This agreement is a legal agreement between the organisation on whose behalf you accept this agreement (Brand Owner) and Takumi International Limited, a company incorporated and registered in England and Wales with company number
9325188 whose registered office is at 91 Wimpole St, London W1G 0EF, UK (Takumi International).
If you do not agree to the terms of this agreement, you will not be able to access or use the Takumi platform.
You warrant that, by accepting the terms of this agreement, you will bind the Brand Owner to the terms of this agreement and that you have the authority to bind the Brand Owner to the terms of this agreement.
If you are an agency:
- you may use the Takumi platform for the sole purpose of setting up and running the Brand Owner's advertising campaigns on the Brand Owner's behalf;
- you warrant that, by accepting this agreement, you will bind the Brand Owner to the terms of this agreement and that you have the authority to bind the Brand Owner to the terms of this agreement;
- you will comply with the terms of this agreement as if you were the Brand Owner;
- the Brand Owner shall be responsible for your acts and omissions in relation to this agreement as if they were the Brand Owner's own; and
- you accept the limitations and exclusions of Takumi International's liability in this agreement which shall apply to both you and the Brand Owner.
- Takumi International has developed the Takumi mobile application which allows brand owners to connect with users of Instagram to source original branded content and if requested get the users to submit the content to their Instagram accounts
- The Brand Owner would like to use the Takumi platform to run advertising campaigns in which users of Instagram can participate via the App.
- Takumi International has agreed to allow the Brand Owner to use the Takumi platform for those purposes subject to the terms and conditions of this agreement.
The following definitions apply in this agreement.
- App: as defined in the background section of this agreement.
- Authorised Users: as defined in clause 7.1.
- Brand Owner Manager: the Brand Owner's manager for this agreement appointed in accordance with clause 8.1.1.
- Brand Owner Names: means brand names and trade marks owned by the Brand Owner as notified by the Brand Owner to Takumi International from time to time.
- Business Day: Monday to Friday (inclusive) excluding bank and public holidays in England.
- Campaign: the Brand Owner's advertising campaigns run via the Platform.
- Campaign Materials: the information, materials, data , graphics and images supplied or used by the Brand Owner to support the Campaign.
- Campaign Rules: the rules of a Campaign set by the Brand Owner in accordance with clause 8.2.
- Confidential Information: all confidential information (however recorded, preserved or disclosed) including but not limited to: (i) the existence and terms of this agreement; (ii) any information that would be regarded
as confidential by a reasonable business person relating to: (a) the business, accounts, affairs, contacts, clients, suppliers, plans, intentions, or market opportunities of either party; or (b) the operations, finances, transactions,
processes, product information, know-how, designs, trade secrets or software of either party; (iii) any information either party designates as confidential; and (iv) any information or analysis derived from any confidential information.
- Data Processor, Personal Data, Process: as defined by the DPA. DPA: Data Protection Act 2018.
- Force Majeure Event: any circumstance not within a party's reasonable control including, without limitation: (i) acts of God, flood, drought, earthquake or other natural disaster; (ii) epidemic or pandemic; (iii) terrorist
attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (iv) nuclear, chemical or biological contamination or sonic
boom; (v) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; (vi) collapse
of buildings, fire, explosion or accident; (vii) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause); and (viii) interruption or failure of utility
- Instagram: the third party online photo-sharing, video-sharing and social networking service that allows users to take pictures and share them across a range of social networking platforms.
- Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up
and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including
know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to
claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
- Takumi International Names: the brand name and trade mark "Takumi" which is owned by Takumi International and such other brand names and trade marks owned by Takumi International as notified by Takumi International to
the Brand Owner from time to time.
- Takumi International Manager: Takumi International's manager for this agreement appointed in accordance with clause 7.1.1.
- Payment Date: the date on which the Campaign is payable, reflected on Takumi’s sales invoice.
- Platform: the Takumi platform which can be used by the Brand Owner to purchase, set up and run Campaigns in which Social Creators can participate via the App.
- Platform Content: all software, code, data, graphics and information comprised within the Platform and the look and feel of the Platform.
