Takumi Creator T&Cs
Thank you for downloading the App (as defined below). This document sets forth the terms and conditions that apply to your use of the App and the Documents (as defined below).
The key feature of the App is that it allows you to receive payment from certain brands (Brand Owners) or their agencies (Brand Agency) for participating in the Brand Owner's advertising campaigns and posting images on your Instagram account.
- the Takumi social creator application software and the associated data and media (the App); and
- the electronic documents which describe the functionality and operation of the App (the Documents).
The App and the Services allow you to receive payment from the Brand Owners or Brand Agency for participating in the Brand Owner's advertising campaigns and posting certain images on your Instagram account.
You acknowledge that Instagram has not endorsed the App or any Services and that Instagram is not responsible for the App or any Services.
The Brand Owners
When you agree to participate in a Brand Owner's advertising campaign via the App or our Services:
- your participation in the Brand Owner's advertising campaign is subject to the campaign rules set by the Brand Owner and notified to you via the App; and
- we are not party to the contract between you and the Brand Owner and Brand Agency.
As the contract which governs your participation in the Brand Owner's advertising campaign is between you and the Brand Owner and/or Brand Agency, we shall not be liable to you, whether in contract, tort (including negligence), breach of statutory duty or otherwise for any loss or damage you incur in connection with your participation in the Brand Owner's advertising campaign or as a result of the acts or omissions of the Brand Owner and/or Brand Agency (including, without limitation, the Brand Owner's objection to the images you post on Instagram which results in non-payment to you). If there is an issue with the Brand Owner and/or Brand Agency, including with respect to any Brand Owner product sent to you at your request, your rights are against the Brand Owner and/or Brand Agency.
Your contract with the Brand Owner and/or Brand Agency means that:
(b) you give to the Brand Owner (and/or to the Brand Agency for the benefit of the Brand Owner) the royalty-free, non-exclusive, permission to use your User Content in the Campaign or on any digital medium, including but not limited to:
- On the Brand Owner’s website
- In the Brand Owner’s social media accounts
- In the Brand Owner’s email marketing
There is no expiry date on this permission and you may not withdraw the permission for any reason.
(c) if the Brand Owner or Brand Agency has any complaint about your activity or about your User Content then they can make that complaint directly against you.
Payment for Participation in Campaigns
We will pay you, for your successful participation in the Brand Owner's advertising campaign provided that:
- you post the image on your own public Instagram account;
- the content you post is original and created by you for the specific campaign;
- you have, at the time you post the image, at least 1,000 (one thousand) followers on Instagram (excluding followers you have purchased);
- you must leave the image posted on your Instagram account for at least 48 consecutive business day (a "business day" is Monday to Friday inclusive (excluding bank and public holidays in England or New York)) hours with the caption, mentions and hashtags unchanged throughout that period;
- the Brand Owner has not, within the 48 business day hours period since the image was first posted, objected to the image on the grounds that you have failed to comply with the campaign rules notified to you via the App;
- You have not received any take down notice from Instagram in relation to the User Content or any other content.
- neither the Brand nor Takumi have objected to the image on the grounds that it is offensive or damages the goodwill or reputation of Takumi or the Brand; and
- you have fully complied with any other campaign rules notified to you via the App.
Each image you post that adheres to the above criteria is a Qualifying Image. You will be paid the relevant amount for the campaign as specified on the campaign pages within the App. Provided that your image satisfies all of the above criteria, we will pay you the full campaign amount to your Takumi wallet, after the 48 business day hours since you first posted the image on your Instagram account.
You can withdraw funds from your Takumi wallet at any time. Any funds you withdraw will be credited to you by the payment method you select via the App.
You expressly authorize Takumi's service providers, Dwolla, Inc. and Adyen BV, to originate credit transfers to your financial institution account.
American Creators that earn $600 or more in a calendar year will have to fill in a W9 form and Takumi will issue a 1099 as per the IRS’ guidelines.
Operating System Requirements
The App requires an Apple iPhone 4S or any more recent model, internet access and the iOS 8 operating system or higher. You may also use the App on an Android device.
- From time to time updates to the App may be issued by the Appstore (as defined below). Depending on the update, you may not be able to use the App or the Services until you have downloaded the latest version of the App and accepted any new terms.
Third party sites
- The App or any Services may contain links to other independent third-party websites, including the Brand Owner's websites (Third-party Sites). Third-party Sites are not under our control, and we are not responsible for and do not endorse their content or their privacy policies (if any). You will need to make your own independent judgement regarding your interaction with any Third-party Sites, including the purchase and use of any products or services accessible through them.
