Effective as of June 2023
These Terms set out the main terms and conditions regulating the provision of the Service by Modash and use of the Service by the Creator, as well as the terms of the Reseller Service. Hence, please read the Terms thoroughly as by signing-up for our Service you acknowledge having read, understood and agreed to be legally bound by the Terms.
In these Terms the following expressions shall have the meaning given to them in this Section 1, the words used in the Terms in the singular shall also mean the plural and vice versa.
Account – an account created upon sign-up for the Service for the Creator for using of the Service.
Brand – a customer of Modash who has signed-up for the Reseller Service.
Creator or you – an influencer, agency, creator being a legal or natural person, who registers as a user of the Services through the Platform.
Creator data – information uploaded to or obtained via the use of the Services or otherwise made available by the Creator.
Modash or us – Estonian private limited company Modash OÜ (Estonian commercial registry code: 14434162, address: Telliskivi 60a B-building, Tallinn, Estonia, VAT number: EE102111318).
Party – Modash or the Creator;
Personal Data – any information which directly or indirectly, separately or in combination with other available information enables identification of a natural person, such as name, e-mail address, IP address, personal identification code, photo, description, phone number etc;
Platform – the influencer/creator marketing web platform found at creator.modash.io and its subdomains, including iOS/Android apps, APIs and other possible hardware and Software components forming the technical solution of the Service together with existing documentation, upgrades, and other connected components as made available to the Creator.
Reseller Service – the service as agreed between the Brand and Modash and by accepting of these Terms agreed to by the Creator according to which Modash purchases and pays for the personal services from different independent influencers, creators or agencies like you (such as pictures, videos and/or other services (the Creator Services)) on the terms as agreed upon in advance between the Brand and respective creator and further resells such Creator Services to the Brand.
Service – Modash’s software as a service (SaaS), enabling the Creator via the Platform to participate in the Reseller Service.
Software – the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Service.
Terms – these terms of service and any other policies or terms referenced within or posted throughout the Service on the Platform.
Third-Party Services – services, applications, products, software, networks, systems, websites, databases and information from third parties linked to our Service, or which the Creator itself may connect to or enable together with our Services.
2.1. The Terms set forth herein apply regardless of the environment in which the Service is being used and the geographic location of the use and regardless of the Service packages as may be available from time to time.
2.3. Modash reserves the right, at its sole discretion, to change, modify, add, or remove portions of the Terms at any time by posting such updates via the Platform. Please check these Terms periodically for any updates. Creator´s continued use of the Services after amendments to the Terms have been posted as provided above will constitute your approval of the amendments. The amended Terms will become automatically effective upon the earlier of (i) your continued use of the Services, or (ii) 30 days from posting of the amended Terms through the Platform.
2.4. The Terms between the Parties are entered into for an indefinite term and can be terminated in accordance with Section 2.3 above and Section 10 below.
3.1. To sign up for the Service, the Creator shall register an Account, following the instructions provided on the Platform.
3.2. By sign-up the Creator represents and warrants that (i) all information provided for account registration is accurate, complete, and current and shall be kept as such at all times, (ii) the Creator, its beneficial owners or representatives are not subject to any international sanctions of whatsoever nature. The natural person representing legal person Creator confirms that: (i) the Creator has the legal capacity, in particular is duly registered in a trade or commercial register or other similar register, (ii) the representative is entitled to act on behalf of the Creator and accept the Terms.
3.3. Modash has the right, but not the obligation, before activating of the Account or any time during the validity of the Terms, to check the background of the Creator and information about it from public databases and/or respective service providers and has the right to refuse to activate Account for the Creator or close these if Modash has reasonable doubts about the reliability of the Creator or its representative.
3.4. The Creator shall ensure that each of its users acknowledges the obligations and restrictions under these Terms and agrees to comply with the same. The Creator shall immediately notify Modash if it becomes aware of any breach of the Terms by any of its users. The Creator shall be responsible for all access to and use of the Service by its users.
3.5. The Creator shall be fully responsible for the activity that occurs under its Account, and for the security of the log-in credentials associated with the account.
3.6. Modash has the right to enter the Creator’s Account without prior consent of the Creator to provide support, troubleshoot errors, perform maintenance and development work and perform other similar operations.