- Qualifying Post: any form of Instagram post (including but not limited to a single image, video, Boomerang, gallery, story) as defined in clause 10.4.
- Social Creator: an Instagram user who has more than 1,000 (one thousand) followers of their Instagram account (excluding followers the Social Creator has purchased).
- Social Creator Data: any Personal Data relating to a Social Creator.
- Social Creator Fees: as defined by clause 10.4.
- VAT: value added tax chargeable under the Value Added Tax Act 1994.
The following rules of interpretation apply in this agreement.
- Clause, schedule and paragraph headings shall not affect the interpretation of this agreement;
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
- A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established;
- Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular;
- Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders;
- This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective permitted assigns, and references to any party shall include that party's permitted assigns;
- A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision;
- References to clauses are to the clauses of this agreement;
- Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those
Brand Owner Names
- The Brand Owner acknowledges and agrees that the Takumi International Names are trade marks owned by Takumi International and that, save as expressly set out in this agreement, the Brand Owner has no right to use the Takumi International
Names for any purpose or purposes.
- Takumi International acknowledges and agrees that the Brand Owner Names are trade marks owned by the Brand Owner and that, save as expressly set out in this agreement, Takumi International has no right to use the Brand Owner Names for any
purpose or purposes.
Commencement and duration
- This agreement shall commence on the date of this agreement and shall continue until it is terminated by either party in accordance with the terms of this agreement.
This agreement shall operate as a framework and shall apply to:
- the Brand Owner's use of the Platform; and
- all Campaigns run by the Brand Owner via the Platform.
- The parties shall agree which members of the Brand Owner's staff shall have access to the Platform (Authorised Users).
- Subject to the terms of this agreement, Takumi International hereby grants the Brand Owner a royalty-free, non-exclusive, non-transferrable right to permit the Authorised Users to use the Platform during the term of this agreement for the
Brand Owner's internal business purposes only.
- Takumi International shall provide the Authorised Users with the logins and passwords they need to access and use the Platform.
- The Brand Owner shall ensure that all logins and passwords are used only by their designated Authorised User and are kept strictly confidential.
- If the Brand Owner knows or suspects that a login or password has been disclosed or discovered by an unauthorised third party, the Brand Owner shall notify Takumi International immediately so Takumi International can disable them.
- The Brand Owner shall notify Takumi International immediately if an Authorised User leaves the Brand Owner's organisation so that Takumi International can disable all relevant logins and passwords.
- Takumi International has the right to disable any Authorised User's login and password at any time if Takumi International, acting reasonably, believes the Brand Owner or any Authorised User has misused the Platform in any way.
- The Brand Owner shall be responsible for the acts and omissions of the Authorised Users as if they were the Brand Owner's own.
Brand Owner's responsibilities
The Brand Owner shall:
- co-operate with Takumi International in all matters relating to this agreement and appoint (and, as it thinks fit, replace) the Brand Owner Manager in relation to this agreement, who shall have the authority contractually to bind the
Brand Owner on matters relating to this agreement;
- provide Takumi International with such information, documentation, materials and data as Takumi International may reasonably require relating to the Brand Owner and/or the Campaign. The Brand Owner warrants that all such information,
documentation, materials and data are accurate and complete in all material respects; and
- ensure that it has, and at all times maintains, all necessary licences, consents and permissions necessary for it to perform its activities under this agreement.
- Pay all Campaigns before or on the due date as per the Takumi invoices. Takumi reserves the right to pause all campaign activity if Brand Owner has overdue balances with Takumi.
Takumi International's obligations
Takumi International shall:
- co-operate with the Brand Owner in all matters relating to this agreement and appoint (and, as it thinks fit, replace) the Takumi International Manager, who shall have the authority contractually to bind Takumi International on matters
relating to this agreement;
- provide the Brand Owner with instructions on how to use the Platform; and
- make available to the Brand Owner online tutorials, videos, demonstrations, frequently asked questions and an email helpline to support the Brand Owner's use of the Platform.
- The Brand Owner may run Campaigns via her Takumi Account Manager or by logging into the Platform and using the Platform's campaign set-up tool.