General Use/Parental Consent
- This App and its related Services are intended only for use by those who are 18 years of age or older. If you are not 18 or older, you cannot use this App or any Services without the accompaniment and supervision of your parent or legal guardian. If you are a parent or legal guardian, you agree that you will monitor and supervise the use of this App and the Services by children, minors and others under your care, and you agree to be responsible for their use of this App and the Services. Any use of this App and the Services by persons under the age of 16 without parental consent can result in immediate termination of your use of this App and the Services.
- You have no right to have access to the App in source-code form.
- We license, and do not sell, the App or the Documents to you. We remain the owner of the App and the Documents.
- You must ensure that:
(a) your User Content complies with all applicable laws, regulations, codes and standards, including without limitation those related to advertising;
(c) If your User Content includes any creative work that belongs to someone else you have obtained permission from them to include it in the User Content to be licenced to the Brand Owner. You will be fully responsible for any compensation that such a person seeks for use of their work and if any such person makes a claim against the Brand Agency or the Brand Owner you will be responsible for the amounts claimed by them;
(d) If any other person is visible in your User Content then you must explain to them what the User Content will be used for and have their express consent to submit the User Content to us and to give the Brand Owner the licence that we describe below;
(e) you do not post the User Content on any digital location/platform other than that specified in the Campaign Brief.
THE FOLLOWING APPLIES TO AMERICAN CREATORS:
Campaign rules may require you to make certain disclosures with respect to the content you post. YOU HEREBY AGREE THAT YOU WILL MAKE ALL SUCH DISCLOSURES AS REQUIRED IN ANY CAMPAIGN RULES AND WILL INDEMNIFY AND HOLD US HARMLESS FROM AND AGAINST ANY CLAIMS ARISING FROM YOUR FAILURE TO MAKE DISCLOSURES AS REQUIRED BY CAMPAIGN RULES OR AS REQUIRED BY LAW.
Right to Monitor and Editorial Control
- We also reserve the right at all times to disclose any information you submit to the App or any Service as necessary to satisfy any law, regulation or government request.
Intellectual Property Rights
- As between you and us, we own, solely and exclusively, all intellectual property rights and all other rights, title and interest in and to the App, the App Content, the Documents and the Technology (including without limitation all the components (including, for example, audio, photographs, illustrations, graphics, other visuals, video, copy, text, software, titles, etc.), code, data and materials thereon, the look and feel, design and organization of the App, and the compilation of the content, code, data and materials on the App, including but not limited to any copyrights, trademark rights, patent rights, database rights, moral rights, sui generis rights and other intellectual property and proprietary rights therein). Your use of the App does not grant to you ownership of the App, the App Content, the Documents or the Technology or any content, code, data or materials you may access on or through the App. Unless otherwise noted, all non-submitted content included on the App, including images, illustrations, designs, icons, photographs, video clips, text and other material, is the property of Takumi or their suppliers, licensors, partners or affiliates and is protected by United Kingdom and international copyright laws. Any and all non-user submitted content on the App is either the property of Takumi or is used by us with the permission of its owner. The compilation of the App is the exclusive property of Takumi and is protected by United Kingdom and international copyright laws. You agree that you will not take any actions inconsistent with Takumi’s ownership of the App, the App Content, the Documents or the Technology.
- Any unauthorized use of any content or materials on this App is strictly prohibited and may violate copyright and trademark laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes.
- Before you can make use of certain Services associated with this App, you must register with the App and create a user account by following the account setup process. You agree and warrant that all information you provide to us through this App, including but not limited to any contact information, registration information and payment information for your account, is truthful and accurate. You further agree to maintain the accuracy of your account information and to inform us promptly of any changes to your account information, including but not limited to any changes to your public-facing Instagram account details.
- You agree to accept responsibility for all activities that occur under your account. You agree not to disclose your account password to others, and you agree to notify us immediately of any unauthorized use of your account by sending us an email to email@example.com. We are neither responsible for nor liable, whether in contract, tort (including negligence), breach of statutory duty or otherwise for any loss, damage or other injury that you may incur as a result of someone else using your user account or password, either with or without your knowledge.
- You are expressly prohibited from selling, trading, or transferring your account (including but not limited to, selling, trading or transferring account details associated with such account).
