renew on a month-to-month basis at the same Subscription Fee described under Marketer’s Account requiring the Subscription as a condition for the provision of the Services, as applicable.
4. Changes to Subscription Tiers. Marketer or NICOYA may change Marketer’s current Subscription Tier, as may be offered through NICOYA’s pricing page located at Pricing, as follows:
  1. Changes to Subscription for Self-Serve Campaigns.
    1. Upgrades to Subscription Tier for Self-Serve Campaigns. Marketer may change Marketer’s current Subscription Tier to a higher tier at any time upon written notice to NICOYA.
    2. Downgrades to Subscription Tier for Self-Serve Campaigns. Marketer may change Marketer’s current Subscription Tier to a lower tier upon 14 days’ written notice to NICOYA, provided that: there are no active Campaigns under Marketer’s Account or under any applicable Campaign Brief.
5. Termination.

REMUNERATION
1. Fees.
  1. In consideration of the Services and access to the Platform to be provided by NICOYA, as may be described under Marketer’s Account or any applicable Campaign Brief, Marketer agrees to pay to NICOYA the Subscription Fees, the Creator Fees and any other fees as may be provided under Marketer’s Account in accordance with the payment terms described in these Terms of Service.
  2. The Subscription Fees will be charged in accordance with the time period described under Marketer’s Account .
  3. Creator Fees will be charged directly to the card listed under Marketer’s Account immediately after Marketer formally agrees to collaboration terms with a creator aggregated via the Nicoya portal. The fees is held by Nicoya and is transferred to the Creator’s Registered Account only after 7 days of completed delivery.
  4. By activating a Subscription the Marketer agrees to the NICOYA Terms of Service located at Pricing and the NICOYA terms stated in these Terms of Service. NICOYA’s Terms of Service are hereby incorporated into and forms part of this and all subsequent Campaign Briefs, or other agreements entered into between Marketer and NICOYA.
2. Changes to the Fees. NICOYA reserves the right to change Subscription Fees or other applicable fees as may be described under Marketer’s Account and institute new charges upon reasonable notice to Marketer.
3. Disputed Invoices or Charges. If Marketer believes NICOYA has charged or invoiced Marketer incorrectly, Marketer must contact NICOYA no later than 30 days after having been charged by NICOYA 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, Marketer will pay any undisputed amounts in accordance with the payment terms herein, and Marketer agrees to discuss the disputed amounts with NICOYA in good faith in order to resolve the dispute as set out in these Terms of Service.
4. Late Payment. Marketer may not withhold or set off any amounts due under these Terms of Service. NICOYA reserves the right to suspend Marketer’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.
5. Taxes.
  1. 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. Marketer will be responsible for and pay all applicable taxes, duties, tariffs, 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 NICOYA.
  2. Marketer is responsible for determining whether any applicable income tax, goods and services tax or other taxes apply to any payments made by Marketer in connection with a Campaign and to collect, report, and remit the correct tax to the appropriate tax authority. If Marketer is required to charge or have tax withheld in respect of any fees associated with a Campaign, Marketer is solely responsible for doing so.
6. Suspension. Any permitted suspension of the Platform or Services by NICOYA pursuant to the terms of these Terms of Service will not excuse Marketer from Marketer’s obligation to make payments under these Terms of Service.
7. Currency and Processing Fees. All amounts on the Platform are listed in Indian Rupees. NICOYA is not responsible for changes in currency exchange rates or any processing fees charged by NICOYA’s or Marketer’s payment processors.
8. Fee Avoidance. Marketer agrees that Marketer will not take any action to circumvent any payment for the Platform or the Service to NICOYA or otherwise avoid Subscription Fees, Creator Fees and any other applicable fees.
9. Exclusivity Period. Marketer agrees that, for a period of 12 months after the date Marketer officially launches a Self-Serve Campaign with NICOYA, as applicable, Marketer will only use the Platform or Services as Marketer’s sole and exclusive method to communicate and engage with, or solicit engagements from, Creator(s) that Marketer has worked with directly or indirectly in respect of such campaign, such work to include, without limitation, sponsorships, marketing, promotional, or endorsement work.

COMMUNICATION AND RECORDS
1. Marketer agrees that Marketer 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.
2. Marketer 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. NICOYA reserves the right to request these records and other relevant documentation, which Marketer agrees to provide to NICOYA within 10 days of NICOYA sending the request.
3. Marketer is responsible for maintaining copies of any records that Marketer is legally required to maintain under applicable laws, including record retention obligations under applicable taxation legislation. NICOYA does not provide an archiving service. Once Marketer’s Account is terminated, NICOYA may delete all of Marketer’s Member Content. NICOYA only agrees that it will not intentionally delete Marketer’s Member Content prior to termination of Marketer’s Account, provided that Marketer’s Member Content otherwise complies with these Terms of Service. NICOYA expressly disclaims all other obligations with respect to the preservation or storage of Marketer’s Member Content.
Third Party Content. The NICOYA website located at www.nicoya.in 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. NICOYA does not verify the information in Creator profiles and does not represent or warrant that the information in these profiles is accurate.
FORCE MAJEURE
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.

CONFLICT AND DISPUTE

In the event of a conflict between a Campaign Brief, as applicable, and the terms and conditions in these Terms of Service, the terms and conditions in the applicable Campaign Brief will govern.
1. Disputes.
  1. EXCEPT WHERE PROHIBITED BY LAW, 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.
  2. Initial Dispute Resolution. NICOYA is available by email to address any concerns Marketer may have regarding Marketer’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 Marketer, Marketer can contact NICOYA via email at hello@nicoya.in to submit a dispute. NICOYA reserves the right, in NICOYA’s sole discretion, to return any fees paid for the Campaign, less any applicable service fees and taxes, to Marketer. Marketer and NICOYA 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.
  3. If Marketer and NICOYA 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 Institutes of India’s Arbitration Rules. If Marketer and NICOYA have not agreed upon the arbitrator within 14 days, Marketer and NICOYA will ask the ADR Institute of India 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 Marketer and NICOYA agree otherwise. The costs and expenses of the arbitrator will be shared equally between Marketer and NICOYA. Marketer and NICOYA 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 Marketer and NICOYA 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, Marketer or NICOYA 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 Marketer or NICOYA will be disclosed to any non-party to the arbitration. Marketer agrees that Marketer will not contest venue, and Marketer waives any rights that Marketer may have to initiate, transfer, or change the venue of any litigation arising from or related to these Terms of Service.
  4. Class Action Waiver. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, Marketer and NICOYA 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 Marketer and NICOYA 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 Marketer and NICOYA will be deemed to have not agreed to arbitrate disputes.
  5. Exception — Small Claims Court Claims. Notwithstanding Marketer and NICOYA’s decision to resolve all disputes through arbitration, Marketer or NICOYA may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
  If Marketer has any questions or comments regarding these Terms of Service, please contact NICOYA at hello@nicoya.in.

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