- The Brand Owner shall, taking account of any reasonable recommendations made by Takumi International, set the Campaign Rules for each Campaign which shall be communicated by Takumi International to the Social Creators via the App.
- Each Campaign shall run from the start date to the end date set by the Brand Owner using the Platform's campaign set-up tool.
- The Brand Owner shall ensure that each Campaign and all Campaign Materials comply with all applicable laws, regulations, codes and standards, including without limitation all applicable advertising standards.
The Brand Owner acknowledges and agrees that the Campaign and the Campaign Materials are the Brand Owner's responsibility. Therefore, except as expressly set out in this agreement:
- Takumi International shall have no liability to the Brand Owner whether in contract, tort (including negligence), breach of statutory duty or otherwise for any claims, costs, damages, demands, expenses, liabilities or losses incurred
by the Brand Owner in connection with the Campaign or Campaign Materials; and
- the Brand Owner shall indemnify Takumi International for any claims, costs, damages or expenses incurred by Takumi International in connection with the Campaign or the Campaign Materials.
- Takumi International may, without notice and without liability to the Brand Owner, remove from the Platform any Campaign or Campaign Materials which Takumi International, acting reasonably, believes does not comply with this agreement or
brings Takumi International or its name or reputation into disrepute.
Takumi International warrants that:
- the Platform will be of satisfactory quality and fit for its intended purpose; and
- the Platform will comply with all applicable laws and regulations.
- Takumi International reserves the right to make changes to the Platform at any time without notice to the Brand Owner.
- Whilst Takumi International will use reasonable endeavours to ensure that the Platform is available 24/7, Takumi International shall have no liability to the Brand Owner if the Platform is for any reason unavailable or interrupted.
The Brand Owner shall not use the Platform:
- to transmit any data or to send or upload any material or images which contain viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware or any other harmful programs or similar computer code designed to adversely affect
the operation of any computer software or hardware;
- to send unsolicited or unauthorised advertising or promotional materials to any person; or
- to send any defamatory, offensive or otherwise objectionable messages to any person.
- Takumi International does not monitor the messages sent and received via the Platform. Therefore, Takumi International shall not be liable to the Brand Owner whether in contract, tort (including negligence), breach of statutory duty or otherwise
for any messages sent or received via the Platform.
- Takumi International reserves the right to remove any messages which breach the terms of this agreement or which bring Takumi International or its name or reputation into disrepute without notice.
- The Brand Owner shall not: 1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
- attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform or the Platform Content in any form or media or by any means;
- attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform or the Platform Content;
- use the Platform to provide services to third parties;
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform and/or the Platform Content available to any third party except the Authorised Users; or
- attempt to obtain, or assist third parties in obtaining, access to the Platform.
- If the Brand Owner discovers that the Platform and/or the Platform Content has been used in breach this agreement, the Brand Owner shall notify Takumi International immediately.
Charges and payment
- The Brand Owner shall pay Takumi International the Campaign Fees prior to launching the Campaign, unless otherwise agreed with Takumi. Payment terms are reflected on the sales invoice sent by Takumi to the Brand Owner.
- If the Brand Owner chooses to pay via credit card, the Brand Owner authorises Takumi International to charge all payments due to Takumi International under this agreement to the Brand Owner's payment card, details of which are held by Takumi
- Takumi International shall set the fees payable to the Social Creators who create Qualifying Posts (Social Creator Fees).
The Social Creator Fees shall be payable by Takumi International to any Social Creator who has subscribed to the Campaign and whose campaign submission meets all of the following requirements (Qualifying Post):
- the post must fully comply with the Campaign Rules;
- the Brand Owner has not, within 48 Business Day hours after the post is submitted to the Takumi Admin, objected to the post on the grounds that it does not comply with the Campaign Rules.
- unless the Brand Owner requests that the content does not get posted to Instagram, the Social Creator must have posted on his or her own public Instagram account;
- the Social Creator must, at the time of posting, have at least 1,000 followers on Instagram (excluding followers the Social Creator has purchased);
- the Social Creator must leave the post on their Instagram account for at least 48 consecutive Business Day hours (Takumi strongly advises creators to leave posts up for 30 consecutive days).