Submission of Content and User Activity
- Takumi allows users to post or upload materials to the App or to our servers. You understand that all information, communications, data, text, software, music, sound, photographs, graphics, images, videos, messages or other materials posted or uploaded to the App or our servers ("User Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such User Content originated. This means that you, and not Takumi, are entirely responsible for all User Content that you upload, post, email, transmit or otherwise make available through the App or any associated Services. Nothing in the definition of User Content is intended or should be construed to include your creative content created pursuant to or in connection with any separate agreements you have with Takumi. This clause and the provisions related thereto are intended only to cover materials that are uploaded to the App, including but not limited to, images, messages, comments, and other such items.
- Each user shall be provided access to their own Brand Owner advertising campaign feed featuring curated campaigns tailored to each user. Users will not be permitted to see such information for third party users of the App or unrelated accounts not owned or controlled by user.
- You represent and warrant that you own or otherwise control all the rights to any User Content that you upload, transmit or otherwise make available through the App; that use of the User Content you provide does not violate the intellectual property rights or any other rights of any third parties, and that use of the User Content you provide will not cause injury to any person or entity. In line with, and without limiting, the foregoing, you specifically agree that you will not: (a) provide any User Content that is unlawful or any User Content that advocates illegal activity; (b) provide any User Content that is defamatory, false or libelous, or that contains unlawful, harmful, threatening, harassing, discriminatory, abusive, profane, pornographic or obscene material; (c) provide any User Content that you do not have a right to provide under law or under a contractual or fiduciary relationship; (d) provide content of minors where parental consent has not been given; (e) provide content of minors where the minor is not fully aware of the potential Brand Owner’s use of the content under Takumi’s license terms; (f) provide any User Content that contains software viruses or other harmful devices; or (g) impersonate any other person or entity or forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content you provide.
- By participating in the Brand Owner's advertising campaigns on the Takumi App you grant the Brand Owner (and/or to the Brand Agency for the benefit of the Brand Owner) a royalty-free, non-exclusive, perpetual, irrevocable licence to use the User Content on all digital channels, including but not limited to; social media accounts, as organic or sponsored posts, websites and as part of e-mail marketing. Any further use of your User Content will have to be agreed between you and the Brand Owner. There is no expiry date on this permission and you may not withdraw the permission for any reason.
- It is not practicable for us to monitor and check all User Content. Therefore, you understand that by using the App and the Services, you may be exposed to User Content that is offensive, indecent or objectionable. Under no circumstances will Takumi be liable in any way, whether in contract, tort (including negligence), breach of statutory duty or otherwise for any User Content, including, but not limited to, for any errors or omissions in any User Content, or for any loss or damage of any kind incurred as a result of the use of any User Content posted, emailed, transmitted or otherwise made available via the App or any Service.
- The opinions expressed in postings or other User Content on this App or any Service are not necessarily those of Takumi or its content providers, advertisers, sponsors, affiliated or related entities. We make no representations or warranties regarding any information or opinions posted to or otherwise included on or transmitted though the App or any Service. We do not represent or guarantee the truthfulness, accuracy, or reliability of any User Content or determine whether the User Content violates the rights of others. You acknowledge that any reliance on material posted by other users will be at your own risk.
- We are not obligated to regularly review, monitor, delete or edit the User Content of the App as submitted by users. However, we reserve the right to do so at any time in our sole discretion, for any reason or no reason, and to edit or delete any posting or submission, in whole or in part, with or without notice. We are not responsible or liable, whether in contract, tort (including negligence), breach of statutory duty or otherwise for damages of any kind arising from any User Content , or from our alteration or deletion of any User Content, even when we are advised of the possibility of such damages.
Limitation of Liability
IN ALL CASES, TO THE FULLEST EXTENT PERMITTED BY LAW:
YOU ACKNOWLEDGE THAT THE APP HAS NOT BEEN DEVELOPED TO MEET YOUR INDIVIDUAL REQUIREMENTS, AND THAT IT IS THEREFORE YOUR RESPONSIBILITY TO ENSURE THAT THE FACILITIES AND FUNCTIONS OF THE APP AS DESCRIBED IN THE DOCUMENTS MEET YOUR REQUIREMENTS.
WE ONLY SUPPLY THE APP AND DOCUMENTS FOR DOMESTIC AND PRIVATE USE. YOU AGREE NOT TO USE THE APP AND DOCUMENTS FOR ANY COMMERCIAL, BUSINESS OR RESALE PURPOSES, AND WE HAVE NO LIABILITY TO YOU FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY.