3.7. The Creator shall immediately notify Modash in case you suspect that any of your accounts with us has been accessed or used without your permission or you have lost the ability to control it for any other reason.
3.8. Modash has the right to suspend the use of Creator´s Accounts or block access to these temporarily in order to protect your and our rights for the duration of the investigation of the activities referred to in Section 3.7.
3.9. Modash also the right to restrict the use of the Creator´s Account if this is required for the prevention of offences, for the purposes of customer support, performance of our contractual obligations or requirements arising from law, compliance with a court ruling or an administrative act of a law enforcement authority or another supervisory or state authority.
4.1. The Service includes copyright, software source code, algorithms, technically useful models and design patterns, trademarks, domain name and business name, trade secrets and know-how, and other assets and benefits commonly regarded as intellectual property, whether registered or not, which are and remain the exclusive property of Modash.
4.2. Modash grants to the Creator a limited, non-exclusive, non-transferable, and non-sublicensable license to use the Service and the Software provided via the Platform or other means, as the case may be, only in such manner as necessary for using of the Service for its intended purpose by the Creator (and only by the Creator) and only during the time of the validity of the Terms.
4.3. The Creator shall not use any device or software to interfere or attempt to interfere with the proper functioning of the Service; copy, modify, reproduce or create derivative works from, or decompile, reverse engineer or otherwise attempt to derive source code from the software that is being used to provide the Service.
4.4. Modash may, in its sole discretion, disable, close, or restrict access to the Service to any Creator that has infringed the intellectual property rights of Modash or any third persons.
4.5. If the Creator provides feedback to Modash regarding the Services, all such feedback will be the sole and exclusive property of Modash. The Creator hereby irrevocably transfers and assigns to Modash and agrees to irrevocably assign and transfer to Modash all of Creator's right, title, and interest in and to all feedback including all intellectual property rights (IPR) therein. To the extent it is impossible under applicable laws to transfer specific IPR (e.g. the moral rights of the author), the Creator hereby grants to Modash, to the maximum extent possible under law, an exclusive, transferable, fully paid-up, world-wide, and unlimited right (license) to use (including by means of sublicensing), exploit and exercise such IPR for the whole period of their validity. The Creator will not earn or acquire any rights or licenses in the Service or in any Modash IPR on account of the Terms or Creator's performance hereunder, even if Modash incorporates any feedback into the Service.
4.6. The Creator acknowledges and approves that Modash may in an aggregated format use the Creator Data for Modash ´s marketing and internal analysis with the aim to improve the quality of and develop the Service by adding functionality, new features, etc.
4.7. The Creator grants Modash the right to store, back up and process the Creator Data in any way necessary to ensure the operation of Platform and availability of the Service.
4.8. Modash may use Creator's name and logo in Modash marketing and sales materials.
5.1. Modash shall make the Service available to the Creator in accordance with these Terms and shall take economically reasonable efforts to maximise the uptime of the Service, with an objective of the availability of the Service of 24/7, except for any unavailability caused by circumstances beyond Modash’s control.
5.2. Modash has the right to make updates to the Service and to the Platform at any time of its choice without prior notice to the Creator.
6.1. The Reseller Service and the purchases of Creator Services by Modash will be initiated via the Platform by the Brand by creation of a purchase object. The purchase object includes information on the Creator, Creator Service (deliverable, price, etc) and the original agreement between the Brand and the Creator as further detailed in respective form on the Platform.
6.2. After creation of the purchase object by the Brand, Modash will create and send a unique invite link to the Creator. Receiving the link by the Creator will be deemed as the authorization of the Brand to the Creator to sell the relevant Creator Services to Modash and as the acceptance to be bound by the terms of the Reseller Service hereof.
6.3. After receiving the above-referred link the Creator shall provide valid bank account information via the Platform to Modash matching the bank information on the invoice and will create and issue an invoice by uploading a valid invoice document to the Platform, by doing this the Creator represents and warrants that all the information inserted is true and correct. Issuing of the invoice by the Creator will be deemed as an agreement to sell the relevant Creator Services to Modash.
6.4. Once the Creator has issued the invoice, Modash will check and compare the information about the purchase object inserted by the Brand and the information of the invoice inserted by the Creator, Modash will have access to all such information via the Platform.