- If a Social Creator submits a Qualifying Post on his or her Instagram account, Takumi International shall pay the Social Creator the Social Creator Fees 48 Business Day hours after the Social Creator first submitted the Qualifying Post on
his or her Instagram account.
- Takumi International shall add applicable VAT to the sums payable under this agreement at the prevailing rate.
Intellectual property rights
- The parties agree that, subject to clause 11.2, all Intellectual Property Rights and all other rights in the Platform and the Platform Content belong exclusively to Takumi International and Takumi International's licensors. Except as expressly
set out in this agreement, the Brand Owner has no rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Platform
and/or the Platform Content.
- The parties agree that all Intellectual Property Rights and all other rights in the Campaign Materials and the Brand Owner Names shall belong exclusively to the Brand Owner and the Brand Owner's licensors. The Brand Owner grants Takumi International
a royalty-free, non-exclusive, non-transferrable licence to publish the Campaign Materials and the Brand Owner Names on the Platform and the App for the purposes of this agreement.
- Takumi International shall procure from each Social Creator a royalty-free, non- exclusive, irrevocable, perpetual licence for the Brand Owner to post the Social Creator's Qualifying Post on all digital channels, including but not limited
to the Brand Owner's Instagram and other social media accounts, for use as paid social content, for display on Brand Owners website or as part of e-mail marketing campaigns. Any further use will have to be agreed between the Brand Owner
and Social Creator.
- Takumi International reserves the right to use selected Qualifying Posts for promoting the Takumi Platform.
- Each party (the Licensor) warrants to the other party (the Licensee) that the Licensee's use of the Licensor's Intellectual Property Rights and other rights licensed to the Licensee under clauses 11.1 or 11.2 shall not infringe the Intellectual
Property Rights or other rights of any third party. If the Licensor breaches the warranty set out in this clause 13.5, it shall indemnify the Licensee for all claims, costs, damages and demands incurred by the Licensee as a result.
Subject to clauses 12.2, 12.3 and 12.4, each party (Receiving Party) undertakes that it shall not at any time:
- disclose to any person any Confidential Information which has been disclosed to it by the other party (Disclosing Party), its employees, agents, consultants or subcontractors; or
- use the Disclosing Party's Confidential Information for any purpose other than for the purposes of this agreement.
The restrictions in clause 12.1 shall not apply to the extent that the Confidential Information:
- is or becomes generally available to the public other than as a result of its disclosure by the Receiving Party in breach of this agreement;
- was lawfully in the possession of, or available to, the Receiving Party on a non- confidential basis prior to disclosure by the Disclosing Party;
- was, is or becomes available to the Receiving Party on a non-confidential basis from a person who, to the Receiving Party's knowledge, is not bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from
disclosing the information to the Receiving Party; or
- is required to be disclosed by a court of competent jurisdiction or any governmental or regulatory authority.
- The Receiving Party may disclose the Disclosing Party's Confidential Information to its employees, officers, sub-contractors, representatives or advisers who need to know such information for the purposes of this agreement, provided that
the Receiving Party ensures that such employees, officers, sub-contractors, representatives or advisers comply with this clause 12.
- The Brand Owner acknowledges and agrees that any data or information held by Takumi International in connection with this agreement may be stored by Takumi International's cloud service provider and Takumi International shall not be in breach
of this clause 12 as a result of disclosing the Brand Owner's Confidential Information to Takumi International's cloud services provider, provided that Takumi International ensures that its cloud service provider complies with this clause
- The Intellectual Property Rights in the Platform and the Platform Content shall be part of Takumi International's Confidential Information.
- The Campaign Materials shall be part of the Brand Owner's Confidential Information.
- Each party warrants that it shall fully comply with its obligations under the DPA and under all other applicable laws, enactments, regulations, orders, standards and other similar instruments relating to the processing of Social Creator
To the extent that Takumi International acts as the Brand Owner's Data Processor, it shall:
- process the Social Creator Data only in accordance with the Brand Owner's instructions from time to time and shall not process the Social Creator Data for any other purpose or purposes; and
- take appropriate technical and organisational measures against the unauthorised or unlawful processing of the Social Creator Data and against the accidental loss or destruction of, or damage to, the Social Creator Data.