- THE FOLLOWING TERMS APPLY TO AMERICAN CREATORS:
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (Notice). Takumi’s address for Notice is: Takumi USA Inc., 33 West 17th Street, New York, NY 10011, Attn: Mats Stigzelius, Chief Executive Officer. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (Demand). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Takumi may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Takumi must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by Takumi prior to selection of an arbitrator, Takumi will pay you the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by Takumi in settlement of the dispute prior to the arbitrator’s award; or (C) $15,000.
- No Class Actions. YOU AND TAKUMI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Takumi agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- If clause 32.6 above is found to be unenforceable or if the entirety of this clause 32 is found to be unenforceable, then the entirety of this clause 32 will be null and void.
- THE FOLLOWING TERMS APPLY TO AMERICAN CREATORS:
- we discontinue the App or any of the Services; or
- your agreement with the Appstore expires or terminates.
- you must immediately delete or remove the App from all Devices, and immediately destroy all copies of the App and Documents then in your possession, custody or control and certify to us that you have done so; and
- we may remotely access the Devices and remove the App from all of them and cease providing you with access to the Services.
Copyright Infringement Claims
- Takumi respects the intellectual property rights of third parties, and complies with all applicable laws regarding such rights. Takumi reserves the right to remove access to infringing material posted to its App. Such actions do not affect or modify any other rights Takumi may have under law or contract.
- Repeat Infringer Policy. Takumi’s intellectual property policy is to (a) remove or disable access to material that Takumi believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available on the App or Services; and (b) remove any User Content posted by “repeat infringers.” Takumi considers a “repeat infringer” to be any user that has posted User Content for whom Takumi has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such user. Takumi has discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon Takumi’s own determination.
- Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the App or Services has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a Notification of Claimed Infringement containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Takumi with the user alleged to have infringed a right you own or control, and you hereby consent to Takumi making such disclosure. Your communication must include substantially the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
- Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Takumi to locate the material;
- Information reasonably sufficient to permit Takumi to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
Designated Agent Contact Information. Takumi’s designated agent for receipt of Notifications of Claimed Infringement (Designated Agent) can be contacted at:
- Via E-mail: firstname.lastname@example.org
- Via U.S. Mail: Maria Jonny, Takumi USA Inc., 33 West 17th Street, New York, NY 10011
- Counter Notification. If you receive a notification from Takumi that material you posted has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Takumi with what is called a Counter Notification. To be effective, a Counter Notification must be in writing, provided to Takumi’s Designated Agent through one of the methods identified in clause 23.3 above and include substantially the following information:
- your physical or electronic signature;
- identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the your address is outside of the United States, for any judicial district in which Takumi may be found, and you will accept service of process from the person who provided notification in accordance with clause 23.3 above or an agent of such person.
You should consult a lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid Counter Notification under the Copyright Act.
- Reposting of Creator Content Subject to a Counter Notification. If you submit a Counter Notification to Takumi in response to a Notification of Claimed Infringement, then Takumi will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Takumi will replace the removed Content or cease disabling access to it in 10 business days, and Takumi will replace the removed Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Takumi’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Takumi’s system or network.
- False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Takumi] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Takumi reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
For clarity, and notwithstanding anything in this clause 23 to the contrary, Takumi in its sole discretion may (but has no obligation to) disclose publicly any and all Notices of Claimed Infringement and Counter Notifications.
Events Outside Our Control
- If you have any questions or suggestions regarding these terms and conditions, please contact us at Takumi International Ltd, 1 St Katharines Way, London, E1W 1UN or email us at email@example.com.
- If we have to contact you or give you notice in writing, we will do so be e-mail or pre-paid post to the e-mail address or postal address you provided when you requested the App.
- The Campaign Brief will contain full legal details of the Brand Owner or Brand Agency and the means of contacting the relevant people within those organisations.
Law and Jurisdiction
- With respect to non-American Creators, this agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
With respect to American Creators, this agreement is governed by the internal substantive laws of the State of New York without respect to its conflict of laws provisions. With respect to claims not governed by clause 20 above, each party irrevocably submits to the exclusive jurisdiction of the federal or state courts located in New York County, New York.
- Your legal contract with the Brand Owner and/or Brand Agency is governed by English Law. If either you or the Brand Owner and/or Brand Agency have any complaints against each other then those complaints may be effected directly between the relevant parties and not via Takumi.
Effective: May 30, 2017