6.5. Modash will approve the Creator Service transaction if the information referred to in Section 6.4 from the Brand and the Creator is 100% matching and will pay the invoice to the Creator.
6.6. If the information referred to in Section 6.4 from the Brand and the Creator is not matching, Modash will consult with the Brand and the Creator regarding the non-matching information and ask the parties to update the information inserted via the Platform (either changing the information on the purchase object or the invoice or both).
6.7. Once Modash has approved the transaction and executed the payment to the Creator, the transaction cannot be cancelled or modified and no chargebacks will be available to the Brand.
6.8. The Creator acknowledges and agrees that the payments by Modash may be suspended due to AML and/or sanction checks by the payment service providers or due to insufficient or incorrect invoicing data provided by you or other reasons not attributable to Modash. In such a case, Modash will make the payment as soon as commercially reasonable after you have eliminated the reason for the suspension and you will not be able to claim for any late payment penalty or damages whatsoever.
6.9. The Creator shall pay all its bank expenses, including those for potential FX (foreign exchange market) fluctuations if your receiving currency differs from the payout currency. Payments shall always be made in the currency indicated on the invoice.
6.10. The Brand will receive all rights to the Creator Services as agreed in the contract between the Brand and the Creator from the moment of approval of the transaction unless otherwise agreed between the Brand and the Creator.
6.11. The Parties agree that the Creator Services will be directly delivered by the Creator to the Brand and the purchase of the Creator Services from the Creator will not grant Modash any ownership or intellectual property rights (incl license to use) to the Creator Services and these will belong solely to the Brand as agreed in the agreement between the Brand and the Creator.
6.12. The Parties agree that an agreement mirroring the terms of the Service as provided in this Section 6 will be concluded between Modash and the Brands using the Reseller Service.
6.13. The Creator acknowledges and agrees that under no circumstances will Modash be or become liable for the quality or quantity of the Creator Services or any actions or omissions of the Creator, including infringement of any third-party intellectual property rights by the Creator. The Creator agrees to defend, indemnify and hold harmless Modash and its respective representatives, employees, business partners and agents, from and against any and all third party claims, damages, obligations, losses, liabilities, costs or debt, and expenses arising from: (i) Creator´s breach of any of its obligations and/or representations and warranties under these Terms, (ii), Creator´s use of third party products or content in performing the Services or the Creator Services; and (iv) Creator negligence or willful misconduct.
6.14. Creator´s relationship with Modash is that of an independent service provider, and nothing in these Terms is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. You hereby acknowledge that you are obliged to fully comply with all tax obligations that arise to you from the applicable laws in relation to providing the Creator Services, including (i) paying income tax, social security tax, or any other tax applicable; and (ii) fulfilling all employee and tax registration obligations for calculations in regard to accounting and transfers to applicable State authorities as required by the applicable law. In case the Tax authority will submit a valid application to us to provide information regarding the activities of you, we may make available to the Tax authority the information regarding the activities of you to the extent set forth in valid legal acts. Additionally, it is your obligation to adhere to all applicable tax regulations that may apply in connection with the provision of Creator Services. You hereby agree to hold Modash harmless from and against any tax liability (income, VAT, or other taxes) that may be required by your jurisdiction associated with fees for the Creator Services and these will not be subject to any withholding by Modash, and to compensate Modash all state fees, claims, payments, fines or other tax obligations that Modash will incur in connection with the obligations arising from applicable tax regulations not having been met by you (including paying the income tax and social tax).
8.1. The Parties shall keep the information received from the other Party and generated in the course performance of the Terms and via the Service confidential (the Confidential Information). However, the Parties are allowed to disclose the Confidential Information to their representatives, employees and advisors for whom it is necessary to have access to the Confidential Information in relation to performance of the Terms or use of the Service.
8.2. Notwithstanding provisions of Section 8.1 above, the Confidential Information excludes the information that:
8.2.1. was verifiably in possession or knowledge of the receiving Party - without existence of any breach of confidentiality undertakings or obligations hereof;
8.2.2. was verifiably in the public domain before it was disclosed hereunder without direct or indirect breach of this confidentiality obligation hereof, other contractual obligation or legal provision;
8.2.3. subsequently comes into the public domain, except through direct or indirect breach of obligations in this confidentiality obligation by the recipient;
8.2.4. was disclosed to the recipient by a third party through means other than a breach of this confidentiality obligation or any other confidentiality obligation;
8.2.5. was disclosed to a professional
8.2.6. that was independently developed by the recipient, without utilization of Confidential Information; or
8.2.7. the disclosure of which is required by mandatory law, regulation, stock exchange rule or a competent authority or court.