- Takumi International shall ensure that each Social Creator receives a fair processing notice which complies with the requirements of the DPA.
Neither party shall use any Social Creator Data for any purpose except:
- to deliver the services provided by the App;
- to run the Campaigns in accordance with this agreement; or
- for other purposes authorised by Takumi International in writing from time to time.
- Each party agrees to indemnify the other party for all claims, costs, damages and demands incurred by the other party as a result of the first party's breach of this clause 13.
Limitation of liability
Nothing in this agreement shall limit or exclude Takumi International's liability for:
- death or personal injury caused by its negligence;
- fraud or fraudulent misrepresentation; or
- any other liability which cannot be lawfully limited or excluded.
Subject to clause 14.1, Takumi International shall not be liable to the Brand Owner, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the agreement for:
- loss of profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of or damage to goodwill;
- loss of use or corruption of software, data or information; or
- any indirect or consequential loss.
- Subject to clauses 14.1 and 14.2, Takumi International's total liability to the Brand Owner, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement
shall be limited to the amount the Brand Owner paid Takumi International in the previous month, subject always to an overall liability cap of £5,000 (five thousand pounds) in total.
- All terms implied by statute are, to the fullest extent permitted by law, excluded from this agreement.
Either party may terminate this agreement with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
- the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this
- the other party is, in the terminating party's reasonable opinion, at risk of insolvency.
Consequences of termination
On termination of this agreement:
Takumi International shall:
- promptly end all live Campaigns on the Platform so no more Social Creators can partake in the Campaigns;
- pay all Social Creators the Social Creator Fees which become payable to them regardless of whether they become payable before or after the termination of this agreement;
once all live Campaigns have been concluded and all Social Creators have been paid their Social Creator Fees:
- disable the Brand Owner's account(s) so the Authorised User's can no longer access or use the Platform; and
- return all Campaign Materials to the Brand Owner, save that Takumi International may keep one copy for legal and compliance purposes;
- the Brand Owner shall once all live Campaigns have been concluded, immediately stop accessing and using the Platform;
- the terms of this agreement shall continue to apply to all Campaigns until all Social Creators have been paid all their Social Creator Fees;
- the licenses under clauses 11.1 and 11.2 shall terminate automatically; and
- each party shall promptly return to the other party all the other party's Confidential Information.
- On termination of this agreement, clauses which expressly or by implication survive the termination of this agreement shall continue in force including clauses 2, 5.8, 8.5, 9.3, 11.3, 11.5, 12, 13, 14 and 16.
- The termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination , including the right to claim damages in respect of any breach of the agreement
which existed at or before the date of termination or expiry.
- Provided it has complied with clause 17.2, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach
of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
The Affected Party shall:
- as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure
Event on its ability to perform any of its obligations under this agreement; and
- use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
- If the Force Majeure Event prevails for a continuous period of more than one month, either party may terminate this agreement with immediate effect by giving written notice to the other party.
- No variation of this agreement shall be effective unless it is in writing and signed by the parties.
- No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any
other right or remedy.
- If any provision or part-provision of this agreement is or becomes invalid, illegal 1 or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.
- This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral,
relating to its subject matter.
- Neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement without the other party's prior written consent.
- Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other party, or authorise either party to make or enter into any
commitments for or on behalf of the other party.
- No one other than a party to this agreement shall have any right to enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
- delivered by hand or by pre-paid first-class post or other next working day delivery service at its address set out at the start of this agreement or to such other address as it may notify in accordance with this clause 19.11; or
sent by email to the following email address or to such other email address as it may notify in accordance with this clause 17.11:
- Takumi International: email@example.com;
Any notice or communication shall be deemed to have been received:
- if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
- if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the second Business Day after posting or at the time recorded by the delivery service;
- if sent by email, at 9.00am on the next Business Day after transmission.
- Clause 17.11 and clause 17.12 do not apply to the service of any proceedings or other documents in any legal action.
- 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
- 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).
Effective: Nov 12, 2018