8.3. The obligation of confidentiality is valid during validity of these Terms and for 3 years thereafter.
9.1. The Service and the Platform is provided by Modash on an “as is” and “as available” basis, without any express or implied warranties.
9.2. In particular, Modash does not represent or warrant that: (i) the Creator’s use of the Service/Platform will meet the Creator’s requirements; (ii) the Service/Platform is compatible with any and all hardware and software used by the Creator, (iii) the Creator’s use of the Service/Platform will be uninterrupted, timely, available at any particular time or location, (iv) the Service/Platform is secure and error free, free of viruses, disruptions, protected from hacking and other security-compromising intrusions; and (v) that defects in the operation or functionality of any solutions provided to the Creator as part of the Service will be corrected.
9.3. Insofar as not prohibited under applicable laws, Modash, shall not be liable to the Creator for: (i) any indirect or consequential losses which may be incurred to the Creator, including any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, or any loss of data suffered by the Creator; (ii) any loss or damage which may be incurred to the Creator as a result of: (a) any changes which Modash may make to the Service/Platform, or for any permanent or temporary cessation in the provision of the Service (or any features within the Service); (b) the deletion of, corruption of, or failure to store, any content and other information maintained or transmitted by or through the use of the Service/Platform; (c) the Creator’s failure to provide Modash with accurate account information; (d) the Creator’s failure to keep its account credentials secure and confidential.
9.4. The Creator agrees that access and use of Third-Party Services shall be governed solely by the terms and conditions applicable such Third-Party Services. Modash will not be liable for any aspect of such Third-Party Services, including their content or Creator Data processing practices or any interaction between Creator and the provider of the Third-Party Services, regardless of whether or not such Third-Party Service is linked to the Service by Modash. Therefore, the Creator irrevocably waives any claim against Modash with respect to such Third-Party Services.
9.5. In any case, Modash shall be liable for the breach of these Terms only if caused intentionally by or due to gross negligence of Modash and only for direct proprietary damage. The liability of Modash to the Creator shall not exceed the amount of EUR 10,000. The foregoing limitation will apply whether the liability arises from the Terms or tort and regardless of the theory of liability.
10.1. Modash has the right to terminate the Terms by cancelling access to the Service and Creator´s user accounts unilaterally and without prior notification, if the Creator has violated the Terms and has not eliminated the violation within 5 business days as of the receipt of a respective notice from Modash (delivered via the Platform or via the e-mail notified by the Creator to Modash).
10.2. Modash has the right to terminate the Terms and cancel access to the Service regardless of the reason by giving 30 days advance notice to the Creator and the Brand(s) with whom the Parties have valid Reseller Service (delivered via the Platform).
10.3. The Creator has the right to terminate the Terms and cancel the use of the Service regardless of the reason at any time by giving 30 days advance notice to Modash and the Brand(s) with whom the Parties have valid Reseller Service (delivered via the Platform or via the e-mail notified by Modash to the Creator).
10.4. Notwithstanding provisions of Section 10.3 above, the Creator may not terminate the Terms before all pending Reseller Service transactions have been duly completed in accordance with these Terms.
10.5. The Creator acknowledges and agrees that it shall make and keep copies regarding the information inserted/uploaded to the Platform (including but not limited to the invoicing data and Reseller Service transactions data). In case of termination of the Terms, the Creator has the right to request copy/extract of the Creator data created during the use of the Service but only if and as available. Modash has the right to charge a fee for the performance of such request. The extent and fee of the request shall be agreed between the Parties.
11.1. These Terms shall be governed and construed in accordance with the laws of Estonia, without regard to its conflict of law provision.
11.2. The Parties shall make reasonable efforts to resolve the disputes arising from the Terms by way of amicable negotiations. Upon failure to do so, the dispute shall be subject to the exclusive jurisdiction of Harju County Court as the court of first instance.
12.1. In case of any questions about the Terms, please contact Modash by sending an email to email@example.com.